ASSIGNED ON BRIEFS FEBRUARY 7, 2017
from the Criminal Court for Shelby County No. 03-01051 James
C. Beasley, Jr., Judge
Montreal Lyons, appeals from the trial court's dismissal
of his motion to correct an illegal sentence pursuant to
Tennessee Rule of Criminal Procedure 36.1. Defendant contends
that his sentence is illegal because the trial court imposed
the sentence for offenses that occurred in 2002 under the
2005 amendments to the sentencing act without an ex post
facto waiver signed by Defendant. The State responds
that the trial court properly dismissed Defendant's
motion because he failed to state a colorable claim for
relief. We agree with the State. Accordingly, we affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
C. Cooper Davis, Greenfield, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Kenya Smith, Assistant
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which Camille R. McMullen, and J. Ross Dyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
was convicted of four counts of aggravated robbery and one
count of especially aggravated kidnapping. State v.
Montreal Lyons, No. W2006-02445-CCA-R3-CD, 2008 WL
2699657 (Tenn. Crim. App., July 9, 2008), perm. app.
denied (Tenn., Jan. 20, 2009). The trial court merged
the four aggravated robbery convictions into two convictions,
and Defendant was sentenced to twelve years for each
aggravated robbery conviction and twenty years for his
especially aggravated kidnapping conviction. His sentences
were ordered to run consecutively, for an effective sentence
of 44 years' incarceration.
offenses occurred on May 14, 2002, and the facts underlying
Defendant's convictions were summarized by a panel of
this court in the opinion on direct appeal. Id. The
panel noted that Defendant "ma[de] no argument as to
whether the trial court utilized the pre- or post-2005
version of the sentencing act to determine his
sentence." Id. at *4. Defendant also did not
raise the issue in the appeal from the denial of
post-conviction relief. Montreal Lyons v. State, No.
W2010-00798-CCA-R3-PC, 2011 WL 3630330 (Tenn. Crim. App.,
Aug. 18, 2011), perm. app. denied (Tenn., Dec. 14,
December 7, 2015, Defendant filed a pro se Rule 36.1
motion to correct an illegal sentence. The trial court
appointed an attorney to represent Defendant and held a
hearing on the motion on April 1, 2016. At the hearing, the
State stipulated and the trial court recognized that
Defendant was sentenced under the 2005 amendments to the
written order dismissing the motion, the trial court found
that the parties "agreed that the sentencing procedure
was not proper under [State v.] Gomez[, 239
S.W.3d 733 (Tenn. 2007)]. The court concluded, however, that
the sentence was not illegal. The court stated:
The sentence was authorized by applicable statutes and was
within the proper range of punishment for [Defendant].
There was a valid justification for the sentence imposed
based strictly on [Defendant]'s prior criminal history,
notwithstanding the other factors ...