State v. Frederick Sledge ( 1991 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs July 9, 2002
    STATE OF TENNESSEE v. FREDERICK SLEDGE
    Direct Appeal from the Criminal Court for Shelby County
    No. 92-04081   James C. Beasley, Jr., Judge
    No. W2001-02402-CCA-R3-CD - Filed January 6, 2003
    The defendant was convicted of first degree murder and especially aggravated robbery and was
    originally sentenced to death and twenty years, respectively. The trial court ordered the sentences
    to be served consecutively. On appeal, this court affirmed both convictions but reversed the death
    sentence and remanded it for resentencing. On remand, the defendant was sentenced to life
    imprisonment after a new sentencing hearing. The life sentence was ordered to be served
    consecutively to the original twenty-year sentence for especially aggravated robbery. The only issue
    raised on this appeal is whether, on remand, the trial court erred by not reconsidering the issue of
    consecutive sentencing when resentencing the defendant for the murder conviction. We affirm the
    sentence as imposed on remand by the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
    and NORMA MCGEE OGLE , JJ., joined.
    Paula Skahan and Gerald Skahan, Memphis, Tennessee, for the appellant, Frederick Sledge.
    Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
    William L. Gibbons, District Attorney General; and Jerry Harris and John W. Campbell, Assistant
    District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    BACKGROUND
    On December 10, 1991, the defendant shot and killed sixty-four-year-old Johnny Harris. The
    shooting occurred during a robbery committed by the defendant and two others. According to the
    defendant’s statement, he and two others tracked the victim from a grocery store to his apartment
    where he demanded money from the victim. The victim gave the defendant his wallet, which
    contained six or seven dollars. The defendant rummaged through the victim’s pockets and then shot
    him once through the heart and once through the knee. The victim was found dead, lying on his back
    with his pockets turned inside-out.
    Subsequently, the defendant was convicted of first degree murder and especially aggravated
    robbery for which he received a sentence of death and twenty years, respectively. The sentences
    were ordered to be served consecutively. On appeal, this court affirmed both convictions but
    reversed and remanded the death sentence for resentencing. See State v. Fredrick Sledge, No.
    02C01-9405-CC-00089, 
    1997 WL 730245
    (Tenn. Crim. App. Nov. 25, 1997), perm. to appeal
    granted (Tenn. Mar. 1, 1999). Our supreme court affirmed. See State v. Sledge, 
    15 S.W.3d 93
    (Tenn.) (modified on other grounds), cert. denied, 
    531 U.S. 889
    , 
    121 S. Ct. 211
    , 
    148 L. Ed. 2d 149
    (2000).
    At his resentencing hearing, the defendant presented evidence relevant to this appeal. The
    defendant grew up impoverished in rural Mississippi and had little contact with his father. His father
    physically abused his mother during her pregnancy. He had a close relationship with his great aunt
    who died when he was seventeen. The defendant has two sons with whom he is in contact. At age
    seventeen or eighteen, he moved to Memphis and, within two months of his arrival, committed the
    instant offenses. Witnesses for the defendant testified that he had matured and had remained in
    contact with his family since his incarceration.
    Following a remand, a jury resentenced the defendant to life imprisonment. The defense
    argued both at the conclusion of the resentencing hearing, and at a subsequent hearing, that the trial
    court order that the defendant’s two sentences be served concurrently. However, the trial court
    declined to reconsider the matter, explaining its reasoning:
    That issue, in my opinion, has been upheld by the court of
    criminal appeals as being a valid ruling by the trial court. The
