State of Tennessee v. Brandon Theus ( 2024 )

10/14/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs on September 4, 2024
STATE OF TENNESSEE v. BRANDON THEUS
Appeal from the Circuit Court for Madison County
No. 22-794 Joseph T. Howell, Judge
No. W2023-01676-CCA-R3-CD
The pro se Defendant, Brandon Theus, appeals from the trial court’s denial of his
Tennessee Rule of Criminal Procedure 36 motion to correct a clerical mistake in his
judgments of convictions for simple possession of methamphetamine and driving on a
suspended license. The Defendant argues the trial court should have granted his motion to
award pretrial jail credit on his sentence in the instant case, which had been ordered to run
consecutively to separate cases that were pending parole revocation proceedings at the time
of the Defendant’s sentencing. The State contends that the Defendant’s appeal was
untimely, that the record is inadequate for review, and, nonetheless, that the trial court did
not abuse its discretion by denying the Defendant’s motion to correct a clerical mistake.
We conclude that the appeal is timely and affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
KYLE A. HIXSON, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.
Brandon Theus, Nashville, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
A. Underlying Proceedings
The record on appeal is scant, as it contains neither the indictment nor the uniform
judgment documents for the Defendant’s underlying case. Also absent are records
containing details of the Defendant’s custodial status for the relevant cases—e.g., booking
dates for the underlying offenses and the parole revocation warrant. The record on appeal
does contain a transcript of a sentencing hearing on the instant case that occurred on May
11, 2023. We base the following procedural history on the limited information set forth
therein.
According to the statements of the prosecutor at the sentencing hearing, the
Defendant was originally charged with driving on a suspended license and two alternate
counts of possession of methamphetamine with the intent to sell and deliver. On May 11,
2023, a jury convicted the pro se Defendant of the lesser included offenses of simple
possession of methamphetamine, which the trial court merged, and of driving on a
suspended license, as charged. The trial court discharged the jury and proceeded directly
to a sentencing hearing on the misdemeanor convictions.
At the sentencing hearing, the prosecutor noted that the Defendant was convicted of
facilitation of first degree murder and attempted robbery in 2001 and received a sentence
of fifteen years’ incarceration. Shortly after his completion of this sentence, the Defendant
committed the offense of being a felon in possession of firearm on May 20, 2015, for which
he was later convicted in case number 16-14 and given a sentence of nine years’
incarceration. In 2017, in case number 16-496-B, the Defendant was convicted of coercion
of a witness and “sentenced to an additional [three] years.” 1 According to the prosecutor,
the proof adduced at trial demonstrated that the Defendant was on parole for case numbers
16-14 and 16-496-B when he committed the instant offenses.
The State asked the trial court to impose the maximum sentences for the
misdemeanors and to run them consecutively to each other and the Defendant’s “parole
violation” in case numbers 16-14 and 16-496-B. The trial court first merged the simple
possession convictions. The trial court then imposed maximum incarcerative sentences of
eleven months and twenty-nine days and six months for the simple possession and driving
1
From the prosecutor’s statement, it is not entirely clear whether this three-year sentence was
ordered to run consecutively to the nine-year sentence in case number 16-14. Additionally, we note that,
in referencing the coercion case, the prosecutor refers to the case number as 14-496-B, but the trial court
later refers to the case number as either 16-496 or 16-496-B. Due to the inadequate record on appeal, we
are unable to resolve this discrepancy. Accordingly, for consistency purposes, we will use case number 16-
496-B.
-2-
convictions, respectively. The trial court ordered these misdemeanor sentences to run
concurrently with one another but consecutively “to Docket Number 16-14 and
16-496[-B].” The trial court explained,
I will note that because he was on parole, consecutive sentencing
would be appropriate because he was on bond and because of his prior
convictions of facilitation of first degree murder, attempted robbery, being a
convicted felon in possession of a firearm and coercion of a witness, and by
[the Defendant’s] own admission, he’s been in trouble with the law and in
this court since he was [seventeen] years old.
The record does not reflect whether the Defendant filed a motion for new trial. To
date, the Defendant has not sought a direct appeal from these judgments.
B. Motion to Correct a Clerical Mistake
On July 28, 2023, the Defendant filed a motion to correct a clerical mistake, alleging
that the judgments entered against him for simple possession and driving on a suspended
license did not “specify any jail time to be credited which the Defendant [was] entitled to.”
In that motion, the Defendant averred that he was taken into custody and incarcerated in
the Madison County Jail from January 9, 2022, through October 19, 2022, which amounted
to 280 days and thus “squashe[d]” his effective eleven-month and twenty-nine-day
sentence based upon its required service percentage.
