State of Tennessee v. James D. Wooden

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 10, 2015 Session

STATE OF TENNESSEE v. JAMES D. WOODEN

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Bradley County

Nos. 96297, 97133 Carroll L. Ross, Judge

_____________________________

No. E2014-01069-SC-R11-CD – Filed December 2, 2015

_____________________________

We granted this appeal to determine whether a party filing a motion under Tennessee

Rule of Criminal Procedure 36.1 (―Rule 36.1‖) states a colorable claim for relief for

correction of an illegal sentence by alleging that the trial court increased his sentence

above the statutory presumptive minimum sentence but failed to find enhancement

factors justifying the increase. Answering this question requires us to determine the

meaning of two terms used in Rule 36.1—―colorable claim‖ and ―illegal sentence.‖ We

hold that the definition of ―colorable claim‖ in Rule 28, section 2(H) of the Rules of the

Tennessee Supreme Court applies to the term ―colorable claim‖ in Rule 36.1.

Additionally, we conclude that the definition of ―illegal sentence‖ in Rule 36.1 is

coextensive with, and actually mirrors, the definition this Court has applied to the term

for purposes of habeas corpus proceedings. Compare Tenn. R. Crim. P. 36.1(a), with

Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 2011). Taking the allegations of the

Rule 36.1 motion in this case as true and viewing them in the light most favorable to the

moving party, we conclude that the moving party has failed to allege a colorable claim

for correction of an illegal sentence. Accordingly, the judgment of the Court of Criminal

Appeals affirming the trial court‘s denial of the Rule 36.1 motion is affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE,

C.J., and JEFFREY S. BIVINS and HOLLY KIRBY, JJ., joined.

James R. Stovall, Knoxville, Tennessee, for the appellant, James Wooden.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Rachel E. Willis, Senior Counsel; Steven Bebb, District Attorney General; and

Carl Petty, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

The following facts are derived from the single-volume technical record included

in the record on appeal. On August 12,1996, James D. Wooden (―Mr. Wooden‖) pleaded

guilty to aggravated burglary, a Class C felony, and theft of property valued over $1,000,

a Class D felony, in Bradley County Criminal Court (―Criminal Court‖) case number 96-

297. Based upon this plea, the Criminal Court classified Mr. Wooden as a Range I

standard offender and imposed a three-year sentence for the aggravated burglary

conviction and a two-year sentence for the theft conviction. The Criminal Court ordered

these sentences served concurrently but suspended the sentences upon Mr. Wooden‘s

service of thirty days in jail.

On September 23, 1997, Mr. Wooden was tried in the Criminal Court in case

number 97-133 on the charge of aggravated robbery. The charged offense allegedly

occurred on January 15, 1997. A jury convicted Mr. Wooden of the lesser-included

offense of facilitation of aggravated robbery, a Class C felony. See Tenn. Code Ann. §

39-13-402(b) (2014); id. § 39-11-403(b) (2014).1 The Criminal Court classified Mr.

Wooden as a Range I standard offender, which placed him in a three-to-six-year

sentencing range, see id. § 40-35-112(a)(3) (2014), with the statutory presumptive

sentence established as ―the minimum sentence in the range if there are no enhancement

or mitigating factors,‖ see id. §40-35-210(c) (Supp. 1996).2 Mr. Wooden received a five-

1

The text of most of the statutes relevant to the issues in this appeal has not changed; thus,

quotations and citations in this opinion are to the current statutes, unless specifically noted otherwise.

2

The current version of this statute provides:

The court shall impose a sentence within the range of punishment, determined by whether

the defendant is a mitigated, standard, persistent career or repeat violent offender. In

imposing a specific sentence within the range of punishment, the court shall consider, but

is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the [G]eneral [A]ssembly set

the minimum length of sentence for each felony class to reflect the

relative seriousness of each criminal offense in the felony classifications;

and

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year sentence in case number 97-133. Additionally, the Criminal Court revoked Mr.

Wooden‘s probation, reinstated the sentences he had received in case number 96-297, and

ordered all sentences served concurrently, for an effective five-year sentence.

