Assigned on Briefs February 7, 2017
from the Criminal Court for Shelby County No. 99-09509 Chris
petitioner, Robert Page, appeals the summary dismissal of his
Rule 36.1 motion to correct an illegal sentence by the
Criminal Court of Shelby County. In this appeal, the
petitioner claims his original sentence is illegal because
the trial court "increased his sentence beyond the
presumptive sentence" in violation of Blakely v.
Washington, 542 U.S. 296 (2004), and its progeny. Upon
our review, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Page, Hartsville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Reginald Henderson, Assistant
District Attorney General, for the Appellee, State of
Camille R. McMullen, J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and J. Ross Dyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
August 17, 1999, the petitioner was indicted for and
subsequently convicted of second degree murder for his
participation in the beating and death of Roosevelt Burgess.
State v. Page, 184 S.W.3d 223, 226 (Tenn. 2006). The
trial court sentenced him to serve thirty-eight years'
imprisonment in the Tennessee Department of Correction. This
court reversed his conviction on direct appeal and remanded
the case for a new trial based on the trial court's
failure to instruct the jury on facilitation. State v.
Robert Page, No. W2003-01342-CCA-R3-CD, 2004 WL 3352994,
at *16 (Tenn. Crim. App. Aug. 26, 2004). Upon further review,
the Tennessee Supreme Court reversed and concluded that the
failure to instruct on lesser-included offenses in the
petitioner's case did not constitute plain error.
Page, 184 S.W.3d at 226. The petitioner then filed a
petition for post-conviction relief, the denial of which was
affirmed by this court. Page v. State, No.
W2010-02268-CCA-R3-PC, 2011 WL 6234525, at *1 (Tenn. Crim.
App. Dec. 13, 2011). On May 4, 2016, the petitioner filed a
motion to correct illegal sentence, alleging that the trial
court improperly applied two enhancement factors to increase
his sentence in violation of Blakely and its
progeny. The trial court summarily dismissed the motion by
order on June 21, 2016. It is from this order that the
appeal, the petitioner claims the trial court erred in
summarily denying his Rule 36.1 motion without a hearing. He
argues his motion states a colorable claim for relief under
Rule 36.1 because the trial court increased his sentence
based on the following enhancement factors: "(1) the
defendant . . . treated or allowed victim to be treated with
exceptional cruelty during the commission of the offense with
regard to being beaten to death with a two-by-four, with all
injuries; [and] (2) the defendant has previous history or
unwillingness to comply with conditions of sentence involving
release into the community." In response, the State
contends the trial court properly denied relied because the
petitioner failed to state a cognizable claim for relief. We
agree with the State.
to Rule 36.1 of the Tennessee Rules of Criminal Procedure, a
petitioner is only entitled to a hearing and appointment of
counsel "[i]f the motion states a colorable claim that
the unexpired sentence is illegal." Tenn. R. Crim. P.
36.1(b)(3); see State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015). 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). Whether a motion states a colorable claim
for correction of an illegal sentence under Rule 36.1 is a
question of law, which this court reviews de novo.
Id. at 589 (citing Summers v. State, 212
S.W.3d 251, 255 (Tenn. 2007)).
Wooden, the Tennessee Supreme Court recognized that
"mistakes in sentencing are inevitable, but few
sentencing errors render sentences illegal."
Id. at 595 (citing Cantrell v. Easterling,
346 S.W.3d 445, 448-49 (Tenn. 2011)). The court held that
sentencing errors could be divided into three
categories-clerical errors, appealable errors, and fatal
errors. Id. The court emphasized that only fatal
errors are "'so profound as to render the sentence
illegal and void.'" Id. (quoting
Cantrell, 346 S.W.3d at 452). This category consists
of sentences not authorized by the applicable statutes or
sentences that directly contravene an applicable statute.
Id. (citing Tenn. R. Crim. P. 36.1(a)(2);
Cantrell, 346 S.W.3d at 452). Included in the
category of fatal errors are "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. (citing Davis v.
State, 313 S.W.3d 751, 759 (Tenn. 2010). On the other
hand, appealable errors, which consist of those errors for
which the Sentencing Act provides a right of direct appeal,
include errors "'akin to . . . challenge[s] to the
sufficiency of the evidence supporting a conviction, '
such as claims that the record does not support the trial
court's factual findings regarding sentencing."
Id. (quoting Cantrell, 346 S.W.3d at
450-52). The court added that "[c]laims of appealable
error generally involve attacks on the correctness of the
methodology by which a trial court imposed sentence."
Id. (citing Cantrell, 346 S.W.3d at 450-51;
State v. Jonathan T. Deal, No.
E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim.
App. June 17, 2014)).
the petitioner's claims as true, and viewing them in the
light most favorable to him, we agree with the trial court,
and conclude that he has failed to present a colorable claim
for correction of an illegal sentence. The petitioner's
attack upon his sentence based on Blakely is an
appealable error, which does not render his sentence illegal
and void. State v. Bush, No. M2014-01193-CCA-R3-CD,
2014 WL 7204637, at *4 (Tenn. Crim. App. Dec. 18, 2014),
perm. app. denied (Tenn. Mar. 12, 2015). Because the