State v. Kenneth Leath

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY SESSION, 1998 June 8, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9707-CC-00284 )

Appe llant, )

) MADISON COUNTY

V. )

)

) HON. WHIT LAFON, JUDGE KEN NET H LEA TH, )

)

Appellee. ) (STATE APPEAL)

FOR THE APPELLEE: FOR THE APPELLANT:

GEORGE MORTON GOOGE JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

STEPHEN P. SPRACHER MAR VIN E. C LEM ENT S, JR. Assistant Public Defender Assistant Attorney General 227 West Baltimore 2nd Floor, Cordell Hull Building Jackson, TN 38301 425 Fifth Avenu e North Nashville, TN 37243

JAMES G. WOODALL

District Attorn ey Ge neral

JAMES W. THOMPSON

Assistant District Attorney General 225 Martin Luther King Drive P.O. Box 2825

Jackson, TN 38302

OPINION FILED ________________________ REVERSED AND REMANDED THOMAS T. WOODALL, JUDGE

OPINION

In this case, the State has filed a notice of appeal pursuant to Rule 3 of

the Tenn essee Rules o f Appella te Proced ure. The trial co urt sente nced D efenda nt, Kenn eth Leath, to s ix (6) years in carcera tion in the D epartm ent of Correction as a Range II offender for his conviction of burglary in violation of Tennessee Code Annotated section 39-14-402. In a three (3) count indictment, the Defendant was origina lly charge d with one (1) coun t of burglary , one (1) co unt of theft o f property less than $500 .00 value, and o ne (1) count o f vandalism in an amount less than $500.00. The Defendant’s guilty plea was entered on July 16, 1997. On that date, a document styled “Plea of Guilty and Waiver of Jury Trial and Appeal” was signed by the Defendant, his counsel, and the Assistant District Attorney. That document spec ifically states that the sentence to be imposed upon the negotiated plea agreement pursuant to Rule 11(e)(1)(C) of the Tennessee Rules of Criminal Procedure, was an eight (8) ye ar, Ran ge II sentence in the Department of Correction. The theft and vandalism charges were to be dismissed. At the guilty plea hearing, the trial court ag reed to allow the D efendant to ple ad guilty, but unilate rally reduce d the leng th of sente nce to six (6) years. We reverse and remand this case to the trial cou rt for further pr oceed ings con sistent with this opinion .

The pertinent portion of the guilty plea hearing is as follows:

[ASSIS TAN T D.A .]: Your Hono r please, M r. Leath is plea ding in 97-54 to burglary of a building, a Class E [sic] felony which carries a range of punishmen t of two to twelve years. Pursu ant to o ur agre eme nt, we’r e asking that the second count, theft of property, and the third count, which is vandalism, be dismissed.

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The State on a trial in this matter would show that on October the 3rd, 1996 in Madison County, the Defendant did un lawfully e nter a b uilding , to-wit, Sunb elt Screen P rinters in Madison C ounty, without the consent of the owner a nd with the intent to comm it theft of property.

The State recom mends upon a plea of guilty a sentence of eight years as a Ra nge II offen der. W e recommend that there be no fine, and we recommend that this is to be served in the Department of Corrections [sic] and to run consecutively to any prior convictions.

THE COURT: Mr. Leath, is that what you understood the recommendation to be?

THE DEFENDANT: Yes, sir.

THE COURT: All right. I find your decision to plead g uilty has been made freely, that yo u’ve had the advice of a lawyer whom yo u say yo u’re sa tisfied. [s ic]. I’ll accept the recommendation of the District Attorney with the exception I’m going to make it six years rather tha n eight ye ars.

***

[ASSIS TAN T D.A .]: Your Honor, this was done p ursuan t to Rule 11(e)(1)(C). Note the State’s objection.

THE COURT: Note the Sta te’s exception. You’re now sentenced.

[ASSIS TAN T D.A .]: For the record, the State with draws its recommendation and wo uld ask th at it be set for trial.

THE COURT: The Court de nies that. H e’s sente nced. You may take yo ur app eal.

***

[ASSIS TAN T D.A .]: Just for the record, I wa nt to point o ut, it’s done pursuant to Rule 11(e)(1 )(C), which the Sta te’s position is that the Court can either accept or reject the plea a nd can not mo dify it.

THE COURT: All right, note yo ur exce ption. M otion is overruled.

Your exception is overruled.

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The Defendant initially challenges the right of the State to appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. Tennessee Code Annota ted sectio n 40-35 -402 allow s the Sta te in a criminal case to appeal from the length, range, or manner of the service of a sentence imposed by the sentencing court. Howe ver, subs ection (b) lim its an app eal from a senten ce und er that code section to one or more of the following conditions:

(1) The court improperly sentenced the defendant to the wrong sentence range;

(2) The court granted a ll or part of the sentence on probation;

(3) The cou rt ordered all or part of the s entences to run concurre ntly;

(4) The court improperly found the defendant to be an especially mitigated offender; or

(5) The enhancement and mitigating factors we re not weighed properly.

Based upon a fair reading of Tennessee Code Annotated section 40-35-

402, none of the conditions of an appeal by the State are applicable to the situation in this case. Under Rule 3(c) of the Tennessee Rules of Appella te Procedure, the State can appeal from an order of the trial court where:

(1) The substantive effect of which results in dismissing an indictme nt, informa tion, or com plaint;

(2) Setting aside a verdict of guilty and entering a judgment of acqu ittal;

(3) Arresting judgm ent;

(4) Granting or refusing to revoke probation; or (5) Rem anding a child to the juvenile co urt.

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Rule 3(c) of the Tennessee Rules of Appellate Procedure also provides that the State may appeal from a final judgment in a habeas corpus, extradition, or post-conviction proceeding.

