IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2014 at Knoxville
STATE OF TENNESSEE v. SANCHEZ LEWAN BRADFORD
Appeal from the Criminal Court for Davidson County
Nos. 97-C-1437, 2001-A-257 J. Randall Wyatt, Jr., Judge
No. M2014-01311-CCA-R3-CD – Filed April 8, 2015
The petitioner, Sanchez Lewan Bradford, appeals the trial court’s summary dismissal of
his motion to correct an illegal sentence, asserting that his sentences were illegal in that
he was not sentenced to consecutive terms. After review, we affirm the summary
dismissal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and TIMOTHY L. EASTER, J., joined.
Sanchez Lewan Bradford, Memphis, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Amy Hunter, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTS
On October 2, 1997, in case number 97-C-1437, the petitioner pled guilty to
possession of 0.5 grams or more of cocaine with intent to sell or deliver, a Class B felony,
and was sentenced to eight years, suspended to probation upon serving one year.
Thereafter, on April 26, 2001, in case number 2001-A-257, the petitioner pled guilty to
possession of 0.5 grams or more of cocaine with intent to sell, a Class B felony, and was
sentenced to ten years.1 The court ordered that the ten-year sentence in case number
2001-A-257 run concurrently with the sentence in 97-C-1437.
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Other charges in the indictments were dismissed.
On April 21, 2014, the petitioner filed a pro se motion to correct an illegal
sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure, arguing
that his sentences were illegal because they were ordered to be served concurrently,
rather than consecutively. On June 23, 2014, the trial court entered an order summarily
dismissing the motion, determining that “the imposition of consecutive sentencing is left
to the discretion of the sentencing court; it is not mandatory. The [petitioner] benefit[]ed
greatly from the agreement when he received a concurrent sentence.” The petitioner
appealed.
ANALYSIS
The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013,
with the addition of Rule 36.1 which provides as follows:
(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.
(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
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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. Prior to the adoption of this Rule, defendants generally had to
seek relief from illegal sentences through habeas corpus or post-conviction proceedings.
See, e.g., Cantrell v. Easterling, 346 S.W.3d 445, 453, 453 n.7 (Tenn. 2011).
On appeal, the petitioner argues that the trial court illegally sentenced him to serve
his sentence in case 2001-A-257 concurrently with his sentence in case 97-C-1437. He
asserts that the sentence was imposed in direct contravention of Tennessee Code
Annotated section 40-35-115(b)(6) and Tennessee Rule of Criminal Procedure
32(c)(3)(C) because he committed the offense in case 2001-A-257 while he was on
probation in case 97-C-1437. However, neither the statute nor the rule requires
consecutive sentencing in cases where a defendant commits a new crime while on
probation. Tennessee Code Annotated section 40-35-115(b)(6) provides that the trial
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court “may order sentences to run consecutively if [it] finds by a preponderance of the
evidence that . . . [t]he defendant is sentenced for an offense committed while on
probation[.]” Id. (emphasis added). Thus, although the petitioner committed the offense
in case 2001-A-257 while he was on probation in case 97-C-1437, the trial court was not
required to impose consecutive sentencing under Tennessee Code Annotated section 40-
35-115(b)(6). In addition, the petitioner’s reliance on Tennessee Rule of Criminal
Procedure 32(c)(3)(C) is misplaced because he was not released on bail in case 97-C-
1437 when he committed the offense in case 2001-A-257.
We, therefore, conclude that the petitioner failed to present a colorable claim of an
illegal sentence, and the trial court acted properly in dismissing the petitioner’s motion
without a hearing or appointing counsel.
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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