Court of Criminal Appeals of Tennessee, Knoxville
27, 2017 Session
from the Circuit Court for Cocke County Nos. 6617, 6618,
6820, & 9827 Ben W. Hooper II, Judge
State appeals as of right from the Cocke County Circuit
Court's grant of the Defendant's, James Mark
Thornton's Tennessee Rule of Criminal Procedure 36.1
motion to correct an illegal sentence. The State contends
that the trial court erred because the challenged sentence
was not illegal. We agree with the State and dismiss the
Defendant's Rule 36.1 motion.
Herbert H. Slatery III, Attorney General and Reporter; John
H. Bledsoe, Deputy Attorney General; James B. Dunn, District
Attorney General; and William Brownlow Marsh, Assistant
District Attorney General, for the appellant, State of
Nikolas Kear, Gatlinburg, Tennessee, for the appellee, James
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and Robert L. Holloway, Jr., JJ.,
KELLY THOMAS, JR., JUDGE
2000, the Defendant pled guilty to numerous offenses
involving the sale of cocaine in three separate cases: 6617,
6618, and 6820. All of the Defendant's sentences were
ordered to be served concurrently for a total effective
sentence of eight years. In 2006, the Defendant pled guilty
to another drug offense in case 9827, and received a
twenty-five-year sentence. As part of that plea agreement,
the Defendant waived his right to a probation revocation
hearing for cases 6617, 6618, and 6820. Those sentences were
ordered into execution. However, the sentences from cases
6617, 6618, and 6820 were ordered to be served concurrently
to the sentence in case 9827. The sentences for all of the
Defendant's state convictions were ordered to be served
concurrently to a separate federal sentence.
February 2008, the Defendant filed a petition for writ of
habeas corpus, alleging that his sentences in cases 6617,
6618, 6820, and 9827 were void because he had been released
on bond in cases 6617 and 6618 when he committed the offenses
at issue in case 6820. The habeas corpus court denied the
Defendant's petition, and this court affirmed the denial
on direct appeal. James Mark Thornton v. State,
E2009-00399-CCA-R3-HC, slip op. at 1 (Tenn. Crim. App. July
15, 2010). A panel of this court concluded that the Defendant
had received an illegal sentence in case 6820, but that he
had failed to establish that he was restrained of his liberty
as a result of the judgments in cases 6617, 6618, and 6820.
Id. at 7. With respect to case 9827, the panel
concluded that "the concurrent alignment of the . . .
sentence imposed in case number 9827 [with the sentences in
cases 6617, 6618, and 6820] [did] not render that judgment
void." Id. at 8-9.
2015, the Defendant filed separate Rule 36.1 motions to
correct illegal sentences in the three June 2000 cases and
case 9827. The motions were consolidated, and the Defendant
alleged that he should be allowed to withdraw his guilty plea
in case 9827 because he had received an illegal sentence in
case 6820 and that the resolution of his probation violation
for cases 6617, 6618, and 6820 was part of a
"global" plea agreement, which also involved case
9827. At the evidentiary hearing on this matter, the
Defendant testified that he would not have pled guilty to
case 9827 if "the State had insisted" that his
sentence be served consecutively to cases 6617, 6618, and
6820. At the conclusion of the hearing, the trial court
granted the Defendant's Rule 36.1 motion, stating that
the Defendant's sentence in case 9827 was void because it
was "intertwined" with case 6820, in which the
Defendant had received an illegal sentence. The State timely
appealed to this court.
time the Defendant's motion was filed,  Rule 36.1 allowed
for either the defendant or the State to "seek the
correction of an illegal sentence." Tenn. R. Crim. P.
36.1(a) (2015). "Illegal sentence" was defined in
the rule as a sentence "that [was] not authorized by the
applicable statutes or that directly contravene[d] an
applicable statute." Id. If an illegal sentence
"was entered pursuant to a plea agreement" and
"the illegal provision was a material component of the
plea agreement, " then Rule 36.1 authorized the trial
court to allow the defendant to withdraw their plea. Tenn R.
Crim. P. 36.1(c)(3).
term "illegal sentence" "is synonymous with
the habeas corpus concept of a 'void' sentence."
Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim. App.
2001), overruled on other grounds,
Moody v. State, 160 S.W.3d 512 (Tenn. 2005).
"[F]ew sentencing errors [will] render [a sentence]
illegal." State v. Wooden, 478 S.W.3d 585, 595
(Tenn. 2015). Examples of illegal sentences include
"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 offense." Id.
agree that the Defendant's sentence in case 6820 was
illegal. However, even the original version of Rule 36.1 does
"not authorize the correction of expired illegal
sentences." State v. Brown, 479 S.W.3d 200, 211
(Tenn. 2015). The Defendant concedes that his sentences in
cases 6617, 6618, and 6820 are expired. Likewise, the
Defendant concedes that his sentence in case 9827 was not
illegal. Rather, the Defendant argues that concurrent
sentencing for case 6820 with his remaining cases was a
material element of his plea agreement in 9827. However, the
record belies that assertion.
Defendant testified at the evidentiary hearing that he would
not have pled guilty in case 9827 if he had been required to
serve his sentence in that case consecutively to his
sentences in 6617, 6618, and 6820. As this court recognized
in the Defendant's habeas corpus appeal, there was no
requirement that case 9827 be served consecutively to cases
6617, 6618, and 6820. Furthermore, correction of the illegal
sentence in case 6820 would not require that it, or the
sentences from cases 6617 and 6618, be served consecutively
to case 9827. Therefore, even if the sentence in case 6820
was corrected and ordered to be served consecutively to the
sentences in cases 6617 and 6618, it would not affect the
Defendant's sentence in case 9827 because the
twenty-five-year sentence is being served concurrently to the
sentences in the June 2000 cases and would still be ...