IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2016
STATE OF TENNESSEE v. JOHN A. BAILEY
Appeal from the Circuit Court for Gibson County
No. 7289 Clayburn Peeples, Judge
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No. W2015-02330-CCA-R3-CD - Filed July 22, 2016
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On October 26, 2007, the defendant, John A. Bailey, pled guilty to aggravated robbery
and evading arrest and received an eight-year sentence for aggravated robbery, two-year
sentence for evading arrest, and almost five years of pretrial jail credit. The trial court
then imposed alternative sentences of unsupervised state probation for both convictions.
The sentences were to be served concurrent with one another and a prior federal sentence,
for which the defendant was already incarcerated. The defendant’s state sentences
expired on December 21, 2010, yet he filed a Tennessee Rule of Criminal Procedure 36.1
motion to correct an illegal sentence on July 6, 2015, asserting in part that he illegally
received probation for the aggravated robbery conviction. The trial court summarily
denied the motion without a hearing and without appointing counsel for the defendant.
The defendant now appeals, maintaining that his sentence was illegal. After a thorough
review of the record, we affirm the trial court’s denial of the defendant’s untimely motion
to correct his sentence.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
CAMILLE R. MCMULLEN, JJ., joined.
John Anthony Bailey, Memphis, Tennessee, appellant, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler
Parham, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On October 26, 2007, the defendant pled guilty to aggravated robbery and evading
arrest by motor vehicle, and the trial court dismissed a charge of possession of a weapon
by a convicted felon. The trial court sentenced the defendant as a Range I, standard
offender, to eight years for aggravated robbery and two years for evading arrest and then
imposed alternative sentences of unsupervised state probation for both. The sentences
were to be served concurrently. The defendant had previously been convicted of a related
federal charge, so the sentences were also to be served concurrent with his federal
sentence. The trial court granted the defendant almost five years of pretrial jail credit.
On July 6, 2015, the defendant filed a Rule 36.1 motion to correct an illegal
sentence, asserting that the sentence imposed was in direct contravention of the
sentencing schemes mandated by Tenn. Code Ann. §§ 40-35-106 and 40-35-210(b), in
part because the trial court sentenced him to probation for aggravated robbery. In
response, the State argued the trial court should deny the defendant’s Rule 36.1 motion
because the defendant’s sentence expired prior to the filing of the motion. On November
19, 2015, the trial court denied the Rule 36.1 motion without the appointment of counsel
and without a hearing.
The defendant timely appealed the trial court’s decision. On appeal, the defendant
contends he made a colorable showing that the sentences imposed were in direct
contravention of Tenn. Code Ann. §§ 40-35-210 and 40-35-303, so the trial court erred in
summarily denying his motion to correct an illegal sentence without the appointment of
counsel and a hearing. The State responds that the defendant’s sentence has expired and
there is no longer any relief available to him under Rule 36.1, so the trial court correctly
denied the motion. We find the defendant’s sentence expired almost four years prior to
the filing of his Rule 36.1 motion and affirm the trial court’s denial of it.
Tennessee Rule of Criminal Procedure 36.1 provides the following mechanism for
seeking the correction of an illegal sentence:
(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
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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 uniform judgment
document, see Tenn. S.Ct. Rule 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.
Tenn. R. Crim. P. 36.1.1
The Tennessee Supreme Court recently addressed “whether Rule 36.1 expands the
scope of relief available . . . by permitting either the defendant or the State to correct
expired illegal sentences.” State v. Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our
supreme court held that “Rule 36.1 does not expand the scope of relief and does not
authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion may
be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Id. at 211.
1
Tennessee Rule of Criminal Procedure 36.1 was amended effective July 1, 2016. We
reach the same conclusion under the amended rule.
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The record reflects that the defendant’s sentence expired long before he filed his
Rule 36.1 motion. On October 26, 2007, the trial court imposed an eight-year sentence
for aggravated robbery and a two-year sentence for evading arrest and ordered that the
defendant serve the sentences concurrent with one another and a prior federal sentence.
The trial court then imposed the alternative sentence of unsupervised state probation. The
defendant received pretrial jail credit from December 21, 2002 through October 26, 2007,
totaling approximately 1769 days. The defendant’s eight-year concurrent sentence began
on December 21, 2002, the date he was incarcerated and began receiving pretrial credit.
The defendant’s concurrent eight-year sentence, including the unsupervised state
probation, therefore ended on December 21, 2010, over four years before the defendant
filed his Rule 36.1 motion.
The defendant argues that the trial court imposed an illegal sentence. However, he
waited until July 6, 2015, after he had completely served the challenged sentence, to file
his Rule 36.1 motion. At that point, there was no longer a remedy to correct any illegality
in the defendant’s sentence. Accordingly, we conclude the trial court properly denied the
defendant’s Rule 36.1 motion without first appointing counsel or holding a hearing.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
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J. ROSS DYER, JUDGE
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