State of Tennessee v. Travis Ware - Dissent

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 25, 2015
STATE OF TENNESSEE v. TRAVIS WARE
Appeal from the Criminal Court for Bradley County
Nos. 95064, 95036, 96256, 96256, 96257 Sandra Donaghy, Judge
No. E2014-02014-02172-CCA-R3-CD-FILED-AUGUST 5, 2015
NORMA MCGEE OGLE, J., dissenting.
I respectfully disagree with the majority’s conclusion that a petitioner is not entitled to
seek relief under Rule 36.1 when his sentence has been fully served. “On its face, Rule 36.1
does not limit the time within which a person seeking relief must file a motion, nor does it
require the person seeking relief to be restrained of liberty.” State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8,
2014). This court has repeatedly quoted with approval the following language from the
concurring in results only opinion written by Judge Woodall and joined by Judge Glenn in
State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *3-4 (Tenn.
Crim. App. at Knoxville, Dec. 26, 2014):
Rule 36.1 was promulgated and adopted by the Tennessee
Supreme Court in an order filed December 18, 2012, and Rule
36.1 was subsequently “ratified and approved [by the Tennessee
General Assembly] by House Resolution 33 and Senate
Resolution 11.” Compiler’s Notes, Tenn. R. Crim. P. 36.1. This
rule, authored by our supreme court and ratified and approved
by the Tennessee General Assembly, begins with the following
clear and unambiguous words:
Either the defendant or the state may, at any time,
seek 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.
Tenn. R. Crim. P. 36.1(a) (emphasis added).
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To me “at any time” means what it says, whether before
or after sentences have been fully served. If our supreme court
had intended for Rule 36.1 relief to not be available when the
challenged sentences have been fully served, that specification
would have been clearly stated. If the General Assembly had
desired the restriction in the rule, one or both houses of the
General Assembly would have refused to ratify and approve
Rule 36.1 as it is written.
It is my respectful opinion that even if (1) I disagree with
some or all of Rule 36.1’s provisions, and (2) I believe the
consequences of the rule can ultimately and unfairly lead to trial
courts in Tennessee vacating decades’ old convictions, as a
judge on an intermediate appellate court I must apply the plain
meaning of Rule 36.1.
See State v. Nickelle N. Jackson, No. W2014-02445-CCA-R3-CD, 2015 WL 4241074, at *6
(Tenn. Crim. App. at Jackson, July 14, 2015); Marcus Deangelo Lee v. State, No. W2014-
00994-CCA-R3-CO, 2015 WL 2330063, at *3 (Tenn. Crim. App. at Jackson, May 13, 2015).
I agree with Judge Woodall’s eloquent analysis. I would also note that in the instant
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case, the trial court’s order contains a specific finding that the petitioner was on bail at the
time he committed the offense. Accordingly, in the instant case, I would remand the case to
the trial court for appointment of counsel and a hearing on the petitioner’s motion.
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NORMA MCGEE OGLE, JUDGE
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