Assigned on Briefs July 11, 2017
from the Circuit Court for Hardeman County No. CC-10-CR-82 J.
Weber McCraw, Judge
Appellant, Nero Oswald Jones, appeals as of right from the
Hardeman County Circuit Court's summary denial of his
Tennessee Rule of Criminal Procedure 36.1 motion to correct
an illegal sentence. The Appellant contends that the trial
court erred because his motion stated a colorable claim for
relief. Discerning no error, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Oswald Jones, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; and
Breanne N. Hataway, Assistant Attorney General, for the
appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and Camille R. McMullen, JJ., joined.
KELLY THOMAS, JR., JUDGE.
2010, the Appellant was convicted of one count each of first
degree premeditated murder and voluntary manslaughter and
received a total effective life sentence. See State v.
Nero Oswald Jones, No. W2011-00465-CCA-R3-CD, 2012 WL
1096096, at *12 (Tenn. Crim. App. Mar. 30, 2012). On December
13, 2016, the Appellant filed the instant Tennessee Rule of
Criminal Procedure 36.1 motion to correct an illegal
sentence. The motion made no argument regarding the
Appellant's sentence. Rather, it alleged that the trial
court failed to properly instruct the jury. On December 19,
2016, the trial court issued a written order denying the
motion. The order stated that the motion had "no
merit" and was denied.
appeal, the Appellant contends that the trial court erred in
summarily denying his Rule 36.1 motion. The Appellant argues
that, for purposes of Rule 36.1 proceedings, the adoption of
the definition of "colorable claim" as used in
post-conviction proceedings allows for post-conviction claims
to be brought in a Rule 36.1 motion. The Appellant also
argues that the trial court's order summarily denying his
motion failed to set forth the trial court's findings of
fact and conclusions of law; therefore, this matter should be
remanded to the trial court for entry of "a more
definite statement" of its ruling.
36.1 provides that either the defendant or the State
"may seek to correct an illegal sentence." Tenn. R.
Crim. P. 36.1(a) (1). "Illegal sentence" is defined
in the rule as a sentence "that is not authorized by the
applicable statutes or that directly contravenes an
applicable statute." Tenn. R. Crim. P. 36.1(a)(2). The
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).
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.
adopting the definition of "colorable claim" that
had previously been used in post-conviction proceedings for
use in Rule 36.1 proceedings, our supreme court noted
"that the term has the same general meaning in both
contexts." Wooden, 478 S.W.3d at 593. For Rule
36.1 purposes, 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." Id. (emphasis
added). As such, a "colorable claim" for Rule 36.1
purposes is a claim that is cognizable for Rule 36.1 relief
and not any other form of post-conviction remedy.
36.1 applies to sentences and "does not provide
an avenue for seeking reversal of convictions."
State v. Jimmy Wayne Wilson, No.
E2013-02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim.
App. Mar. 31, 2014). Here, the Appellant seeks reversal of
his convictions based upon his allegation that the trial
court failed to properly instruct the jury. Such a claim is
not a colorable claim for Rule 36.1 relief. ...