Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Circuit Court for Jackson County No. 08-CR-57 Brody
N. Kane, Judge
petitioner, Robert Allen Territo, appeals the summary
dismissal of his Rule 36.1 motion to correct an illegal
sentence by the Circuit Court for Jackson County. On appeal,
the petitioner argues that (1) he should have been sentenced
as a Range I offender; (2) the trial court erred by
improperly enhancing his sentence above the statutory
minimum; (3) the trial court violated Rule 11 by accepting
his guilty plea; and (4) he received ineffective assistance
of counsel. Upon review, we affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Allen Territo, Tiptonville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Tom P. Thompson, Jr., District
Attorney General; and James M. Lea, Jr., Assistant District
Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which Norma McGee Ogle and Robert W. Wedemeyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
August 18, 2008, the petitioner was indicted for aggravated
sexual battery, two counts of rape of a child, and three
counts of incest. These charges stemmed from the
petitioner's admission to Jackson County sheriff's
office that he had sexual contact with his twelve-year-old
daughter, A.T. On February 11, 2010, the petitioner
signed a petition waiving all rights to a trial by jury and
an appeal and requested the trial court to accept his guilty
plea for one count of aggravated sexual battery. The
petitioner acknowledged that he was pleading outside of his
range in exchange for the State's dismissal of the
remaining counts. Pursuant to the plea agreement, the
petitioner pled guilty to one count of aggravated sexual
battery as a Range II offender and received an effective
sentence of fifteen years' incarceration to be served at
one hundred percent.
January 14, 2016, the petitioner filed the following motions:
a motion to obtain trial transcript, a request for discovery
and inspection pursuant to Rule 16 of the Tennessee Rule of
Criminal Procedure, and a motion to obtain child protect[ive]
services victim interview. He also filed a motion to proceed
in forma pauperis. The trial court entered an order on
January 28, 2016, dismissing his motions because he failed to
file his motions "within the prescribed statute of
limitations." This order was filed on February 2, 2016.
On February 9, 2016, the petitioner filed a motion to correct
illegal sentence, alleging that the trial court erred by
enhancing his sentence and sentencing the petitioner as a
Range II offender, rather than a Range I offender. He also
asserted that his sentence violated the principles of the
Sentencing Act. Finally, he claimed that he received
ineffective assistance of counsel. On February 22, 2016, the
petitioner filed a notice of appeal requesting the same
documents and transcripts as his January 14 motion. The trial
court entered an order on March 9, 2016, dismissing the
notice of appeal and all other "pleadings/motions."
This order was entered on March 14, 2016. It is from this
order that the Petitioner appeals.
appeal, the petitioner argues that his sentence is illegal
because the trial court failed to find any enhancement
factors to justify a sentence above the statutory minimum and
thereby sentencing the petitioner as a Range II offender. He
also claims that the trial court "abrogated Rule
11" by accepting his guilty plea. Finally, he argues
that he received ineffective assistance of counsel because
his attorney allowed the petitioner to receive a sentence
above the statutory minimum and to plead outside his
applicable sentencing range. The State argues that the
petitioner failed to present a colorable claim under Rule
36.1 and that the petitioner's ineffective assistance of
counsel claim is barred by the one-year statute of
limitations. Upon review, 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. ...