State of Tennessee v. Detrick Cole

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 3, 2015 Session
STATE OF TENNESSEE v. DETRICK COLE
Appeal from the Criminal Court for Shelby County
No. 01-01221 Lee V. Coffee, Judge
No. W2013-02766-CCA-R3-CD - Filed April 22, 2015
A Shelby County jury found the Defendant, Detrick Cole, guilty of first degree premeditated
murder and imposed a sentence of death. The Defendant’s conviction and sentence were
affirmed by this Court, State v. Detrick Cole, No. W2002-01254-CCA-R3-DD, 2003 WL
22848969 (Tenn. Crim. App., at Jackson, Nov. 24, 2003), and by our Supreme Court, State
v. Cole, 155 S.W.3d 885 (Tenn. 2005). The Defendant filed a petition for post-conviction
relief alleging ineffective assistance of counsel, which was denied after a hearing. On
appeal, this Court agreed with the Defendant’s contention that he had received the ineffective
assistance of counsel during the penalty phase of his trial and remanded the case to the trial
court for a new penalty phase proceeding. Detrick Cole v. State, No. W2008-02681-CCA-
R3-PC, 2011 WL 1090152, at *56 (Tenn. Crim. App., at Jackson, March 8, 2011), perm.
app. denied (Tenn. July 14, 2011). On remand and prior to the new penalty phase
proceeding, the Defendant filed a motion challenging the State’s introduction of his 1997
convictions in support of the prior violent felony aggravating circumstance, arguing that the
violence of these convictions was ambiguous. See T.C.A. § 39-13-204(i)(2). The trial court
denied the Defendant’s motion, concluding that the issue had been previously litigated and
decided in the Defendant’s prior appeal. The Defendant then filed an extraordinary appeal,
pursuant to Tennessee Rule of Appellate Procedure 10, which this Court denied. Thereafter,
the Defendant agreed to accept a sentence of life without the possibility of parole, and a
hearing was held to enter that sentence and a judgment of conviction reflecting that sentence.
The Defendant appeals this judgment, contending that his sentence is illegal and void and
should be set aside. He again argues that he is ineligible to receive this sentence because his
1997 convictions were insufficient to support the prior violent felony aggravating
circumstance. After a thorough review of the record and applicable law, we dismiss the
appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which R OBERT H.
M ONTGOMERY, J R., and T IMOTHY L. E ASTER, JJ., joined.
Gene L. Humphreys, Jeffrey P. Yarboro, and Cecil W. VanDevender, Nashville, Tennessee,
for the appellant, Detrick Cole.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
and Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History
A. Trial and Penalty Proceeding
This case arises from the Defendant’s killing of the victim, Santeife Thomas, by
shooting him twice in the head. Based on this conduct, a Shelby County grand jury indicted
the Defendant for first degree premeditated murder. Our Supreme Court summarized the
underlying facts of the case as follows:
[A]round 2 a.m. on October 17, 2000, the twenty-year-old [D]efendant,
[], killed the victim, twenty-seven-year-old Santeife Thomas, by shooting him
twice in the head. The evidence established that Thomas had returned home
from work around 12:30 a.m. on October 17 and left shortly afterward in his
late-model Mitsubishi Galant to visit a friend. Thomas was next seen at the
Ridgemont Apartments in North Memphis, where he agreed to drive a person
identified as “Little E” to the Raleigh Woods Apartments. The [D]efendant
and fourteen-year-old Andropolis Wells accompanied [Thomas] and “Little
E.” Wells, testifying for the prosecution, related that after Thomas dropped off
“Little E” at the Raleigh Woods Apartments, the [D]efendant asked Thomas
to drive him to the Garden Walk Apartments. The [D]efendant directed
Thomas to the back of the apartments and asked Thomas to park the car near
an area overgrown with grass and weeds. After Thomas parked, all three men
exited the car. Thomas and Wells waited near the car while the [D]efendant
left to get crack cocaine from “Jerry.” [FN2] The [D]efendant returned a
short time later and said “Jerry” would bring them some drugs.