Almost seventeen years later, on May 1, 2014, Mr. Wooden filed pro se in the

Criminal Court a motion under Rule 36.1. Mr. Wooden alleged that his sentences in case

numbers 96-297 and 97-133 were illegal because the sentences were ―raised above the

presumptive sentence without enhancement factors being placed on the record [by the

Criminal Court] as required by statute.‖ Mr. Wooden alleged an additional illegality as to

his sentence for case number 97-133, arguing that the Criminal Court should have

ordered it served consecutively to the sentences in case number 96-297 because a statute

required consecutive service of a sentence for an offense committed while on probation.

See Tenn. Code Ann. § 40-35-115(b)(6) (2014) (stating that a court ―may order sentences

to run consecutively‖ if ―[t]he defendant is sentenced for an offense committed while on

probation‖).

On May 14, 2014, the Criminal Court denied Mr. Wooden‘s Rule 36.1 motion.

The Criminal Court did not appoint counsel, hold a hearing, or wait for a response to be

filed. The Criminal Court explained that, ―[a]fter review of the corresponding court

files,‖ it had determined that Mr. Wooden‘s sentences had expired and had concluded

that it had no jurisdiction to rule on Rule 36.1 motions relating to ―expired cases.‖

Mr. Wooden appealed, still proceeding pro se. On appeal, he contended that the

Criminal Court erred by dismissing his motion for lack of jurisdiction based on his

sentences having expired and reiterated the claims stated in his Rule 36.1 motion

regarding the illegality of his sentences. The State argued in its brief that the trial court‘s

dismissal should be affirmed because Mr. Wooden had failed to present a colorable claim

for relief under Rule 36.1.3

The Court of Criminal Appeals agreed with the State‘s argument. Specifically, the

intermediate appellate court concluded that Mr. Wooden had failed to state a colorable

claim regarding his sentences in case number 96-297 because he had received the

minimum sentences for each offense. The Court of Criminal Appeals further explained

that any error the Criminal Court made by increasing the sentence in case number 97-133

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement

factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2014).

3

The State did not ask the Court of Criminal Appeals to affirm the trial court‘s conclusion that it

lacked jurisdiction to decide Mr. Wooden‘s motion because his sentences had expired. Nor did the State

argue that Mr. Wooden‘s motion was moot as a result of the expiration of his sentences.

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above the statutory presumptive minimum ―would have resulted in . . . a voidable

judgment rather than an illegal sentence‖ and was therefore not enough to establish a

colorable claim for relief under Rule 36.1. State v. Wooden, E2014-0169-CCA-R3-CD,

2014 WL 7366984, at *2 (Tenn. Crim. App. Dec. 26, 2014). The Court of Criminal

Appeals also rejected Mr. Wooden‘s claim that his sentence in case number 97-133 was

illegal because the Criminal Court ordered it served concurrently, rather than

consecutively to the sentences in case number 96-297. The intermediate appellate court

explained that the statute on which Mr. Wooden relied, Tennessee Code Annotated

section 40-35-115(b)(6), permitted but did not require consecutive service of sentences

imposed for offenses committed on probation. Id. Based on its conclusion that Mr.

Wooden had failed to state a colorable claim for relief under Rule 36.1, the intermediate

appellate court declined to determine ―whether the expiration of his sentences ha[d]

rendered his claim moot.‖ Id.

Mr. Wooden timely filed in this Court an application for permission to appeal.

See Tenn. R. App. P. 11. This Court granted Mr. Wooden‘s pro se application and

appointed counsel to represent him before this Court. State v. Wooden, No. E2014-

01069-SC-R11-CD (Tenn. May 15, 2015) (order granting the application, appointing

counsel, and providing instructions for the scheduling of oral arguments).4

II. Standards of Review

Whether Mr. Wooden‘s 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. See

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston, 197

S.W.3d 710, 712 (Tenn. 2006)) (applying de novo review to determine whether a

sentence is illegal for purposes of habeas corpus relief); Arnold v. State, 143 S.W.3d 784,

786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002)) (reviewing

de novo the issue of whether a post-conviction petition states a colorable claim for relief).

De novo review also applies to our construction and interpretation of Rule 36.1. State v.

