State of Tennessee v. Johnny Dewayne Boyd ( 2022 )

09/30/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 9, 2022 Session
STATE OF TENNESSEE v. JOHNNY DEWAYNE BOYD
Appeal from the Circuit Court for Giles County
No. 2019-CR-15099 Stella L. Hargrove, Judge
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No. M2021-01057-CCA-R3-CD
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Defendant, Johnny DeWayne Boyd, was convicted by a jury of rape of a child and incest.
The trial court imposed an effective thirty-year sentence in the Department of Correction.
On appeal, Defendant contends (1) the trial court erred in denying his motion to dismiss
based on the State’s failure to file a bill of particulars, and (2) that he was prejudiced by
the trial court’s denial of his motion to continue the trial due to a court security officer
testing positive for COVID-19 and the trial court’s failure to comply with the Tennessee
Supreme Court’s Order on COVID-19 protocol. After a careful review of the record, we
conclude that Defendant failed to file a timely motion for new trial before the trial court.
Additionally, Defendant failed to file a timely notice of appeal. Because the record does
not support this court’s waiver of the untimely notice of appeal, we dismiss Defendant’s
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and JOHN W. CAMPBELL, SR., JJ., joined.
John S. Colley, III, Columbia, Tennessee, for the appellant, Johnny DeWayne Boyd.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Emily Crafton,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Background Facts and Procedure
This case arose from the sexual abuse of the minor victim by Defendant. On
December 12, 2018, the Giles County Grand Jury returned an indictment against Defendant
charging him with rape of a child, a Class A felony, and incest, a Class C felony. See
T.C.A. §§ 39-13-522, 39-15-302. Both offenses allegedly occurred “on or about the 8th of
October 2018.” The case was set for trial on December 2, 2019. However, on November
27, 2019, the State moved to amend its indictment. The court granted the motion and re-
set the case for trial. On December 11, 2019, the State obtained a superseding indictment
identifying the commission of both offenses during a period of time from October 1, 2018,
until November 1, 2018.
On January 16, 2020, Defendant filed a motion for bill of particulars requesting “the
location, the means of penetration, and date of each alleged crime.” Following a case status
hearing on February 25, 2020, the State signed an agreed order “to provide bill of
particulars within 10 days setting forth the manner of penetration and date (according to
victim) for each incident alleged under count 1.” The State’s failure to comply with the
order was revealed during a case status hearing on April 27, 2020. At that hearing, the
State announced that it had not received Defendant’s motion, yet provided a bill of
particulars that identified the manner of penetration as “penile penetration [by Defendant]
of the minor victim’s genital openings.” The response did not include a date of the offense.
The State announced that it was unable to provide any additional time period other than
the time period identified in the indictment. Based on the foregoing, Defendant made an
oral motion to dismiss. The trial court entered a written order denying Defendant’s motion
to dismiss despite the State’s “neglect of this matter.” Relying heavily on State v. Byrd,
820 S.W.2d 739 (Tenn. 1991), the trial court by written order1 held that it would not be
able to determine until trial whether deficiencies in the State’s response hampered
Defendant’s defense or otherwise inured to his prejudice.
The case was set for trial on Thursday, October 15, 2020. However, on the day
before trial, Defendant moved for a continuance based on a courthouse security officer’s
testing positive for the COVID-19 virus on Monday, October 12, 2020, and a lack of “any
special precautions” in light of the positive test. The court denied the motion and
Defendant filed an application for an extraordinary appeal to this court approximately two
hours after receiving news of the trial court’s decision. See Tenn. R. App. P. 10(a). Based
on the statements attributed to the trial court, this Court found that the trial court was
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The trial court’s order was signed by both the Honorable J. Russell Parkes and the Honorable
Stella L. Hargrove, noting that prior to April 27, 2020, Judge Hargrove had presided over Defendant’s case,
but that due to complications associated with the COVID-19 virus, Judge Parkes heard all motions on April
27, 2020.
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following the guidelines and restrictions established by the Supreme Court. This court held
that Defendant had “failed to demonstrate how the trial judge has not complied with any
of the supreme court’s mandates.” This court denied the application for an extraordinary
appeal. See State v. Johnny Boyd, No. M2020-01426-CCA-R10-CD (Tenn. Crim. App.
Oct. 15, 2020).
The record shows that the trial commenced on October 16, 2020, the day after this
court denied Defendant’s application for extraordinary appeal. Several witnesses testified
including the victim and Defendant. The jury convicted Defendant as charged in the
indictment. Although the sentencing transcript is not part of the record, the judgments
reflect that Defendant was sentenced to thirty years at 100 percent by operation of law on
the rape of child conviction and three years as a Range I offender on the incest conviction.