    mitigating factors that you’re talking about, with reference to the
    sentencing hearing in this case, were presented to a jury; obviously
    the jury felt there was apparently some merit to those mitigating
    circumstances, and returned a verdict of life imprisonment.
    It would be this Court’s opinion that the prior ruling by the
    original trial court with regard to how those sentences should be
    served, would still stand. That issue has been determined by the
    appellate court to have been a proper sentencing hearing where we’re
    making a – we’re using the term sentencing hearing, and it’s probably
    improper when it refers to this particular case. This case was the
    sentencing phase of the murder trial, but the trial judge, the original
    trial judge, . . . has previously determined at a sentencing hearing that
    has been upheld that the especially aggravated robbery should be
    served consecutive with the murder. The only issue for this Court to
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    determine was what was the punishment in the murder case. That
    punishment has been established as life imprisonment.
    So it would be my opinion, based on the ruling by the court of
    criminal appeals, the affirmation of that ruling by the supreme court,
    that the sentences in this case should be held consecutively or served
    consecutively as previously ordered by [the original trial judge], and
    I would so rule.
    I don’t see, nor do I think that it’s necessary to have another
    hearing to determine whether the sentences should be served
    concurrently or consecutively. Obviously, that is an issue that can be
    determined and ruled upon on appeal, if I’m incorrect, but it would be
    my opinion that the law of the case has been established by the court
    of criminal appeals and the supreme court, that being that the
    sentence is, in the especially aggravated robbery and the murder and
    the prior aggravated robberies were to be served consecutively.
    The only issue before this court was what was the punishment,
    and for that reason, I will deny the Motion to have the sentences run
    concurrently as having been previously determined.
    ANALYSIS
    The sole issue on appeal is whether the trial court was required to revisit the issue of whether
    the new murder sentence was to run consecutive to, or concurrent with, the original robbery sentence
    when the case was remanded for a new sentencing hearing. The defendant argues that common
    sense would require the issue to have been reconsidered at the resentencing hearing. However, it is
    the State’s position that the issue of consecutive sentencing was finalized in the defendant’s first
    appeal and need not be revisited.
    On his first appeal, the defendant argued that the imposition of consecutive sentences was
    improper. Sledge, 
    1997 WL 730245
    , at *32. This court responded:
    The trial court found that the defendant had an extensive history of
    criminal activity and that he was a dangerous offender whose
    behavior indicates little or no respect for human life. See T.C.A. §
    40-35-115(b)(2) and (4). The defendant's contentions as to the
    impropriety of these findings are without merit. The defendant cites
    no authority in support of his proposition that the term "extensive" is
    unconstitutionally vague. The trial court properly considered the
    defendant's prior criminal activity as being extensive. Though the
    defendant may not have any prior juvenile convictions, the statute
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    does not state that there must be a conviction, just prior criminal
    activity. Furthermore, State v. Stockton, 
    733 S.W.2d 111
    , 112-13
    (Tenn. Crim. App. 1986), suggests that the trial court can review
    juvenile records when making a sentencing determination. Finally,
    the defendant was properly classified as a dangerous offender. See
    State v. Wilkerson, 
    905 S.W.2d 933
    , 935-39 (Tenn. 1995).
    Accordingly, this issue is without merit.
    