Johnson, 342 S.W.3d 468, 471 (Tenn. 2011) (citing State v. Ferrante, 269 S.W.3d 908,

911 (Tenn. 2008)). In construing rules of procedure, such as Rule 36.1, we apply

generally the same rules of construction that are used to construe statutes. Id. (citing

State v. Crowe, 168 S.W.3d 731, 744 (Tenn. 2005)). As is true of statutory construction,

our primary objective is to effectuate the intent of the rule ―without broadening or

4

The Court is grateful to attorney James Stovall of the Knoxville law firm of Ritchie, Dillard,

Davies and Johnson for providing Mr. Wooden with outstanding representation in the proceedings before

this Court.

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restricting the intended scope of the rule.‖ Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn.

2013) (citing Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)).

III. Analysis

In this Court, Mr. Wooden asserts that his allegations that the Criminal Court

contravened a statute by increasing his sentence in case number 97-133 above the

presumptive minimum without finding enhancement factors to justify the increase were

sufficient to state a colorable claim for relief under Rule 36.1. He also argues that the

Court of Criminal Appeals disregarded Rule 36.1‘s unambiguous language and conflated

motions under Rule 36.1 with habeas corpus petitions when it concluded otherwise. 5 The

State asserts that the Court of Criminal Appeals correctly concluded that Mr. Wooden‘s

allegations were not sufficient to state a colorable claim for relief under Rule 36.1. A

review of the development of Tennessee law regarding the correction of illegal sentences

is helpful to a proper understanding of Rule 36.1.

A. Correcting Illegal Sentences

In 1978, this Court recognized that, ―[a]s a general rule, a trial judge may correct

an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become

final.‖ State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Nevertheless, when we

announced this principle in Burkhart, we did not simultaneously establish a procedure for

requesting correction of an allegedly illegal sentence. Moreover, the Tennessee Rules of

Criminal Procedure, which became effective in 1979, only one year after Burkhart, also

failed to specify any procedure for making such requests. Cantrell v. Easterling, 346

S.W.3d 445, 453 (Tenn. 2011). In the absence of any explicit procedure, parties used the

procedural mechanism that the defendant in Burkhart had used—a motion to the

sentencing court requesting correction of an illegal sentence. See Moody v. State, 160

S.W.3d 512, 515 (Tenn. 2005) (citing Cox v. State, 53 S.W.3d 287, 291 (Tenn. Crim.

App. 2001)). One disadvantage of this procedure, however, was that the Tennessee Rules

of Appellate Procedure, which also became effective in 1979,6 did not authorize an

appeal as of right from a trial court‘s decision on a motion to correct an illegal sentence.

Moody, 160 S.W.3d at 516. Thus, like the defendant in Burkhart, parties relied upon the

5

Mr. Wooden has not renewed his assertion that his sentences in case number 96-297 were

illegal or his assertion that his sentence in case number 97-133 was illegal because it was ordered to be

served concurrently with the sentences imposed in case number 96-297. Another opinion filed today

addresses the question of whether Rule 36.1 authorizes relief from expired illegal sentences. State v.

Brown, __ S.W.3d ___, No. E2014-00673-SC-R11-CD (Tenn. 2015).

6

Tenn. R. App. P. 49 (stating that the rules ―shall take effect on July 1, 1979‖).

-5-

discretionary common law writ of certiorari to obtain appellate review of trial court

orders denying motions to correct illegal sentences. Moody, 160 S.W.3d at 515.

In 2005, in Moody, this Court confronted the question of whether motions for

correction of illegal sentences and petitions for writ of certiorari were the proper

procedural vehicles for raising and appealing challenges to illegal sentences. Id. at 514.

After the trial court dismissed Mr. Moody‘s motion to correct an illegal sentence, he

sought to appeal by filing a petition for writ of certiorari with the Court of Criminal

Appeals, but the intermediate appellate court declined to issue the discretionary writ. Id.

This Court granted review and began the analysis by affirming the rule announced in

Burkhart—that an allegedly illegal sentence may be challenged at any time. Id. at 516.

