IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1999 May 12, 1999
Cecil W. Crowson Appellate Court Clerk LARRY SNEED, ) C.C.A. NO. 01C01-9803-CC-00117 ) Appe llant, ) ) MAURY COUNTY V. ) ) ) HON. JIM T. HAMILTON, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
LARR Y SN EED , pro se JOHN KNOX WALKUP 919 Myers Avenue Attorney General & Reporter Columbia, TN 38401 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
T. MICHAEL BOTTOMS District Attorney General
ROBERT C. SANDERS Assistant District Attorney General
JESSE DURH AM Assistant District Attorney General P.O. Box 1619 Columbia, TN 38401-1619
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Larry Sneed, appeals as of right the trial court’s dismissal of
his petition for post-conviction relief. In this appeal, Petitioner contests the trial
court’s order rescinding its decision to expunge his record, and he cla ims that he
was unawa re of the na ture of the charges agains t him wh en he e ntered h is guilty
plea. After a carefu l review of the record, w e affirm the judgm ent of the tria l court.
On March 17, 1994, Petitioner pled guilty to 11 counts of passing worthless
checks, one co unt of theft, a nd one count of v andalism .. Petition er sub sequ ently
filed a post-conviction petition challenging that plea which the trial court dismissed.
Petitioner appealed to this Court and a panel of the Court rejected the majority of
Petition er’s claims. See Snee d v. State, 942 S.W .2d 567 (Te nn. Crim. Ap p. 1996),
perm. to appeal denied (Tenn. 199 7). Howeve r, this Court did remand the case so
the trial court could enter written findings of fact and conclusions of law. Id. at 569.
This Court was particularly intereste d in whether P etitioner understoo d the nature
of the char ges ag ainst him . Id. On remand, Petitioner informed the post-conviction
court that he had served his prison term and was no longer incarcerated and the
court therefore found that the issues conc erning his plea w ere moo t. The trial court
then issued an order expunging Petitioner’s record. The court subsequently decided
that it did not have the authority to enter such an order, and it rescinded the order
and entere d an o rder in compliance with this Court’s request for findings of fact and
conc lusion s of law . Petition er time ly filed his notice of app eal.
I. Expungement
-2- In his prior appeal, this Court rejected all but one of Petitioner’s claims, and
remanded the case on the one narrow issue, stating:
The petitioner also complains that the trial court did not state on the record or set forth in its order its findings of fact and conclusions of law as required by T.C.A. § 40-30- 118(b) (1990 Repl.) (repealed 1995). While we acknowledge that this failure ‘d oes n ot nec essa rily constitute revers ible erro r,’ Swanso n v. State, 749 S.W.2d 731, 736 fn. 3 (Tenn. 1988), it does po se a problem here because of the is sue c once rning th e petitio ner’s understanding of the nature of the charges against him, as set forth above. Accordingly, we reverse the judgment below with respect to this sole issue a nd rem and th is matter to the court belo w with instru ctions to e nter its written findings of fact and conclusions of law as required by statute. Either party shall have the right to appeal as of right to this Court from the findings of the court below on the sole issue of wh ether the petitioner u ndersto od the nature of the charges against him. As to all other issues raised in this appeal, the judgment below is affirmed.
Sneed, 942 S.W.2d at 569-70.
At the hea ring on re mand , the post-c onviction c ourt learn ed that Petitioner had
served his sentence and was n o long er inca rcerat ed. Afte r erron eous ly concluding
that the issue before th e court w as mo ot due to Petitioner’s release, the court issued
an order expunging Petitioner’s record on the charges at issue in this appeal. The
court subsequently rescinded that order and stated the following:
The Order of Expungement of February 17, 1998 must be set aside. T.C.A. 40-32-101 does not provide for the Expungement of records of convictions that have not been reversed and dismissed. The convictions in these cases have not been reversed and dismissed.
The Post Conviction Judgment was remanded to the trial court for a ‘written order of findings of fact and conclusions of law to be entere d.’ The Cour t did not find that there had been reversible error in the guilty pleas and convictions.
Therefore, the records of convic tions in the case nu mbers 7749, 7940 and 8165 are not to be expunged.
-3- In this appeal, Petitioner argues that the trial court erred in rescinding its order
of expungement. Tennessee Code Annotated section 40-32 -101( a)(1) p rovide s in
pertinent part that a trial cou rt may expunge the record “of a person who has been
charged with a misdem eanor or a felon y, and which charge has been dismissed, or
a no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or
a conviction which has by appeal been reversed . . . .” After concluding that
Petition er’s convic tions d id not fa ll within a ny of the se pro visions, the court
approp riately rescin ded its ord er of expu ngem ent.
Furtherm ore, the co urt had th e jurisdiction to rescind its erroneo us orde r. A
trial court’s judgment becomes final thirty days after its entry unless a timely notice
of appeal or spec ified po st-trial m otion is filed. See State v. Moore , 814 S.W.2d 381,
382 (Tenn. Crim. App. 1991). The court generally loses jurisdiction to amend an
order once it has become final. Id. In this case, the court entered its expungement
order on February 17, 1998, and its order rescinding that order on March 6, 1998.
