Assigned on Briefs: April 11, 2017
from the Criminal Court for Shelby County No. 03-05193,
03-05200 James C. Beasley, Jr., Judge.
than twelve years ago, Defendant, Courtney Means, was
convicted of three counts of aggravated robbery. As a result,
he was sentenced to an effective sentence of twenty-four
years in confinement. His convictions and sentence were
affirmed on direct appeal. State v. Courtney Means,
No. W2005-00682-CCA-R3-CD, 2006 WL 709206 (Tenn. Crim. App.
Mar. 21, 2006), perm. app. denied (Tenn. Sept. 5,
2006). In January of 2016, Defendant filed a motion to
correct an illegal sentence pursuant to Tennessee Rule of
Criminal Procedure 36.1. The trial court appointed counsel,
had a hearing, and then determined that Defendant's
claims were not colorable. As a result, the trial court
denied relief. Defendant appealed. We affirm the denial of
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Courtney Means, Henning, Tennessee, Pro se (on appeal), and
Mark Mesler, Memphis, Tennessee (at hearing), for the
appellant, Courtney Means.
Herbert H. Slatery III, Attorney General and Reporter; Andrew
C. Coulam, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Michael McClusker, Assistant
District Attorney General, for the appellee, State of
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE.
is no stranger to the legal process. Defendant targeted
elderly people in the Memphis area-in this case, gutlessly
robbing three of them at gunpoint in their driveways or
carports. See id. at *1; see also State v.
Courtney Means, No. W2004-01446-CCA-R3-CD, 2005 WL
1323260 (Tenn. Crim. App. June 3, 2005) (detailing
Defendant's robberies of four additional elderly victims
during the Christmas shopping season of December 2002),
perm. app. denied (Tenn. Dec. 5,
2005). Ten years after his convictions and
sentences were affirmed in this case, Defendant filed a pro
se motion for relief pursuant to Tennessee Rule of Criminal
Procedure 36.1. Defendant argued that he was entitled to
relief from his allegedly illegal sentences because an
outdated presentence report from another case was used at his
sentencing hearing, the trial court failed to award pre-trial
jail credits, and the sentence was excessive.
just reason, a judge from a different division of the
criminal court appointed counsel to represent
Defendant. After a hearing by the proper judge, the
trial court determined that Defendant did not present a
colorable claim because "[a]ny issues that are now being
raised under the guise of 36.1 . . . are procedural in nature
and should have been raised in a post-conviction petition. .
. ." Defendant appealed.
argues on appeal that the trial court improperly denied
relief under Rule 36.1. Specifically, he insists that his
sentences are illegal due to: (1) the absence of an updated
presentence report; (2) the trial court's failure to
award pre-trial jail credits; and (3) the trial court's
abuse of its discretion in sentencing. Defendant's brief
does not raise ineffective assistance of counsel. Defendant
also argues that the statute of limitations does not bar him
from stating a colorable claim because Rule 36.1 provides
that he can file a motion to correct the illegal sentence
"at any time." The State urges this Court to affirm
the denial of relief under Rule 36.1.
36.1 permits a defendant to seek correction of an illegal
sentence. "[A]n illegal sentence is one that is not
authorized by the applicable statutes or that directly
contravenes an applicable statute." Tenn. R. Crim. P.
36.1(a) (2015). At the time Defendant filed his motion in
January of 2016, Rule 36.1 provided that "[e]ither the
defendant or the state may, at any time, seek the correction
of an illegal sentence." Id. The rule has since
been amended by deleting the "at any time"
language. Tenn. R. Crim. App. 36.1(a) (2016). That change was
in response to our supreme court's decision in State
v. Brown, 479 S.W.3d 200 (Tenn. 2015). In that case, the
court held that Rule 36.1 "does not authorize the
correction of expired illegal sentences." Id.
Defendant's sentences are not expired, Rule 36.1 permits
only the correction of illegal sentences. Our supreme court
recently interpreted the meaning of "illegal
sentence" as defined in Rule 36.1 and concluded that the
definition "is coextensive, and not broader than, the
definition of the term in the habeas corpus context."
State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015). The court then reviewed the three categories of
sentencing errors: clerical errors (those arising from a
clerical mistake in the judgment sheet), appealable errors
(those for which the Sentencing Act specifically provides a
right of direct appeal), and fatal errors (those so profound
as to render a sentence illegal and void). Id. at
595. Commenting on appealable errors, the court stated that
those "generally involve attacks on the correctness of
the methodology by which a trial court imposed [the]
sentence." Id. In contrast, fatal errors
include "sentences imposed pursuant to an inapplicable
statutory scheme, sentences designating release eligibility
dates where early release is statutorily prohibited,
sentences that are ordered to be served concurrently where
statutorily required to be served consecutively, and
sentences not authorized by any statute for the
offenses." Id. The court held that only fatal
errors render sentences illegal. Id.
pro se motion, while written in nearly perfect penmanship, is
essentially a primer on all the wrong ways to seek relief
through a motion filed under Rule 36.1. Defendant's claim
that the trial court failed to award pre-trial jail credits
is not a fatal error. Brown, 479 S.W.3d at 212-13
(determining that pre-trial jail credit claims cannot form
the basis for relief under Rule 36.1). Moreover, any issue
with regard to the inaccuracy of a presentence report is, at
most, an appealable error indicating some issue with the
actual process by which Defendant's sentences were
imposed. See Wooden, 478 S.W.3d at 595.
Additionally, any claim that a sentence is excessive is an
appealable error. See State v. Brian E. Dodson, No.
E2016-00037-CCA-R3-CD, 2016 WL 3131272 (Tenn. Crim. App. Apr.
27, 2016) (holding that claim of an excessive within-range
sentence is not cognizable under Rule 36.1), perm. app.
denied (Tenn. Sept. 23, 2016). Finally, to the extent
that Defendant tried to insert a claim of ineffective
assistance of counsel into the motion by way of his testimony
at the hearing on the motion, ineffective assistance is
not a ...