Nevertheless, the Moody Court rejected the Burkhart procedure and clarified that ―the

proper procedure for challenging an illegal sentence at the trial level is through a petition

for writ of habeas corpus, the grant or denial of which can then be appealed under the

Rules of Appellate Procedure.‖ Id. (citing Stephenson v. Carlton, 28 S.W.3d 910, 912

(Tenn. 2000)).

After Moody settled the question of the proper procedure for seeking correction of

an illegal sentence, this Court‘s attention turned to providing guidance as to the types of

sentences that should be viewed as ―illegal‖ for purposes of habeas corpus relief. We

enumerated the following four non-exclusive categories of illegal sentences:

(1) a sentence imposed pursuant to an inapplicable statutory scheme; (2) a

sentence designating a [release eligibility date] where a [release eligibility

date] is specifically prohibited by statute; (3) a sentence ordered to be

served concurrently where statutorily required to be served consecutively;

and (4) a sentence not authorized for the offense by any statute[.]

Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (citations omitted). The following

year, we returned to the topic and provided a more general definition, stating that ―[a]n

illegal sentence is one which is ‗in direct contravention of the express provisions of [an

applicable statute], and consequently [is] a nullity.‘‖ Cantrell, 346 S.W.3d at 452

(quoting Burkhart, 566 S.W.2d at 873). We also included within the definition of ―illegal

sentences‖ those sentences which are ―not authorized under the applicable statutory

scheme.‖ Id. (citing Davis, 313 S.W.3d at 759).

Significantly, however, neither Moody nor Cantrell provided the State with a

means of seeking correction of an illegal sentence. Although Moody identified habeas

corpus relief as the proper procedural vehicle, habeas corpus relief then and now is only

available to ―person[s] imprisoned or restrained of liberty.‖ Tenn. Code Ann. § 29-21-

101(a) (2012) (emphasis added). Moreover, although Rule 36 of the Tennessee Rules of

Criminal Procedure provided a method for correcting clerical mistakes in judgments,

orders, or the record, it did not provide the State with a means of correcting illegal

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sentences. See Wilkerson v. Carlton, No. E2007-02453-CCA-R3-HC, 2008 WL

4949227, at *5 (Tenn. Crim. App. Nov. 20, 2008) (quoting State v. Thomas, No. 03C01-

9504-CR-00109, 1995 WL 676396, at *1 (Tenn. Crim. App. Nov. 15, 1995)) (cited with

approval in Cantrell, 346 S.W.3d at (Tenn. 2011)); see also Lee v. State, No. W2013-

01088-CCA-R3-CO, 2014 WL 902450, at *3 (Tenn. Crim. App. Mar. 7, 2014).

Moreover, this Court specifically recognized in Cantrell that the Tennessee Department

of Correction (―TDOC‖) lacked authority to ―correct‖ what it perceived to be errors,

clerical or otherwise, in judgment orders and is required to ―enforce judgment orders as

they are written.‖ Cantrell, 346 S.W.3d at 457; see also Burkhart, 566 S.W.2d at 873

(recognizing that TDOC ―may not alter the judgment of a court, even if that judgment is

illegal‖).

B. Tennessee Rule of Criminal Procedure 36.1

Against this jurisprudential backdrop, Rule 36.1 was adopted, effective July 1,

2013, with the express purpose ―to provide a mechanism for the defendant or the State to

seek to correct an illegal sentence.‖ Tenn. R. Crim. P. 36.1 advisory comm‘n cmt.

(emphasis added). At the same time, Rule 3 of the Tennessee Rules of Appellate

Procedure was ―amended to provide for an appeal as of right from the trial court‘s ruling

on a motion filed under Rule 36.1 to correct an illegal sentence.‖ Id.

This is the first appeal to this Court involving the proper interpretation of Rule

36.1, although the Court of Criminal Appeals has interpreted it on numerous occasions.

As relevant to this appeal, Rule 36.1 provides as follows:

(a) Either the defendant or the state 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. For purposes of this rule, an illegal sentence is one that is not

authorized by the applicable statutes or that directly contravenes an

applicable statute.

