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State v. Boales

Court of Criminal Appeals of Tennessee, Jackson

April 13, 2017

STATE OF TENNESSEE
v.
MARCUS BOALES

          Assigned on Briefs January 5, 2017

         Appeal from the Circuit Court for Henderson County Nos. 94-470, 96-162, 96-164, 00-002-1 Roy B. Morgan, Jr., Judge No. W2016-00567-CCA-R3-CD

         The defendant, Marcus Boales, appeals from the trial court's dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 for failure to assert a colorable claim. Discerning no error, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          George Morton Googe, District Public Defender; Hewitt Chatman (on appeal) and Caroline Ballentine (at hearing), Assistant Public Defenders, for the appellant, Marcus Boales.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         On October 3, 1994, in case number 94-470, the defendant was indicted for theft of property over $1000. On April 8, 1996, in case numbers 96-162 and 96-164, the defendant was indicted for sale of .5 grams or more of cocaine, delivery of .5 grams or more of cocaine, possession with intent to sell .5 grams or more of cocaine, and possession with intent to deliver .5 grams or more of cocaine. The defendant agreed to pled guilty to the theft charge, one count of sale of cocaine, and one count of possession with intent to sell cocaine, in exchange for sentences of four years on the theft charge and eight years on each of the drug charges, all to run concurrently with each other but consecutively to prior sentences he was serving. The trial court imposed the agreed-upon sentence on December 6, 1996.

         On February 7, 2000, in case number 00-002-1, the defendant was indicted for two counts of sale of cocaine and two counts of delivery of cocaine. The defendant pled guilty to one count of sale of cocaine in exchange for a sentence of four-and-a-half years. On August 18, 2000, the trial court imposed a sentence of four-and-a-half years' probation effective the day of sentencing. On September 24, 2004, the trial court revoked the defendant's probation and ordered him to serve his original four-and-a-half-year sentence. On October 13, 2004, the trial court entered a corrected judgment, noting that the four-and-a-half-year sentence was to run concurrently with the defendant's sentence from a case in another county.

         Years later, the defendant filed a petition for writ of habeas corpus, which the habeas court dismissed on July 1, 2013, for lack of jurisdiction as the defendant was in federal custody in Arkansas. The defendant then filed a motion in opposition to the habeas court's order. The habeas court entered another order denying the motion, filed on August 5, 2013, stating that it was "without jurisdiction" because the defendant was in federal custody and, additionally, because "[p]ursuant to [Tennessee Code Annotated section] 29-21-102, the [p]etitioner [was] not entitled to the benefits of a writ in the State of Tennessee." This court affirmed the habeas court's judgment on appeal. Marcus Boales v. State, No. W2013-02512-CCA-R3-HC, 2014 WL 3954029, at *3 (Tenn. Crim. App. July 30, 2014).

         Finally, on March 4, 2015, the defendant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court appointed counsel and then held a hearing on July 20, 2015. At the hearing, the State noted that all of the defendant's sentences had expired. The trial court observed that the Tennessee Supreme Court had recently granted an appeal in order to decide whether Rule 36.1 applied to expired sentences. The trial court proposed continuing the case until the supreme court ruled on the issue. The State agreed with the approach, but the defendant asked the trial court to rule on the motion. The trial court told the defendant that, if it were to rule on the motion, it would agree with the State that the sentences were expired and that the motion should be denied. The defendant then agreed that the case be continued until the supreme court ruled on the issue.

         The Tennessee Supreme Court ruled on the question on December 2, 2015, in State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015), holding that Rule 36.1 was inapplicable to expired sentences. The trial court then dismissed the defendant's Rule 36.1 motion on February 19, 2016, noting that the defendant's sentences expired on March ...


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