Assigned on Briefs July 25, 2017 at Knoxville
from the Criminal Court for Shelby County Nos. 99-04986,
99-05102, 99-05103, 99-05104, 99-05105, 99-05107, 99-05108,
99-05109, 99-05110, 99-05111, James M. Lammey, Judge
Defendant, Xavier Todd, appeals from the Shelby County
Criminal Court's dismissal of his motion to correct
illegal sentences. The Defendant pleaded guilty to ten
offenses, and he received an effective thirty-year sentence.
His individual sentences were imposed concurrently to each
other and concurrently to a federal sentence. On appeal, he
contends that the trial court erred in dismissing his motion.
We affirm the dismissal.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
S. Holland, Memphis, Tennessee, for the appellant, Xavier
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Amy P. Weirich,
District Attorney General; Tyler Parks, Assistant District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Alan E. Glenn and J. Ross Dyer, JJ., joined.
H. MONTGOMERY, JR., JUDGE
Defendant's motion for correction of illegal sentences
alleges that, pursuant to the negotiated plea agreement, his
ten Tennessee sentences were imposed concurrently to one
another and concurrently to a ten-year federal sentence,
despite legal requirements that the Tennessee sentences be
imposed consecutively. See T.C.A. §
40-20-111(b) (2012) (stating that consecutive sentencing is
mandatory for offenses committed while a defendant is
released on bail, provided the defendant is convicted of both
offenses); Tenn. R. Crim. P. 32(c)(3)(C) (requiring
consecutive sentencing where "the defendant was released
on bail and the defendant is convicted of both
offenses"). At the time he filed the motion for
correction of illegal sentences, the Defendant was in federal
custody after having been paroled from the Tennessee
Department of Correction to serve the federal sentence. The
record reflects, however, that the Defendant is presently
incarcerated in the Tennessee Department of Correction. The
records of this court reflect that the Defendant previously
sought habeas corpus relief based upon the concurrent
alignment of his sentences, the same grounds as are alleged
in the present Rule 36.1 action. See Xavier S. Todd v.
State, No. W2005-00681-CCA-R3-HC, 2005 WL 2259060 (Tenn.
Crim. App. Sept. 16, 2005) (mem. op.) (granting the
State's motion for summary affirmance pursuant to Tenn.
R. Crim. P. 20).
hearing on the motion to correct illegal sentences, the
defense counsel acknowledged that all of the Tennessee
sentences except two thirty-year sentences had expired.
See Tenn. R. Crim. P. 36.1 (limiting relief to
correction of illegal sentences which have not yet expired).
Defense counsel also acknowledged that the Defendant had not
been on bond for one of the cases for which he later received
a thirty-year sentence when he was charged with the other.
Counsel acknowledged, as well, that if these cases had been
the Defendant's only convictions, no illegality would
have existed as a result of concurrent sentencing. Defense
counsel argued that because all of the sentences were the
result of a plea agreement that resolved multiple cases, Rule
36.1 relief was available, notwithstanding the expiration of
the individual sentences for which the law provided mandatory
trial court dismissed the motion as not stating a colorable
claim. Concluding that some of the Defendant's sentences
had expired and that Rule 36.1 did not provide a remedy for a
defendant who received illegal concurrent sentences where the
law required consecutive sentencing, the court dismissed the
motion as failing to state a colorable claim. This appeal
issue before this court is whether the trial court erred in
dismissing the motion for failing to state a colorable claim.
Although the Defendant concedes that the two thirty-year
sentences were not subject to consecutive service because
neither was committed while he was released on bond after
having been charged with the other, he argues that because he
has not served the sentences for all of his convictions, his
sentences have not expired.
support of his argument, the Defendant relies upon
Summers v. State, 212 S.W.3d 251 (Tenn. 2007), a
habeas corpus case in which the petitioner claimed that he
had been sentenced illegally pursuant to a plea agreement
because an eleven-month, twenty-nine-day misdemeanor sentence
for escape had been imposed concurrently to an effective
forty-year sentence for three prior felony convictions, even
though the law required consecutive service for "'a
sentence for escape or for a felony committed while on
escape.'" Summers, 212 S.W.3d at 256
(quoting Tenn. R. Crim. P. 32(c)(3)(B) and noting that T.C.A.
§ 39-16-605(c) also provided for consecutive service in
this scenario). When the petitioner filed his habeas corpus
petition, he had served many years beyond the length of his
concurrent misdemeanor sentence. The supreme court said that,
for purposes of habeas corpus review, the petitioner's
challenge to the legality of his misdemeanor sentence was not
moot because "[t]he Department of Correction could
attempt to require [the petitioner] to serve his sentence for
escape at the expiration of his other sentences."
Id. at 258.
recently, in State v. Brown, 479 S.W.3d 200, 210-11
(Tenn. 2015), our supreme court said that the authority
pursuant to Tennessee Rule of Criminal Procedure 36.1 did not
extend to correction of illegal but expired sentences. The
court noted that a contrary interpretation of Rule 36.1 as it
existed at the time would permit the State "to correct
an illegally lenient sentence, even after the
sentence had been fully served, " an outcome which ...