Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 24, 2019
R. Wilson, Defendant, pled guilty to two counts of sale of
more than five grams of a Schedule II controlled substance in
case number 97-D-2596. Defendant received concurrent
sentences of ten years with release eligibility after service
of thirty percent of the sentence; Defendant was to serve one
year in confinement and the remainder on community
corrections. Defendant filed a Rule 36.1 motion and alleged
that his sentences were illegal because he did not receive a
Momon colloquy or sentencing hearing. The trial
court found that the sentences had expired and summarily
dismissed the motion for failure to state a colorable claim.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. Wilson, Only, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Assistant Attorney General; Glenn Funk,
District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and Timothy L. Easter, JJ., joined.
L. HOLLOWAY, JR., JUDGE.
Factual and Procedural Background
October 1997, the Davidson County Grand Jury indicted
Defendant for sale of less than five grams of a Schedule II
controlled substance, five counts of sale of more than five
grams of a Schedule II controlled substance, and conspiracy
to sell more than five grams of a Schedule II controlled
substance in case number 97-D-2596. On June 24, 1999,
Defendant pled guilty to counts four and six, sale of more
than five grams of a Schedule II controlled
substance. For both counts, Defendant received
concurrent sentences of ten years in the Tennessee Department
of Correction with release eligibility after service of
thirty percent of the sentence. The trial court ordered
Defendant to serve one year in confinement and to serve the
remainder of his sentences on community corrections. The plea
agreement and plea submission hearing transcript were not
included in the record on appeal.
January 7, 2019, Defendant filed a pro se Rule 36.1
Motion to Correct Illegal Sentence. In his motion, Defendant
asserted that his sentences were illegal because of the
Defendant was indicted December 4th, 1997 in case no.
97-D-2596. On September 17, 1998, . . . [Defendant] and the
[S]tate made a tentative agreement presented to him by,
defense attorney, Mr. Glenn Funk, to plead guilty to ten (10)
years. [Defendant] initially agreed to accept the plea and
signed the written agreement. A few days afterwards, . . .
[Defendant] became unsettled with the plea offer, due to the
lack of understanding and decided to proceed to trial. Later,
[Defendant] found out that he had been illegally sentenced to
the ten year sentence without actually accepting the plea.
asserted that the trial court did not comply with Tennessee
Rule of Criminal Procedure 11(d) during his guilty plea
February 7, 2019, the trial court entered an order that
summarily dismissed Defendant's Rule 36.1 motion. The
trial court noted that the Tennessee Supreme Court has
previously held that "Rule 36.1 does not authorize the
correction of expired illegal sentences[,]" citing
State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015).
The trial court found that Defendant's sentences
"appear[ed] to have expired approximately one decade