The State responded on August 1, 2023, arguing that the “alleged ‘mistake’ is not a
mistake at all” because “[t]he ‘pretrial jail credit’ box on the judgment was intentionally
left blank.” The State noted that the trial court had sentenced the Defendant consecutively
to the case on which the Defendant was paroled at the time of the offenses. Finally, the
State indicated that at the time of filing the response, the Defendant’s parole hearing was
still pending because the Defendant’s parole officer was “waiting to conduct the parole
revocation hearing until the [D]efendant [was] transferred to [the Tennessee Department
of Correction (“TDOC”)].”
On October 23, 2023, the trial court clerk filed the trial court’s order denying the
Defendant’s motion to correct a clerical mistake. In that order, the trial court stated the
original judgments, filed on May 16, 2023, were correct. The trial court explained, “Jail
credits were not listed on the judgment because the sentence was ordered consecutive to
the Defendant’s parole violation in 16-14 and 16-496-B.”
-3-
Later that same day, October 23, the trial court clerk filed the Defendant’s amended
motion to correct a clerical mistake, which had been mailed from prison days earlier. In
his amended motion, the Defendant repeated many of his claims from his original motion
but additionally asserted that the assistant district attorney “admit[ted] to intentionally
withholding [j]ail credits from the [judgment] because the [D]efendant had a pending
parole violation hearing[,]” apparently in reference to the State’s response of August 1,
2023.2 Three days later, on October 26, 2023, the trial court clerk filed the trial court’s
order denying the Defendant’s amended motion, with the same reasons given as in its
original order.
On November 29, 2023, the appellate court clerk filed the Defendant’s notice of
appeal document in this case. The Defendant provided therein that he had signed the
document on November 24, 2023, but he did not indicate when he delivered it to the
appropriate prison official for mailing. We note that the envelope containing the notice of
appeal reflects a postmark of November 27, 2023.
II. ANALYSIS
A. Timeliness of Appeal
As an initial consideration, we address the timeliness of this appeal. The State
argues that the Defendant’s notice of appeal was untimely because it was filed thirty-two
days after the trial court denied his amended motion. 3 A notice of appeal must be “filed
with the clerk of the appellate court within 30 days after the date of entry of the judgment
appealed from[.]” Tenn. R. App. P. 4(a). As the State notes, the trial court’s order was
filed on October 26, 2023. The Defendant’s deadline to file his notice of appeal normally
would have been thirty days later, on November 25, 2023. But November 25, 2023, was a
Saturday, so the Defendant’s actual deadline would have been at the end of the next
business day, which would have been Monday, November 27, 2023. See generally Tenn.
R. App. P. 21(a) (providing rules of time computation).
2
In this amended motion, the Defendant states that his incarceration in the Madison County Jail
began on January 11, 2022, rather than on January 9, 2022, as he had previously averred in his original
motion. Additionally, the Defendant states in his appellate brief “that he was in custody of the Madison
County Jail from January 12, 2022[,] until October 19, 2022[,] for a period of continuous confinement of
281 days[,]” “plus the 8 days a month that adds up to 360 days owed to the [Defendant].” In his notice of
appeal document, the Defendant indicates that the additional eight days a month is due to “good time”
credit.
3
Like the State, we consider the filing date of this second order to be operative in our timeliness
analysis.
-4-
The State correctly notes that the Defendant’s notice of appeal was not filed until
November 29, 2023. However, the postmark on the envelope containing the notice of
appeal reveals that it was mailed on November 27, 2023. Pursuant to the “prison mailbox
rule,”
[i]f papers required or permitted to be filed pursuant to the rules of appellate
procedure are prepared by or on behalf of a pro se litigant incarcerated in a
correctional facility and are not received by the clerk of the court until after
the time fixed for filing, filing shall be timely if the papers were delivered to
the appropriate individual at the correctional facility within the time fixed for
filing.
Tenn. R. App. P. 20(g). By operation of this rule, the Defendant’s notice of appeal was
timely filed.
B. Rule 36 Motion
The Defendant challenges on appeal the trial court’s denial of his motion to correct
a clerical mistake under Rule 36, arguing that the trial court should have included pretrial
jail credit for the time he was in the custody of the Madison County Jail. The State argues
that the trial court properly denied the Defendant’s motion because the Defendant has failed
to compile an adequate record for our review and, regardless, has failed to demonstrate that
the trial court abused its discretion. For the following reasons, we agree with the State.
Tennessee Rule of Criminal Procedure 36 provides that “the court may at any time
correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission.” Clerical errors arise simply from a clerical
mistake in filling out the uniform judgment document and may be corrected at any time.
State v. Brown, 479 S.W.3d 200, 208 (Tenn. 2015) (citation omitted). This court has
previously reviewed a trial court’s ruling on a Rule 36 motion under an abuse of discretion
standard. See, e.g., Lee v. State, No. W2013-01088-CCA-R3-CO, 2014 WL 902450, at *3
(Tenn. Crim. App. Mar. 7, 2014) (citation omitted).
