Assigned on Briefs November 1, 2016
from the Criminal Court for Shelby County No. 10-04054,
10-05254 J. Robert Carter, Jr., Judge
defendant, Brandon D. Washington, appeals as of right from
the Shelby County Criminal Court's denial of his
Tennessee Rule of Criminal Procedure 36.1 motion to correct
an illegal sentence. The basis for the defendant's appeal
is the trial court's alleged failure to accurately apply
pretrial jail credits and other credits. Following our
review, we conclude that the defendant failed to state a
colorable claim and affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed Pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals
Brandon Washington, Clifton, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Amy P. Weirich, District Attorney
General; and Eric Christensen, Assistant District Attorney
General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER, JUDGE.
August 1, 2011, the defendant pled guilty in indictment No.
10-04054 to aggravated assault, intentionally evading arrest
in a motor vehicle, and unlawful possession of marijuana with
intent to sell, for which he received an effective three-year
sentence. The defendant also pled guilty in indictment No.
10-05254 to unlawful possession of Oxycodone with intent to
sell, unlawful possession of Alprazolam with intent to sell,
and unlawful possession of marijuana with intent to sell, for
which he received an effective sentence of three years.
Additionally, per the terms of the plea agreement, the
sentences in the two indictments were to be served
consecutively for an overall effective sentence of six years
in confinement. On September 21, 2011, the defendant's
sentence was suspended, and he was placed on probation for a
term of six years. The defendant subsequently violated the
terms of his probation and was ordered to serve his six-year
sentence in confinement.
January 26, 2016, the defendant filed a "Motion for
Correction of Sentence" in which he argued, among other
issues, that his sentence is illegal because he was not
credited with sufficient pretrial jail credits. On February
3, 2016, the trial court entered an order denying the
defendant's motion finding the defendant failed to state
a colorable claim.
defendant timely appealed the trial court's decision. On
appeal, the defendant contends he has been deprived of
pretrial and "good behavior" credits. He also
argues he is entitled to credit toward his sentences for the
time he served on probation. Additionally, the defendant
raises various constitutional issues including the right to
bond in another matter and ineffective assistance of counsel.
The State argues the defendant's claims do not entitle
him to relief under Tennessee Rule Criminal Procedure 36.1.
Upon review of the record and the briefs, we agree with the
Rule of Criminal Procedure 36.1 provides that the defendant
"may, at any time, 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). A sentence is
illegal if it is not authorized by the applicable statutes or
directly contravenes an applicable statute. Id. If
the motion states a colorable claim, the trial court shall
appoint counsel if the defendant is indigent and not already
represented by counsel and hold a hearing on the motion,
unless the parties waive the hearing. Tenn. R. Crim. P.
36.1(b). A "'colorable claim' means 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).
basis for the majority of the issues raised by the defendant
on appeal is that his sentence is illegal because he was not
credited with sufficient pretrial jail credits. In State
v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015), our Supreme
Court addressed the issue of whether the failure to award
pretrial jail credits constituted a "colorable
the purpose of Rule 36.1. The Court observed that while
"pretrial jail credits allow a defendant to receive
credit against his sentence for time already served,
awarding or not awarding pretrial jail credits does not alter
the sentence in any way, although it may affect the
length of time a defendant is incarcerated."
Id. (emphasis in original). The Court opined that a
litigant wishing to challenge the award of pretrial jail
credits was entitled to raise the issue on direct appeal.
Id. at 212-13. However, the Court ultimately
concluded that "a trial court's failure to award
pretrial jail credits does not render the sentence
illegal and is insufficient, therefore, to establish a
colorable claim for relief under Rule 36.1."
Id. at 213 (emphasis in original). To the extent ...