There fore, the co urt had n ot yet lost jurisd iction. This issue is with out me rit.
II. Guilty Plea
Petitioner argues in this issue tha t the po st-con viction c ourt er red in
concluding that he unders tood the nature o f the charg es aga inst him. In compliance
-4- with this Court’s opinion, the post-conviction court made the following factual and
legal findings regarding this issue:
The record shows that the [Petitioner] was advised by the Trial Court of the charges against him a nd the [Petitioner] acknowledged that he understood the charges. He was also advised of his right to a jury trial, tha t the State had to prove the charges beyond a reasonable doubt, that the [Petitioner] did not ha ve to tes tify in the tr ial, that he could subpoena witnesses for his defense and could be repre sente d by co unse l.
The [Petitioner] w as represented by counsel in his plea and plea negotiations and signed a Petition to Plead Guilty, which was entered into the re cord, in which we re set out the [Petitioner’s] right[s] includ[ing] those cited above.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1999 May 12, 1999
Cecil W. Crowson Appellate Court Clerk LARRY SNEED, ) C.C.A. NO. 01C01-9803-CC-00117 ) Appe llant, ) ) MAURY COUNTY V. ) ) ) HON. JIM T. HAMILTON, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
LARR Y SN EED , pro se JOHN KNOX WALKUP 919 Myers Avenue Attorney General & Reporter Columbia, TN 38401 KAREN M. YACUZZO Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
T. MICHAEL BOTTOMS District Attorney General
ROBERT C. SANDERS Assistant District Attorney General
JESSE DURH AM Assistant District Attorney General P.O. Box 1619 Columbia, TN 38401-1619
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Larry Sneed, appeals as of right the trial court’s dismissal of
his petition for post-conviction relief. In this appeal, Petitioner contests the trial
court’s order rescinding its decision to expunge his record, and he cla ims that he
was unawa re of the na ture of the charges agains t him wh en he e ntered h is guilty
plea. After a carefu l review of the record, w e affirm the judgm ent of the tria l court.
On March 17, 1994, Petitioner pled guilty to 11 counts of passing worthless
checks, one co unt of theft, a nd one count of v andalism .. Petition er sub sequ ently
filed a post-conviction petition challenging that plea which the trial court dismissed.
Petitioner appealed to this Court and a panel of the Court rejected the majority of
Petition er’s claims. See Snee d v. State, 942 S.W .2d 567 (Te nn. Crim. Ap p. 1996),
perm. to appeal denied (Tenn. 199 7). Howeve r, this Court did remand the case so
the trial court could enter written findings of fact and conclusions of law. Id. at 569.
This Court was particularly intereste d in whether P etitioner understoo d the nature
of the char ges ag ainst him . Id. On remand, Petitioner informed the post-conviction
court that he had served his prison term and was no longer incarcerated and the
court therefore found that the issues conc erning his plea w ere moo t. The trial court
then issued an order expunging Petitioner’s record. The court subsequently decided
that it did not have the authority to enter such an order, and it rescinded the order
and entere d an o rder in compliance with this Court’s request for findings of fact and
conc lusion s of law . Petition er time ly filed his notice of app eal.
I. Expungement
-2- In his prior appeal, this Court rejected all but one of Petitioner’s claims, and
remanded the case on the one narrow issue, stating:
The petitioner also complains that the trial court did not state on the record or set forth in its order its findings of fact and conclusions of law as required by T.C.A. § 40-30- 118(b) (1990 Repl.) (repealed 1995). While we acknowledge that this failure ‘d oes n ot nec essa rily constitute revers ible erro r,’ Swanso n v. State, 749 S.W.2d 731, 736 fn. 3 (Tenn. 1988), it does po se a problem here because of the is sue c once rning th e petitio ner’s understanding of the nature of the charges against him, as set forth above. Accordingly, we reverse the judgment below with respect to this sole issue a nd rem and th is matter to the court belo w with instru ctions to e nter its written findings of fact and conclusions of law as required by statute. Either party shall have the right to appeal as of right to this Court from the findings of the court below on the sole issue of wh ether the petitioner u ndersto od the nature of the charges against him. As to all other issues raised in this appeal, the judgment below is affirmed.
Sneed, 942 S.W.2d at 569-70.
At the hea ring on re mand , the post-c onviction c ourt learn ed that Petitioner had
served his sentence and was n o long er inca rcerat ed. Afte r erron eous ly concluding
that the issue before th e court w as mo ot due to Petitioner’s release, the court issued
an order expunging Petitioner’s record on the charges at issue in this appeal. The
court subsequently rescinded that order and stated the following:
The Order of Expungement of February 17, 1998 must be set aside. T.C.A. 40-32-101 does not provide for the Expungement of records of convictions that have not been reversed and dismissed. The convictions in these cases have not been reversed and dismissed.
The Post Conviction Judgment was remanded to the trial court for a ‘written order of findings of fact and conclusions of law to be entere d.’ The Cour t did not find that there had been reversible error in the guilty pleas and convictions.
