Assigned on Briefs January 5, 2017
from the Circuit Court for Henderson County Nos. 94-470,
96-162, 96-164, 00-002-1 Roy B. Morgan, Jr., Judge No.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
E. Glenn, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
E. GLENN, JUDGE.
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.
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.
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).
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.
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 ...