IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. JARRETT DUNN
Appeal from the Criminal Court for McMinn County
Nos. 2003CR110, 2000CR337, and 2003CR112 Andrew M. Freiberg, Judge
No. E2014-01946-CCA-R3-CD-FILED-JANUARY 14, 2015
The pro se appellant, Jarrett Dunn, appeals as of right from the McMinn County Criminal
Court’s order denying his motion to correct illegal sentence. The State has filed a motion to
affirm the trial court’s order pursuant to Rule 20 of the Rules of the Tennessee Court of
Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken
and affirm the order of the trial court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals.
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.
Jarrett Dunn, Atlanta, Georgia, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
On October 5, 2000, the appellant pleaded guilty to one count of possession
of cocaine for resale and was sentenced to 8 years’ split confinement consisting of 6 months
in jail with the remaining 7 years and 6 months to be served on probation. On February 9,
2004, the appellant pleaded guilty to three counts of sale or delivery of cocaine and received
a sentence of 8 years’ probation. As reflected in the 2004 judgments, the offenses occurred
on April 18, 2002 while the appellant was on probation for the 2000 conviction. The 2004
judgments are silent as to the 2000 conviction. On April 21, 2014, the appellant filed a
motion to correct illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.
In his motion, the appellant alleged that the trial court knew that he had committed the
subsequent offenses while on probation for the 2000 offense and that the 2004 judgments are
illegal for failure to order consecutive service to the 2000 judgment for which he was still
on probation when the additional offenses were committed. On September 12, 2014, the trial
court summarily denied the appellant’s motion. The appellant filed a timely notice of appeal
from the trial court’s order.
The recently promulgated Tennessee Rule of Criminal Procedure 36.1
provides:
(a) Either the defendant or the state may, at any time, seek the correction of an
illegal sentence by filing a motion to correct an illegal sentence in the trial
court in which the judgment of conviction was entered. For purposes of this
rule, an illegal sentence is one that is not authorized by the applicable statutes
or that directly contravenes an applicable statute.
(b) Notice of any motion filed pursuant to this rule shall be promptly provided
to the adverse party. If the motion states a colorable claim that the sentence is
illegal, and if the defendant is indigent and is not already represented by
counsel, the trial court shall appoint counsel to represent the defendant. The
adverse party shall have thirty days within which to file a written response to
the motion, after which the court shall hold a hearing on the motion, unless all
parties waive the hearing.
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(c) (1) If the court determines that the sentence is not an illegal sentence, the
court shall file an order denying the motion.
(2) If the court determines that the sentence is an illegal sentence, the court
shall then determine whether the illegal sentence was entered pursuant to a
plea agreement. If not, the court shall enter an amended uniform judgment
document, see Tenn. Sup.Ct. R. 17, setting forth the correct sentence.
(3) If the illegal sentence was entered pursuant to a plea agreement, the court
shall determine whether the illegal provision was a material component of the
plea agreement. If so, the court shall give the defendant an opportunity to
withdraw his or her plea. If the defendant chooses to withdraw his or her plea,
the court shall file an order stating its finding that the illegal provision was a
material component of the plea agreement, stating that the defendant
withdraws his or her plea, and reinstating the original charge against the
defendant. If the defendant does not withdraw his or her plea, the court shall
enter an amended uniform judgment document setting forth the correct sentence.
(4) If the illegal sentence was entered pursuant to a plea agreement, and if the
court finds that the illegal provision was not a material component of the plea
agreement, then the court shall enter an amended uniform judgment document
setting forth the correct sentence.
(d) Upon the filing of an amended uniform judgment document or order
otherwise disposing of a motion filed pursuant to this rule, the defendant or the
state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure.
Tenn. R.Crim. P. 36.1 (Effective July 1, 2013).
The appellant argues that Tennessee Rule of Criminal Procedure 32(c)(3) and
Tennessee Code Annotated section 40-20-111(b) mandate the imposition of consecutive
sentences for additional offenses committed while on probation. Thus, he contends his 2004
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sentences are illegal because they were not ordered to be served consecutively to the 2000
sentence. As the State correctly argues, Rule 32(c)(3) and section 40-20-111 do not require
the imposition of consecutive sentences for additional offenses committed while on
probation. See Tenn. Code Ann. § 40-20-111(b) (mandating consecutive sentencing when
additional offenses are committed while on bail); Tenn. R. Crim. P. 32(c)(3)(A), (B), (C)
(mandating consecutive sentencing when additional offenses are committed while on parole,
escape, or bail). The imposition of consecutive sentences for additional offenses committed
while on probation, however, is within the court’s discretion. See Tenn. Code Ann. § 40-35-
115; Tenn. R. Crim. P. 32(c)(2).1 Contrary to the appellant’s assertions, his 2004 sentences
are not illegal. The trial court correctly denied the appellant’s motion to correct illegal
sentence.
Accordingly, we affirm the judgment of the McMinn County Criminal
Court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
1
We note that a prior unserved sentence may be served consecutively to the sentence for a
subsequent offense when the prior unserved sentence is unknown to the court at the time of judgment. See
Tenn. R. Crim. P. 32(c)(2)(A)(ii). The appellant, however, makes no allegation that the 2000 conviction was
unknown to the trial court. In fact, the appellant alleged in his motion to correct illegal sentence that
concurrent service of the sentences was an element of his plea agreement.
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State of Tennessee v. Jarrett Dunn
Combined Opinion