Court of Criminal Appeals of Tennessee, Knoxville
from the Criminal Court for Polk County No. 04-097 Andrew
se defendant, David Frazier, appeals as of right from the
Polk County Criminal Court's order summarily dismissing
his motion for correction of illegal sentence. Tenn. R. Crim.
P. 36.1. The State has filed a motion to affirm the trial
court's order pursuant to Rule 20 of the Rules of the
Tennessee Court of Criminal Appeals. 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 Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
Frazier, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; and Stephen D. Crump, District
Attorney General, for the appellee, State of Tennessee.
Curwood Witt, Jr., J., delivered the opinion of the Court, in
which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ.,
CURWOOD WITT, JR., JUDGE.
19, 2004, the pro se defendant pleaded guilty to two counts
of felony evading arrest. Pursuant to the negotiated plea
agreement, the trial court imposed concurrent two-year
sentences. The defendant was adjudicated for at least four
violations of probation from 2004 through 2007. On September
21, 2013, the defendant filed a motion to correct illegal
sentence. He later filed an amendment to the motion alleging
that he was on bail for the first evading arrest offense when
he committed the second offense. On November 12, 2013, the
trial court summarily dismissed the motion. On appeal, this
court concluded that the defendant had presented a colorable
claim and remanded the case for a hearing to determine
whether the defendant had proven his allegations and, if so,
whether the illegal sentence was a material element of the
defendant's plea. David Frazier v. State, No.
E2013-02563-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., at
Knoxville, June 16, 2013). On remand, the trial court
attempted to remedy the illegality by correcting the
judgments to reflect two consecutive one-year sentences, but
failed to make any findings concerning whether the illegal
sentence was a material element of the plea.
April 27, 2015, the defendant filed the instant motion to
correct illegal sentence alleging that the remand court
failed to follow the instructions of this court's
opinion. On August 20, 2015, the trial court
entered an order finding that the defendant had presented a
colorable claim. The trial court vacated the remand
court's corrected judgments as void and set the matter
for further hearing. At the December 15, 2015 hearing, the
trial court found that the defendant had presented a
colorable claim that the sentences were illegal because they
were imposed concurrently, rather than consecutively, for a
felony offense that occurred while on bail for another
offense. Tenn. R. Crim. P. 32(c)(3)(C). The court further
found, however, that the sentences had long ago expired and,
therefore, the defendant was not entitled to relief. The
defendant filed a timely notice of appeal from the trial
36.1 provides the defendant and the State an avenue to
"seek the correction of an illegal sentence, "
defined as a sentence "that is not authorized by the
applicable statutes or that directly contravenes an
applicable statute." Tenn. R. Crim. P. 36.1; see
also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015) (holding that "the definition of 'illegal
sentence' in Rule 36.1 is coextensive with, and not
broader than, the definition of the term in the habeas corpus
context"). To avoid summary denial of an illegal
sentence claim brought under Rule 36.1, a defendant must
"state with particularity the factual allegations,
" Wooden, 478 S.W.3d at 594, establishing
"a colorable claim that the sentence is illegal, "
Tenn. R. Crim. P. 36.1(b). "[F]or purposes of Rule 36.1
. . . '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." Wooden, 478 S.W.3d at 593. The
determination whether a Rule 36.1 "motion states a
colorable claim for correction of an illegal sentence under
Rule 36.1 is a question of law, to which de novo review
applies." Id. at 589 (citing Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007)).
Rule 36.1, at the time of the defendant's filing,
purported to allow for the correction of an illegal sentence
"at any time, " see Tenn. R. Crim. P. 36.1
(2015), our supreme court has concluded that "the phrase
'at any time' has no bearing on whether Rule 36.1
authorizes relief from expired illegal sentences" but
instead "conveys two other important, but unrelated,
principles: (1) an illegal sentence may be corrected 'at
any time, even if [the sentence] has become final,
' and (2) Rule 36.1 motions, like habeas corpus
petitions, are not subject to any statute of
limitations." State v. Brown, 479 S.W.3d 200,
210 (Tenn. 2015). The high court ultimately held "that
Rule 36.1 does not expand the scope of relief and does not
authorize the correction of expired illegal sentences.
Therefore, a Rule 36.1 motion may be summarily dismissed for
failure to state a colorable claim if the alleged illegal
sentence has expired." Id. at 211.
case, the defendant pleaded guilty in exchange for an
effective two-year sentence in 2004. Clearly, the
defendant's sentences expired long before he filed the
Rule 36.1 motion in 2015. In consequence, the trial court did
not err by summarily dismissing the motion. Accordingly, we
affirm the judgment of the Polk County Criminal Court
pursuant to Rule 20 of the Rules of the Tennessee Court of