Court of Criminal Appeals of Tennessee, Knoxville
from the Circuit Court for Sullivan County No. S58151 R.
Jerry Beck, Judge
se Appellant, Felicia Annette Mitchell, appeals as of right
from the Sullivan County Circuit Court's order summarily
dismissing her motion to correct illegal sentences. Tenn. R.
Crim. P. 36.1. The State has filed a motion to affirm the
trial court's order pursuant to Tennessee Court of
Criminal Appeals Rule 20. Following our review, we conclude
that the State's motion is well-taken and affirm the
order of the trial court.
R. App. P. 3; Judgment of the Circuit Court Affirmed Pursuant
to Rule 20, Rules of the Court of Criminal Appeals.
Felicia Annette Mitchell, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Assistant Senior Counsel, for the appellee,
State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
October 11, 2013, the Appellant pleaded guilty to various
drug offenses and was sentenced to an effective five years.
On August 27, 2015, the Appellant filed a motion to correct
illegal sentences, alleging that her plea was not knowingly
and voluntarily entered. On the same day, the trial court
summarily denied the motion, finding that it was untimely if
treated as a petition for post-conviction relief and did not
raise a colorable claim for the correction of an illegal
sentence. The Appellant filed a timely notice of appeal.
appeal the Appellant argues that the trial court's
summary denial was erroneous and that the court's
noncompliance with Tennessee Rule of Criminal Procedure 11
renders her sentences illegal. The State argues that this
court should affirm the trial court's summary dismissal
by memorandum opinion because the Appellant failed to state a
colorable claim pursuant to Rule 36.1.
Criminal Procedure Rule 36.1 states, in relevant part, that
(a) Either the defendant or the state 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. For purposes of this
rule, an illegal sentence is one that is not authorized by
the applicable statutes or that directly contravenes an
R. Crim. P. 36.1(a). A defendant is entitled to a hearing and
the appointment of counsel if the motion states a colorable
claim for relief. Id. at 36.1(b). Further, the trial
court is required to file an order denying the motion if it
determines that the sentence is not illegal. Id. at
a defendant states a colorable claim is a question of law and
is reviewed de novo. State v. Wooden, 478 S.W.3d
585, 588 (Tenn. 2015). A colorable claim is defined as
"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." Id. at 593. A
motion filed pursuant to Rule 36.1 "must state with
particularity the factual allegations on which the claim for
relief from an illegal sentence is based." Id.
at 594. A trial court "may consult the record of the
proceeding from which the allegedly illegal sentence
emanated" when determining whether a motion states a
colorable claim for relief. Id.
fatal errors result in an illegal sentence and "are so
profound as to render the sentence illegal and void."
Id. at 595; see State v. Cantrell, 346
S.W.2d 445, 452 (Tenn. 2011). Fatal errors include sentences
imposed pursuant to an inapplicable statutory scheme,
sentences that designate release eligibility dates when early
release is prohibited, sentences that are ordered to be
served concurrently when consecutive service is required, and
sentences that are not authorized by statute.
Wooden, 478 S.W.3d at 595. Errors which are merely
appealable, however, do not render a sentence illegal and
include "those errors for which the Sentencing Act
specially provides a right of direct appeal."
Id.; see Cantrell, 346 S.W.2d at 449.
Appealable errors are "claims akin to . . . challenge[s]
to the sufficiency of the evidence ...