State v. Ted Brannan

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1998 May 15, 1998

Cecil W. Crowson

STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9704-CC-00148 )

Appellee, )

)

) FRANKLIN COUNTY

VS. )

) HON. BUDDY D. PERRY

TED RAY BRANNAN, ) JUDGE )

Appe llant. ) (Aggra vated B urglary an d The ft)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF FRANKLIN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP A. CONDRA JOHN KNOX WALKUP Public Defender Attorney General and Reporter 204 Betsy P ack Drive Jasper, TN 37347 DARYL J. BRAND Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

J. MICHAEL TAYLOR

District Attorney General

STEVEN M. BLOUNT

Assistant District Attorney General 324 Dinah Shore Blvd.

Win cheste r, TN 37 398

OPINION FILED ________________________ APPEAL DISMISSED DAVID H. WELLES, JUDGE

OPINION

The Defen dant, Ted Ray Brannan, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted by a Fr anklin Coun ty jury of one count of aggrava ted burg lary and o ne cou nt of theft of p roperty valued in excess of one thousand dollars ($1000) but less than ten thousand dollars ($10,000). 1 For the aggra vated burglary co nviction, the trial court sentenced him as a Range III persistent o ffender to ten years imprison ment w ith the Departm ent of Correction . For the theft conviction, the trial court sentenced him as a care er offend er to twelve years imprisonm ent. The se ntences we re ordered to run concurrently. In this appeal, the Defendant raises five issues:

1) That the evide nce wa s legally insu fficient to sup port the ve rdicts because the testimony of the Defendant’s accomplice was not adequately corroborated;

2) that the trial court erred in charging the pattern jury instruction defining accomplice;

3) that he was denied due process by the State’s failure to produce the ac com plice’s p rior state men t until trial;

4) that he was denied his right to confront witnesses by the trial court’s restriction of cross-examination of the accomplice on the subject of the accomplice’s pretrial diversion application; and, 5) that he was denied due process by the State’s failure to disclose alleged discussions of leniency for the accomplice in exchange for his testim ony aga inst the D efenda nt.

As we will discuss below, we conclude that the Defendant has waived consideration of issues two through five becau se he faile d to file a timely motion for new trial. Furthe rmor e, bec ause the De fenda nt also failed to file a tim ely notice of appeal, we conclude that he has waived consideration of his first issue, and w e there fore dis miss this ap peal.

1 Tenn. Code A nn. §§ 39-14-403, 39-14-103 , and 39-14-105(3).

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W e begin with a very brief summary of the pertinent facts. On January 10, 1994, the home of J.C. Garner was burglarized. An item of jewelry and three shotgu ns were taken from the hom e. Charles R ose drove by the Garner home at approximately noon on January 10, 1994. He observed a blond-haired young man stand ing ne ar the ro ad cra dling g uns in his arms a nd dec ided to inve stigate the situation further. As he drove up the road a short distance loo king for a suitab le place to turn around, he passed a brown van. Rose turned around and drove back toward the spot where the young man had been standing. En route, he again passed the brow n van, this tim e traveling in the opp osite direc tion. He could not find the blond-haired young man.

A short time later, a brown van was stopped in nearby Coffee County. The driver of the van was the Defendant. Mickey Arp was a passenger in the van. Police officers discovered three shotguns concealed under some clothing in the rear of the van and a woman’s gold watch on the person of Mickey Arp. J.C. Garner later identified the property as having been taken from his home. It appears that at the time of the crimes, Mickey Arp was nineteen years old and had blond h air. The Defe ndant was forty years old and h ad brown h air.

Mickey Arp implicate d the De fendan t in the com mission of the crim es. Arp testified that the Defe ndan t picke d him up and drove to the Garner home. The Defendant then told Arp which door Garner left unlocked and the location of the guns in the hom e. Acco rding to Arp, the Defendant told him that he would drop Arp off, drive down the roa d a short distance, turn around and come back to pick Arp up outside the hom e. J.C. Garner testified that he had known the Defendant

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since the latter had been a child. Garner stated that the Defe ndan t had b een in his home several times.

On March 8, 1994, the Defendant and Mickey Arp were jointly indicted on charges of aggravated burglary and theft of property valued between one thousand dollars ($1000) and ten thousand dollars ($10,000). Mickey Arp’s case was later severed from th e Defendant’s case. The Defendant was tried on September 1, 1994, and found guilty as charged.

It is at this point in the procedural history of the Defendant’s case that the problems which lead to our disposition of this ap peal d evelop . The D efend ant’s sentencing hearing was orig inally set for O ctober 1 1, 1994 . Up to that point, the Defendant had been represented by the District Public Defender. On October 11, 1994, however, the D efendant inform ed the trial court that he had retained an attorney, Arthur Jenkins, to represent him. In response, the trial court entered an order relieving the Dis trict Pub lic Defe nder a nd en tering A rthur Je nkins as counsel of record. The trial court continued the sentencing hearing to November 4, 1994, to allow new counsel time to prepare. The sentencing hearing was conducted on No vemb er 4, with the Defen dant rec eiving a ten -year Ra nge III persistent offender sentence for aggravated burglary and a twelve-year career offende r senten ce for theft.

