IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 1, 2016

           STATE OF TENNESSEE v. MARCUS DEANGELO LEE

                 Appeal from the Criminal Court for Shelby County
          No. 95-10473, 95-11561, 95-11562    James M. Lammey, Judge
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              No. W2016-00107-CCA-R3-CD – Filed January 31, 2017
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Pro se Petitioner, Marcus Deangelo Lee, appeals from the Shelby County Criminal
Court‟s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule
of Criminal Procedure 36.1. On appeal, the Petitioner argues that the trial court erred in
dismissing his motion. Upon review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Marcus Deangelo Lee, Springfield, Missouri, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Deputy Attorney
General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

        On December 11, 1995, the Petitioner pled guilty to possession of cocaine with
intent to sell, possession of a deadly weapon with the intent to employ it during the
commission of a crime, and the sale of cocaine. Pursuant to a plea agreement, the trial
court sentenced the Petitioner to serve concurrent terms of three years, one year, and
three years, respectively, in the county workhouse. This court has previously recounted
part of the Petitioner‟s procedural history as follows:

      Since entering his guilty plea, appellant has filed numerous pleadings
      challenging his convictions, including a petition for a writ of error coram
      nobis, Marcus Deangelo Lee v. State, No. W2006-02031-CCA-R3-CO,
      2007 WL 1575220 (Tenn. Crim. App. May 31, 2007); a post-conviction
       petition, Marcus Deangelo Lee v. State, No. W2009-00256-CCA-R3-PC,
       2009 WL 2517043 (Tenn. Crim. App. Aug. 18, 2009); a motion for delayed
       appeal, Marcus D. Lee v. State, No. W2009-02478-CCA-R3-PC, 2010 WL
2219659 (Tenn. Crim. App. May 27, 2010); a motion to reopen his post-
       conviction proceedings, Marcus Deangelo Lee v. State, W2011-01003-
       CCA-R3-PC, 2011 WL 3849629 (Tenn. Crim. App. Aug. 31, 2011); and a
       motion to correct clerical errors in his judgments, State v. Marcus Deangelo
       Lee, No. W2011-02160-CCA-R3-CD, 2012 WL 2913361 (Tenn. Crim.
       App. July 17, 2012). All of these pleadings were either denied or
       dismissed, and this Court affirmed their dispositions.

Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *2
(Tenn. Crim. App. Mar. 7, 2014).

        Subsequently, the Petitioner filed a “Motion to Correct Clerical Errors in the
Judgment or Entry that Renders the Judgments Void Nunc Pro Tunc,” arguing that two of
his sentences were illegal because he was released on bail when he committed the
offenses, requiring the sentences to be served consecutively. See Id. at *1, *3. This court
found that Rule 36.1 applied retroactively to the Petitioner‟s claim of an illegal sentence
and remanded the case to the trial court. Id. at *6. Upon remand, the trial court found
that the Petitioner‟s sentences were illegal because they should have been imposed
consecutively, but the court denied relief because the Petitioner‟s sentences had expired.
See Marcus Deangelo Lee v. State, No. W2014-00994-CCA-R3-CO, 2015 WL 2330063
(Tenn. Crim. App. May 13, 2015). The Petitioner again appealed, and this court held that
the trial court erred in denying the Petitioner relief pursuant to Rule 36.1 and reversed
and remanded the matter again. Id. at *3-4.

       On November 20, 2015, the trial court held a hearing pursuant to the remand order
and determined that it could not rule on the Petitioner‟s issue until the pending Tennessee
Supreme Court decision of State v. Brown was released, which would determine whether
Rule 36.1 applied to expired sentences. On December 2, 2015, the Tennessee Supreme
Court released its opinion in State v. Brown, which held that “Rule 36.1 does not
authorize the correction of „expired‟ illegal sentences.” 479 S.W.3d 200, 213 (Tenn.
2015). On December 17, 2015, the trial court entered an order dismissing the Petitioner‟s
motion pursuant to State v. Brown and “for failure to state a colorable claim since the
alleged illegal sentence has expired.” The Petitioner filed a timely notice of appeal on
January 7, 2016.
                                       ANALYSIS

       The Petitioner argues that the trial court erred in dismissing his motion because the
court erroneously determined that his sentence had expired. Additionally, the Petitioner
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contends that this court is without jurisdiction to hear his appeal, that the trial court erred
in intentionally delaying the proceedings, and that the Tennessee Supreme Court‟s
decision in State v. Brown denies the Petitioner due process. We reject all of the
Petitioner‟s arguments and affirm the judgment of the trial court.

         Under Rule 36.1 of the Tennessee Rules of Criminal Procedure, “[e]ither the
defendant or the State may, at any time, seek the correction of an illegal sentence[.]”
Tenn. R. Crim. P. 36.1(a). “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.”
Id. A petitioner is only entitled to a hearing and appointment of counsel “[i]f the motion
states a colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b); see
Marcus Deangelo Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *6
(Tenn. Crim. App. Mar. 7, 2014). This Court has stated that a colorable claim “is a claim
. . . that, if taken as true, in the light most favorable to the [petitioner], would entitle [the
petitioner] to relief[.]” State v. David A. Brimmer, No. E2014-01393-CCA-R3-CD, 2014
WL 201759, at *2 (Tenn. Crim. App. Dec. 18, 2014) (citing and quoting State v. Mark
Edward Greene, No. M2013-02710-CCA-R3-CD, 2014 WL 3530960, at *3 (Tenn. Crim.
App. July 16, 2014)); Tenn. Sup. Ct. R. 28 § 2(H).

        Taking the Petitioner‟s assertions as true and viewing them in the light most
favorable to him, the Petitioner is not entitled to relief because his alleged illegal
sentences expired approximately nineteen years ago. See Brown, 479 S.W.3d at 211
(holding that Rule 36.1 does not expand the scope of relief available for illegal sentence
claims and therefore does not authorize the correction of expired illegal sentences). As
we understand the Petitioner‟s argument, he claims that the State‟s documentation
proving that the Petitioner‟s sentences expired was insufficient. However, the record
reflects that the Petitioner introduced his own documentation at the November 20, 2015
hearing, consisting of a federal order dismissing his petition for federal habeas corpus
relief, and showing that his three-year sentence expired on March 13, 1998.

        The Petitioner‟s remaining arguments are also without merit. First, this court has
jurisdiction to hear the Petitioner‟s appeal, which the Petitioner initiated, pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. Under Rule 36.1, once the trial court
disposes of a motion to correct a sentence, “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(d). Additionally, the trial court did not unreasonably delay its decision
anticipating the release of an outcome dispositive case from the Tennessee Supreme
Court because the Court‟s ruling on that issue would be binding authority on the trial
court. See Tenn. Sup. Ct. R. 4(G)(2). Likewise, despite the Petitioner‟s argument to the
contrary, State v. Brown is controlling legal authority which this court and the trial court
are bound to follow. Accordingly, the Petitioner‟s Rule 36.1 motion failed to state a
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colorable claim because the Petitioner‟s sentences have expired, and the trial court‟s
summary dismissal was proper.

                                   CONCLUSION

      Upon review, we affirm the judgment of the trial court.


                                                   _____________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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