Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs September 20, 2016
from the Criminal Court for Hamilton County No. 247368 Don W.
Scott Grammer, filed a pro se motion to correct an
illegal sentence in the Hamilton County Criminal Court
pursuant to Tennessee Rule of Criminal Procedure 36.1. The
trial court denied the motion, and Appellant appeals the
ruling. After a thorough review of the record and applicable
law, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
W. Grammer, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; and M. Neal Pinkston,
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
T. WOODALL, PRESIDING JUDGE
23, 2005, Appellant was convicted by a jury of three counts
of aggravated sexual battery of his stepdaughter. State
v. Scott W. Grammer, No. E2005-02604-CCA-R3-CD, 2007 WL
595908, at *1 (Tenn. Crim. App., Feb. 26, 2007), perm.
app. denied (Tenn., June 18, 2007). The trial court
sentenced Appellant to 11 years on each count, with two
counts to run consecutively, for an effective sentence of 22
years. Id. The trial court also placed Appellant on
community supervision for life and ordered him to register as
a sex offender. This court affirmed Appellant's
conviction and sentence on appeal. Id.
February 2, 2016, Appellant filed a pro se Tennessee
Rule of Criminal Procedure 36.1 motion to correct his
allegedly illegal sentence, which the trial court summarily
dismissed. The trial court found that Appellant did not state
a colorable claim because Appellant did not allege that the
community supervision sentence was not authorized or directly
contravened a statute at the time he received his sentence.
The trial court also concluded that the community supervision
statutes were not an unconstitutional delegation of
contends that his sentence is illegal because the community
supervision statutes, Tennessee Code Annotated sections
39-13-524 and -526, violate Article II, section 3 of the
Tennessee Constitution. Appellant argues that the statutes
are an unconstitutional delegation of legislative power and
are void ab initio, or void upon their enactment.
The State responds that Appellant has not presented a
colorable claim under Rule 36.1 because no court declared the
community supervision statutes to be unconstitutional before
Appellant was sentenced.
Rule of Criminal Procedure 36.1 provides, in part, that a
defendant may "seek the correction of an illegal
sentence by filing a motion to correct an illegal sentence in
the trial court in which the judgment of conviction was
entered." Tenn. R. Crim. P. 36.1(a). Rule 36.1 defines
an illegal sentence as "one that is not authorized by
the applicable statutes or that directly contravenes an
applicable statute." Id. Pursuant to Rule 36.1,
a defendant would be entitled to a hearing and the
appointment of counsel if he or she stated a colorable claim
for relief. Tenn. R. Crim. P. 36.1(b). The Tennessee Supreme
Court has stated that a colorable claim pursuant to Rule 36.1
is a "claim that, if taken as true and ...