[FN2] According to Wells, the [D]efendant said he was going to
get “some yams” from Jerry. Wells explained that “yams” is the
street name for crack cocaine.
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Wells waited at the car, but the [D]efendant and Thomas walked into
the overgrown area. Wells heard the [D]efendant repeatedly telling Thomas
to open his mouth and saw the [D]efendant pointing a gun at Thomas’s face.
Thomas, who had no weapon and made no aggressive move toward the
[D]efendant, backed away and repeatedly told the [D]efendant to “stop
playing.” Wells then heard two gunshots. The [D]efendant ran from the
bushes with a set of keys, but, apparently realizing that he had the wrong keys,
the [D]efendant went back into the overgrown area and returned with another
set of keys. The [D]efendant, who had blood on his hand, told Wells to get
into the car. Shocked by the shooting and fearing for his own life, Wells
accompanied the [D]efendant in the victim’s car back to the Ridgemont
Apartments. There, the [D]efendant removed two shells from the murder
weapon, rubbed them with his shirt, and threw them into a garbage can. The
[D]efendant and Wells then went to an upstairs apartment and left the gun with
a person known to Wells as “Jewel.”
When the [D]efendant and Wells returned to [Thomas’s] car, the
[D]efendant discovered that he had lost his electronic organizer during the
killing and expressed fear that its discovery would lead to his apprehension.
Thus, the [D]efendant and Wells drove [Thomas’s] car back to the apartment
complex to search for the organizer and parked in a driveway near the murder
scene. They searched for a short time; the [D]efendant rolled [Thomas’s] body
over, but he did not find the organizer. When they returned to [Thomas’s] car
to leave, they noticed a man standing outside across the street looking at them.
At the [D]efendant’s instruction, Wells spoke briefly to the man before he and
the [D]efendant left.
Wells remained with the [D]efendant for two days after the murder.
Before the [D]efendant dropped off Wells at Wells’s home, the [D]efendant
told Wells that he had shot Thomas with a .44 caliber handgun because
Thomas owed him fifteen dollars. Wells remarked, “Fifteen dollars? Man I
could have gave you fifteen dollars.” The [D]efendant replied, “N––––r gonna
start respecting me.”
Wells’s testimony was corroborated by the testimony of Marcus
Puryear, who lived near the crime scene. At approximately 2 to 2:30 a.m.
Puryear had been sitting in his car, talking on a ham radio when he heard “two
loud gunshots-blasts.” He saw a car speeding away from the direction of the
gunshots, and from the sound of the car, Puryear identified the vehicle as
having a small, four-cylinder engine. Later, while looking out the window of
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his home, Puryear saw a car pull into a driveway immediately across from his
residence. Two African-American males left the car and walked around into
the area overgrown with weeds, near where the gunshots had sounded. After
three or four minutes, the men returned to the car. By this time, Puryear was
standing outside looking in their direction. One of the men walked over and
asked if Puryear knew a person named Carlos or Michael who lived across the
street. When Puryear answered that he had never heard of anyone by that
name living there, the two men left. Puryear had not seen these men before
and decided to write down the tag number, color, make, and model of the car
they were driving. Puryear provided this information to the officers who
discovered Thomas’s body and investigated his murder. The description and
tag number Puryear provided matched the description and tag number of the
victim’s vehicle.
On October 18, 2000, Robert Eric Adams, a resident of the Ridgemont
Apartments, saw the [D]efendant sitting on the steps to Adams’s apartment.
