State v. Carolyn Wheeler

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9712-CR-00556
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED OCTOBER 1998 SESSION December 3, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9712-CR-00556 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, CAROLYN WHEELER, ) JUDGE ) Appellant. ) (Theft, Forgery)

FOR THE APPELLANT: FOR THE APPELLEE:

DALE M. QUILLEN JOHN KNOX WALKUP 95 White Bridge Road Attorney General and Reporter Suite 208 Nashville, TN 37205-1407 LISA A. NAYLOR Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

STEVE R. DOZIER Assistant District Attorney General Washington Square Building Suite 500 222 Second Avenue North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant, Carolyn Wheeler, appeals the manner of service of her

agreed sentence as imposed by the Criminal Court of Davidson County. The

defendant pled guilty to theft over $10,000 and forgery over $10,000. She

agreed to concurrent three (3) year sentences with the manner of service to be

determined by the trial court. The trial court ordered the defendant to serve one

(1) year incarcerated with the balance served on community corrections. On

appeal, the defendant contends:

1) the trial court erred in sentencing her to confinement; and

2) the trial court erred in ordering a community corrections sentence as she could subsequently be subjected to a sentence in excess of her plea agreement.

After an examination of the record, we AFFIRM the judgment of the trial court..

FACTS

Investigating a tip from the defendant’s neighbor, Detective Mike Owens

of the Metro Police Department learned that the defendant purchased a car by

assuming the identity of “Cassandra Rhule.” Detective Owens found at the

defendant’s residence a car matching the dealer’s description with a temporary

tag listing “Cassandra Rhule” as the owner. When the detective showed a copy

of “Cassandra Rhule’s” driver’s license to the defendant’s neighbor, the neighbor

identified the defendant as the person depicted in the photograph.

Detective Owens subsequently obtained an arrest warrant for the

defendant charging her with theft. After forcibly entering the defendant’s

residence in order to serve the warrant, the detective observed mail, bank

statements, and other documents addressed to other persons. Numerous

articles of partially burned mail were also observed in the fireplace. The

2 defendant was found hiding in a closet under a pile of clothes and served with

the arrest warrant.

Based upon their observations while serving the arrest warrant on the

defendant, the police received a search warrant for the defendant’s residence.

While executing the search warrant, the officers discovered a copy of the

defendant’s application for a Tennessee driver’s license in Cassandra Rhule’s

name and the identification used to obtain that license. The officers also found a

document containing Rhule’s personal information.

The victim, Cassandra Rhule, testified that she did not know the

defendant. She testified that the defendant opened a checking account in

Rhule’s name at First American Bank with $14,000 of forged checks. Rhule also

testified that the defendant made more than fifteen (15) charges on Rhule’s

credit card.

SENTENCING

A. Incarceration

The defendant appeals the trial court’s sentence of one year of

incarceration. This Court twice denied defendant’s motions appealing the trial

court’s denial of bond pending appeal. Presently, it appears the defendant has

served this portion of her sentence. We find, therefore, this issue is moot. See

State v. Samuel D. Perry, C.C.A. No. 02C01-9611-CR-00435, Shelby County

(Tenn. Crim. App. filed January 29, 1998, at Jackson).

B. Violation of Plea Agreement

3 The defendant further appeals the trial court’s order of community

corrections for the remainder of her sentence. She contends that conceivably, if

community corrections is revoked, she could be resentenced in excess of her

plea agreement. See Tenn. Code Ann. § 40-36-106(e)(4).

Unfortunately, the transcript of the guilty plea has not been made a part of

the appellate record. We may not speculate as to whether there was or was not

a discussion of the possibility of a community corrections sentence. The

absence of the guilty plea transcript precludes appellate review of this issue.

See State v. Davis Oliver Brown, C.C.A. No. 03C01-9608-CR-00313, Hamilton

County (Tenn. Crim. App. filed December 16, 1997, at Knoxville).

We also note that this issue is premature. We may not speculate as to

whether the defendant’s community corrections sentence will be revoked and, if

so, whether she will be resentenced in excess of three (3) years. We elect not to

give an advisory opinion on this issue.

Accordingly, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

4 CONCUR:

_________________________ PAUL G. SUMMERS, JUDGE

_________________________ JOSEPH M. TIPTON, JUDGE