Assigned on Briefs January 5, 2017
from the Circuit Court for Henderson County Nos. 05-009-1,
05-010-1 Roy B. Morgan, Jr., Judge
Defendant, Corey Jermaine Hart, 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; and Hewitt Chatman,
Assistant Public Defender, for the appellant, Corey Jermaine
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.
April 25, 2005, in two separate cases, 05-009-1 and 05-010-1,
the Defendant pled guilty to possession of a Schedule II
controlled substance with intent to sell or deliver,
possession of drug paraphernalia, aggravated assault, and
reckless endangerment involving a deadly weapon. The trial
court merged the drug convictions and imposed a sentence of
ten years for that conviction. The court imposed a sentence
of eight years for the aggravated assault conviction and four
years for the reckless endangerment conviction. The trial
court ordered that all of the sentences run concurrently for
an effective term of ten years. On June 30, 2005, the trial
court entered an amended judgment for the aggravated assault
conviction, crediting the Defendant with pretrial jail
August 6, 2015, the Defendant filed a motion to correct an
illegal sentence pursuant to Tennessee Rule of Criminal
Procedure 36.1, alleging that his sentences for the
aggravated assault and reckless endangerment convictions were
illegal because they were run concurrently with his other
sentence despite the fact that he was on bail at the time he
committed the offenses. In his Rule 36.1 motion, the Defendant
also claimed that his sentences were illegal because the
trial court "did not enter a judgment that includes
the award of [pretrial jail] credits." On August 12,
2015, the trial court entered an order appointing counsel to
represent the Defendant at a hearing on the motion. The
parties agreed to continue the hearing to November 13, 2015.
On February 19, 2016, the trial court denied the motion in
light of State v. Brown, 479 S.W.3d 200, 208-09
(Tenn. 2015), in which our supreme court held that Rule 36.1
was inapplicable to expired sentences, and found that the
Defendant's sentences had expired on August 14, 2013. The
36.1 provides "a mechanism for the defendant or the
State to seek to correct an illegal sentence."
Brown, 479 S.W.3d at 208-09. When a defendant files
a motion under Rule 36.1, the trial court must determine
whether the motion "states a colorable claim that the
sentence is illegal." Tenn. R. Crim. P. 36.1(b). If it
does, the trial court should appoint counsel for the
defendant and hold a hearing to consider the
motion. Id. In the context of Rule 36.1,
a colorable claim is a claim that, "if taken as true and
viewed in a light most favorable to the moving party, would
entitle the moving party to relief under Rule 36.1."
State v. Wooden, 478 S.W.3d 585, 593 (Tenn. 2015).
Rule 36.1 "does not authorize the correction of expired
illegal sentences, " and "a Rule 36.1 motion may be
summarily dismissed for failure to state a colorable claim if
the alleged illegal sentence has expired."
Brown, 479 S.W.3d at 211.
Defendant argues that, when he filed his motion to correct an
illegal sentence on August 6, 2015, the law regarding the
applicability of Rule 36.1 to expired sentences was
unsettled. He points to two unpublished opinions of this
court as well as an order by a trial court judge granting a
Rule 36.1 motion in another defendant's case to show that
the law was unsettled at the time. Essentially, the Defendant
argues that he is entitled to ...