Because the [D]efendant was looking “down,” Adams asked him what was
wrong. The [D]efendant said that he and his girlfriend had fought. During
this conversation, the [D]efendant stunned Adams by telling Adams that he
had killed Thomas. The [D]efendant said that Thomas had been taking him
somewhere to get marijuana when the [D]efendant asked Thomas about money
Thomas owed him. Thomas promised to pay the [D]efendant on Friday. After
they arrived at their destination and left the car, the [D]efendant continued to
ask Thomas about the debt. Thomas again said that he would pay the
[D]efendant on Friday and offered to include an additional one hundred dollars
for the delay. Believing that Thomas was lying, the [D]efendant took out a
pistol and shot Thomas in the head and a second time in the face to assure that
Thomas was dead. The [D]efendant told Adams that he had hidden Thomas’s
car. At the [D]efendant’s request, Adams drove the [D]efendant to the Garden
Walk Apartments, where the [D]efendant pointed to Thomas’s body and said
that he had dropped his “Rolodex” and was trying to find it. Searching the
grass near the body, the [D]efendant found his organizer. The two men then
returned to the Ridgemont Apartments. Adams testified that later that
afternoon, Thomas’s mother came to the apartments and asked if anyone had
seen her son. The [D]efendant told her that Thomas might be “hanging out”
or “partying.” At some point thereafter, Adams told an acquaintance, Carlos
Williams, that the [D]efendant had killed Thomas, but Adams did not tell
Williams the location of Thomas’s body.
On the evening of October 19, 2000, in an action unconnected with this
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case, the police conducted a raid at the Ridgemont Apartments and arrested
Carlos Williams for unlawful possession of a weapon. Williams, who
apparently knew that Thomas’s mother had filed a missing persons report, told
the police what Adams had told him about the [D]efendant killing Thomas.
On October 20, the police questioned Adams, who told them what the
[D]efendant had said about the murder, except the location of Thomas’s body.
Thereafter, the police arrested the [D]efendant as he was leaving a
convenience store. At the time of his arrest, the [D]efendant had a Mitsubishi
ignition key on his person. Arresting officers were unaware of the significance
of the key and allowed the [D]efendant to retain it. By the time investigators
first spoke with the [D]efendant at police headquarters, the key had
disappeared. Officers later found it hidden under the cushion of the chair in
which the [D]efendant had been sitting. The [D]efendant explained that he
collected keys and had found the key at the Ridgemont Apartments. He denied
knowing anything about Thomas’s disappearance and claimed that he had
hidden the key after having “second thoughts” about it. The police released
the [D]efendant because at that time they had not found the victim’s body and
were not certain a homicide actually had occurred.
On October 21, the police discovered Thomas’s body in a grassy,
overgrown area in the Garden Walk Apartment complex. [Thomas] had no
wallet, identification, keys, money or contraband on his body. On October 22,
Thomas’s automobile, which a patrol officer previously had noticed
abandoned on a dead end street in North Memphis, was towed to police
headquarters. The vehicle’s license plates had been removed, and its VIN
numbered covered. Blood was discovered on the handle of the driver’s door.
The ignition key police officers had seized from the [D]efendant fit
[Thomas’s] car. The [D]efendant’s fingerprint was found on a piece of paper
inside the car.
After obtaining additional information from Wells, the police resumed
searching for the [D]efendant. On October 23 the [D]efendant called the
police and set up a time to surrender, but he failed to show up at the agreed
time. Finally, on October 25, eight days after the murder, patrol officers
arrested the [D]efendant, who gave a statement. [FN3] Although the
[D]efendant admitted he had killed Thomas, the [D]efendant claimed that he
had shot Thomas because Thomas had charged him and threatened to hurt him.
The [D]efendant said that Thomas had been four or five feet away when shot.
The [D]efendant also claimed that he had needed the money Thomas owed him
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to support himself and his pregnant girlfriend. Although the [D]efendant told
the police that the gun they had taken from Carlos Williams was the gun he
had used to shoot Thomas, tests revealed that it was not. The murder weapon
was never found.
[FN3] After signing a waiver of his rights, the [D]efendant gave
the following statement:
On the night that Teifus [Thomas] was murdered,
it was me, Drop [Wells], and Teifus. We left the
Ridgemont Terrace Apartments going to Garden
Walk where Teifus told me that he had some
money - some of the money that he owed me.
And when we got there, he stalled - he stalled like
telling me that he was waiting on the money but
never did get it.
