Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 28, 2017
from the Criminal Court for Jackson County No. 02-160 John D.
Wootten, Jr., Judge No. M2017-00026-CCA-R3-CD
defendant, Michelle D. Shoemaker, appeals from the entry of
an amended judgment granting her 370 days of pretrial jail
credit. The basis for the defendant's appeal is her
allegation that the trial court erred in calculating her jail
credits and that she is actually entitled to 520 days of
pretrial credit. Following our review, we conclude that the
defendant failed to state a colorable claim and affirm the
judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals
Michelle D. Shoemaker, Henning, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Tom P.
Thompson, Jr., District Attorney General, for the appellee,
State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Thomas T. Woodall, PJ., and Robert W. Wedemeyer, J., joined.
ROSS DYER, JUDGE
2005, the defendant was convicted of first degree murder,
conspiracy to commit first degree murder, solicitation of
first degree murder, and tampering with evidence for which
she received an effective sentence of life in prison. On
September 30, 2005, the defendant field a "Motion for
Pretrial Jail Credits" citing Tennessee Code Annotated
sections 40-23-101(a) and 40-23-101(2)(c) and claiming she
was entitled to 520 days of pretrial jail credit. Based on
the record before this Court, no action was taken in response
to the defendant's initial motion. Then, on February 22,
2015, the defendant filed a "Motion to Amend Judgment to
Award Pretrial Jail Credits." While the record is void
of a response from the State or any indication that a hearing
occurred concerning the defendant's motion, the trial
court entered amended judgments on November 21, 2016,
awarding the defendant 370 days of pretrial credit. On
December 17, 2016, the defendant filed a notice of appeal.
appeal, the defendant contends she has been deprived of 150
days of pretrial credit. The State argues the defendant's
claims do not entitle her to relief under Tenn. R. Crim. P.
36.1. Upon review of the record and the briefs, we agree with
Rule of Criminal Procedure 36.1 provides that the defendant
"may, at any time, seek the correction of an illegal
sentence by filing a motion to correct an illegal sentence in
the trial court in which the judgment of conviction was
entered." Tenn. R. Crim. P. 36.1(a). A sentence is
illegal if it is not authorized by the applicable statutes or
directly contravenes an applicable statute. Id. If
the motion states a colorable claim, the trial court shall
appoint counsel if the defendant is indigent and not already
represented by counsel and hold a hearing on the motion,
unless the parties waive the hearing. Tenn. R. Crim. P.
36.1(b). A "'colorable claim' means 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).
we note that the defendant's filings in the trial court
and her initial brief to this Court do not cite to Tennessee
Rules of Criminal Procedure 36.1. However, the defendant does
cite Rule 36 in her reply brief in this Court and in response
to the State's claim she does not have an appeal as of
right from the entry of the amended judgments. Because the
record before this Court is silent as to how the trial court
treated and/or considered the defendant's motion, we
will, based on the defendant's reply brief, consider the
defendant's appeal as an appeal from the denial of motion
to correct an illegal sentence pursuant to Rule 36.1.
State v. Brown, 479 S.W.3d 200 (Tenn. 2015), the
Tennessee Supreme Court addressed the issue of whether the
failure to award pretrial jail credits constituted a
"colorable claim" for the purpose of Rule 36.1.
Id. at 212. The Court observed that while
"pretrial jail credits allow a defendant to receive
credit against his sentence for time already served,
awarding or not awarding pretrial jail credits does not alter
the sentence in any way, although it may affect the
length of time a defendant is incarcerated."
Id. (emphasis in original). The Court opined that a
litigant wishing to challenge the award of pretrial jail
credits was entitled to raise the issue on direct appeal.
Id. at 212-213. However, the Court ultimately
concluded that "a trial court's failure to award
pretrial jail credits does not render the sentence
illegal and is insufficient, therefore, to establish a
colorable claim for relief under Rule 36.1."
Id. at 213 (emphasis in original). To the extent the
defendant contends her sentence was illegal due to the
improper or insufficient application of pretrial jail
credits, she has not asserted a colorable claim under Rule
36.1 and is not entitled to relief.
opinion would have no precedential value, this Court may
affirm by memorandum opinion the judgment or action of the
trial court when the judgment was rendered or the action was
taken in a proceeding without a jury and such judgment or
action was not a determination of guilt, and the evidence
does not preponderate against the finding of the trial court.
See Tenn. Ct. Crim. App. R. 20. We conclude that
this case satisfies the criteria ...