On November 9, 1994, in response to confusion over who bore the respon sibility for preparing the transcript of the evidence for appeal, the District Public D efende r filed a mo tion to ascertain the resp onsibilities o f his office with regard to representation of the Defendant. The District Public Defender sent

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notice to the D istrict Attorney General’s office and to Arthur Jenkins that he intended to bring the motion before the trial court for a hearing on November 18, 1994. The trial court did indeed conduct a hearing on the motion on November 18, 1994, at which time the trial court reaffirmed that the District Public Defender had been relieved of representing the Defendant and that Arthur Jenkins was counsel of record for all further proceedings. An order was filed to that effect on December 15, 199 4, nunc pro tunc. On December 1, 1994, Arthur Jenkins filed a motion seeking to be relieve d as cou nsel for the Defen dant and to have the District Public D efende r reinstated . It appears , howeve r, that the motion was never presented to the trial court for a hearing.

Nothing further too k place re garding the Defe ndant’s case for many months. On November 22, 1995, the Defendant filed a complaint against Arthur Jenkins with the Board of Professional Responsibility, alleging that he had been having difficulty communicating with Jenkins about the status of his case. On January 9, 1996, the trial judge conducted a hearing in chambers, at which time he relieved Arthu r Jenk ins as c ouns el of rec ord, re instate d the D istrict Pu blic Defende r, and allowed for a “delay ed app eal” by gra nting thirty days within which to file a motion for new trial. On February 9, 1996, the District Public Defender filed a motion for new trial, which was amended on Oc tober 15 , 1996. The trial judge conducted a hearing on the motion for new trial on November 18, 1996, at which time he denied the motion. The District Public Defender filed a notice of appeal on December 11, 1996.

Having set forth the proced ural back ground of the pres ent case, we turn now to the principles which lead to our d ispos ition. A m otion fo r new tr ial is

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required to be filed “w ithin thirty days of the date th e orde r of sen tence is entered .” Tenn. R. Crim. P. 33( b). Th is time period is mandatory and cannot be extended. Tenn . R. Crim . P. 45(b); State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). A trial court does not have jurisdiction to hear and determine the merits of a motion for new trial which h as not be en time ly filed. Martin , 940 S.W .2d at 569 ; Dodson, 780 S.W .2d at 7 80. Th us, a tria l court’s errone ous c onsid eration of an u ntime ly motion for new trial d oes no t validate the motion . Id. The failure to file a motion for new trial in a timely manner renders waived those issues which may re sult in the granting of a new trial. Id. In other wo rds, an a ppellate court will not consider any issue raised in the motion unless it would result in dismissal of the prosec ution. Id.

In the case sub judice, the order of sentence was entered on November 4, 1994. The Defendant filed a motion for new trial on February 9, 1996, well after the expiration of the thirty-day period. As a result, we can only conclude that the Defendant has waived con sidera tion of is sues two thro ugh five raised on this appe al. 2 Becau se of the untimely motion for new trial, our review is confined solely to the first issue on appeal, addressing the sufficiency of the evidence. See Dodson, 780 S.W.2d at 780.

2 Of course, this Court has discretion to review the record for apparent errors to prevent needless litigation, injury to the interest of the public and prejudice to the judicial process. Tenn. R. App. P. 13(b). Furthermore, it is within this Court’s discretion to notice at any time an error affecting a substantial right of the defendant, even though not raised in a motion for new trial, where necessary to do substantial justice. Tenn. R. Crim. P. 52(b). We decline to exercise our discretion in the case at bar.

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In addressing the Defendant’s first issue, challenging the sufficiency of the convicting evidence, we are faced with another problem stemming from the failure to file a mo tion for new trial in a timely fa shion. A notice of appe al is required to be filed with the clerk of the trial court within thirty days afte r the date of entry of the judg ment o r order from which re lief is sough t. Tenn. R . App. P . 4(a). Timely filing of a motion for new trial tolls this period until entry of the order denying the m otion for new trial. Ten n. R. App. P. 4 (c).

In the present case, because the untimely motion for new trial was a nullity, it did not toll the thirty-day pe riod for filing a n otice of ap peal. See State v. Davis , 748 S.W .2d 206 , 207 (T enn. C rim. App . 1987). The Defendant filed his notice of appeal on December 11, 1996, well beyond the thirty-day period from the entry of the judgments of conviction on November 4, 1994.

Of course, Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that the notice of app eal do cum ent is n ot jurisd ictiona l and th at time ly filing may therefore be waived in the interest of justice. In the case sub judice, however, the Defendant has failed to present any reason why the interest of justice requires waiver of th e nece ssity for timely filing o f a notice o f appea l. We find nothing in the record before this Court from which we can conclude that the interes t of justic e requ ires us to waive timely filin g of the notice of app eal.

For the rea sons set forth in the d iscuss ion ab ove, w e con clude that the Defendant has waived consideration of issues two through five because he failed to file a timely motion for new trial and has waived consideration of his first issue

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because he failed to file a timely notice of appeal. We therefore dismiss this appe al.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

JOE G. RILEY, JUDGE