He told me that he gave me his key to his car as
partial payment until he’d give me the money, but
when I turned down the key, we got into an
argument, and he went on about he wasn’t going
to pay me, and I asked him why, but he never did
say. So he came in my face with threats that he
wasn’t going to pay me, and I could take it how I
wanted to take it, and I asked him why he wasn’t
going to pay me, so that’s when he went to
putting his hands in my face and pushing me.
And then we started into a small argument of
words back and forth. And that’s when he tried to
attack me. I went into my pocket and pulled out
a .38, and Teifus rushed at me, and I shot him.
After I shot him, I looked at his body and threw
up. I still had his key in my left hand, and I got in
his car, and I left the crime scene with Drop, and
we went and parked the car, and we got out of the
Ridgemont Terrace Apartments.
I went back to the body because I dropped my
organizer, and I went to get it. And when I got it,
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I left and took his car and parked it again on
Voltaire Street.
The reason why I murdered Teifus really wasn’t
about the money. He charged at me as if he was
trying to attack me and hurt me. Instead of me
defending myself with my fist, I pulled the gun
out, and I used it on him. I didn’t have any place
to stay. My girlfriend is pregnant, and we don’t
have any help, and I needed my money that he
owed me. I just wanted to take care of my family
and try to find a place for us to stay when the
baby was born.
Dr. Craig Thomas Mallak, the forensic pathologist who had performed
the autopsy on the victim’s body, and Dr. Steven A. Symes, a forensic
anthropologist who had reconstructed and examined the victim’s skull,
testified for the prosecution. Dr. Mallak explained that the victim had been
shot twice in the head. According to Dr. Mallak and Dr. Symes, the victim
was shot first above his left eye and next behind his left ear. Based on the
damage to the victim’s skull and brain, Dr. Mallak testified that both wounds
could have been contact wounds, inflicted from extremely close range. Dr.
Mallak opined that the wound behind the victim’s ear definitely had been a
contact wound, inflicted when the gun was less than one inch from the victim’s
head. Although Dr. Mallak was unable to determine conclusively whether the
first wound also had been a contact wound, he opined that either wound would
have been sufficient to cause the victim’s death and to incapacitate the victim
immediately. Dr. Mallak testified that the gunshots caused “complete
destruction of the skull.” Both Dr. Mallak and Dr. Symes opined that the
wounds were consistent with injuries typical of a large caliber weapon such as
a .44 caliber handgun.
Cole, 155 S.W.3d at 891-95. Based on this evidence, the jury found the Defendant guilty of
first degree premeditated murder. At the subsequent sentencing hearing, the jury heard the
following new evidence, summarized by our Supreme Court:
[T]he Shelby County Criminal Court Clerk testified that the
[D]efendant had pleaded guilty in February 1997 to robbery, kidnapping,
reckless endangerment, and attempted rape and had received an effective
sentence of three years confinement in the Shelby County workhouse. The
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[D]efendant committed these offenses at age fifteen. In order to prove these
four prior convictions, a fingerprint technician with the Shelby County
Sheriff’s Department obtained the [D]efendant’s right thumb print in the
presence of the jury, compared this print with the print associated with the
booking number for the four prior convictions, and then testified that the
[D]efendant’s thumb print matched the print associated with the booking
number for the four prior convictions.