The trial court ran the two counts concurrently with each other for an effective thirty-year
sentence. The judgments were entered on January 20, 2021.
Defendant filed a motion for new trial on February 22, 2021, three days after the
thirty-day filing deadline had passed. He argued for a new trial raising three issues: the
verdict was against the evidence; the State “refused to file a bill o[f] particulars as ordered
by the trial court in violation of due process; and his trial was held in violation of
“applicable CDC guidelines, the Orders of the Tennessee Supreme Court, and the COVID
orders for court proceedings entered in the 22nd Judicial District.” Defendant filed an
amended motion for new trial on March 9, 2021, adding a fourth issue: whether the trial
court erroneously instructed the court clerk to seat “the first thirty-one jurors who arrived
at court” in contravention of Tennessee Code Annotated section 40-18-104.
A hearing on the motion for new trial was heard on August 13, 2021. No mention
was made by either party or the trial court regarding the timeliness of the motion for new
trial. Each side called two witnesses. The trial court denied the motion for new trial at the
conclusion of the hearing and entered an order on August 17, 2021. Defendant thereafter
filed a notice of appeal on September 13, 2021.
Analysis
Rule 13 of the Tennessee Rules of Appellate Procedure requires this Court to
determine whether we have jurisdiction in every case presented on appeal. Tenn. R. App.
P. 13(b); State v. Kim McBride Murphy, No. E2007-02647-CCA-R3-CD, 2008 WL
4614323, at *1 (Tenn. Crim. App. Oct. 17, 2008). Although not raised by the parties in
their briefs and at oral argument, Defendant’s motion for new trial was not timely filed.
Because the untimely motion for new trial was a nullity, it did not toll the thirty-day period
for filing the notice of appeal, resulting in the untimely filing Defendant’s appeal. Thus,
the issue before this court is whether the notice of appeal requirement should be waived in
the interest of justice. The record shows that Defendant was sentenced on January 19,
2021. The judgments were entered the next day, January 20, 2021, as evidenced by the file
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stamp of the court clerk. “The ‘file-stamp’ date provides evidence of when the order of
sentence was entered by the clerk. Therefore, the effective date for entry of a judgment or
order of sentence is the date of its filing with the court clerk after being signed by the
judge.” State v. Stephens, 264 S.W.3d 719, 729 (Tenn. Crim. App. 2007) abrogated on
other grounds as stated in State v. Randall T. Beaty, No. M2014-00130-CCA-R3-CD, 2016
WL 3752968, at *20 (Tenn. Crim. App. July 8, 2016); State v. Bobby Lee Allen Robinette,
No. E2014-01688-CCA-R3-CD, 2015 WL 4745065, at *3-4 (Tenn. Crim. App. Aug. 11,
2015).
Once the judgment is entered, a defendant has thirty days to file the motion for new
trial. See Tenn. R. Crim. P. 33(b) (“motion for a new trial shall be in writing . . . within
thirty days of the date the order of sentence is entered”). The thirty-day provision is
jurisdictional, and the time for filing cannot be extended. See Tenn. R. Crim. P. 45(b)
(specifically excluding time for filing a motion for new trial from those time periods which
the trial court may extend in its discretion); State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997). Thus, trial courts lack jurisdiction to hear and determine the merits of an untimely
filed motion for new trial and a trial court’s erroneous consideration of an untimely motion
for new trial, which occurred in this case, does not validate the motion for purposes of
appellate review. Martin, 940 S.W.2d at 569; State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989) (“[a] motion for new trial which is not timely filed is a nullity”). Indeed,
this court lacks the authority to waive the untimely filing of a motion for new trial. State
v. Bryan James Cooke, No. M2019-01164-CCA-R3-CD, 2020 WL 3606451, at *2 (Tenn.
Crim. App. July 2, 2020). Furthermore, the failure to file a timely motion for new trial
waives plenary review of all appellate issues “except sufficiency of [the] evidence and
sentencing.” State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004); see also Tenn. R. App.
P. 3(e); Dodson, 780 S.W.2d at 780; State v. Williams, 675 S.W.2d 499, 501 (Tenn. Crim.
App. 1984).
Here, Defendant had thirty days from January 20, 2021, or until Friday, February
19, 2021, to file a timely motion for new trial. Defendant’s motion was filed on Monday,
February 22, 2021, three days after the filing deadline had passed We conclude the motion
for new trial in this case was untimely filed.
Because the untimely motion for new trial was a nullity, it did not toll the thirty-day
period for filing the notice of appeal, which expired on February 19, 2021. See Tenn. R.