    Id. This court
    then concluded:
    In consideration of the foregoing and the record as a whole,
    we hold that the first degree murder conviction is affirmed but that
    the sentence is reversed. We affirm the judgment of conviction for
    the especially aggravated robbery. The case is remanded to the trial
    court for a new sentencing hearing for the first degree murder and the
    entry of a judgment of conviction under count two of Case No. 92-
    04081.
    
    Id. at *33.
    The Tennessee Supreme Court modified this court’s decision on other grounds and
    affirmed with respect to the remaining issues, including sentencing. 
    Sledge, 15 S.W.3d at 96
    .
    The defendant contends that neither this court nor our supreme court expressly limited the
    scope of the resentencing hearing on remand to preclude a new ruling on the issue of consecutive
    sentencing. Therefore, he reasons, the issue was properly before the trial court during the
    resentencing hearing. However, simply because the defendant was being resentenced in one of his
    cases did not erase the factors upon which the trial court had based its earlier order that the sentences
    be served consecutively, which this court affirmed on appeal.
    In State v. Jefferson, 
    31 S.W.3d 558
    (Tenn. 2000), our supreme court explained the “law of
    the case” doctrine:
    “The phrase ‘law of the case’ refers to a legal doctrine which
    generally prohibits reconsideration of issues that have already been
    decided in a prior appeal of the same case. In other words, under the
    law of the case doctrine, an appellate court's decision on an issue of
    law is binding in later trials and appeals of the same case if the facts
    on the second trial or appeal are substantially the same as the facts in
    the first trial or appeal. The doctrine applies to issues that were
    actually before the appellate court in the first appeal and to issues that
    were necessarily decided by implication. The doctrine does not apply
    to dicta.
    The law of the case doctrine is not a constitutional mandate
    -4-
    nor a limitation on the power of a court. Rather, it is a longstanding
    discretionary rule of judicial practice which is based on the common
    sense recognition that issues previously litigated and decided by a
    court of competent jurisdiction ordinarily need not be revisited. This
    rule promotes the finality and efficiency of the judicial process,
    avoids indefinite relitigation of the same issue, fosters consistent
    results in the same litigation, and assures the obedience of lower
    courts to the decisions of appellate courts.
    Therefore, when an initial appeal results in a remand to the
    trial court, the decision of the appellate court establishes the law of
    the case which generally must be followed upon remand by the trial
    court, and by an appellate court if a second appeal is taken from the
    judgment of the trial court entered after remand. There are limited
    circumstances which may justify reconsideration of an issue which
    was [an] issue decided in a prior appeal: (1) the evidence offered at
    a trial or hearing after remand was substantially different from the
    evidence in the initial proceeding; (2) the prior ruling was clearly
    erroneous and would result in a manifest injustice if allowed to stand;
    or (3) the prior decision is contrary to a change in the controlling law
    which has occurred between the first and second appeal.”
    
    Id. at 560-61
    (quoting Memphis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd.,
    
    975 S.W.2d 303
    , 306 (Tenn. 1998)).
    This court affirmed the trial court’s imposition of consecutive sentencing, remanding to
    determine the sentence for the first degree murder conviction. While not an explicit limitation of the
    scope of the remand, the implication of the remand was that the issue of consecutive sentencing need
    not be revisited. The law of the case doctrine proscribes reconsideration of the issue. None of the
    limited exceptions to the law of the case doctrine apply. Our supreme court affirmed this decision.
    Accordingly, we conclude that the trial court’s refusal to reconsider the issue was not error. The
    defendant’s argument is without merit.
    The defendant also argues that new evidence was presented at the resentencing hearing that
    required the trial court to revisit the issue of consecutive sentencing. Testifying on behalf of the
    defendant at the resentencing hearing were his uncle, Michael Howard; his cousin, Velda Smith; his
    former girlfriend, Melvia Brown; and his mother, Minnie Sledge. They testified, generally, as to his
    difficult background and his efforts to maintain contact with his family and his children.
    The defendant characterizes the testimony from the resentencing hearing as “[e]vidence in
    mitigation.” However, the trial court is only required to consider mitigating evidence in determining
    sentence length and sentencing alternatives. See Tenn. Code Ann. § 40-35-113, Sentencing
    Commission Cmts.; State v. Baker, 
    751 S.W.2d 154
    , 167 (Tenn. Crim. App. 1987) (holding that
    -5-
    mitigating factors are not involved in the determination of whether sentences are to run consecutive
    or concurrent). Furthermore, according to statute, the ordering of consecutive sentences is purely
    discretionary; nevertheless, the trial court must find by the preponderance of the evidence that at least
    one of seven criteria is met. See Tenn. Code Ann. § 40-35-115(b). Here, the trial court correctly
    applied criteria (2), “[t]he defendant is an offender whose record of criminal activity is extensive,”
    and (4), “[t]he defendant is a dangerous offender whose behavior indicates little or no regard for
    human life, and no hesitation about committing a crime in which the risk to human life is high.” 
    Id. § 40-35-115(b)(2),
    (4). None of the evidence the defendant presented at the resentencing hearing
    rebuts the application of those two factors. Accordingly, we cannot conclude that the trial court
    erred in refusing to review the prior order that the sentences be served consecutively.
    CONCLUSION
    Based on the foregoing authorities and reasoning, the judgment of the trial court is affirmed.
    ___________________________________
    ALAN E. GLENN, JUDGE
    -6-
    

Document Info

Docket Number: W2001-02402-CCA-R3-CD

Judges: Judge Alan E. Glenn

Filed Date: 12/10/1991

Precedential Status: Precedential

Modified Date: 10/30/2014