State of Tennessee v. Glyn Terrance Dale, Sr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 23, 2020
STATE OF TENNESSEE v. GLYN TERRANCE DALE, SR.
Appeal from the Criminal Court for Knox County
No. 83055 Bob R. McGee, Judge FILED
NOV 10 2020
No. E2019-01654-CCA-R3-CD Reed Eye, vPevate Courts
The Appellant, Glyn Terrance Dale, Sr., appeals as of right from the Knox County Criminal
Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to
correct an illegal sentence. The Appellant contends that: (1) the trial court erred by
increasing the Appellant’s sentence at the resentencing hearing; (2) counsel abandoned him
during his resentencing hearing; and (3) the trial court abused its discretion. Discerning no
error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Glyn Terrance Dale, Sr., Hartsville, Tennessee, Pro Se.
Herbert H. Slatery II, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; and Charme P. Allen, District Attorney General, for the appellee, State
of Tennessee,
OPINION
FACTUAL BACKGROUND
In 2007, the Appellant was convicted by a Knox County Criminal Court jury of two
counts of rape of a child, a Class A felony. See Tenn. Code Ann. § 39-13-522. Following
a sentencing hearing, the trial court sentenced the Appellant to twenty years for each count,
to be served concurrently. On direct appeal, the Appellant’s convictions were affirmed,
but the case was remanded for a new sentencing hearing because the Appellant did not
properly execute a written waiver of his ex post facto protections. See State v. Glyn Dale,
No. E2008-01139-CCA-R3-CD, 2010 WL 1241601, at *1 (Tenn. Crim. App. Mar. 31,
2010), perm. app. denied (Tenn. Aug. 25, 2010).
During the Appellant’s resentencing hearing, he executed a written waiver of his ex
post facto protections to be sentenced pursuant to the revised Sentencing Act as enacted by
the Tennessee General Assembly in 2005. The Appellant was sentenced to twenty-five
years for each count, to be served concurrently. The Appellant argued on direct appeal that
his revised sentences were excessive, but this court affirmed. See State v. Glyn Dale, No.
E2010-01824-CCA-R3-CD, 2012 WL 335460, at *1 (Tenn. Crim. App. Feb. 1, 2012),
perm. app. denied (Tenn. May 16, 2012).
Subsequently, the Appellant filed a petition for post-conviction relief, alleging
ineffective assistance of counsel at trial. His petition was denied. This court affirmed.
Glyn Terrance Dale, Sr. v. State, No. E2014-00552-CCA-R3-PC-, 2014 WL 7402155, at
*1 (Tenn. Crim. App. Dec. 29, 2014), perm. app. denied (Tenn. Mar. 16, 2015).
On June 3, 2019, the Appellant filed a motion to correct an illegal sentence pursuant
to Tennessee Rule of Criminal Procedure 36.1, arguing that the two twenty-five-year
sentences were illegal because the trial court did not have the authority to modify the
Appellant’s sentences once he began serving them. The trial court summarily denied the
motion. The Appellant timely appealed.
On appeal, the Appellant argues that the two concurrent twenty-five-year sentences
were illegal because “the [trial] judge did not give a reason for the increase of the sentence.”
He argues that although he executed a written waiver of his ex post facto protections, this
waiver “does not change long existing laws that already exist for those who [have] already
started serving their sentence time” and that he could not be sentenced to more than his two
concurrent twenty-year sentences under the version of the Sentencing Act in effect in 2004.
He also argues that his counsel abandoned him at the resentencing hearing. Finally, he
argues that the trial court “abused its discretion” during resentencing.
The State argues that the Appellant has failed to state a cognizable claim for Rule
36.1 relief.
Rule 36.1 provides, in part, as follows:
(a)(1) Either the defendant or the state may seek to correct an illegal
sentence by filing a motion to correct an illegal sentence in the trial court in
which the judgment of conviction was entered. Except for a motion filed by
the state pursuant to subdivision (d) of this rule, a motion to correct an illegal
5D
sentence must be filed before the sentence set forth in the judgment order
expires. ..
(b)(2) 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.
A Rule 36.1 motion is a remedy separate and distinct from habeas corpus or post-
conviction relief. See State v. Jonathan T. Deal, No. E2013-02623-CCA-R3-CD, 2014
WL 2802910, at *2 (Tenn. Crim. App. June 17, 2014). As such, a Rule 36.1 motion should
only be summarily denied where the motion fails to state a colorable claim for relief. This
court has defined a colorable claim as a claim “that, if taken as true, in the light most
favorable to the [appellant], would entitle [appellant] to relief.” State _v. David
Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071, at *2 (Tenn. Crim. App.
Aug. 13, 2014) (quoting Tenn. Sup. Ct. R. 28, § 2(H)) (brackets and alterations in original).
The following are examples of illegal sentences:
(1) a sentence imposed pursuant to an inapplicable statutory scheme;
(2) a sentence designating a [Release Eligibility Date (RED)] where a RED
is specifically prohibited by statute; (3) a sentence ordered to be served
concurrently where statutorily required to be served consecutively; and (4) a
sentence not authorized for the offense by any statute.
Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (internal citations omitted).
The 2005 Sentencing Act provides that “offenses committed prior to June 7, 2005,
shall be governed by prior law, which shall apply in all respects.” State v. Quincy Bryan
Banks, No. M2007-00545-CCA-R3-CD, 2008 WL 1699440, at *7 (Tenn. Crim. App. Apr.
11, 2008). Should a defendant “elect to be sentenced under the 2005 amendment, he must
execute a waiver of his ex post facto protections in order to make such an election.” See
State v. Watkins, 362 S.W.3d 530, 559 n.49 (Tenn. 2012) (citing Act of May 18, 2005, ch.
353, sec. 18, 2005 Tenn. Pub. Acts 788, 796).
Even if the Appellant’s arguments about the imposition of his sentences and
performance of his lawyer were taken as true, they would not present a colorable claim that
his sentences for his 2007 rape of a child convictions were illegal. “‘[A]ttacks on the
correctness of the methodology by which a trial court imposed [a] sentence. . .” will not
rise to the level of an illegal sentence.” State v. Carl Hall, No. W2016-00915-CCA-R3-
CD, 2017 WL 1093991, at *2 (Tenn. Crim. App. Mar. 22, 2017) (quoting State v. Wooden,
478 S.W.3d 585, 595 (Tenn. 2015)). The Appellant’s challenges to his sentence for his
2007 rape of a child convictions do not fall under any of the examples listed in Davis.
Any error by the trial court in its methodology used to determine the appropriate
sentences should have been addressed on direct appeal. Likewise, complaints about his
lawyer’s performance were properly addressed in a petition for post-conviction relief.
These alleged errors do not create a sentence that is not authorized by the applicable statutes
or that directly contravenes an applicable statute. We conclude that the Appellant’s Rule
36.1 motion failed to state a colorable claim for relief and affirm the trial court’s denial of
the motion.
D. KELLY THOMAS, JR., JUDGE