Assigned on Briefs March 13, 2018
from the Criminal Court for Shelby County No. 99-04120 Lee V.
defendant, Paul Flannigan, appeals the summary dismissal of
his motion, filed pursuant to Tennessee Rule of Criminal
Procedure 36.1, to correct what he believes to be an illegal
sentence imposed for his Shelby County Criminal Court jury
convictions of attempted first degree murder, especially
aggravated robbery, aggravated rape, and aggravated burglary.
Discerning no error, we affirm.
R. App. P. 3; Judgment of the Criminal Court
Jessica L. Gillentine, Bartlett, Tennessee (on appeal), and
Edwin C. Lenow, Memphis, Tennessee (on Rule 36.1 motion), for
the appellant, Paul Flannigan.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; and Amy P.
Weirich, District Attorney General, for the appellee, State
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Alan E. Glenn and Timothy L. Easter, JJ., joined.
CURWOOD WITT, JR., JUDGE.
Shelby County Criminal Court jury convicted the defendant of
one count of attempted first degree murder, two counts of
especially aggravated robbery, three counts of aggravated
rape, and one count of aggravated burglary for his home
invasion, robbery, and rape of the victims. State v. Paul
Flannigan, No. W2001-00907-CCA-R3-CD (Tenn. Crim. App.,
Jackson, Feb. 15, 2002), perm. app. denied (Tenn.
Sept. 9, 2002). The trial court imposed Range I sentences of
25 years each for the attempted murder, especially aggravated
robbery, and aggravated rape convictions, all to be served
consecutively to one another, and a concurrent six-year
sentence for the aggravated burglary conviction, for a total
effective sentence of 125 years. On appeal, this court
reversed and remanded one of the aggravated rape convictions
for a new trial and modified the judgments to reflect a total
effective sentence of 93 years. Id., slip op. at 5,
9. In all other respects, this court affirmed the judgments,
id., slip op. at 1, and later affirmed the denial of
the defendant's petition for post-conviction relief from
his convictions, see Paul K. Flannigan v. State, No.
W2003-02979-CCA-R3-PC (Tenn. Crim. App., Jackson, Feb. 28,
2005). A later bid for federal habeas corpus relief was
similarly unsuccessful. Paul Flannigan v. Tony
Parker, No. 05-2269-JPM-tmp (W.D. Tenn. Sept. 4, 2007).
Most recently, this court denied the defendant's petition
for writ of mandamus. Paul Flannigan v. State, No.
W2016-00866-CCA-WRM-CO (Tenn. Crim. App., Jackson, July 6,
20, 2017, the defendant moved the trial court under Rule 36.1
to correct his sentence, arguing that he had not been awarded
pretrial jail credit of 1030 days and that his sentences had
been applied retroactively, in violation of the ex-post facto
provisions of the Tennessee Constitution and the United
States Constitution. The trial court summarily dismissed the
motion via an order filed on July 31, 2017.
appeal, the defendant reiterates his claim of entitlement to
Rule 36.1 relief on the sole ground that his sentences on
"judgment sheets 99-0412, 99-0120, 99-0122, 99-0125 and
99-0126 are void because the trial court failed to properly
calculate his pretrial jail credit." The State asserts
that summary dismissal was appropriate in this case because
the defendant failed to state a cognizable claim for relief
in a Rule 36.1 proceeding. We agree with the State.
36.1 provides the defendant and the State an avenue to
"seek the correction of an illegal sentence, "
defined as a sentence "that is not authorized by the
applicable statutes or that directly contravenes an
applicable statute." Tenn. R. Crim. P. 36.1; see
also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn.
2015) (holding that "the definition of 'illegal
sentence' in Rule 36.1 is coextensive with, and not
broader than, the definition of the term in the habeas corpus
context"). To avoid summary denial of an illegal
sentence claim brought under Rule 36.1, a defendant must
"state with particularity the factual allegations,
" Wooden, 478 S.W.3d at 594, establishing
"a colorable claim that the sentence is illegal, "
Tenn. R. Crim. P. 36.1(b). "[F]or purposes of Rule 36.1
. . . '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." Wooden, 478 S.W.3d at 593. The
determination whether a Rule 36.1 "motion states a
colorable claim for correction of an illegal sentence under
Rule 36.1 is a question of law, to which de novo review
applies." Id. at 589 (citing Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007)).
addressing the issue of the failure to award pre-trial jail
credit in the context of a Rule 36.1 claim, our supreme court
has stated as follows:
Although 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. A trial
court's failure to award pretrial jail credits may
certainly be raised as error on appeal, . . . [b]ut a trial
court's failure to award pretrial jail credits does not