State of Tennessee v. Shelton Hall, III

05/15/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 9, 2024

STATE OF TENNESSEE v. SHELTON HALL, III

Appeal from the Circuit Court for Rutherford County

Nos. F-62427, F-59815, F-60054, F-60055 James A. Turner, Judge

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No. M2023-00657-CCA-R3-CD

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Petitioner, Shelton Hall, III, appeals the denial of his motion to correct an illegal sentence,

filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our review of the

entire record and the briefs of the parties, we affirm the judgment of the trial court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, P.J., and MATTHEW J. WILSON, J., joined.

R. Wilford Fraley, III, Murfreesboro, Tennessee, for the appellant, Shelton Hall, III.

Jonathan Skrmetti, Attorney General and Reporter; Christian N. Clase, Assistant Attorney

General; Jennings H. Jones, District Attorney General; and Matthew Westmoreland,

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

OPINION

Factual and Procedural Background

On July 20, 2007, Petitioner pled guilty to reckless aggravated assault in case no. F-

59815 and two counts of the sale of .5 grams or more of cocaine in case nos. F-60054 and

F-60055. The sentences in case nos. F-59815, F-60054, and F-60055 were ordered to be

served concurrently for an effective eight-year sentence to be served on probation.

On April 22, 2009, while still on probation for his 2007 cases, Petitioner pled guilty

to three additional offenses in case no. F-62427: one count of the sale of .5 grams or more

of cocaine, one count of the sale of less than .5 grams of cocaine, and one count of the sale

of less than .5 grams of cocaine within 1,000 feet of a school zone. He received an effective

twelve-year sentence to be served on community corrections consecutively to the time

remaining on Petitioner’s 2007 convictions. See State v. Hall, No. M2012-01622-CCA-

R3-CD, 2013 WL 1200266, at *1 (Tenn. Crim. App. Mar. 26, 2013). The trial court also

entered a violation of probation order for the 2007 cases and ordered Petitioner to serve ten

months in confinement.1 Additionally, the trial court transferred supervision for

Petitioner’s eight-year probation sentence to community corrections for an effective

twenty-year sentence to be served on community corrections. Id.

Community correction violation warrants were issued against Petitioner on October

11, 2010, January 21, 2011, and March 22, 2011, and an evidentiary hearing was held on

those violations on September 23, 2011. Id. at *2. The trial court sustained the warrants

and ordered Petitioner to serve his original eight-year and twelve-year consecutive

sentences in confinement. Petitioner was given jail credit totaling three years, ten months,

and nine days. Id. Petitioner appealed his community corrections revocation arguing that

his probation officer wrongly violated his community corrections sentence without just

cause, and the trial court abused its discretion in “declining to appoint counsel, in

determining that he had waived his issues, and in failing to consider his ‘Motion for

Reconsideration of Judgment Orders’ and ‘Motion for Modification of Judgment Orders.’”

Id. at *1. In addition to agreeing that Petitioner filed an untimely notice of appeal, this

Court concluded that Petitioner had waived his issues on appeal “based on his failure to

include the transcript from the revocation hearing and based on his failure to make

appropriate references to the record, to include citations to relevant authority, and to

support his issues with argument.” Id. at *5.

Petitioner subsequently filed numerous pro se motions that were all denied by the

trial court. Id. at *2-3. On July 29, 2021, he filed a motion pursuant to Tennessee Rule of

Criminal Procedure 36 alleging that the trial court incorrectly determined the number of

pretrial jail credits he was entitled to receive. The trial court found that Petitioner “failed

to provide evidence or support” of his claim and dismissed the motion. On May 11, 2022,

Petitioner filed a motion to correct an illegal sentence pursuant to Rule 36.1 of the

Tennessee Rules of Criminal Procedure alleging that he should have been released from

confinement after service of the eight-year sentence for his 2007 convictions. The trial

court denied the motion finding that Petitioner’s pretrial jail credits were properly applied

and that the trial court possessed the authority to place Petitioner’s twelve-year sentence

for his 2009 convictions into effect.

On July 19, 2022, Petitioner filed a “Petition Seeking Clarification of Previously

Entered Judgment” arguing that he should be released from confinement and placed under

community corrections supervision. That same day, Petitioner also filed a “Petition to

Reduce School Zone Sentence,” and the trial court denied both petitions. Regarding the

1

The trial court entered a community corrections order on August 11, 2009, suspending the ten-month

sentence. The court also said that Petitioner’s sentence would expire on July 15, 2027. Hall, 2013 WL

1200266, at *2.

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petition seeking clarification, the trial court found that Petitioner’s sentence was authorized

by statute, and he failed to state a colorable claim for relief. Regarding the petition for

resentencing, the trial court found that Petitioner’s “overall sentence would not be reduced”

if he were resentenced.

On January 12, 2023, Petitioner filed the present Rule 36.1 motion, his second,

reiterating his previous arguments. At the evidentiary hearing, Petitioner argued that the

trial court lacked authority to place his original twelve-year sentence into effect. More

specifically as to this issue, defense counsel asserted:

[Petitioner] maintains the position that he had not yet come into that

12 year sentence, he had not started that sentence. He could not be

ordered to serve that sentence, because it had not yet begun.

At this point, his eight year sentence would have been flattened

completely, served out based upon the time that he’s spent

incarcerated. And he should now be released onto a 12 year

Community Corrections sentence as it was originally ordered.

He further would argue that his original sentence to the 12 year

Community Corrections was not a suspended sentence. I don’t know

that I understand that argument, and he may be able to explain that

to the Court. Because, like I said, it’s either suspended or it’s to

serve. And it was not a to serve as it was originally imposed.

But his basic position today is that he never began the 12, and that

this Court, [. . .], had no authority to put a sentence of Community

Corrections into effect when it hasn’t started, therefore he could not

have violated.

