State v. Hodges

815 S.W.2d 151, 1991 Tenn. LEXIS 321

Opinions

OPINION

O’BRIEN, Justice.

In these consolidated cases each of the defendants entered guilty pleas in the trial court. Both occurred in Williamson County with different judges in each case. At the individual sentencing hearings the trial judge reduced the sentence which had previously been agreed upon at the guilty plea proceedings.

The State appealed the trial court judgment to the Court of Criminal Appeals on the issue of whether the trial court erred in sua sponte reducing the sentences of defendants, where said sentences were imposed by the agreement of the parties and with prior judicial approval. The Court of Appeals affirmed the trial court judgment, with one judge dissenting. The State filed an application for appeal to this Court, which was granted. The issue is now before us for disposition.

The issue before us is purely of a legal nature. However, there are some variations in each case which warrant a summary for the purpose of clarification.

STERLING LEE HODGES

On 9 May 1988 the Williamson County Grand Jury returned a ten-count indictment against the defendant, and three (3) others, charging burglary of an automobile while employing a firearm, grand larceny, concealing stolen property, possession of burglary tools, possession of marijuana and possession of drug paraphernalia. A motion for suppression of evidence was filed. A guilty plea agreement was made whereby the district attorney general would recommend a four-year sentence for auto burglary subject to request for a suppression hearing. The other three defendants did not pursue the suppression hearing. Hodges proceeded with a hearing. On his guilty plea, the State made a recommendation of five (5) years on each of two counts of auto burglary, to be served concurrently in the Department of Corrections. The guilty plea submission was accepted by the trial court. A suspended sentence hearing was scheduled for 17 October 1988.

The actual hearing came on 31 October 1988. The inquiries and comments of the trial judge at that hearing are noteworthy. In the course of the direct examination defendant stated he had agreed to a five (5) year sentence, whereas the other individuals involved received four (4) year sentences, based on the fact that they did not participate in the suppression hearing. At that juncture the trial judge asked defendant’s counsel if application was being made for a reduction of sentence. He received a negative reply. In response to a second inquiry from the court defense counsel said “Yes, sir, in that instance we’ll apply for a reduction in sentence.” At the conclusion of the evidence and arguments of counsel the trial judge said, “On Mr. Hodges application to reduce the sentence, I felt that I really should have taken care of this the day that he entered his plea. I don’t think a person should be penalized for exercising their constitutional rights. I think Mr. Hodges was. Actually, he was penalized in such a way that everybody else in the case was going to get the benefit of it if he had been successful and he didn’t. I will reduce the sentence to four (4) years as with the other defendants.”

LEONARD AMBROSE

Ambrose was indicted on 11 October 1988 for burglary, assault with intent to commit first degree murder with bodily injury, assault with the intent to commit rape and aggravated sexual battery. On 13 February 1989 the trial court approved a negotiated plea of guilty to first degree burglary and sexual battery with a recommended sentence of ten (10) years and two (2) years to be served concurrently in the State Penitentiary. After a hearing the court pronounced sentence according to the State’s recommendation. Upon being reminded by defense counsel that a sentencing hearing had been requested, it was set for 10 April 1989.

In the course of the sentencing hearing a request was made for strict probation to include a course of treatment for alcoholism. At the conclusion of the hearing the trial judge recalled a much earlier case, in which he was the prosecuting attorney, where it developed that Mr. Ambrose was a crucial witness for the State. He left his place of employment in Nashville to testify at the District Attorney’s request. The judge remarked that the defendant had made a very favorable impression on him at that time. While he could not grant probation after reviewing the evidence in this case, he suggested that, if application was made he would reduce the sentence to six (6) years to be served in the Williamson County Workhouse. He did not think Mr. Ambrose ought to go to the penitentiary. That suggestion was accepted and the sentence was amended accordingly.