(b) Notice of any motion filed pursuant to this rule shall be

promptly provided to the adverse party. If the motion states a colorable

claim that the sentence is illegal, and if the defendant is indigent and is

not already represented by counsel, the trial court shall appoint counsel

to represent the defendant. The adverse party shall have thirty days

within which to file a written response to the motion, after which the court

shall hold a hearing on the motion, unless all parties waive the hearing.

(c)(1) If the court determines that the sentence is not an illegal

sentence, the court shall file an order denying the motion.

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....

(d) Upon the filing of an amended uniform judgment document or

order otherwise disposing of a motion filed pursuant to this rule, the

defendant or the state may initiate an appeal as of right pursuant to Rule 3,

Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1(a), (b), (c)(1), (d) (emphasis added). The procedure prescribed by

Rule 36.1 differs from the procedure applicable to habeas corpus petitions challenging

illegal sentences in at least two ways. First, Rule 36.1 addresses the void that existed

when Burkhart, Moody and Cantrell were decided by authorizing the State to seek

correction of an illegal sentence. Second, unlike a habeas corpus petition, which

generally must be filed in a court in the county where the petitioner is incarcerated,7 a

motion under Rule 36.1 must be filed ―in the trial court in which the judgment of

conviction was entered.‖ Tenn. R. Crim. P. 36.1(a). Neither of these differences is

determinative of this appeal. Rather, this appeal turns on the meaning of ―colorable

claim‖ and ―illegal sentence‖ for purposes of Rule 36.1(a).

C. “Colorable Claim”

Rule 36.1 does not define ―colorable claim.‖ Nevertheless, this term is defined for

purposes of post-conviction relief as follows: ―A colorable claim is a claim, in a petition

for post-conviction relief, that, if taken as true, in the light most favorable to petitioner,

would entitle petitioner to relief under the Post-Conviction Procedure Act.‖ Tenn. Sup.

Ct. R. 28, § 2(H). Since the Court of Criminal Appeals first interpreted ―colorable claim‖

in Rule 36.1, and in many subsequent decisions, the intermediate appellate court has

uniformly incorporated into Rule 36.1 the foregoing post-conviction definition of the

term. See, e.g., State v. Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at

*3 (Tenn. Crim. App. July 16, 2014), perm. app. denied (Tenn. Dec. 18, 2014); State v.

Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App.

Aug. 13, 2014); State v. Robinson, No. E2014-00393-CCA-R3-CD, 2014 WL 5393240,

at *2 (Tenn. Crim. App. Oct. 22, 2014); Adams v. State, No. M2014-01025-CCA-R3-

CD, 2014 WL 7177943, at *3 (Tenn. Crim. App. Dec. 17, 2014); Booker v. State, No.

M2014-00846-CCA-R3-CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. Dec. 18, 2014);

State v. Brimmer, No. E2014-01393-CCA-R3-CD, 2014 WL 7201795, at *2 (Tenn.

Crim. App. Dec. 18, 2014), perm. app. denied (Tenn. Apr. 10, 2015); State v. Wall, No.

7

See Tenn. Code Ann. § 29-21-105 (2012) (stating that a habeas corpus petition should be filed

with ―the court or judge most convenient in point of distance to the applicant, unless a sufficient reason be

given in the petition for not applying to such court or judge‖); Carter v. Bell, 279 S.W.3d 560, 562 (Tenn.

2009) (discussing section 29-21-105).

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W2014-00782-CCA-R3-CO, 2014 WL 7332113, at *3 (Tenn. Crim. App. Dec. 23,

2014); State v. Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *2 (Tenn.

Crim. App. Dec. 26, 2014); Edwards v. State, No. W2014-01463-CCA-R3-CO, 2014 WL

7432166, at *2 (Tenn. Crim. App. Dec. 30, 2014), perm. app. denied (Tenn. May 19,

2015); State v. Sean, No. W2014-00856-CCA-R3-CO, 2015 WL 112801, at *2 (Tenn.

Crim. App. Jan. 8, 2015); State v. Malone, No. M2014-01316-CCA-R3-CD, 2015 WL

197243, at *1 (Tenn. Crim. App. Jan. 15, 2015), perm. app. denied (Tenn. Mar. 16,

2015); State v. Williams, No. E2014-01068-CCA-R3-CD, 2015 WL 1291137, at *2

(Tenn. Crim. App. Mar. 19, 2015), perm. app. denied (Tenn. June 15, 2015); Johnson v.