The State diligently filed a notice of appeal on July 28, 1997, twelve (12)

days after the trial co urt’s action in the guilty plea hearing. While a judgment has been entere d reflec ting a s enten ce of s ix (6) yea rs in the Department of Correction, the judgm ent inc ludes the follo wing n otation : “The court re jects the State ’s recommendation to the agreed sentence of 8 years, Rg II and modifies the sentence to 6 yrs, Rg II, over the State’s objection.” The judgment was filed on July 28, 1997, the sam e date tha t the notice of appe al was filed by the Sta te.

W e agree with the Defendant that the State cannot appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedu re from the trial court’s disposition in this case. In addition, Rules 9 and 10 of the Tennessee Rules of Appellate Procedure pertain to interlocutory orders of the trial cou rt and in this case a final judgment has been entered. However, we feel the State is not without a remedy. Tennessee Code Annotated section 27-8-101, commonly referred to as the “common-law writ of certiorari” provides in pertinent part as follows:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal . . . has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other p lain, speedy, or adeq uate re med y. This section does not app ly to actions governed by the Tennessee Rules of Appe llate Proce dure.”

As sum marize d by the T ennes see Co urt of App eals,

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The writ of certiorari lies at common law to review and supervise the proceedings of inferior tribunals, but does not take the place of appeal or writ of error, and brings up the entire record to determine whether there has been an excess or absence of jurisdiction, or failure to proceed according to the essential requirem ents of the law.

Clark v. Metro . Gov. o f Nash ville, 827 S.W.2d 312, 316 (T enn. A pp. 19 91) (em phas is added) (citing Con ners v. City of K noxville , 136 Ten n. 428, 189 S .W. 87 0 (1916)).

Therefore, the proper procedure for the State to seek review of the trial court’s dispo sition in this case would have been by writ of certiorari. However, we do not fee l that it is in the interests of justice in this case to dismiss the appeal. Our supreme court ha s held tha t it has the au thority to trans form a n app eal im prope rly filed under Rule 3 of the Tennessee Rules of Appellate Procedure into a proper appeal under Rule 10 of the Te nness ee Ru les of Ap pellate P rocedu re. State v. Gallaher, 730 S.W .2d 622, 623 (Tenn. 198 7). Our court has also held that it has the same power o ver appe als filed in this c ourt. State v. James Doe, No. 01C01-9102- CR-00046, Lexis 971, slip op. at 3, Davidson County (Tenn. Crim. App., Nashville, June 2 9, 1992 ).

Rule 36(a) of the Te nness ee Ru les of Ap pellate Proce dure p rovide s in part that the court of criminal appeals “shall grant the relief on the law and facts to which the party is entitled or the proceeding otherwise requires and may grant any relief, including the giving of an y judgmen t and mak ing of any order . . . .”

Thus, we shall treat this matter as a petition for writ of certiorari by the State, an d we pro ceed to determ ine the m atter on the merits.

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The “Plea of Guilty and Waiver of Jury Trial and Appeal” form signed by the Defe ndant, h is couns el, and the Assistan t District Attorn ey une quivoc ally states that the nego tiated g uilty plea is entere d purs uant to Rule 11(e)(1)(C) of the Tennessee Rules of Criminal Procedure. That rule specifically states that the parties “[a]gree th at a spec ific sentenc e is the ap propriate disposition of the cas e.”

Our supreme court has held that “[t]here is no provision in Rule 11(e)

[Tenn. R. Crim. P.] that permits the trial court to alter the agreement if the plea is being entered und er subsection (1)(C).” State v. Grady H argrove, No. 01S01-9203- CC-0 0035, s lip op. at 3, H umph reys Co unty (Te nn., Nas hville, Aug. 9 , 1993).

The Defendant argues that Rule 11(e)(4) of the Tennessee Rules of Criminal Procedure permits the trial court to reduce the length of the sentence in a negotiated plea a greem ent. T hat rule provides that the trial cour t must, if it rejects a plea agreement, advise the defendant that if he or she persists in a guilty plea the dispo sition of the case may be less favorable for the defendant than that contemplated by the plea agreem ent. In addition to the fact that the suprem e court has implicitly rejected this argument in Hargrove , we furthe r note that Rule 11(e)(4) contemplates the trial court rejecting the entire plea agreement and by necessity the guilty plea of the defendant. The warning is for the defendant who might desire to proceed and enter a g uilty plea notwithstandin g the trial court’s rejection of the e ntire plea ag reeme nt.

In the case sub judice, the trial court accepted all portions of the negotiated plea agreement except the length of the sentence. For unexplained reasons, the trial c ourt un ilaterally decided to reduce the length of the sentence

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which had been agreed upon by the parties pursuant to Rule 11(e)(1)(C) of the Tenn essee Rules o f Crimina l Proced ure.

W e conclud e that the tria l court exceeded its auth ority by u nilatera lly reducing the sentence, thus failing to proceed with the essential requirements of the law. Accordingly, the judgment must be reversed and this case remanded to the trial court. If the trial court still reje cts the negotiated agreement as set forth in the “Plea of Guilty and Waiver of Jury Trial and Appeal” signed on July 16, 1997 and filed of record on July 17, 1997, then the State shall be entitled to present proof at a sentencing hearing if the Defendant chooses to persist in a plea of g uilty to all coun ts of the indictment without an agreed disposition. Of course, the parties can further negotia te for a different agreement if the trial court continues to reject the negotiated plea agreement previously entered into betwe en the p arties. If the trial co urt accep ts the previously signed agreement upon remand, judgment shall be entered reflecting that Defenda nt is sentenced to serve eight (8) years in the Department of Correction as a Range II offender under the terms and conditions of the agreement signed on July 16, 1997.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

PAUL G. SUMMERS , Judge