The opinions of the Court of Criminal Appeals in each case are virtually identical. The dissenting opinion in Hodges, which came down a week after the Ambrose opinion was filed, is a bit more comprehensive. The Court of Criminal Appeals noted that the appeal did not question the correctness of the trial court’s action, but only challenged his power to act at all. It was held that Rule 35(b), Tenn.R.Crim.P., governed the action of the trial court. The court further held that Tenn.R.Crim.P. 11, as it related to plea bargaining, had absolutely nothing to do with the authority of a trial judge to reduce a sentence after it is imposed, or probation is revoked.

Rule 35(b) provides in pertinent part: “(b) Reduction of sentence. — The trial court may reduce a sentence upon application filed within 120 days after the date the sentence is imposed or probation is revoked.... A motion for reduction of sentence under this rule may be denied by the trial judge without a hearing. If the application is denied, the defendant may appeal ... if the sentence is modified, the state may appeal as otherwise provided by law. A modification can only be as to any sentence the court could have originally imposed.”

The State argues that the trial court’s action, on its own motion, in altering the terms of the agreed upon sentences at the probation hearing, essentially removed the district attorney general from the plea negotiations and interjected the court as a party to the negotiations.

There is no substance to this argument which is made without the benefit of any sustaining authority. The statement is correct that it is only where the district attorney general and the defendant have reached an agreement and have presented their agreement to the trial court, that the judge is authorized to act in any manner with respect to the plea agreement. At that juncture the only alternatives open to the court are to accept or reject the agreement. However, to extend that statement to its ultimate analysis, once the court has accepted a plea agreement the district attorney general has no further authority in the proceedings. A guilty plea represents a break in the change of events which has preceded it in the criminal process. Once a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel did not meet appropriate standards. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). The acceptance of the guilty plea is equally conclusive as to the State. The proceedings are in the exclusive jurisdiction and control of the court. The district attorney may appear at a subsequent sentencing hearing and present evidence relevant to the issue of sentencing, however, the sentence is to be imposed by the court. T.C.A. § 40-35-203. Any other procedure would be an encroachment on the judicial process.

The State argues here that the Court of Criminal Appeals erred in determining that the trial courts were empowered to sua sponte alter the defendant’s sentences, where said sentences were imposed by agreement of the parties and with prior judicial approval. It is the State’s position that the plea agreements in this case were entered into pursuant to Tenn.R.Crim.P. 11(e)(1)(C). That the trial court was empowered only to accept or reject the agreement at the submission hearings, or to defer a decision pending completion of a pre-sentence report. In each of these cases the respective trial court accepted the plea agreement and sentenced the defendants accordingly. Thus the court was bound by its decision under the provisions of Rule 11(e)(3). It is earnestly insisted, had the judge rejected the plea agreement the par ties would have been restored to the positions they occupied prior to the submission hearings in accordance with Rule 11(e)(4). It is argued that, at the sentencing hearing, in each case, the trial judge placed himself in a role which could only be occupied by the district attorney general, citing State v. Turner, 713 S.W.2d 327 (Tenn.Cr.App.1986). The action of the trial court in each case is termed even more egregious because the courts in each case had previously accepted the negotiated pleas. The argument concludes with the assertion that the trial courts were without authority to alter the terms of the defendants’ sentences.

The State further takes the position that the Court of Criminal Appeals reliance upon Tenn.R.Crim.P. 35(b) is erroneous because the rule clearly pertains to sentences imposed without agreement of the parties. It is asserted that the Court of Criminal Appeals, by its action, has abrogated the binding nature of sentences imposed pursuant to plea agreements.

The State’s appeal and its argument are completely without merit. There is absolutely no connection between the plea bargaining procedures prescribed in Tenn. R.Crim.P. 11 and the correction or reduction of sentence provisions of Tenn. R.Crim.P. 35. The respective trial judges set sentencing hearings in each of these cases in accordance with T.C.A. § 40-35-203. Under the prescribed procedure in that statute upon a verdict or plea of guilty, the court shall set and conduct a sentencing hearing. The judge may, in a case where the sentence is agreed upon by the district attorney general and the defendant, and accepted by the Court, immediately impose sentence. No specific sentencing hearing or pre-sentence report are required unless the judge, in his discretion, directs that such report be prepared. If there is a hearing, evidence may be presented by both the defendant and the district attorney general on any matter relevant to the issue of sentencing. That is the extent of the participation of the district attorney general at such a hearing. Although, under the statutes in force at the time of sentencing in these cases, a sentence imposed under Chapter 35 of Title 40 was required to conform to the mandate of T.C.A. § 40-37-203(f), there is no such restriction connected with the procedures for correction or reduction of sentence under Tenn.R.Crim.P. 35(b). The trial court may reduce a sentence upon application filed within 120 days after the date the sentence is imposed. The trial judge may act without a hearing. The only action of the State involved is the right to appeal as otherwise provided by law if the sentence is modified.