I have looked at some case law. I have looked at [Tennessee Code

Annotated section] 40-35-311, which [Petitioner] can tell you all

about. State v. Bowling, State v. Green, 40-35-311. All those things,

he’s well versed in those things.

I cannot see that they apply to the argument that he’s making. And

this isn’t what he wants to hear, but it’s what I am finding, and it’s

what I have discussed with him. But I’m here to present his case

otherwise, Judge.

Petitioner was called to testify and acknowledged that defense counsel had advised

him that the “law” did not favor the argument raised by Petitioner in his Rule 36.1 motion.

However, Petitioner testified:

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Well, I’m saying that my sentence is illegal based upon the Statute

of 40-35-311. 40-35-311 only applied to my eight year sentence.

Those Case Numbers was 59815, 60055, 60054. I was currently out

on the street serving eight years that was transferred to Community

Correction for the remainder of my State Probation.

It also says it in the Community Corrections Order. The Community

Corrections Order is dated August 11, 2009. And on this order in

the special - - in the special conditions in this order, it says probation

is being supervised by the Community Corrections for the remainder

of the State Probation without credit before he starts 62427, in which

he will receive credit on.

So, to my understanding and to my agreement, this means that I was

to serve my probation before I start my 12 year sentence. However,

I never made it to the 12 year sentence because I violated for

technical reasons. And to my understanding up under the revocation

statute, [the trial court] only had the authority to execute the

judgment as it was originally entered.

He could have modified my conditions. He could have extended it

two years, et cetera. In my case, that didn’t happen to me. Now I’m

serving 8 years, plus 12 years for a technical violation. That’s

erroneous and it’s unconstitutional. And it’s not fair to me.

The trial court entered an order denying Petitioner’s Rule 36.1 motion finding that

Petitioner’s sentence was authorized by statute and not illegal. The court pointed out that

“[t]rial courts do have the authority to place a sentence, once suspended, into effect, which

is what [the trial court] did on September 23, 2011.” The trial court further found that “if

[Petitioner] believed the Court erred in 2011, then he should have timely exercised his right

to appellate review.” It is from this order that Petitioner now appeals.

Analysis

On appeal, Petitioner argues that the trial court erred by denying his Rule 36.1

motion because his sentence is illegal. More specifically, he asserts that the trial court’s

probation revocation order of April 22, 2009, improperly changed his eight-year

probationary sentence, that he had already begun serving, to a new community corrections

sentence and that the trial court erred by ordering him to “serve the twelve-year sentence

which was a community corrections sentence which had not yet begun.” The State

responds that Petitioner waived his claim concerning the eight-year sentence and that

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neither of the claims raised by Petitioner are cognizable under Rule 36.1, “as both were

appealable.” We agree with the State.

Tennessee Rule of Criminal Procedure 36.1 permits a Petitioner to seek correction

of an unexpired illegal sentence at any time 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); 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(2). Our supreme court has interpreted the

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

coextensive with, 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).

A trial court may summarily dismiss a Rule 36.1 motion if it does not state a

colorable claim for relief. Tenn. R. Crim. P. 36.1(b)(2). A “‘colorable claim’ means a

claim that, 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.” Wooden, 478 S.W.3d at 593. “[F]ew

sentencing errors render [a sentence] illegal.” Id. at 595. Rather, sentencing errors may be

clerical, appealable, or fatal, and only fatal errors render a sentence illegal. Id.

Initially, as argued by the State, Petitioner has waived his claim that the trial court

illegally imposed a “new sentence of Community Corrections” for his effective eight-year

sentence after revoking his probation and that the revocation order is “void” by failing to

raise it in the trial court. Because the issue is raised for the first time on appeal, it is waived.

See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”); see also State v.

McDougle, No. W2022-01103-CCA-R3-CD, 2023 WL 2968224, at *2 (Tenn. Crim. App.

Apr. 17, 2023) (holding that petitioner’s claim was waived because he failed to raise it at

the trial level in his Rule 36.1 motion), perm. app. denied (Tenn. June 28, 2023).

Even if not waived, this claim and Petitioner’s claim that the trial court erred by

ordering him to serve his twelve-year community corrections sentence, which had not yet

begun, if taken as true, do not afford Petitioner any relief. These are both errors that could

have been appealed and are not cognizable under Rule 36.1.2 Wooden, 478 S.W.3d at 594-

95; see State v. Yost, No. E2020-01115-CCA-R3-CD, 2021 WL 3808974, at *1 (Tenn.

Crim. App. Aug. 26, 2021) (“An error in a trial court’s revocation of probation is an

appealable error and does not render a sentence illegal.”), no perm. app. filed; State v.

Pearce, No. W2019-00341-CCA-R3-CD, 2019 WL 5681477, at *2 (Tenn. Crim. App. Oct.

31, 2019) (“The Defendant’s attack of the revocation of his probation is a claim of trial

2

It does not appear that Petitioner raised these errors in the appeal of his community corrections

violation. See Hall, 2013 WL 1200266, at *1-5.

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court error that could have been appealed.”); State v. Massey, No. M2019-00700-CCA-R3-

CD, 2020 WL 1933776, at *2 (Tenn. Crim. App. Apr. 22, 2020) (holding that the trial

court’s summary dismissal of the appellant’s Rule 36.1 motion was proper and that he

could have appealed any community corrections revocation order within thirty days of

entry but failed to do so). The record reflects that Petitioner received statutorily authorized

sentences for his convictions, and nothing indicates that his sentences contravene any

sentencing statute. Accordingly, we conclude that the trial court’s dismissal of Petitioner’s

Rule 36.1 motion was proper, and he is not entitled to relief.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is affirmed.

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JILL BARTEE AYERS, JUDGE

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