All of the [D]efendant’s prior convictions stemmed from a single
criminal episode that occurred in 1995. Darrell Webster, the victim of the
[D]efendant’s prior criminal activity, testified for the prosecution. Webster
recalled that during the early morning hours of November 18, 1995, as he was
leaving an adult bookstore, the [D]efendant and another man accosted him at
gunpoint and ordered him to get into [Webster’s] car. After pleading with the
two men, Webster thought he had convinced them not to harm him; however,
eventually Webster came to believe the two men intended to kill him. The
[D]efendant held a gun on Webster as the men drove around Memphis. The
[D]efendant remarked to Webster, who was crying, “Do you want to go out
like a punk? Go out like a man.” After spinning the barrel of the gun, the
[D]efendant placed the weapon against the back of Webster’s head and pulled
the trigger. The gun did not fire. Next, the [D]efendant placed the barrel of
the gun against Webster’s head, directly behind Webster’s ear, and again
pulled the trigger. Again the gun did not fire. Webster recalled the
[D]efendant describing his actions as “Russian Roulette.” Next, after accusing
Webster of being a homosexual, the [D]efendant forced Webster to climb into
the back seat and to perform oral sex on the [D]efendant. Thereafter, the
[D]efendant and his accomplice discussed how to kill Webster and where to
dump his body. By promising to rent a car for the two men, Webster finally
convinced the [D]efendant’s accomplice to drive to the Memphis airport.
When the vehicle slowed to get a ticket for parking, Webster escaped and ran
to a nearby airport security officer, who arrested the [D]efendant and his
accomplice, thus ending Webster’s five-hour ordeal.
The final witness for the State was victim-impact witness Marcie
Turcios, the victim’s half-sister. Turcios testified that the victim had been a
very special, generous, giving person who helped others every way he could.
She explained that his death had seriously affected both her and her brother’s
mother. Turcios explained that Thomas’s death had left a void in her life, that
she had missed work because she could not sleep, and that she regretted that
her seven-year-old son would never have an opportunity to know his uncle.
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The [D]efendant’s father and mother testified in mitigation for the
defense. The family had moved to Memphis from Ashland, Mississippi, about
thirteen years earlier. In the ensuing thirteen-year period, the family had
bought and sold five houses before returning to Olive Branch, Mississippi.
The [D]efendant’s grades began falling after the family came to Memphis.
The [D]efendant’s father had worked twelve to thirteen hours per day as the
finance director for an automobile dealership. The [D]efendant’s parents had
been married for twenty-five years and described themselves as Christian
people. The second of three children, the [D]efendant had regularly attended
church with his family until he left home in 1996 because he refused to follow
family rules. The [D]efendant was fifteen years old when he committed the
offenses against Darrell Webster. The [D]efendant’s parents confirmed that
the [D]efendant loved his fourteen-month-old daughter, whom they were
raising. The [D]efendant’s mother and father pleaded with the jury to spare
their son’s life and expressed sorrow for the victim’s death. The [D]efendant’s
father assured the jury that the [D]efendant was very sorry for what had
happened.
The [D]efendant testified in his own behalf. Although he
acknowledged killing the victim by shooting him twice in the head, the
[D]efendant commented that “half of the things” the State’s witnesses had said
about the crime were lies. The [D]efendant expressed his remorse, maintained
that he did not mean to do what he had done, acknowledged that he had done
wrong and that he, not the victim, had been the “bad person,” pleaded for
mercy, and asked the jury not to kill him.
Id. at 895-96. After hearing the testimony, the jury found that the State had proven beyond
a reasonable doubt first degree murder sentencing factor (i)(2), that the Defendant “was
previously convicted of one (1) or more felonies, other than the present charge, whose
statutory elements involve the use of violence to the person.” T.C.A. § 39-13-204(i)(2). The
jury sentenced the Defendant to death. Id. at 896.
The Defendant appealed and this Court affirmed the Defendant’s conviction for first
degree murder and the jury’s imposition of the sentence of death. Cole, 2003 WL 22848969,
at *23. The Defendant appealed this Court’s decision, and our Supreme Court docketed the
case and requested oral argument on four issues, one being “whether . . . the jury rather than
the judge must determine whether the statutory element of [the Defendant’s] prior
convictions used to support the [T.C.A. § 39-13-204](i)(2) aggravating circumstance involve
the use of violence to the person.” Cole, 155 S.W.3d at 891. Our Supreme Court affirmed
this Court’s decision and concluded that the evidence supported the jury’s finding of the
9
statutory aggravating circumstance that the Defendant had prior violent felony convictions
pursuant to T.C.A. § 39-13-204(i)(2). Cole, 155 S.W.3d at 909.
