State of Tennessee v. Montreal Lyons

08/15/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 7, 2017

STATE OF TENNESSEE v. MONTREAL LYONS

Appeal from the Criminal Court for Shelby County

No. 03-01051 James C. Beasley, Jr., Judge

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No. W2016-00929-CCA-R3-CD

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Defendant, Montreal Lyons, appeals from the trial court’s dismissal of his motion to

correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.

Defendant contends that his sentence is illegal because the trial court imposed the

sentence for offenses that occurred in 2002 under the 2005 amendments to the sentencing

act without an ex post facto waiver signed by Defendant. The State responds that the trial

court properly dismissed Defendant’s motion because he failed to state a colorable claim

for relief. We agree with the State. Accordingly, we affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and J. ROSS DYER, JJ., joined.

Cristy C. Cooper Davis, Greenfield, Tennessee, for the appellant, Montreal Lyons.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Kenya Smith,

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

OPINION

Procedural history

Defendant was convicted of four counts of aggravated robbery and one count of

especially aggravated kidnapping. State v. Montreal Lyons, No. W2006-02445-CCA-R3-

CD, 2008 WL 2699657 (Tenn. Crim. App., July 9, 2008), perm. app. denied (Tenn., Jan.

20, 2009). The trial court merged the four aggravated robbery convictions into two

convictions, and Defendant was sentenced to twelve years for each aggravated robbery

conviction and twenty years for his especially aggravated kidnapping conviction. His

sentences were ordered to run consecutively, for an effective sentence of 44 years’

incarceration.

The offenses occurred on May 14, 2002, and the facts underlying Defendant’s

convictions were summarized by a panel of this court in the opinion on direct appeal. Id.

The panel noted that Defendant “ma[de] no argument as to whether the trial court utilized

the pre- or post-2005 version of the sentencing act to determine his sentence.” Id. at *4.

Defendant also did not raise the issue in the appeal from the denial of post-conviction

relief. Montreal Lyons v. State, No. W2010-00798-CCA-R3-PC, 2011 WL 3630330

(Tenn. Crim. App., Aug. 18, 2011), perm. app. denied (Tenn., Dec. 14, 2011).

On December 7, 2015, Defendant filed a pro se Rule 36.1 motion to correct an

illegal sentence. The trial court appointed an attorney to represent Defendant and held a

hearing on the motion on April 1, 2016. At the hearing, the State stipulated and the trial

court recognized that Defendant was sentenced under the 2005 amendments to the

sentencing act.

In its written order dismissing the motion, the trial court found that the parties

“agreed that the sentencing procedure was not proper under [State v.] Gomez[, 239

S.W.3d 733 (Tenn. 2007)]. The court concluded, however, that the sentence was not

illegal. The court stated:

The sentence was authorized by applicable statutes and was within the

proper range of punishment for [Defendant]. There was a valid

justification for the sentence imposed based strictly on [Defendant]’s

prior criminal history, notwithstanding the other factors that the Court

considered in imposing the sentence.

Analysis

Under Rule 36.1, either a defendant or the State may file 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). The trial court may dismiss a Rule 36.1 motion if the motion

fails to state a “colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b)-

(c)(1); see State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). A Rule 36.1 motion states

a “colorable claim” when the “claim . . . 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.”

State v. Wooden, 478 S.W.3d 585, 592-93 (Tenn. 2015). An appellate court may

determine whether the “allegations of a Rule 36.1 motion, and any supporting materials,

state a colorable claim for relief under Rule 36.1.” Id. at 594.

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A defendant states a colorable claim for relief under Rule 36.1 by showing that his

imposed, unexpired sentence is illegal. Id. at 594-95. “[A]n 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) (2015). “[T]he 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.” Wooden, 478 S.W.3d at 594-95. A sentencing error falls into one of

three categories: clerical, appealable, and fatal. Id. at 595; Cantrell v. Easterling, 346

S.W.3d 445, 449-53 (Tenn. 2011). Only “fatal errors” render a sentence illegal.

Wooden, 478 S.W.3d at 595 (“The final category is fatal errors, and these errors are ‘so

profound as to render the sentence illegal and void.’”) (quotiong Cantrell, 346 S.W.3d at

452). An illegal sentence includes: (1) sentences imposed pursuant to an inapplicable

statutory scheme; (2) sentences designating release eligibility dates where early release is

statutorily prohibited; (3) sentences that are ordered to be served concurrently where

statutorily required to be served consecutively; and (4) sentences not authorized by any

statute for the offenses. Id. In those situations, relief is appropriate “because the trial

court [would] not have the statutory authority (or jurisdiction) to impose the challenged

sentence.” Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010).

The 2005 amendments to Tennessee’s sentencing act apply to all criminal acts

committed on or after June 7, 2005. State v. Nelson, 275 S.W.3d 851, 868 n. 6 (Tenn.

Crim. App. 2008). A defendant who commits a criminal act before June 7, 2005, may

“elect to be sentenced under these provisions by executing a waiver of [his] ex post facto

protections.” Id. If a defendant fails to execute an ex post facto waiver, and a sentencing

court imposes a sentence under the 2005 amendments, the defendant’s sentence is merely

voidable, rather than void and illegal. It is an appealable error under Wooden, and by

definition not an “illegal” sentence for Rule 36.1 purposes.

CONCLUSION

Defendant is not entitled to relief in this appeal. The judgment of the trial court is

affirmed.

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THOMAS T. WOODALL, PRESIDING JUDGE

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