The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2016
STATE OF TENNESSEE v. DAVID T. MORROW
Appeal from the Criminal Court for Shelby County
No. 01-07974, 02-02291 Glenn Ivy Wright, Judge
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No. W2016-00914-CCA-R3-CD - Filed November 16, 2016
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The appellant, David T. Morrow, appeals the summary denial of his Motion to Correct
Illegal Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The appellant‟s
sentences have expired. He argues, however, that he is entitled to relief because he
received concurrent sentences instead of statutorily required consecutive sentences, and
the trial court erred in summarily denying his motion without a hearing. Following our
review, we conclude the appellant does not state a colorable claim for relief, and we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. MCMULLEN, JJ., joined.
Patrick E. Stegall, Memphis, Tennessee, for the appellant, David T. Morrow.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On October 8, 2000, the appellant was arrested and charged with unlawful
possession of a controlled substance with intent to sell or deliver. While released on bail,
the appellant was arrested and charged with failure to appear. The appellant pled guilty
to both offenses, and the trial court sentenced him to concurrent two year sentences.
On August 22, 2013, the appellant filed a “Motion to Correct Illegal Sentences
pursuant to Tennessee Rule of Criminal Procedure 36.1,” arguing that his concurrent
sentences were illegal because he committed the failure to appear while released on bail.
The trial court summarily denied the motion, and the appellant appealed. This Court held
the appellant stated a colorable claim for relief under Rule 36.1 and remanded the case to
the trial court for appointment of counsel and further proceedings. State v. David
Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071 (Tenn. Crim. Ct. App.
Aug. 13, 2014).
Upon remand and after appointment of counsel, the appellant filed an “Amended
Motion to Correct Illegal Sentence,” arguing that his sentence was illegal because
consecutive terms are mandated by both Tennessee Code Annotated section 40-20-111
and Tennessee Rule of Criminal Procedure 32(c)(3)(C). Relying on the Tennessee
Supreme Court‟s recent decision in State v. Brown, 479 S.W.3d 200 (Tenn. 2015), the
trial court summarily dismissed the appellant‟s amended motion because his sentences
were expired. This timely appeal followed.
Analysis
The appellant argues that the trial court erroneously denied his motion without a
hearing. Though conceding his sentences have expired, he argues that he is not precluded
from relief and is entitled to an evidentiary hearing. The State argues that the appellant is
not entitled to relief under Rule 36.1 because his sentences have expired. We agree with
the State.
Tennessee Rule of Criminal Procedure 36.1 provides that the appellant “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.” Tenn. R.
Crim. P. 36.1(a)(1). “A motion to correct an illegal sentence must be filed before the
sentence set forth in the judgment order expires.” Tenn. R. Crim. P. 36.1(a)(1). A
sentence is illegal if it “is not authorized by the applicable statutes or [it] directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2).
If the court determines that the motion fails to state a colorable claim for relief, the
court must enter an order summarily denying the motion. Tenn. R. Crim. P. 36.1(b)(2).
“A „colorable claim‟ means a claim that, if taken in a light most favorable to the moving
party, would entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478
S.W.3d 585, 593 (Tenn. 2015). Whether the defendant has presented a colorable claim
for relief under Rule 36.1 is a question of law, which this Court reviews de novo without
a presumption of correctness. Id. at 589.
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In State v. Brown, 479 S.W.3d 200 (Tenn. 2015), our Supreme Court addressed
the issue of whether Rule 36.1 may be used to correct illegal sentences that have expired.
The Court in Brown stated:
Rather than adopt an interpretation of Rule 36.1 that is not supported by the
expressed purpose or language of Rule 36.1, that is not consistent with the
jurisprudential context from which Rule 36.1 developed, and that has the
potential to result in unconstitutional applications of Rule 36.1, we hold
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.
The appellant has conceded that the sentences at issue have expired. The record,
although sparse, also indicates the appellant‟s sentences expired over ten years ago. Rule
36.1 does not authorize relief from expired illegal sentences. The trial court was correct
in denying the appellant‟s motion for failure to state a colorable claim for relief. We,
therefore, affirm the judgment of the trial court.
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J. ROSS DYER, JUDGE
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