State v. Calvin Head ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1997
FILED
August 22, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) No. 01C01-9512-CC-00401
Appellant )
) MONTGOMERY COUNTY
vs. )
) Hon. Robert W. Wedemeyer, Judge
CALVIN EUGENE HEAD, )
) (Especially aggravated robbery;
Appellee ) Conspiracy to commit especially
aggravated robbery)
State Appeal
For the Appellee: For the Appellant:
MICHAEL R. JONES CHARLES W. BURSON
District Public Defender Attorney General and Reporter
110 Sixth Avenue, West
Springfield, TN 37172 LISA A. NAYLOR
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
ARTHUR BIEBER
Asst. District Attorney General
204 Franklin Street
Suite 200
Clarksville, TN 37040
OPINION FILED:
REMANDED
David G. Hayes
Judge
OPINION
The State of Tennessee appeals, pursuant to Tenn. R. App. P. 10,1 from
the order entered by the Montgomery County Circuit Court requiring that the
State provide the defendant, Calvin Eugene Head, the same plea agreement
offered to Head's co-defendants. The State contends that the trial court
wrongfully usurped the plea bargaining power expressly granted to the district
attorney general's office. We agree with the State and vacate the order of the
trial court.
In March, 1994, the Montgomery County Grand Jury indicted Calvin Head
and three co-defendants, all juveniles, on one count of especially aggravated
robbery and one count of conspiracy to commit especially aggravated robbery.
The indictments stem from the January 25, 1994, robbery of a sporting goods
store in Clarksville, during which an employee of the store was beaten with a
crow bar. The employee suffered a fractured skull and shattered cheekbone from
the assault. Head's three co-defendants, pursuant to plea offers recommended
by the State, entered guilty pleas to the reduced charge of robbery, a class C
felony and were placed on judicial diversion. Tenn. Code Ann. § 40-35-
313(a)(1). The district attorney refused, however, to recommend reduction of the
defendant Head’s charge to robbery, a class C felony which would have
permitted consideration for judicial diversion. The State argues their position is
based upon the undisputed fact that it was the defendant Head who struck the
blow with the crow bar. Subsequently, Head requested that he be provided the
same plea arrangement received by his co-defendants. At the hearing on the
defendant’s motion, the trial court found that Head was not the leader in the
commission of the offense , that he was “learning disabled,” and that he “should
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The Sta te s ubm its th at, a ltho ugh this appeal was filed, by th e district attorney general’s
office, as an appeal as of right under Tenn. R. App. P. 3, it is more properly treated as an
interloc utory appe al und er T enn . R. App. P . 10(a )(1).
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be treated by the State in a consistent and fair manner.” The trial court then
ordered that the defendant Head be “provided the same settlement opportunity
as the other three defendants.” After entry of the order but prior to the
defendant's guilty plea hearing, the State appealed, challenging the trial court's
authority to intervene in plea negotiations. It is this appeal that is currently
before this court.
Although Rule 11(e) of the Tennessee Rules of Criminal Procedure
permits guilty plea discussions between the district attorney general and the
accused, the district attorney general is not required to engage in plea
bargaining, see Weatherford v. Bursey, 429 U.S. 545, 561, 97 S. Ct. 837, 846
(1977); State v. Hodges, 815 S.W.2d 151, 155 (Tenn. 1991); Parham v. State,
885 S.W.2d 375, 382 (Tenn. Crim. App), perm. to appeal denied, (Tenn. 1994);
nor does the accused have a constitutional right to plea negotiations. See
Mabry v. Johnson, 467 U.S. 504, 507, 104 S. Ct. 2543, 2545-47 (1984);
Weatherford, 429 U.S. at 561, 97 S.Ct. at 846; State v. Washington, 661 S.W.2d
900, 904 (Tenn. Crim. App. 1983), cert. denied, 467 U.S. 1208, 104 S. Ct. 2394
(1984). Moreover, even though plea negotiations are permitted, "the court shall
not participate in any. . .[plea] discussions." Tenn. R. Crim. P. 11(e) (emphasis
added). Thus, Rule 11 expressly prohibits the trial court from ordering the State
to enter into a specific plea agreement with a defendant. See State v. Turner,
713 S.W.2d 327, 330 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.), cert.
denied, 479 U.S. 933, 107 S. Ct. 407 (1986).
Notwithstanding the plain language of Rule 11(e), Tenn. R. Crim. P., the
doctrine of separation of powers further bars the court from participating in plea
negotiations. The doctrine of separation of powers, as set forth in Article II of the
Tennessee Constitution, is a fundamental principal of American constitutional
government. Town of South Carthage v. Barrett, 840 S.W.2d 895, 897 (Tenn.
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1992) (citation omitted). Our constitution divides the powers of government into
three distinct, independent, and coordinate departments, namely, legislative,
executive, and judicial, with express prohibition against any encroachment by
one department upon the powers, functions, and prerogatives of the others,
except as directed or permitted by some other provision of the constitution.
Richardson v. Young, 122 Tenn. 471, 491, 125 S.W. 664, 668 (1910) (emphasis
added).
District attorneys general are officers of the executive branch, who are
entrusted by the citizens of this state with the duty to seek justice. See State v.
Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995); State v. Pendergrass,
No. 01C01-9504-CR-00121 (Tenn. Crim. App. at Nashville, Feb. 28, 1997).
Accord Dearborn v. State, 575 S.W.2d 259, 262 (Tenn. 1978); Foute v. State, 4
Tenn. (3 Hayw.) 98 (1816). It is well established law that it is within the district
attorney general's discretion, and not the trial court's, to decide if and when a
prosecution is to be instituted, the precise character of the offense to be
charged, and, once instituted, whether the prosecution should go forward, enter
into a plea bargain agreement, or dismiss the prosecution. State v. Williams, No.
03C01-9311-CR-00372 (Tenn. Crim. App. at Knoxville, Mar. 24, 1995), perm. to
appeal denied, (Tenn. July, 10, 1995) (citing Turner, 713 S.W.2d at 330); Gilliam,
901 S.W.2d at 389. Because plea bargaining is a matter entirely within the
district attorney general's discretion, the trial court may not require the State to
make a particular plea bargain offer. Turner, 713 S.W.2d at 330.
The trial court's order directing the State to extend to the defendant,
Calvin Head, the same plea arrangement provided to the three co-defendants
was a total departure from "the accepted and usual course of judicial
proceedings." Turner, 713 S.W.2d at 330 (citing Tenn. R. App. P. 10(a)).
Accordingly, we find that the trial court erred in so ordering.
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For the reasons stated above, the order of the trial court is vacated, and
the case is remanded to the trial court for trial or other appropriate proceedings.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________
PAUL G. SUMMERS, Judge
_______________________________
JERRY L. SMITH, Judge
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