State, No. W2014-01779-CCA-R3-CO, 2015 WL 1454525, at *2 (Tenn. Crim. App. Mar.

27, 2015), perm. app. denied (Tenn. June 11, 2015); State v. Thompson, No. E2014-

01358-CCA-R3-CD, 2015 WL 1548852, at *3 (Tenn. Crim. App. Apr. 1, 2015);

Bradfield v. State, No. W2014-01735-CCA-R3-PC, 2015 WL 2394023, at *2 (Tenn.

Crim. App. May 18, 2015), perm. app. denied (Tenn. Sept. 16, 2015); State v. King, No.

M2014-01478-CCA-R3-CD, 2015 WL 2447214, at *2 (Tenn. Crim. App. May 22, 2015);

State v. Williams, No. W2014-02108-CCA-R3-CD, 2015 WL 3407472, at *2 (Tenn.

Crim. App. May 28, 2015); State v. Freeman, No. M2014-02174-CCA-R3-CD, 2015 WL

3550022, at *2 (Tenn. Crim. App. June 8, 2015); State v. Carey, No. M2015-00185-

CCA-R3-CD, 2015 WL 4077056, at *2 (Tenn. Crim. App. July 6, 2015), perm. app.

denied (Tenn. Oct. 15, 2015); State v. Jeffries, No. W2014-02464-CCA-R3-CD, 2015

WL 4099836, at *2 (Tenn. Crim. App. July 7, 2015); State v. Jones, No. E2014-02463-

CCA-R3-CD, 2015 WL 4505959, at *2 (Tenn. Crim. App. July 24, 2015), perm. app.

denied (Tenn. Oct. 16, 2015); State v. Robinson, No. W2015-00245-CCA-R3-CD, 2015

WL 4557296, at *1 (Tenn. Crim. App. July 29, 2015); State v. Dean, No. E2014-02169-

CCA-R3-CD, 2015 WL 5031775, at *3 (Tenn. Crim. App. Aug. 6, 2015); State v.

Jarnigan, No. E2015-00061-CCA-R3-CD, 2015 WL 5014514, at *2 (Tenn. Crim. App.

Aug. 25, 2015); State v. Gagne, No. E2015-00502-CCA-R3-CD, 2015 WL 5121399, at

*2 (Tenn. Crim. App. Aug. 31, 2015); State v. Walton, No. E2014-01957-CCA-R3-CD,

2015 WL 5554561, at *2 (Tenn. Crim. App. Sept. 21, 2015); State v. McCrobey, No.

E2014-01953-CCA-R3-CD, 2015 WL 5697308, at *3 (Tenn. Crim. App. Sept. 29, 2015);

State v. Lindsey, No. E2014-02096-CCA-R3-CD, 2015 WL 5692072, at *2 (Tenn. Crim.

App. Sept. 29, 2015); Winters v. State, No. E2015-00268-CCA-R3-CD, 2015 WL

5692145, at *2 (Tenn. Crim. App. Sept. 29, 2015).

Neither the State nor Mr. Wooden takes issue with interpreting Rule 36.1 as

incorporating the definition of colorable claim provided in Tennessee Supreme Court

Rule 28, section 2(H). We agree as well that the term has the same general meaning in

both contexts. More precisely stated, we conclude, for purposes of Rule 36.1, that

―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.

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The Court of Criminal Appeals has held that stating a colorable claim for relief

under Rule 36.1 does not require the moving party to support its motion with documents

from the record of the underlying proceeding in which the allegedly illegal sentence was

imposed. Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6

(Tenn. Crim. App. Dec. 19, 2013) (―Under the liberal terms of Rule 36.1, the petitioner‘s

raising a colorable claim would entitle him to the appointment of counsel and a hearing

on his claim, even without any documentation from the underlying record to support his

claim.‖), perm. app. denied (Tenn. May 28, 2014). On the other hand, the Court of

Criminal Appeals has emphasized that a Rule 36.1 motion must include factual

allegations concerning the basis of the illegal sentence claim in order to state a colorable

claim for relief. Williams, 2015 WL 1291137, at *2 (―[A] motion to correct an illegal

sentence must include a factual allegation to support the assertion that the sentence was

illegal.‖).

