State v. Vinton Brownlee

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 02C01-9808-CR-00238
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY 1999 SESSION June 3, 1999

Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9808-CR-00238 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY, VINTON V. BROWNLEE, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON, JR. PAUL G. SUMMERS Shelby County Public Defender Attorney General and Reporter

TONY N. BRAYTON GEORGIA BLYTHE FELNER (On Appeal) Assistant Attorney General TIMOTHY J. ALBERS Cordell Hull Building, 2nd Floor (At Sentencing) 425 Fifth Avenue North Assistant Public Defenders Nashville, TN 37243-0493 201 Poplar, Suite 201 Memphis, TN 38103-1947 WILLIAM L. GIBBONS District Attorney General

J. ROBERT CARTER, JR. Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FILED:

VACATED AND REMANDED

JOE G. RILEY, JUDGE OPINION

Defendant pled guilty to carjacking, a Class B felony, aggravated burglary

and theft of property over $10,000, Class C felonies, in exchange for an agreed

effective sentence of eight years. After a sentencing hearing, the trial court denied

defendant’s request for alternative sentencing. On appeal, defendant challenges

that denial while the state contends that the sentence is illegal by virtue of its

concurrent nature. We agree with the state’s position and REMAND for further

proceedings.

I.

On August 3, 1996, defendant allegedly participated in a carjacking which

involved the use of a gun. Police arrested defendant a few days later driving the

stolen car. Defendant made bond.

On May 10, 1997, defendant allegedly burglarized a residence and took

professional recording equipment worth in excess of $10,000. Police caught

defendant attempting to pawn that equipment sometime between May 10 and May

13, 1997, while he was out on bond for the carjacking.

Defendant pled guilty to all three felonies in exchange for concurrent

sentences of eight years for the carjacking, and six years each for the aggravated

burglary and theft. The manner of service was left to the trial court’s discretion, and

it denied defendant’s request for alternative sentencing.

Defendant’s claim that the trial court erred in its denial of alternative

sentencing is the issue presented for our review; however, we are unable to address

it in light of the illegal sentence imposed in this case.

II.

2 The state correctly argues that consecutive sentencing is mandatory in this

case by virtue of the Tennessee Rules of Criminal Procedure, which state in

relevant part:

. . . Where a defendant is convicted of multiple offenses . . . the sentence shall be consecutive whether the judgment explicitly so orders or not. This rule shall apply . . . [t]o a sentence for a felony where the defendant was released on bail and the defendant is convicted of both offenses . . . .

Tenn. R. Crim. P. 32(c)(3)(C). Furthermore, Tenn. Code Ann. § 40-20-111(b)

provides:

. . . In any case in which a defendant commits a felony while such defendant was released on bail . . . and the defendant is convicted of both such offenses, the trial judge shall not have discretion . . . but shall order that such sentences be served cumulatively.

Defendant was on bond for carjacking, a Class B felony, when the Class C

felonies of aggravated burglary and theft were committed. Therefore, in spite of the

plea agreement, the trial court was prohibited from running the Class C sentences

concurrently with the Class B sentence. Thus, the eight-year effective sentence is

illegal. See State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978); State v. Jon

Connors, C.C.A. No. 03C01-9506-CC-00176, Blount County (Tenn. Crim. App. filed

December 17, 1996, at Knoxville).

Under these circumstances, it is impossible for this Court to speculate

whether defendant would still choose to enter a guilty plea knowing that the Class

C felony sentences must run consecutively to the Class B felony sentence. It is

necessary to vacate the judgments and allow the defendant an opportunity to

withdraw his guilty plea. See Burkhart, 566 S.W.2d at 873.

Thus, the judgments are VACATED and this case is REMANDED for further

proceedings in accord with this opinion.

3 ____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOHN H. PEAY, JUDGE

____________________________ THOMAS T. WOODALL, JUDGE