B. Post-Conviction Proceeding
In 2007, the Defendant filed a petition for post-conviction relief alleging that he had
received the ineffective assistance of counsel. After a hearing, the post-conviction court
denied his petition, and the Defendant appealed to this Court, raising multiple claims
including that he had received the ineffective assistance of counsel during jury selection, the
guilt phase, and the penalty phase of his trial. This Court concluded that the Defendant had
received the effective assistance of counsel during jury selection and the guilt phase of his
trial. We further concluded, however, that, during the penalty phase of the trial, trial counsel
had failed to adequately investigate the Defendant’s background and failed to present
significant mitigating circumstances. Cole, 2011 WL 1090152, at *56. We concluded that,
absent trial counsel’s deficiencies, the outcome of the penalty proceeding might have been
different. Thus, we reversed the Defendant’s death sentence and remanded the case to the
trial court for a new penalty proceeding. Id. We affirmed the post-conviction court’s
judgment with respect to the Defendant’s claims concerning the guilt phase of his trial. Id.
On remand, the Defendant filed a “Motion to Strike” the State’s notice of intention
to seek the death penalty or life without the possibility of parole. In his motion, the
Defendant again raised the issue of whether the prior violent felony aggravating
circumstance, Tennessee Code Annotated section 39-13-204(i)(2), was an “appropriate”
sentencing factor for his case, based on his 1997 convictions for robbery, kidnapping,
attempted rape, and reckless endangerment. He contended that his prior convictions were
ambiguous as to violence, because their “statutory elements did not necessarily involve the
use of violence to the person,” thus limiting the trial court’s purview of the records and
evidence supporting the aggravating circumstance. The Defendant further contended that,
because he had entered best interest pleas to those convictions, he had not “admit[ted] to
facts sufficient to allow the [trial court] to infer that [he] admitted using violence to commit
the offenses.” In the trial court’s written order denying the Defendant’s motion, it first noted
that contained in the transcript from the plea submission hearing for the Defendant’s 1997
convictions was the trial court’s statement to the Defendant that he was entering pleas to
convictions that involved violence. The trial court then stated that the issue of whether those
convictions were sufficient to establish the aggravating circumstance had been previously
litigated and ruled on by the Tennessee Supreme Court. The trial court declined to readdress
the Defendant’s argument and stated that there had been no changes in the law since our
Supreme Court’s ruling.
The Defendant subsequently filed an application to this Court for extraordinary review
10
pursuant to Tennessee Rule of Appellate Procedure 10. Holding that the issue raised by the
Defendant did not “meet the strict criteria for review” pursuant to Rule 10, we denied the
Defendant’s application for extraordinary review.
Thereafter, pursuant to an “Agreed Order of Settlement,” the Defendant agreed to be
re-sentenced to life without the possibility of parole and a judgment was entered accordingly
on October 28, 2013. The Defendant filed a timely notice of appeal of this judgment.
II. Analysis
On appeal, the Defendant first argues that his sentence is illegal and void and should
be set aside by this Court. Acknowledging that the sentence was imposed pursuant to a
sentencing agreement, the Defendant argues that “none of the aggravating circumstances set
forth in [T.C.A. § 39-13-204] exist[,]” and, thus, the trial court “lacked jurisdiction to impose
the sentence.” The State argues that this appeal should be dismissed because this Court lacks
jurisdiction, as Tennessee Rule of Appellate Procedure 3(b) does not authorize an appeal as
of right from an “agreed-upon sentence” with no reserved certified question of law. We
agree with the State’s contention that this case is not properly before us pursuant to
Tennessee Rule of Appellate Procedure 3(b).