As the Court of Criminal Appeals has noted, and as the State and Mr. Wooden

point out in this appeal, Rule 36.1 is silent as to the nature of the factual allegations and

documentation required to state a colorable claim. In the face of this silence, we turn to

another rule of criminal procedure, which prescribes the form and content of motions—

Tennessee Rule of Criminal Procedure 47 (―Rule 47‖). Rule 47 makes clear that, unless

made during a trial or a hearing, motions ―shall be in writing‖ and ―shall state . . . with

particularity the grounds on which it is made[] and . . . the relief or order sought.‖ Tenn.

R. Crim. P. 47(b), (c). Rule 47 also permits motions to ―be supported by affidavit.‖

Tenn. R. Crim. P. 47(d).

Considering the text of Rule 47, along with that of Rule 36.1, we conclude that, at

a minimum, any motion filed under Rule 36.1 must state with particularity the factual

allegations on which the claim for relief from an illegal sentence is based. Additionally,

the moving party may support the motion with affidavits. Finally, when determining

whether a Rule 36.1 motion sufficiently states a colorable claim, a trial court may consult

the record of the proceeding from which the allegedly illegal sentence emanated. Indeed,

by requiring Rule 36.1 motions to be filed ―in the trial court in which the judgment of

conviction was entered,‖ Rule 36.1 ensured that a trial court considering a Rule 36.1

motion would have ready access to the record of the proceedings from which the

allegedly illegal sentence(s) arose.

In this case, Mr. Wooden included in his motion sufficiently specific factual

allegations describing the basis of his claim for relief from an allegedly illegal sentence.

In addition, Mr. Wooden attached copies of the judgment documents that reflected the

sentences he attacked as illegal in his Rule 36.1 motion. The allegations in Mr.

Wooden‘s motion, and the judgment documents he submitted in support of his motion,

are sufficient to enable a court to determine whether Mr. Wooden has stated a colorable

claim for relief under Rule 36.1.

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Additionally, we agree with the Court of Criminal Appeals that an appellate court

may determine, in the first instance, whether the allegations of a Rule 36.1 motion, and

any supporting materials, state a colorable claim for relief under Rule 36.1. See, e.g,

Greene, 2014 WL 3530960, at *3. Indeed, appellate courts are well-versed in making

such legal determinations. See Arnold, 143 S.W.3d at 786.

But, before considering whether the allegations of Mr. Wooden‘s motion and the

judgment documents submitted along with it state a colorable claim for relief under Rule

36.1, we must first consider Mr. Wooden‘s assertion that the term ―illegal sentence‖ in

Rule 36.1 has a meaning distinct from the meaning this Court assigned to it for purposes

of habeas corpus petitions challenging illegal sentences.

D. Illegal Sentence

Rule 36.1(a) provides that an 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). The Rule 36.1 definition mirrors that adopted by this Court in 2011, when

defining the term for purposes of habeas corpus petitions seeking correction of illegal

sentences. We stated, in particular, that an illegal sentence means ―one which is ‗in direct

contravention of the express provisions of [an applicable statute],‘‖ Cantrell, 346 S.W.3d

at 452 (quoting Burkhart, 566 S.W.2d at 873), or a sentence ―not authorized under the

applicable statutory scheme,‖ id. (citing Davis, 313 S.W.3d at 759). As this comparison

of the Rule 36.1 text and the Cantrell language illustrates, the Rule 36.1 definition of

illegal sentence mirrors the definition articulated in Cantrell. Construing Rule 36.1 to

define the term differently from the way it has been defined in the habeas corpus context

would require us to ignore the plain language of Rule 36.1 and of Cantrell. This we

decline to do. Accordingly, we conclude 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.

Having reached this conclusion, we next review, briefly, the types of sentences

that should be deemed illegal for purposes of Rule 36.1. As explained in Cantrell,

mistakes in sentencing are inevitable, but few sentencing errors render sentences illegal.

