Court of Criminal Appeals of Tennessee, Nashville
from the Criminal Court for Davidson County No. 2007-B-1404
Cheryl Blackburn, Judge
Appellant, William Lamont Green, is appealing the trial
court's denial of his motion to correct an illegal
sentence. The State has filed a motion asking this Court to
affirm pursuant to Court of Criminal Appeals Rule 20. Said
motion is hereby granted.
R. App. P. 3 Appeal as of Right; Order of the Trial Court
Affirmed Pursuant to Court of Criminal
Appeals Rule 20
William Lamont Green, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel, for the Appellee, State of
W. Wedemeyer, J., delivered the opinion of the Court, in
which Robert L. Holloway, Jr., J. and Timothy L. Easter, J.
W. WEDEMEYER, JUDGE.
2010, the Appellant was convicted of second degree murder and
he received a twenty-three-year sentence. His conviction was
affirmed on appeal. State v. William Lamont Green,
No. M2010-01631-CCA-R3-CD, 2011 WL 2893088 (Tenn. Crim. App.
July 20, 2011), perm. to app. denied (Tenn. Nov. 15,
2011). The Appellant was unsuccessful in his subsequent
pursuit of post-conviction relief. William Lamont Green
v. State, No. M2013-02840-CCA-R3-PC, 2014 WL 5502359
(Tenn. Crim. App. Oct. 31, 2014), perm to app.
denied (Tenn. Feb. 13, 2015). In June 2016, the
Appellant filed a motion to correct an alleged illegal
sentence. See Tenn. R. Crim. P. 36.1. The trial
court summarily denied the motion. The Appellant appealed.
Following the filing of the record on appeal and the
Appellant's brief, the State filed a motion to affirm the
ruling of the trial court pursuant to Rule 20. For the
reasons stated below, said motion is hereby granted.
motion he filed in the trial court, the Appellant argued his
sentence is illegal because the trial court misapplied an
enhancement factor and failed to consider certain mitigating
factors. Rule 36.1 permits a defendant to seek correction of
an unexpired illegal sentence at any time. See State v.
Brown, 479 S.W.3d 200, 211 (Tenn. 2015). "[A]n
illegal sentence is one that is not authorized by the
applicable statutes or that directly contravenes an
applicable statute." Tenn. R. Crim. P. 36.1(a). Our
supreme court recently interpreted the meaning of
"illegal sentence" as defined in Rule 36.1 and
concluded that the definition "is coextensive, and not
broader than, the definition of the term in the habeas corpus
context." State v. Wooden, 478 S.W.3d 585,
594-95 (Tenn. 2015). The court then reviewed the three
categories of sentencing errors: clerical errors (those
arising from a clerical mistake in the judgment sheet),
appealable errors (those for which the Sentencing Act
specifically provides a right of direct appeal) and fatal
errors (those so profound as to render a sentence illegal and
void). Id. Commenting on appealable errors, the
court stated that those "generally involve attacks on
the correctness of the methodology by which a trial court
imposed sentence." Id. In contrast, fatal
errors 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 offenses." Id. The court held that only
fatal errors render sentences illegal. Id. A trial
court may summarily dismiss a Rule 36.1 motion if it does not
state a colorable claim for relief. Tenn. R. Crim. P.
trial court did not err in summarily dismissing the
Appellant's motion. The Appellant's complaints
regarding the trial court's application of enhancement
and mitigating factors fall squarely in the category of
appealable errors and they should have been raised on direct
appeal. See, e.g., State v. Charles Macklin, No.
W2016-01711-CCA-R3-CD, 2017 WL 1380014 (Tenn. Crim. App. Apr.
13, 2017), perm. to app. denied (Tenn. June 8, 2017)
Appellant also raises for the first time in his brief on
appeal a claim of ineffective assistance of counsel. Despite
the fact that issues raised for the first time on appeal are
considered waived, see State v. Johnson, 970 S.W.2d
500, 508 (Tenn. Crim. App. 1996), Rule 36.1 is not the
vehicle for presenting a claim of ineffective assistance of
counsel and, regardless, the ...