Tennessee Rule of Appellate Procedure 3(b) governs the circumstances in which a
defendant in a criminal action has an appeal as of right. Rule 3(b) reads:
In criminal actions an appeal as of right by a defendant lies from any
judgment of conviction entered by a trial court from which an appeal lies to the
Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and
(2) on a plea of guilty or nolo contendere, if the defendant entered into a plea
agreement but explicitly reserved the right to appeal a certified question of law
dispositive of the case pursuant to and in compliance with the requirements of
Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure, or if
the defendant seeks review of the sentence and there was no plea agreement
concerning the sentence, or if the issues presented for review were not waived
as a matter of law by the plea of guilty or nolo contendere and if such issues
are apparent from the record of the proceedings already had.
Tenn. R. App. P. 3(b). In other words, a defendant who has pleaded guilty may only present
certain issues on direct appeal because he has a limited “appeal as of right” to the Court of
Criminal Appeals. Tenn. R. App. P. 3(b); see also Tenn. R. Crim. P. 37(b)(2). The “limited”
right of appeal exists in three circumstances:
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First, a defendant has the right to appeal a sentence that was not the
subject of the plea agreement; second, the defendant may have review of a
certified question of law when a plea agreement has been accepted; and third,
a defendant may seek review of issues that were not waived as a matter of law
if the record clearly reflects an invalidating error. Tenn. R. Crim. P. 37(b)(2);
Tenn. R. App. P. 3; see State v. Wilson, 31 S.W.3d 189, 192-93 (Tenn. 2000).
State v. Yoreck, 133 S.W.3d 606, 610-11 (Tenn. 2004).
In the present case, the Defendant appeals the trial court’s imposition of his sentence
of life without the possibility of parole. This sentence was imposed by an “Agreed Order of
Settlement,” signed by the Defendant, the trial court, and defense counsel. When the
Defendant entered into this sentencing agreement, he did not reserve a certified question of
law. Thus, because the Defendant was sentenced pursuant to an “Agreed Order of
Settlement,” a judgment not specifically included in Tennessee Rule of Appellate Procedure
3(b), he does not have a right of appeal before this Court. See Tenn. R. App. P. 3(b); State
v. McKissack, 917 S.W.2d 714, 716 (Tenn. Crim. App. 1995) (holding that a defendant did
not have a right to appeal his sentence pursuant to Rule 3 because he was “sentenced
pursuant to the terms of a plea bargain agreement”); State v. Christopher Martin, No. E2012-
00029-CCA-R3-CD, 2013 WL 709593, at *2 (Tenn. Crim. App. At Knoxville, Feb. 26,
2013) (citing State v. Jay Bean, No. M2009-02059-CCA-R3-CD, 2011 WL 917038, at *2
(Tenn. Crim. App. at Nashville, Mar. 16, 2011)), (stating that no right of appeal is available
from an order not specifically listed in Rule 3(b)), no Tenn. R. App. P. 11 filed; State v.
Phillip G. Harris, No. M2008-01819-CCA-R3-CD, 2010 WL 2431981, at *3 (Tenn. Crim.
App., at Nashville, June 11, 2010), no Tenn. R. App. P. 11 filed. Accordingly, we must
dismiss this appeal.
Assuming, arguendo, that the Defendant is entitled to an appeal, his contention that
he is ineligible to receive the sentence of life without the possibility of parole is without
merit. The Defendant’s prior convictions for robbery, kidnapping, rape, and reckless
endangerment involved the use of violence to the person. Cole, 115 S.W.3d at 905. This
was established by the testimony during the original penalty hearing, and by the plea colloquy
in 1997, wherein the State recited the facts surrounding the offenses, which included the
Defendant twice placing a gun to the victim’s head and pulling the trigger. At the guilty plea
hearing for those convictions, the trial court advised the Defendant that he was being
convicted of offenses involving violence and the Defendant acknowledged his understanding
of this. The Defendant’s 1997 convictions clearly established that violence to the person had
been committed. Thus, the prior violent felony aggravating circumstance at Tennessee Code
Annotated 39-13-204(i)(2) is an appropriate sentencing factor to support the Defendant’s
sentence of life without the possibility of parole.
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III. Conclusion
After a thorough review of the record and the applicable law, we dismiss this appeal.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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