State of Tennessee v. Daryl Bobo

09/29/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 2, 2022

STATE OF TENNESSEE v. DARYL BOBO

Appeal from the Criminal Court for Shelby County

No. 11-03987 Chris Craft, Judge

___________________________________

No. W2021-00811-CCA-R3-CD

___________________________________

Defendant, Daryl Bobo, appeals the trial court’s summary dismissal of a motion filed

pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure in which Defendant

challenged the legality of his effective 60-year sentence as a Range III, persistent offender

resulting from multiple drug-related convictions. We affirm the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. JOHN EVERETT WILLIAMS, P.J., not participating.1

Daryl Bobo, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant

Attorney General; Steven J. Mulroy, District Attorney General; and Melanie Headley Cox,

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

OPINION

Defendant was convicted in 2013 of possession with intent to sell 0.5 grams or more

of cocaine in a drug-free school zone, a Class A felony, and possession with intent to sell

0.5 ounces or more of marijuana in a drug-free school zone, a Class D felony. The trial

court sentenced Defendant as a Range III, persistent offender to 60 years for his cocaine

conviction and 12 years for his marijuana conviction, to be served concurrently. A panel

1

Judge Williams, the Presiding Judge of the Court of Criminal Appeals, died on September 2,

2022. The members of this panel of the Court acknowledge Judge Williams's steadfast leadership, sharp

wit, and overall positive influence on the judiciary during his many years of service to Tennessee. He will

be greatly missed by all of his colleagues.

of this Court affirmed Defendant’s convictions on direct appeal, and our supreme court

declined to review that decision. State v. Daryl Bobo, No. W2013-02008-CCA-R3-CD,

2014 WL 3954066, at *1 (Tenn. Crim. App. Aug. 13, 2014), perm app. denied (Tenn. Dec.

19, 2014).

In 2015, Defendant sought post-conviction relief, contending that his trial counsel

was ineffective. The post-conviction court denied relief, and this Court affirmed. Daryl

Bobo v. State, No. W2016-00477-CCA-R3-PC, 2016 WL 6803176, at *5 (Tenn. Crim.

App. Nov. 16, 2016), perm app. denied (Tenn. Feb. 28, 2017).

In June 2021, Defendant filed a motion to correct an illegal sentence pursuant to

Rule 36.1 of the Tennessee Rules of Criminal Procedure, alleging that the trial court

improperly considered his prior convictions in determining the appropriate range and in

failing to impose the minimum sentence within the applicable range. The trial court denied

his motion, finding that the sentence imposed was authorized under the statutory scheme

and was not illegal and that Defendant, therefore, failed to establish a colorable claim. This

appeal followed.

Analysis

Defendant argues that his sentence is illegal and that the trial court erred in

dismissing his motion pursuant to Rule 36.1 because he was sentenced to the maximum

number of years under the statutory scheme. He asserts that the sentencing court

“abandoned and ignored” the plain language of Tennessee Code Annotated section 40-35-

210(c)(1), and the intent of the legislature, in imposing the maximum sentence instead of

the presumptive statutory minimum sentence. Defendant does not pursue in this appeal his

claim from his motion that the trial court erroneously considered his prior convictions in

determining the applicable range. The State responds that the trial court did not err in

summarily dismissing the motion because Defendant has failed to state a colorable claim

for relief. We agree with the State.

Rule 36.1 permits a defendant to seek correction of an unexpired illegal sentence at

any time. See State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015). “[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). Our supreme court has interpreted the

meaning of “illegal sentence” as defined in Rule 36.1 and concluded that the definition “is

coextensive, and not broader than, the definition of the term in the habeas corpus context.”

State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015).

As noted by our supreme court, “mistakes in sentencing are inevitable, but few

sentencing errors render sentencing illegal.” Id. at 595 (citing State v. Cantrell, 346 S.W.2d

-2-

445, 448-49 (Tenn. 2011). Only fatal errors result in an illegal sentence and “are so

profound as to render the sentence illegal and void.” Id. (citing Cantrell, 346 S.W.2d at

452). Fatal errors include “sentences imposed pursuant to an inapplicable statutory

scheme, sentences designating release eligibility dates where early release is statutorily

prohibited, sentences that are ordered to be served concurrently where statutorily required

to be served consecutively, and sentences not authorized by any statute for the offenses.”

Id. (citing Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2011)). Errors which are merely

appealable, however, do not render a sentence illegal and include “those errors for which

the Sentencing Act specifically provides a right of direct appeal.” Id.; see Cantrell, 346

S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the sufficiency of

the evidence supporting a conviction” and “involve attacks on the correctness of the

methodology by which a trial court imposed sentence.” Wooden, 478 S.W.3d at 595; see

Cantrell, 346 S.W.2d at 450-52.

A trial court may summarily dismiss a defendant’s Rule 36.1 motion if the motion

fails to state a colorable claim. Tenn. R. Crim. P. 36.1(b)(2). A colorable claim is a claim

that, “if taken as true in a light most favorable to the moving party, would entitle the moving

party to relief under Rule 36.1.” Wooden, 478 S.W.3d at 593. A motion filed pursuant to

Rule 36.1 “must state with particularity the factual allegations on which the claim for relief

from an illegal sentence is based.” Id. at 594. A trial court “may consult the record of the

proceeding from which the allegedly illegal sentence emanated” when determining

whether a motion states a colorable claim for relief. Id. Whether a motion states a

colorable claim for relief is a question of law and reviewed de novo. Id. at 588.

As a Range III, persistent offender, Defendant was subject to a sentence of 40 to 60

years for the cocaine conviction as a Class A felony and 8 to 12 years for the marijuana

conviction as a Class D felony. See T.C.A. §§ 39-17-417(c)(1), (g)(1); 39-17-432(a) (Supp.

2010); 40-35-112(e). The trial court sentenced Defendant to the maximum sentence within

each range. Defendant asserts that the trial court failed to apply Tennessee Code Annotated

section 40-35-210(c)(1), which provides that “[t]he minimum sentence within the range of

punishment, because the general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal offense in the felony

classifications.” However, this is an advisory sentencing guideline which the trial court

must consider but by which the trial court is not bound. T.C.A. § 40-35-210(c).

Furthermore, the imposition of a maximum within-range sentence for an offense does not

render a sentence illegal. See Wooden, 478 S.W.3d at 596 (“A sentence which is

‘statutorily available but ordinarily inapplicable to a given defendant’ is not an illegal

sentence[.]”) (quoting Cantrell, 346 S.W.2d at 454).

Defendant’s allegations, even if true, would not create fatal errors entitling him to

Rule 36.1 relief. Defendant’s claim challenges the “methodology” for which the trial court

-3-

reached its sentencing determination. Such claims fall within the second category of

sentencing errors – appealable errors, which must be addressed on direct appeal. See, e.g.,

Wooden, 478 S.W.3d at 596; Cantrell, 346 S.W.2d at 454. Thus, the trial court did not err

in concluding that Defendant failed to state a colorable claim for relief.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgment.

__________________________

TIMOTHY L. EASTER, JUDGE

-4-