App. P. 4(c) (if a timely motion for new trial is filed, “the time for appeal for all parties
shall run from entry of the order denying a new trial or granting or denying any other such
motion or petition”) cf. Tenn. R. App. P. 4(a) (“the notice of appeal required by Rule 3
shall be filed with the clerk of the appellate court within 30 days after the date of entry of
the judgment appealed from”). Defendant filed his notice of appeal on September 13, 2021,
more than 200 days after the filing deadline had expired and well beyond thirty days from
the entry of the judgments. We conclude that the notice of appeal was untimely filed.
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However, unlike the procedure for the motion for new trial, “the timely filing of a
notice of appeal is not a prerequisite to jurisdiction in this court,” and this court may waive
the timely filing requirement in the “interest of justice.” See State v. Davis, 748 S.W.2d
206, 207 (Tenn. Crim. App. 1987) (citing Tenn. R. App. P. 4(a); see also State v. Rockwell,
280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). “In determining whether waiver is
appropriate, this court will consider the nature of the issues presented for review, the
reasons for and the length of the delay in seeking relief, and any other relevant factors
presented in the particular case.” Rockwell, 280 S.W.3d at 214 (quoting State v. Markettus
L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App.
Dec. 27, 2005)).
As mentioned previously, the untimeliness of the motion for new trial and the notice
of appeal was not addressed by either party. At no time has Defendant acknowledged that
the motion for new trial and the notice of appeal were untimely filed, and there has been
no request by Defendant for this court to accept the late filed notice of appeal in the interest
of justice. “A defendant bears the responsibility to properly perfect his appeal or to
demonstrate that the ‘interests of justice’ merit waiver of an untimely filed notice of
appeal.” State v. Steven C. James, No. E2021-00559-CCA-R3-CD, 2022 WL 633540, at
*1 (Tenn. Crim. App. Mar. 4, 2022), no perm. app. filed (citing State v. Carl T. Jones, No.
M2011-00878-CCA-R3-CD, 2011 WL 5573579, at *1 (Tenn. Crim. App. Nov. 15, 2011)).
Defendant raises two issues for appellate review, “whether the court erred in not
requiring the State to furnish a bill of particulars?” and “whether the court abused its
discretion in refusing to continue trial or comply with Supreme Court Covid orders?”
Because these issues do not concern the sufficiency of evidence or sentencing, we are
precluded from reviewing them. Bough, 152 S.W.3d at 460; Tenn. R. App. P. 3(e); State
v. Marterious O'Neal, No. W2019-02155-CCA-R3-CD, 2021 WL 1832148, at *2 (Tenn.
Crim. App. May 7, 2021) (this court elected to waive untimely filing of the notice of appeal
where defendant raised only sufficiency and sentencing issues on appeal), perm. app.
denied (Tenn. Nov. 19, 2021); see also State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim.
App. 1987) (issue concerning adequacy of bill of particulars waived due to untimely filed
motion for new trial); State v. Dawn Kathleen Davidson, No. W2009-02313-CCA-R3-CD,
2011 WL 744741, at *8-9 (Tenn. Crim. App. Mar. 3, 2011) (except for sentencing all of
defendant’s issues including denial of bill of particulars waived by untimely motion for
new trial); State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998) (defendant’s
request for continuance based on State’s alleged discovery violation waived by defendant’s
failure to timely file the motion for new trial).
Moreover, Defendant previously challenged the trial court’s denial of his motion to
continue the trial based on alleged violations of COVID-19 protocol in an unsuccessful
extraordinary appeal under Rule 10, Tennessee Rules of Appellate Procedure. See Johnny
Boyd, No. M2020-01426-CCA-R10-CD. To the extent this court’s denial of the
extraordinary appeal on this issue has any bearing on direct appeal, we see no reason to
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depart from the earlier denial of the application. In order to succeed on a continuance
motion, “a defendant who asserts that the denial of a continuance constitutes a denial of
due process . . . must establish actual prejudice.” State v. Odom, 137 S.W.3d 572, 589
(Tenn. 2004) (citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983)). We note that Defendant
acknowledged, both in his brief and at oral argument, that actual prejudice cannot be
determined, much less established from the record to justify a continuance based on the
positive COVID-19 test of the court security officer and the trial court’s implementation
of safety protocols. Consequently, the factors weigh against waiver. We conclude that the
notice of appeal was untimely filed and dismiss the appeal.
CONCLUSION
Because the motion for new trial and the notice of appeal in this case were untimely
filed and because we have determined that no facts exist warranting a waiver of this
untimely filing of the notice of appeal in the interest of justice, the appeal is hereby
dismissed.
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JILL BARTEE AYERS, JUDGE
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