Cantrell, 346 S.W.3d at 448-49. Sentencing errors fall into three categories—clerical

errors, appealable errors, and fatal errors. Id. at 449-52. Only fatal errors render

sentences illegal. Id. at 452. Clerical errors ―arise simply from a clerical mistake in

filling out the uniform judgment document‖ and may be corrected at any time under

Tennessee Rule of Criminal Procedure 36. Id. The second category–appealable errors–

consists of ―those errors for which the Sentencing Act specifically provides a right of

direct appeal.‖ Id. at 449. Included in this category are claims ―akin to . . . challenge[s]

to the sufficiency of the evidence supporting a conviction,‖ such as claims that the record

does not support the trial court‘s factual findings regarding sentencing. Id. at 450-52.

Claims of appealable error generally involve attacks on the correctness of the

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methodology by which a trial court imposed sentence. Id. at 450-51; see also State v.

Deal, No. E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim. App. June

17, 2014). The final category is fatal errors, and these errors are ―so profound as to

render the sentence illegal and void.‖ Cantrell, 346 S.W.3d at 452. This category

consists of any sentence ―that is not authorized by the applicable statutes or that directly

contravenes an applicable statute.‖ Tenn. R. Crim. P. 36.1(a); see also Cantrell, 346

S.W.3d at 452. Included in this category are 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. Davis, 313 S.W.3d at 759.

E. Has a colorable claim for relief under Rule 36.1 been stated?

With these principles in mind, we approach the final question in this appeal—

whether Mr. Wooden‘s claims, taken as true and in a light most favorable to him, would

entitle him to relief under Rule 36.1.

Mr. Wooden received a five-year sentence in case number 97-133. This sentence

was two years above the statutory presumptive sentence of three years, but within the

statutorily prescribed three-to-six-year sentencing range applicable to his Range I

offender classification and the Class C felony of which he was convicted—facilitation of

aggravated robbery. See Tenn. Code Ann. § 40-35-112(a)(3). Mr. Wooden nonetheless

alleges in his motion that his five-year sentence is illegal because the trial court increased

the sentence above the presumptive statutory minimum, but failed to find any

enhancement factors to support the increase, and therefore directly contravened a statute.

See Tenn. Code Ann. § 40-35-210(c) (Supp. 1996).8

Mr. Wooden‘s claim falls squarely within the second category of sentencing

errors—appealable errors. In Cantrell, we described a trial court‘s erroneous

―consideration of . . . mitigating and enhancment factors‖ as the type of error that must be

addressed on direct appeal because it does not render the sentence illegal for purposes of

habeas corpus. 346 S.W.3d at 451. We reiterated that a sentence which is ―statutorily

available but ordinarily inapplicable to a given defendant‖ is not an illegal sentence. Id.

at 454. The five-year sentence Mr. Wooden received was statutorily available for the

offense of which he was convicted, even if the trial court erred by concluding that the

8

This statute provided in relevant part that ―[t]he presumptive sentence for a Class B, C, D and E

felony shall be the minimum sentence in the range if there are no enhancement or mitigating factors.‖

Tenn. Code Ann. § 40-35-210(c) (1996 Supp.).

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sentence was appropriate for Mr. Wooden.9 Thus, Mr. Wooden‘s allegations are

insufficient to state a colorable claim for relief under Rule 36.1.10

IV. Conclusion

The Court of Criminal Appeals correctly concluded that Mr. Wooden has failed to

state a colorable claim for relief. Accordingly, we affirm the judgment of the Court of

Criminal Appeals, which affirmed the trial court‘s dismissal of Mr. Wooden‘s Rule 36.1

motion. Costs of this appeal are taxed to Mr. Wooden, for which execution may issue if

necessary.

_________________________________

CORNELIA A. CLARK, JUSTICE

9

We note that Mr. Wooden‘s prior felony convictions in case number 96-297 would have

qualified as an enhancement factor for purposes of sentencing on case number 97-133. See id. § 40-35-

114(1).

10

As a result of our conclusion that Mr. Wooden has failed to state a colorable claim for relief,

we decline, as did the Court of Criminal Appeals, to address whether the expiration of Mr. Wooden‘s

sentences rendered his Rule 36.1 claim moot.

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