In re: Free "U" Bonds, Inc. and Phillip Cole Hatmaker ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 18, 2013 Session
IN RE: FREE “U” BONDS, INC. AND PHILLIP COLE HATMAKER
Direct Appeal from the Criminal Court for Campbell County
No. 10779 E. Shayne Sexton, Judge
No. E2013-00782-CCA-R3-CO - Filed March 19, 2014
The appellants, Free “U” Bail Bonds, Inc. and Phillip Cole Hatmaker, appeal the Campbell
County Circuit Court’s revocation of a convicted felon’s ability to act as a bail bondsman.
Upon review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
N ORMA M CG EE O GLE, delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J.,
and R OGER A. P AGE, J., joined.
Wesley L. Hatmaker, Jacksboro, Tennessee, for the appellants, Free “U” Bail Bonds, Inc. and
Phillip Cole Hatmaker.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Lori
Phillips-Jones, District Attorney General; and Michael O. Ripley, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that on May 11, 2011, Free “U” Bail Bonds filed a motion seeking
the trial court’s approval for Phillip Cole Hatmaker to write bail bonds for the Eighth Judicial
District of Tennessee. In the motion, Free “U” Bail Bonds acknowledged that “Phillip Cole
Hatmaker has been convicted of a felony but not any offense involving moral turpitude. That
Phillip Cole Hatmaker’s rights [of citizenship] have been restored.” Specifically, the record
reflects that on July 8, 1998, Hatmaker was convicted in the Knox County Criminal Court
of possession of more than ten pounds of marijuana with the intent to sell, a Class D felony.
The State filed an answer opposing the motion because of Hatmaker’s felony conviction.
Afterward, a hearing was held, and evidence was presented. On May 23, 2011, the trial court
authorized Hatmaker to write bail bonds for the district. As authority for its decision, the
trial court cited Attorney General Opinion 04-143, which states that a convicted felon may
be authorized to act as a bondsman if his or her rights of citizenship have been restored.
Thereafter, on August 20, 2012, this court released In re Cox, 389 S.W.3d 794 (Tenn.
Crim. App. 2012), which held that a convicted felon could not serve as a bondsman even
though the felon’s rights of citizenship had been restored. On October 23, 2012, the State
filed a petition to revoke the order authorizing Hatmaker to act as a bond agent, citing In re
Cox. At the hearing on the petition, Free “U” Bail Bonds asserted that the State did not
appeal the 2011 order granting Hatmaker authorization to operate as a bail bondsman and
that the State was attempting to collaterally attack a final order. In response, the State argued
that the petition was “not an appeal issue” because a bondsman’s status was subject to change
by the trial court at any time.
The trial court noted that its decision to approve Hatmaker was based upon the
Attorney General’s Opinion. The court, however, noted that In re Cox was “dead on point,
that a person who has been convicted of a felony cannot make – cannot become a bonding
agent regardless of restoration of citizenship.” The court stated that it was bound by In re
Cox and reluctantly revoked the appellant’s bonding privileges.
On appeal, Free “U” Bail Bonds and Hatmaker challenge the trial court’s ruling, again
arguing that the State’s petition to revoke Hatmaker’s bonding privileges was an
impermissible collateral attack on the trial court’s 2011 order, which became final
approximately sixteen months before the State filed the petition to revoke.
II. Analysis
A trial court is imbued with the full authority to determine whether a person is
qualified to make bonds within its court. See Gilbreath v. Ferguson, 260 S.W.2d 276, 278
(Tenn. 1953). To this end, a trial court is given wide discretion in regulating bail bondsmen,
and we will not overturn its regulations so long as they are not “capricious, arbitrary, or
solely without basis of right.” Taylor v. Waddey, 334 S.W.2d 733, 736 (Tenn. 1960); see
also In re Int’l Fid. Ins. Co., 989 S.W.2d 726, 728 (Tenn. Crim. App. 1998). This court will
review a trial court’s denial of a bondsman’s revocation of authority to act as a bondsman
under a de novo standard of review. Tenn. Code Ann. § 40-11-125(d); see also In re Cox,
389 S.W.3d 794, 798 (Tenn. Crim. App. 2012).
Initially, we note that “Tennessee has specific disability statutes, which designate a
particular civil disability that occurs upon [a felony] conviction and remains in effect
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throughout the defendant’s life unless restored by a specific statutory procedure.” State v.
Johnson, 79 S.W.3d 522, 527 (Tenn. 2002) (internal quotations and citation omitted); see
also Tenn. Code Ann. § 40-29-101, et. seq. (providing the general procedure by which a
convicted felon may have their rights of citizenship restored). On September 1, 2004,
Attorney General Opinion 04-143 was issued, stating that “[i]t is the opinion of this office
that [Tennessee Code Annotated section] 40-11-128 disqualifies a convicted felon from
serving as an agent for a professional bail bondsman, unless his rights of citizenship are
restored pursuant to [Tennessee Code Annotated section] 40-29-101 et. seq.’” Our supreme
court has held that while Attorney General Opinions are not binding, they are “entitled to
considerable deference.” State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995); see also In re
Cumberland Bail Bonding Co., No. E2012-02556-CCA-R3-CO, 2013 WL 4734801, at *5
(Tenn. Crim. App. at Knoxville, Sept. 3, 2013).
In Cox, this court explained that Tennessee Code Annotated section 40-11-128
specifically provides that a convicted felon may not be a bondsman or a bondsman’s agent
and that the statute “fails to provide an exception for convicted felons who have had their
citizenship rights restored.” In re Cox, 389 S.W.3d at 800. This court held, accordingly,
“that the General Assembly intended for a convicted felon to be prevented from serving as
a bondsman or bondsman’s agent, even following a restoration of citizenship rights pursuant
to Tennessee Code Annotated sections 40-29-101 to -105.” Id. at 801. It is well-established
that “the published opinions of the intermediate appellate courts are opinions which have
precedential value and may be relied upon by the bench and bar of this state as representing
the present state of the law with the same confidence and reliability as the published opinions
of [our supreme court], so long as either are not overruled or modified by subsequent
decisions.” Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993).
Free “U” Bail Bonds complains that the State’s petition to revoke Hatmaker’s bonding
privileges was an impermissible collateral attack upon the trial court’s 2011 order granting
those privileges. The appellant has cited no authority in support of the position that the
State’s petition was a collateral attack, and we can find none. See John DeWitt McDowell
v. State, No. 02C01-9201-CR-00023, 1993 WL 220408, at *5 n.1 (Tenn. Crim. App. at
Jackson, June 23, 1993) (stating that “a collateral attack [i]s one in which a party seeks to
deprive a judgment of its normal force and effect in a proceeding that had an independent
purpose other than to overturn the prior judgment”); see also Black’s Law Dictionary 255
(7th ed. 1999). Our code does not limit when the State may file a motion to revoke a
bondsman’s privilege to issue bonds. See Tenn. Code Ann. § 40-11-127 (“Upon motion, any
district attorney general may prefer charges to have a bail bondsman stricken from the
approved list pursuant to § 40-11-125 with the same provisions for notice, answer and
hearing before the court, and the same right of appeal.”). We understand the trial court’s
reluctance; however, we can discern no impropriety by the State’s filing a petition for the
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revocation of Hatmaker’s bonding privileges pursuant to In re Cox. Additionally, we
conclude that the trial court did not abuse its discretion by revoking Hatmaker’s bonding
privileges.
III. Conclusion
Based upon the record and the parties’ briefs, the judgment of the trial court is
affirmed.
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NORMA McGEE OGLE, JUDGE
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