The opinion
05/28/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 4, 2020
STATE OF TENNESSEE v. CALVIN COLE
Appeal from the Circuit Court for Crockett County
No. 3193, 3797 Clayburn Peeples, Judge
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No. W2019-00465-CCA-R3-CD
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The Defendant, Calvin Cole, appeals the denial of his Rule 36.1 motion to correct an
illegal sentence. Following our review, we affirm the judgment of the trial court
summarily denying the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
A. Russell Larson, Jackson, Tennessee, for the appellant, Calvin Cole.
Herbert H. Slatery III, Attorney General and Reporter; and Katharine K. Decker,
Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On June 12, 2001, the Defendant pled guilty in case number 3193 in the Crockett
County Circuit Court to three drug offenses in exchange for a total effective sentence of
eight years. On July 18, 2002, the Defendant was placed on supervised probation for the
offenses. The sentence expiration date on his probation certificate was listed as February
23, 2009.
On December 15, 2005, a probation violation report was filed alleging that the
Defendant had violated the terms of his probation by his November 16, 2005 arrest for
contributing to the delinquency of a minor, casual exchange with a minor, solicitation of
a minor, and statutory rape. On February 28, 2006, the Crockett County Grand Jury
returned an indictment charging the Defendant with those offenses in case number 3797.
On June 19, 2007, the Defendant pled guilty in case number 3797 to casual exchange of
cocaine to a minor in exchange for an eight-year sentence to be served concurrently to his
sentence in case number 3193 and suspended to time served, with the Defendant given
pretrial jail credits from November 16, 2005 to June 19, 2007. That same day, the trial
court entered an order revoking the Defendant’s probation in case number 3193 for the
approximately 19 months he had served in jail following his arrest in case number 3797
and returning him to supervised probation for the balance of his eight-year sentence. On
December 2, 2011, an agreed order was filed transferring the Defendant to unsupervised
probation for the remainder of his sentence in case number 3797.
On July 25, 2018, the Defendant filed a Tennessee Rule of Criminal Procedure
36.1 Motion to Correct Illegal Sentence in case numbers 3193 and 3797. Specifically,
the Defendant alleged that because he was on probation in case number 3193 at the time
he was sentenced in case number 3797, the sentence in case number 3797 should have
been ordered to be served consecutively and, hence, was illegal.
The trial court summarily denied the motion in an order filed on November 7,
2018, on the basis that the sentence in the Defendant’s most recent Crocket County case,
case number 3797, expired in June 2015 and the court was therefore without jurisdiction
to grant the requested relief. This appeal followed.
ANALYSIS
On appeal, the Defendant apparently concedes that his sentences have expired but
argues that the trial court erred in ruling that the sentences could not be altered or
amended pursuant to Rule 36.1 merely because they were expired. The State responds
that the trial court properly denied the motion because a defendant must file a motion to
correct an illegal sentence before the sentence expires. We agree with the State.
Rule 36.1 provides in pertinent part:
Either the defendant or the state may seek to correct an illegal sentence by
filing a motion to correct an illegal sentence in the trial court in which the
judgment of conviction was entered. Except for a motion filed by the state
pursuant to subdivision (d) of this rule, a motion to correct an illegal
sentence must be filed before the sentence set forth in the judgment order
expires. The movant must attach to the motion a copy of each judgment
order at issue and may attach other relevant documents. The motion shall
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state that it is the first motion for the correction of the illegal sentence or, if
a previous motion has been made, the movant shall attach to the motion a
copy of each previous motion and the court’s disposition thereof or shall
state satisfactory reasons for the failure to do so.
Tenn. R. Crim. P. 36.1 (a)(1)(emphasis added).
Moreover, our supreme court has rejected the idea that a Rule 36.1 motion can be
used to correct an illegal sentence after the sentence has expired:
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.
State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015).
The sentences in the Defendant’s cases clearly expired well before he filed his
motion. We, therefore, conclude that the trial court’s summary denial of the Defendant’s
Rule 36.1 motion was proper.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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ALAN E. GLENN, JUDGE
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