from the Criminal Court for Shelby County Nos. 98-10932-35;
98-05756-60; 98-10946 John W. Campbell, Judge
Defendant, Jarvis D. Cohen, appeals the trial court's
denial of his motion to correct an illegal sentence pursuant
to Tennessee Rule of Criminal Procedure 36.1. After review,
we affirm the denial of the Defendant's Rule 36.1 motion.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Terrell L. Tooten, Cordova, Tennessee, for the appellant,
Jarvis D. Cohen.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Amy P. Weirich, District Attorney
General; and Kirby May, Assistant District Attorney General,
for the appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr. and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE
Defendant confessed to killing Mr. Choong Rau while in the
process of robbing Bryan's Grocery Store on February 6,
1998. See Jarvis D. Cohen v. State, No.
W2002-00828-CCA-R3-PC, 2003 WL 21339278, at *1 (Tenn. Crim.
App. May 15, 2003), perm. app. denied (Tenn. Oct. 6,
2003). At the same time that he pled guilty to felony murder
for the killing of Mr. Rau, the Defendant pled guilty to
attempted first degree murder, two counts of especially
aggravated robbery, eight counts of aggravated robbery, two
counts of attempted aggravated robbery, two counts of
aggravated assault, and one count of possession of marijuana
with the intent to sell or deliver, arising from other
indictments. Id. The Defendant was sentenced to life
for the felony murder conviction, twenty years for the
attempted first degree murder, twenty years for each count of
especially aggravated robbery, twelve years for each count of
aggravated robbery, six years for each count of attempted
aggravated robbery, six years for each count of aggravated
assault, and one year for possession of marijuana with the
intent to sell or deliver, with all sentences to run
concurrently for an effective life sentence. Id.
August 24, 2015, the Defendant filed a motion to correct an
illegal sentence pursuant to Rule 36.1 of the Tennessee Rules
of Criminal Procedure. In his motion, the Defendant contended
that he was released on bond when he committed some of the
offenses, and, therefore, the trial court was required to
impose consecutive sentencing on those sentences.
January 11, 2016, the State filed a response to the
Defendant's motion. In its response, the State gave a
detailed recitation of the facts underlying the
Defendant's numerous charges and acknowledged that eight
of the indictments against the Defendant related to incidents
occurring when the Defendant was out on bond and that those
sentences should have been run consecutively to one another.
However, the State asserted that the Defendant failed to show
that the concurrent sentencing was a material component of
the plea agreement. The State later filed an amended response
on March 28, 2016, asserting the same argument.
trial court held a hearing on May 20, 2016, at which the
Defendant testified that concurrent sentencing in all of his
cases was a material part of why he entered into the plea
the hearing, the trial court issued an order denying the
Defendant's motion. The trial court reviewed the history
and timeline of the numerous offenses to which the Defendant
pled guilty on August 27, 1999. The court acknowledged that
it appeared that the Defendant was on bond when he committed
some of his crimes and, therefore, the Defendant received an
illegal sentence with regard to the offenses committed while
on bond. However, the court noted that the Tennessee Supreme
Court had recently, in State v. Wooden, 478 S.W.3d
585 (Tenn. 2015), applied habeas corpus analysis to Rule 36.1
claims. The court held that under habeas corpus rules, a
claim that a defendant had received a concurrent sentence
when consecutive sentencing was required was not an
actionable claim. The court denied the Defendant's Rule
36.1 motion because his alleged illegal sentences had either
expired or because habeas corpus law "does not allow for
the attack of an illegal sentence when it is received as a
result of a negotiated plea agreement and [the Defendant]
received concurrent sentencing when consecutive sentencing
was required by law."
appears that the State filed a motion to consider
post-judgment facts contemporaneously with its brief in this
appeal. With that motion, the State included an affidavit
from the Sentence Information Services Manager of the
Tennessee Department of Correction, which indicated that all