Trial courts have a statutory duty to award pretrial jail credit:
The trial court shall, at the time the sentence is imposed and the
defendant is committed to jail, the workhouse or the state penitentiary for
imprisonment, render the judgment of the court so as to allow the defendant
-5-
credit on the sentence for any period of time for which the defendant was
committed and held in the city jail or juvenile court detention prior to waiver
of juvenile court jurisdiction, or county jail or workhouse, pending
arraignment and trial.
Tenn. Code Ann. § 40-23-101(c). The judgment form for any criminal conviction shall
indicate “[t]he amount, if any, of pretrial jail credit awarded pursuant to [section]
40-23-101[.]” Id. § 40-35-209(e)(1)(P). The appropriate avenue for relief for a defendant
who seeks to challenge the trial court’s failure to award pretrial jail credit is to seek
correction of a clerical mistake pursuant to Tennessee Rule of Criminal Procedure 36.
Anderson v. Washburn, No. M2018-00661-SC-R11-HC, 2019 WL 3071311, at *1 (Tenn.
June 27, 2019) (order).
“When a defendant has pretrial jail credits to be applied to consecutive sentences,
the credits are applied only to the first sentence that is served; anything else would allow a
defendant to ‘double dip.’” State v. Rivers, No. W2018-00861-CCA-R3-CD, 2019 WL
3776026, at *7 (Tenn. Crim. App. Aug. 9, 2019) (first citing Truitt v. State, No.
M2013-01848-CCA-R3-HC, 2014 WL 1408301, at *4 (Tenn. Crim. App. Apr. 10, 2014);
and then citing Dulworth v. Steward, No. W2012-00314-CCA-R3-HC, 2012 WL 2742210,
at *2 (Tenn. Crim. App. July 9, 2012)). “This Court has repeatedly held that [section]
40-23-101(c) provides for credits against the sentence only if the incarceration, claimed as
a basis for the credits, arises from the offense for which the sentence was imposed.” State
v. Cavitt, No. E1999-00304-CCA-R3-CD, 2000 WL 964941, at *2 (Tenn. Crim. App. July
13, 2000). Put another way, “pretrial jail credits do not include time spent incarcerated on
another conviction or before the commission of the offense at issue.” Rivers, 2019 WL
3776026, at *7 (citing Cavitt, 2000 WL 964941, at *2); see Trigg v. State, 523 S.W.2d 375,
376 (Tenn. Crim. App. 1975) (under prior law, holding the award of pretrial jail credit is a
matter of right only when the detention “‘arises out of’ the offense . . . against which the
credit is claimed”).
In view of these principles, if the Defendant was incarcerated on his parole violation
at the time he was served with the charging instrument in the instant case, the Defendant
would not be entitled to any pretrial jail credit accrued pending his judgments on the
subsequent case. To grant such credit under those circumstances would allow the
Defendant to “double dip” by receiving jail credit on both his original and consecutive
sentences, a practice long prohibited under Tennessee law. Under this scenario, the
Defendant’s jail credit would accrue instead toward his parole violation and be applied by
TDOC accordingly.
-6-
Alternatively, if the parole violation warrant was not served until after the Defendant
had been incarcerated on this case, the Defendant would be entitled to pretrial jail credit
for the period that elapsed between the initial incarceration and the service of the parole
warrant. This is so because, during that time, the Defendant only would have been
“committed and held . . . pending arraignment and trial” on the instant charges. See Tenn.
Code Ann. § 40-23-101(c). To exclude such credit from the judgments under those
circumstances would result in depriving the Defendant of that credit toward the service of
both his parole violation and the instant case, a result that defeats section -101(c)’s purpose
of addressing the “injustice between the person of means who could make bond and the
person who could not and had to languish in jail.” State v. Abernathy, 649 S.W.2d 285,
286 (Tenn. Crim. App. 1983).
We have outlined two potential scenarios that could apply to the Defendant’s
case—one would entitle him to an award of pretrial jail credit on the instant judgments,
and the other would foreclose his receiving such credit. On this scant record, we cannot
determine which outcome is appropriate. As noted above, the record contains no
documentation indicating when the Defendant was served with his parole revocation
warrant versus when he was served with the charging instrument for this case. Nor did the
Defendant provide such information in his pleadings to the trial court. It is the Defendant’s
duty to prepare an adequate record on appeal. Tenn. R. App. P. 24(a). When the record is
inadequate for review, we presume that the ruling of the trial court is correct. See State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). This is especially true in the context
of pretrial jail credit where, “[u]nlike this court, the trial court presumably had a record
before it that enabled it to make such a determination.” State v. Brittain, No.
W2019-01249-CCA-R3-CD, 2020 WL 5587413, at *2 (Tenn. Crim. App. Sep. 17, 2020)
(affirming the denial of a motion for pretrial jail credit where a “sparse” record “ma[de] it
impossible for this court to determine whether the [d]efendant had pretrial jail credits that
were not accurately reflected on his judgment”). On this record, the Defendant has not
shown that the trial court abused its discretion.
III. CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
______________________________
KYLE A. HIXSON, JUDGE
-7-