IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 25, 2016
STATE OF TENNESSEE v. CURTIS COLEMAN
Appeal from the Criminal Court for Sullivan County
Nos. S54-905, S55-343, S55-479, S55-596 James F. Goodwin, Jr., Judge
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No. E2016-00678-CCA-R3-CD – Filed February 21, 2017
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The petitioner, Curtis Coleman, appeals the trial court’s summary dismissal of his motion
to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.
The petitioner has failed to state a colorable claim for relief under Rule 36.1; therefore,
we affirm the summary dismissal of the petitioner’s motion pursuant to Rule 20, Rules of
the Court of Criminal Appeals.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Curtis Coleman, Manchester, Kentucky, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; H. Greeley Wells, Jr., District Attorney General; and William Harper,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 19, 2007, the petitioner was arrested on multiple narcotics-related
offenses. The following day on December 20, 2007, the petitioner was released on bond.
While out on bond in February and April of 2008, the petitioner was arrested and charged
with additional narcotics-related offenses.
On May 21, 2008, the Sullivan County Grand Jury returned a six count indictment
in case number S54905 charging the petitioner with: 1) possession of twenty-six grams
or more of a substance containing cocaine for resale, a class B felony; 2) possession of
oxycodone; 3) possession of dihydrocodeinone; 4) possession of diazepam; 5) possession
of less than one-half ounce of marijuana, all class A misdemeanors; and 6) maintaining a
place where controlled substances are used or sold, a class D felony. The trial court
ordered the petitioner to appear for arraignment on June 6, 2008. The petitioner failed to
appear on the date set for arraignment, and in case number S55343 the Sullivan County
Grand Jury subsequently indicted the petitioner for felony failure to appear, a class E
felony.
On August 26, 2008, the Sullivan County Grand Jury indicted the petitioner, for
offenses allegedly committed on February 13, 2008, while he was out on bond in case
number S54905. The petitioner was indicted in case number S55479 for: 1) possession
of one-half gram or more of a substance containing cocaine for resale, a class B felony;
2) possession of drug paraphernalia, a class A misdemeanor; 3) maintaining a place
where controlled substances are used or sold, a class D felony; and 4) possession of
dihydrocodeinone, a class A misdemeanor. In case number S55596, the Sullivan County
Grand Jury also indicted the petitioner for sale and delivery of .5 grams or more of
cocaine, a class B felony, allegedly committed on April 9, 2008, while released on bond
in case number S54905.
On January 19, 2009, the petitioner pled guilty to all of the above referenced
offenses for which he received an effective sentence of twenty-five years. In calculating
the petitioner’s sentence, the trial court ordered the individual counts within each
indictment to be served concurrently and then the aggregate counts in each indictment to
be served consecutively to the others. In other words, case S54905 served as the base
offense; S55343 was ordered to be served consecutively to S54905; S55479 was ordered
to be served consecutively to S54905 and S55343; and S55596 was ordered to be served
consecutively to S54905, S55343, and S55479.
On December 22, 2015, the petitioner filed a motion to vacate, set aside, or correct
an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On January
5, 2016, the trial court dismissed the petitioner’s motion. The petitioner filed an amended
motion to correct an illegal sentence pursuant to Tenn. R. Crim. P. 36.1, on February 25,
2016. The petitioner argued he was innocent of the crimes he was alleged to have
committed while released on bail in February and April of 2008. The petitioner also
argued that the trial court ordered his sentences to be served concurrently in direct
contravention of Tennessee Code Annotated section 40-20-111(b). The trial court
dismissed the petitioner’s motion for failure to state a colorable claim. This appeal
followed.
Whether the petitioner states a colorable claim for correction of an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1 is a question of law, which this
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court reviews de novo. State v. Wooden, 478 S.W.3d 585, 589 (Tenn. 2015). The
Tennessee Supreme Court defined a colorable claim as “a claim that, if taken as true and
viewed in the 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. Rule 36.1 defines an illegal
sentence as “one that is not authorized by the applicable statutes or that directly
contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a). A defendant is entitled to
appointment of counsel and a hearing if his motion states a colorable claim for relief.
Tenn. R. Crim. P. 36.1(b). If the trial court determines that the defendant does not state a
colorable claim for relief, the trial court is required to file an order denying the
defendant’s motion. Id.
The petitioner argues first that his sentences are illegal because the trial court
failed to order consecutive sentencing pursuant to Tennessee Code Annotated section 40-
20-111(b). Tennessee Code Annotated section 40-20-111(b) provides,
(a) In any case in which a defendant commits a felony while the
defendant is released on bail in accordance with chapter 11, part
1 of this title, and the defendant is convicted of both offenses, the
trial judge shall not have discretion as to whether the sentences
shall run concurrently or cumulatively, but shall order that the
sentences be served cumulatively.
Tenn. Code Ann. § 40-20-111(b).
The record on appeal reflects that the petitioner was arrested on December 19,
2007, in case number S54905. The following day, December 20, 2007, the petitioner was
released on bail. While on release, the petitioner was arrested in February and April of
2008, and subsequently indicted in cases S55343, S55479, and S55596. Pursuant to
Tennessee Code Annotated section 40-20-111(b), the trial court was required to order
consecutive sentencing of the petitioner’s cases. The judgments entered in the
petitioner’s cases clearly show that while the trial court ordered the individual counts in
each indictment to be served concurrently, the trial court ordered the sentences under
each of the four indictments to be served consecutively. The trial court fully complied
with the statute and the plea agreement. Tenn. Code Ann. § 40-20-111(b); see State v.
Alder, 71 S.W.3d 299, 307 (Tenn. Crim. App. 2001) (holding “consecutive sentencing is
mandatory when a defendant commits a felony while on bail and the defendant is
subsequently convicted of both offenses”); State v. Greer, 697 S.W.2d 603, 604 (Tenn.
Crim. App. 1985) (finding “[t]he trial court did not have discretion to run the sentences
concurrently” when the defendant pled guilty to four counts of second degree burglary
“committed while he was on probation from an earlier conviction for second degree
burglary”); State v. George Anthony Flevaris, No. E2012-00978-CCA-R3-CD, 2013 WL
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3816601 (Tenn. Crim. App. July 18, 2013) (affirming the imposition of concurrent terms
for the counts contained within an indictment and consecutive terms between each
indictment). Thus, the petitioner has failed to state a colorable claim for relief based on
these grounds.
Next, the petitioner argues that his sentences are illegal because he is innocent of
the offenses for which he pled guilty. A claim of “actual innocence,” if taken as true,
would render a sentence voidable and not void. Wooden, 478 S.W.3d at 595. Such errors
are “appealable errors” and cannot support a claim for relief under Rule 36.1. Id.
Therefore, the petitioner’s allegations are insufficient to state a colorable claim for relief
under Tennessee Rule of Criminal Procedure 36.1.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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J. ROSS DYER, JUDGE
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