The opinion
01/25/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 24, 2024
STATE OF TENNESSEE v. ALEXANDER RUBEN CARINO
Appeal from the Criminal Court for Cumberland County
No. 09-0016A Wesley Bray, Judge
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No. E2023-01089-CCA-R3-CD
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The Defendant, Alexander Ruben Carino, filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleged that his consecutive
sentences were illegal because the trial court made no findings that consecutive sentences
were appropriate. The trial court denied the motion after finding that the sentences were
imposed pursuant to the Defendant’s valid plea agreement. On our review, we respectfully
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right;
Judgment of the Criminal Court Affirmed
TOM GREENHOLTZ, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and KYLE A. HIXSON, JJ., joined.
Alexander Ruben Carino, Hartsville, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; Christian N. Clase, Assistant Attorney
General; Bryant C. Dunaway, District Attorney General; and Philip A. Hatch, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On July 16, 2010, the Defendant pled guilty to two counts of second degree murder.
As part of the written plea agreement, the Defendant agreed to serve a sentence of twenty-
one and one-half years for each count and to have the trial court align the sentences
consecutively for a total effective sentence of forty-three years. See Carino v. State, No.
M2017-00345-CCA-R3-HC, 2017 WL 3311196, at *1 (Tenn. Crim. App. Aug. 3, 2017),
perm. app. denied (Tenn. Nov. 17, 2017). The State then agreed to dismiss a charge of
attempted especially aggravated robbery.
Some thirteen years later in July 2023, the Defendant filed a pro se motion pursuant
to Tennessee Rule of Criminal Procedure 36.1, arguing that his agreed sentence was
illegal. 1 In his motion, the Defendant asserted three grounds for relief. First, he argued
that the trial court must make findings supporting consecutive sentences and that parties
may not simply agree to them. Second, he asserted that the trial court did not make specific
findings required by Tennessee Code Annotated section 40-35-115, State v. Wilkerson, 905
S.W.2d 933 (Tenn. 1995), or Tennessee Rule of Criminal Procedure 32. Finally, the
Defendant contended that his plea was void because he did not receive the effective
assistance of counsel.
On July 19, 2023, the trial court entered an order summarily denying the
Defendant’s motion. The court found that Tennessee Rule of Criminal Procedure
36.1(c)(3) limits the circumstances under which relief may be granted where the sentence
is imposed pursuant to a plea agreement. The trial court also concluded that because “the
Defendant has benefitted from the agreement,” the motion should be denied.
The Defendant filed a timely notice of appeal on July 31, 2023.
STANDARD OF APPELLATE REVIEW
Our supreme court has recognized that “the first question for a reviewing court on
any issue is ‘what is the appropriate standard of review?’” State v. Enix, 653 S.W.3d 692,
698 (Tenn. 2022). The principal issue in this case is whether the trial court correctly found
that the Defendant failed to state a colorable claim for correction of an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1. This question is one of law that
we review de novo on appeal. See State v. Wooden, 478 S.W.3d 585, 589 (Tenn. 2015);
State v. Watson, No. E2022-01321-CCA-R3-CD, 2023 WL 5925717, at *8 (Tenn. Crim.
App. Sept. 12, 2023) (“Whether a sentence is illegal is a question of law that we review de
novo.”), no perm. app. filed.
1
This motion was the Defendant’s second motion to correct an illegal sentence. The first
motion, which is not included in the appellate record, was summarily denied by the trial court on May 24,
2023. The Defendant did not appeal this order but instead filed the second motion that is now before this
Court.
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ANALYSIS
Tennessee Rule of Criminal Procedure 36.1 provides that a defendant “may seek to
correct an illegal sentence by filing a motion . . . in the trial court in which the judgment of
conviction was entered.” Tenn. R. Crim. P. 36.1(a)(1). A sentence is illegal if it “is not
authorized by the applicable statutes or that directly contravenes an applicable statute.”
Tenn. R. Crim. P. 36.1(a)(2).
As our supreme court has observed, “mistakes in sentencing are inevitable, but few
sentencing errors render sentences illegal.” Wooden, 478 S.W.3d at 595. Sentencing errors
may be clerical, appealable, or fatal errors, but “only fatal errors render sentences illegal.”
State v. Reid, 620 S.W.3d 685, 689 (Tenn. 2021) (citation and internal quotation marks
omitted). Fatal errors are those errors that are “so profound as to render the sentence illegal
and void.” State v. Brown, 479 S.W.3d 200, 208 (Tenn. 2015) (citation and internal
quotation marks omitted). These errors may 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.” Wooden, 478 S.W.3d at 595.
In this case, the Defendant argues that the consecutive sentences imposed pursuant
to his plea agreement are illegal. His principal argument is that the trial court failed to
make appropriate findings to support consecutive sentences.
Respectfully, this claim is without merit. Although a trial court’s failure to make
appropriate findings justifying consecutive sentences may be remedied on direct appeal,
the failure does not render the consecutive sentences illegal. Indeed, we have specifically
held that “a failure to make required findings in support of consecutive sentencing is not a
fatal error that would render the sentences illegal and entitle the [Defendant] to either
habeas corpus or Rule 36.1 relief.” State v. Moses, No. W2019-01219-CCA-R3-CD, 2020
WL 4187317, at *4 (Tenn. Crim. App. July 20, 2020), perm. app. denied (Tenn. Dec. 4,
2020).
Moreover, the Defendant’s sentences in this case were imposed pursuant to a
presumptively valid plea agreement. Because “consecutive sentencing is subject to plea
negotiation,” a defendant “can knowingly and voluntarily plead guilty pursuant to an
agreement to serve sentences consecutively even if none of the statutory criteria for
discretionary consecutive sentencing set out in Tennessee Code Annotated section 40-35-
115 exist.” State v. Greenlee, No. E2017-00282-CCA-R3-CD, 2017 WL 3841375, at *2
(Tenn. Crim. App. Sept. 1, 2017) (emphasis added) (citation and internal quotation marks
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omitted), perm. app. denied (Tenn. Dec. 6, 2017); Williams v. State, No. 01C01-9506-CR-
00190, 1996 WL 233982, at *5 (Tenn. Crim. App. May 9, 1996) (recognizing that a
defendant’s “plea agreement to serve consecutive sentences, where statutory factors
suggesting consecutive sentencing may not exist, is not illegal and cannot be set aside”).
Accordingly, because his consecutive sentences are not illegal, the Defendant is not entitled
to relief pursuant to Rule 36.1.
CONCLUSION
In summary, we hold that the Defendant’s consecutive sentences imposed pursuant
to a plea agreement are not illegal simply because the trial court did not make findings
necessary to impose the sentences. We respectfully affirm the judgment of the trial court
denying the Defendant’s Rule 36.1 motion.
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TOM GREENHOLTZ, JUDGE
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