State of Tennessee v. Deangelo T. Collins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 9, 2015

STATE OF TENNESSEE v. DEANGELO T. COLLINS

Appeal from the Criminal Court for Shelby County

Nos. 99-12013, 99-04113 W. Mark Ward, Judge

No. W2015-00781-CCA-R3-CD - Filed February 8, 2016

In 2000, the defendant pled guilty to aggravated robbery and, apparently, a lesser-

included offense of possession with intent to sell less than one-half gram of cocaine,

receiving concurrent sentences of eight years and three years. In 2014, apparently now in

federal custody, he filed a Tennessee Rule of Criminal Procedure 36.1 motion, claiming

that the second offense was committed while he was free on bond for the first, thus

requiring the sentences to be served consecutively. He asked, in his pro se motion, that

the convictions be vacated and the indictments set for trial. However, at an evidentiary

hearing, after counsel had been appointed, the defendant asked that he be resentenced in

the two cases to consecutive terms. The trial court found that the manner of service of

the sentences had not been a material component to the guilty pleas and resentenced the

defendant, as requested, to consecutive terms for his two state convictions. The

defendant then appealed, asserting that the trial court had erred in concluding that the

manner of service of the sentences was not a material part of the guilty pleas and arguing

that he was entitled to a new hearing on his motion. Following our review, we reverse

the trial court’s order that the sentences be served consecutively and reinstate the original

judgments for concurrent sentences.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed,

Original Judgments Reinstated

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,

P.J., and ROBERT W. WEDEMEYER, J., joined.

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Trent Hall (at

hearing), Assistant Public Defenders, for the appellant, Deangelo T. Collins.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The record in this matter is sparse. The single 2000 judgment of conviction

included in the record on appeal shows that on February 2, 2000, the defendant entered a

plea of guilty as charged in Indictment 99-04113, alleging aggravated robbery and was

sentenced to confinement for eight years, with the sentenced to be served concurrently

with that imposed in Indictment 99-12013. The record on appeal includes a copy of this

second indictment, charging, in count one, possession with intent to sell one-half gram or

more of a substance containing cocaine and, in count two, possession of this substance

with intent to deliver. However, the record does not include a copy of the judgment for

this indictment, although the defendant’s appellate brief states that he pled guilty to a

lesser-included offense of count one of the indictment.

As we have set out, in the trial court, the defendant complained that he had been

entitled to consecutive rather than concurrent sentences and asked that new judgments be

filed to correct this mistake of years earlier. The trial court granted his request and

imposed consecutive sentences. On appeal, the defendant asked that the original

sentences be set aside and an evidentiary hearing be conducted upon his claim that the

original sentences were illegal because they were concurrent rather than consecutive.

Rule 36.1(a) 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.

In this matter, even if the defendant long ago received an illegal sentence, our

supreme court has recently analyzed Rule 36.1 and concluded that it “does not authorize

the correction of expired illegal sentences.” State v. Adrian R. Brown, __ S.W.3d __,

No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *8 (Tenn. Dec. 2, 2015). Here, the

defendant readily admits that his sentence has long since expired and, because of such,

relief is not available under Rule 36.1. Therefore, we reverse the trial court’s correction

of the judgments against the defendant and reinstate the original judgments.

_________________________________

ALAN E. GLENN, JUDGE

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