06/29/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 26, 2018
STATE OF TENNESSEE v. NICHOLAS J. ALBERTS
Appeal from the Criminal Court for Knox County
Nos. 100299, 101109, 106659 Steven Wayne Sword, Judge
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No. E2018-00117-CCA-R3-CD
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The Defendant, Nicholas J. Alberts, appeals the trial court’s denial of his motion to
correct an illegal sentence pursuant to Rule 36.1, Tennessee Rules of Criminal Procedure.
Following our review, we affirm the judgment of the trial court 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
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.
Nicholas J. Alberts, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; and Charme Allen, District Attorney General, for the appellee, State of
Tennessee.
MEMORANDUM OPINION
In case number 106659, the Defendant entered a guilty plea to three counts of
possession of a Schedule II drug with intent to sell, one count of being a felon in
possession of a firearm, and one count of misdemeanor theft. The Defendant received a
sentence of eleven months and twenty-nine days for the misdemeanor theft conviction
and sentences of twelve years for each of the remaining felonies. All of the sentences
were ordered to run concurrently with one another and with the sentences in case
numbers 100299 and 101109. Only the judgments for case number 106659 are included
in the record on appeal. These judgments show that the Defendant was awarded pretrial
jail credits for the following periods: January 26, 2015, through March 9, 2015; June 2,
2015, through December 17, 2015; May 10, 2016, through May 20, 2016; and December
15, 2016, through February 1, 2017.
On November 9, 2017, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1, in which he asserted that his
sentence was illegal because he was not awarded the proper pretrial jail credits. He
specifically asserts that he was in continuous confinement from January 26, 2015,
through February 1, 2017.
On November 21, 2017, the trial court denied the Rule 36.1 motion, noting that the
Defendant had received the jail credits to which he was entitled. The Defendant appeals.
ANALYSIS
On appeal, the Defendant explains that the trial court only gave him credit for the
time he spent at the Knox County Jail, yet he claims he was incarcerated at the Tennessee
Department of Correction during the intermittent times between the dates for which he
was awarded credit. The State responds that the failure to award pretrial jail credits is not
a colorable claim under Rule 36.1. We agree with the State.
Rule 36.1 allows a defendant or the State to seek to correct an unexpired illegal
sentence. See Tenn. R. Crim. P. 36.1(a)(1); State v. Brown, 479 S.W.3d 200, 211 (Tenn.
2015). A sentence is illegal when it “is not authorized by the applicable statutes or …
directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2). A defendant is
only entitled to a hearing and the appointment of counsel if his motion states a colorable
claim for relief under Rule 36.1. Tenn. R. Crim. P. 36.1(b). A colorable claim is one
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.” State v. Wooden, 478 S.W.3d 585,
593 (Tenn. 2015).
The Defendant’s sole assertion is that the trial court failed to award him the proper
pretrial jail credits, thus rendering his sentence illegal. However, our supreme court has
held that the failure to award pretrial jail credits does not alter a sentence in any way, and
thus cannot establish a colorable claim under Rule 36.1. Brown, 479 S.W.3d at 212-13.
Accordingly, the trial court did not err in denying the Defendant’s motion.
When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action is taken in a proceeding without a jury, such
judgment or action is not a determination of guilt, and the evidence does not preponderate
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against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that
this case satisfies the criteria of Rule 20. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.
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JOHN EVERETT WILLIAMS, JUDGE
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