The State’s appeal of the reduction of sentence at the sentencing hearing in each of these cases is inconsistent with its prior recognition of the role of Rule 35(b) in the sentencing procedure. See State v. Biggs, 769 S.W.2d 506, 509 (Tenn.Cr.App.1988), in which the defendant had entered a guilty plea and subsequently applied for probation. It was argued by the State that defendant’s motion to reconsider a denial of probation was not tantamount to a request to reduce. The court held to the contrary. The Court reached the conclusion that a motion for reconsideration of probation was in effect a Rule 35 request for a reduction of sentence, and the proper procedural remedy for the relief sought.

The intent of Rule 35(b) is to allow modification in circumstances where an alteration of the sentence may be proper in the interest of justice. The Massachusetts Supreme Judicial Court has summarized these conditions thusly:

Occasions inevitably will occur when a conscientious judge, after reflection or upon receipt of new probationary reports or other information, will feel that he has been too harsh or has failed to give weight to mitigating factors which properly should have been taken into account. In such cases the interest of justice and sound judicial administration will be served by permitting the trial judge to reduce the sentence within a reasonable time. District Attorney v. Superior Court, [342 Mass. 119] 172 N.E.2d [245], 250-251.

The rule permits modification of sentences and applies in cases where the conviction has been on a guilty plea and is extensive enough to grant probation in lieu of imprisonment as a reduction of sentence. See Biggs, supra at p. 509. Moreover, it is a judicial function, in the decision of which the district attorney general has no voice or participation, except in the discretion of the court. In an early case this Court said, “... [TJhat the attorney-general had no power over the final judgment of this court, ... or in any way to interfere without the assent of the court first had, was beyond anything that belonged to the duty of the attorney general. The officers of court must learn where duty with them commences and ends. The court will see to the execution of her judgments, and treat arrangements interfering with them as nullities or contempts, according to circumstances.” Bennett v. State, 10 Tenn. (Yeager Vol. 2) 472, 475 (1830).

The Tennessee Rules of Civil Procedure, along with Rules of Criminal Procedure and the Rules of Appellate Procedure, are “laws” of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by this Court and adopted by the General Assembly. See Tennessee Department of Human Services v. Vaughn, 595 S.W.2d 62, 63 (Tenn.1980).

It results that it makes little or no difference whether the plea agreement was reached between the District Attorney General and the defendant and/or his counsel under the auspices of Rule 11(e)(1)(A), (B) or (C) insofar as the application of Rule 35(b) is concerned. It does appear in this case from the language of the plea agreements that the parties were proceeding under the auspices of Subsection (B) since the attorney general made a recommendation to the court in each case, which is a far cry from agreeing that a specific sentence is the “appropriate disposition” of the case in a type (C) agreement. More attention to the particular language used in such agreements would forestall any confusion about the matter.

There is no obligation on the part of the State to offer any benefit or advantage to the defendant by reason of entering a guilty plea. Aside from any agreement which may exist between the State and a defendant in reference to the entry of a guilty plea, the ultimate decision to accept or reject any such plea is to be made by the trial court and, if so accepted and received by the court, the final determination on the extent of the punishment to be meted out is the province of the trial court. See Williams v. State, 491 S.W.2d 862, 867 (Tenn.Cr.App.1972).

The judgment of the Court of Criminal Appeals affirming the trial court is affirmed by this Court. The costs are assessed against the State.

REID, C.J., and DROWOTA and ANDERSON, JJ., concur. DAUGHTREY, J., dissents in separate opinion.