State of Tennessee v. John A. Bailey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2016

STATE OF TENNESSEE v. JOHN A. BAILEY

Appeal from the Circuit Court for Gibson County

No. 7289 Clayburn Peeples, Judge

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No. W2015-02330-CCA-R3-CD - Filed July 22, 2016

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On October 26, 2007, the defendant, John A. Bailey, pled guilty to aggravated robbery

and evading arrest and received an eight-year sentence for aggravated robbery, two-year

sentence for evading arrest, and almost five years of pretrial jail credit. The trial court

then imposed alternative sentences of unsupervised state probation for both convictions.

The sentences were to be served concurrent with one another and a prior federal sentence,

for which the defendant was already incarcerated. The defendant’s state sentences

expired on December 21, 2010, yet he filed a Tennessee Rule of Criminal Procedure 36.1

motion to correct an illegal sentence on July 6, 2015, asserting in part that he illegally

received probation for the aggravated robbery conviction. The trial court summarily

denied the motion without a hearing and without appointing counsel for the defendant.

The defendant now appeals, maintaining that his sentence was illegal. After a thorough

review of the record, we affirm the trial court’s denial of the defendant’s untimely motion

to correct his sentence.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and

CAMILLE R. MCMULLEN, JJ., joined.

John Anthony Bailey, Memphis, Tennessee, appellant, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler

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

OPINION

On October 26, 2007, the defendant pled guilty to aggravated robbery and evading

arrest by motor vehicle, and the trial court dismissed a charge of possession of a weapon

by a convicted felon. The trial court sentenced the defendant as a Range I, standard

offender, to eight years for aggravated robbery and two years for evading arrest and then

imposed alternative sentences of unsupervised state probation for both. The sentences

were to be served concurrently. The defendant had previously been convicted of a related

federal charge, so the sentences were also to be served concurrent with his federal

sentence. The trial court granted the defendant almost five years of pretrial jail credit.

On July 6, 2015, the defendant filed a Rule 36.1 motion to correct an illegal

sentence, asserting that the sentence imposed was in direct contravention of the

sentencing schemes mandated by Tenn. Code Ann. §§ 40-35-106 and 40-35-210(b), in

part because the trial court sentenced him to probation for aggravated robbery. In

response, the State argued the trial court should deny the defendant’s Rule 36.1 motion

because the defendant’s sentence expired prior to the filing of the motion. On November

19, 2015, the trial court denied the Rule 36.1 motion without the appointment of counsel

and without a hearing.

The defendant timely appealed the trial court’s decision. On appeal, the defendant

contends he made a colorable showing that the sentences imposed were in direct

contravention of Tenn. Code Ann. §§ 40-35-210 and 40-35-303, so the trial court erred in

summarily denying his motion to correct an illegal sentence without the appointment of

counsel and a hearing. The State responds that the defendant’s sentence has expired and

there is no longer any relief available to him under Rule 36.1, so the trial court correctly

denied the motion. We find the defendant’s sentence expired almost four years prior to

the filing of his Rule 36.1 motion and affirm the trial court’s denial of it.

Tennessee Rule of Criminal Procedure 36.1 provides the following mechanism for

seeking the correction of an illegal sentence:

(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

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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.

(2) If the court determines that the sentence is an illegal sentence, the court

shall then determine whether the illegal sentence was entered pursuant to a

plea agreement. If not, the court shall enter an amended uniform judgment

document, see Tenn. S.Ct. Rule 17 setting forth the correct sentence.

(3) If the illegal sentence was entered pursuant to a plea agreement, the

court shall determine whether the illegal provision was a material

component of the plea agreement. If so, the court shall give the defendant

an opportunity to withdraw his or her plea. If the defendant chooses to

withdraw his or her plea, the court shall file an order stating its finding that

the illegal provision was a material component of the plea agreement,

stating that the defendant withdraws his or her plea, and reinstating the

original charge against the defendant. If the defendant does not withdraw

his or her plea, the court shall enter an amended uniform judgment

document setting forth the correct sentence.

Tenn. R. Crim. P. 36.1.1

The Tennessee Supreme Court recently addressed “whether Rule 36.1 expands the

scope of relief available . . . by permitting either the defendant or the State to correct

expired illegal sentences.” State v. Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our

supreme court held that “Rule 36.1 does not expand the scope of relief and does not

authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion may

be summarily dismissed for failure to state a colorable claim if the alleged illegal

sentence has expired.” Id. at 211.

1

Tennessee Rule of Criminal Procedure 36.1 was amended effective July 1, 2016. We

reach the same conclusion under the amended rule.

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The record reflects that the defendant’s sentence expired long before he filed his

Rule 36.1 motion. On October 26, 2007, the trial court imposed an eight-year sentence

for aggravated robbery and a two-year sentence for evading arrest and ordered that the

defendant serve the sentences concurrent with one another and a prior federal sentence.

The trial court then imposed the alternative sentence of unsupervised state probation. The

defendant received pretrial jail credit from December 21, 2002 through October 26, 2007,

totaling approximately 1769 days. The defendant’s eight-year concurrent sentence began

on December 21, 2002, the date he was incarcerated and began receiving pretrial credit.

The defendant’s concurrent eight-year sentence, including the unsupervised state

probation, therefore ended on December 21, 2010, over four years before the defendant

filed his Rule 36.1 motion.

The defendant argues that the trial court imposed an illegal sentence. However, he

waited until July 6, 2015, after he had completely served the challenged sentence, to file

his Rule 36.1 motion. At that point, there was no longer a remedy to correct any illegality

in the defendant’s sentence. Accordingly, we conclude the trial court properly denied the

defendant’s Rule 36.1 motion without first appointing counsel or holding a hearing.

CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court.

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J. ROSS DYER, JUDGE

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