Therefore, the records of convic tions in the case nu mbers 7749, 7940 and 8165 are not to be expunged.
-3- In this appeal, Petitioner argues that the trial court erred in rescinding its order
of expungement. Tennessee Code Annotated section 40-32 -101( a)(1) p rovide s in
pertinent part that a trial cou rt may expunge the record “of a person who has been
charged with a misdem eanor or a felon y, and which charge has been dismissed, or
a no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or
a conviction which has by appeal been reversed . . . .” After concluding that
Petition er’s convic tions d id not fa ll within a ny of the se pro visions, the court
approp riately rescin ded its ord er of expu ngem ent.
Furtherm ore, the co urt had th e jurisdiction to rescind its erroneo us orde r. A
trial court’s judgment becomes final thirty days after its entry unless a timely notice
of appeal or spec ified po st-trial m otion is filed. See State v. Moore , 814 S.W.2d 381,
382 (Tenn. Crim. App. 1991). The court generally loses jurisdiction to amend an
order once it has become final. Id. In this case, the court entered its expungement
order on February 17, 1998, and its order rescinding that order on March 6, 1998.
There fore, the co urt had n ot yet lost jurisd iction. This issue is with out me rit.
II. Guilty Plea
Petitioner argues in this issue tha t the po st-con viction c ourt er red in
concluding that he unders tood the nature o f the charg es aga inst him. In compliance
-4- with this Court’s opinion, the post-conviction court made the following factual and
legal findings regarding this issue:
The record shows that the [Petitioner] was advised by the Trial Court of the charges against him a nd the [Petitioner] acknowledged that he understood the charges. He was also advised of his right to a jury trial, tha t the State had to prove the charges beyond a reasonable doubt, that the [Petitioner] did not ha ve to tes tify in the tr ial, that he could subpoena witnesses for his defense and could be repre sente d by co unse l.
The [Petitioner] w as represented by counsel in his plea and plea negotiations and signed a Petition to Plead Guilty, which was entered into the re cord, in which we re set out the [Petitioner’s] right[s] includ[ing] those cited above. The Petition contained the terms of the agreement and a statement that the [Pe titioner] was offering his guilty plea freely, volunta rily, and of his o wn acc ount. It also recited that his attorney had explained the matter to him, and that he understood them.
The Trial Court did not advise the [Petitioner] of the fact that the convictions that he was agreein g to could be used to enhance punishment for any convictions in the future.
Based on the en tire record the Cou rt conclud ed that the [Petitioner] had freely, volunta rily, and knowingly entered his guilty plea, and that there were no constitutional violation[s] in the proceeding to form a basis for a Post Conviction Relief. Therefore under the law the [Petitioner’s] Petition should be and was denied.
W e agree with the trial cou rt’s findings, despite the fact that Petitioner’s written
plea agreement was not made part of the record on appeal. It appears from the
record and Petition er’s brie f, that the only conviction Petitioner s pecifically co ntests
is the one he received for the offense of theft. At the first post-conviction hearing,
the trial court asked Petitioner what he did not understand about the charges at his
guilty plea hearing and Petitioner gave the following re spons e: “Your H onor, I
pleaded guilty to a charge and received a four year sentence. I have absolutely no
idea what tha t charge was for.” P etitioner’s indictm ent on that ch arge a lleged in
-5- relevant part that Petitioner “did u nlawfully an d know ingly obtain property, to -wit:
cash money, over the value of One Th ousand ($ 1,000.00) D ollars, of First Farme rs
& Merchants Bank, John Cotham, agent, without his effective consent, with the intent
to deprive the said First Farm ers & Merc hants B ank, Joh n Coth am, ag ent there of,
in violation of Tennessee Code Annotated 39-14-103 . . . .” At the guilty plea
hearing, the following colloquy took place regarding this charge:
The C ourt: In Case No. 7940, you’re entering a Plea of Guilty to one (1) count of Theft: Class D, because you are, in fact, guilty of that offense?
Petitioner: Yes, Sir.
Based on the foregoing, we find that the proof is sufficient that Petitioner did
in fact understand the charges against him, specifically the theft conviction he
contests. First of all, the indictments in this case set forth the elements of the
offenses and the factual basis for each charge. Secondly, Petitioner admitted at the
guilty plea hearing that he had discussed the charges with his attorney and that he
understood the charges to which he was pleading guilty. Finally, Petitioner stated
to the trial court that he was in fact guilty of the charges and that he freely and
volunta rily chose to plead guilty. We find that the record does not prepon derate
agains t the trial court’s findings. See McBe e v. State, 655 S.W.2d
191, 195 (Tenn. Crim. App. 1983). The factual findings of the trial court in hearings
are conclusive on appeal unless the evidence preponderates against th e judgm ent.
See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983 ). This issue is
without m erit.
Based on the fore going, w e affirm the judgm ent of the tria l court.
-6- ____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID H. WELLES , Judge
___________________________________ JERRY L. SMITH, Judge
-7-