State of Tennessee v. Kevin Montrell Thompson, E2016-01565-CCA-R3-CD

Kevin Montrell Thompson pled guilty in multiple Hamilton County cases (1995 and 1998–2000 indictments) to drug-sale and possession offenses and received various terms (including a 4-year and multiple 8-year sentences and a 1-year sentence). Many judgments were silent or ambiguous about whether sentences should run concurrently or consecutively.
In May 2014 Thompson filed a Tennessee Rule of Criminal Procedure 36.1 motion alleging his sentences were illegal because they were ordered concurrent in violation of sentencing rules/statutes that required consecutive service for certain prior convictions.
The trial court initially denied the Rule 36.1 motion as moot/expired; this court reversed in 2015 and remanded for further proceedings, concluding Rule 36.1 could apply to potentially non-expired consecutive sentences.
After Tennessee Supreme Court decisions (State v. Brown and State v. Wooden), the trial court again denied the Rule 36.1 motion in December 2015, concluding the sentences had expired and thus relief was unavailable; Thompson’s motion for reconsideration was denied.
Thompson filed a notice of appeal on June 8, 2016, more than 30 days after the trial court’s final order; the State moved to dismiss as untimely. The Court of Criminal Appeals dismissed the appeal for untimeliness, declining to waive the deadline because the interests of justice did not warrant it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal under Tenn. R. App. P. 4	State: Notice of appeal untimely; 30-day rule not jurisdictional but waiver requires showing of "interest of justice"	Thompson: contends he lacked notice of the trial court’s order and thus missed deadline; also raised judge recusal for first time on appeal	Appeal untimely; Thompson failed to show grounds for waiver; appeal dismissed
Applicability of Rule 36.1 to expired sentences	State (and trial court post-Brown/Wooden): Rule 36.1 cannot provide relief for expired sentences	Thompson: his sentences were never served (allegedly never expired) so Rule 36.1 relief is available	Court noted earlier panel had remanded on applicability but ultimately declined to reach merits due to untimely appeal; also found Thompson would not be entitled to relief on record
Failure to seek recusal timely	State: (implied) recusal claim waived because not timely raised below	Thompson: argued judge should have recused (raised for first time on appeal)	Recusal argument considered waived for failure to raise timely in trial court

State v. Brown, 479 S.W.3d 200 (Tenn. 2015) (addresses Rule 36.1 and expired sentence issues)
State v. Wooden, 478 S.W.3d 585 (Tenn. 2015) (addresses Rule 36.1 and expired sentence issues)
State v. Rockwell, 280 S.W.3d 212 (Tenn. Crim. App. 2007) (explains waiver of untimely appeals and the "interest of justice" standard)