State v. Joseph Hart (Albert Cross )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1999 SESSION
FILED
September 20, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) C.C.A. No. 02C01-9902-CC-00075
)
vs. ) Dyer County
)
JOSEPH HART, A.K.A, ) Hon. Lee Moore, Judge
ALBERT CROSS )
) (Speedy Trial and Interstate
Appellant. ) Compact on Detainers)
FOR THE APPELLANT: FOR THE APPELLEE:
JOSEPH ALBERT HART (pro se) PAUL G. SUMMERS
P.O. Box 7001 Attorney General & Reporter
Taft, CA 93268
PATRICIA C. KUSSMAN
Assistant Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
C. PHILLIP BIVENS
District Attorney General
115 E. Market Street
P.O. Box E
Dyersburg, TN 38025-2005
OPINION FILED:________________
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Joseph Hart, appeals the Dyer County Circuit Court’s
denial of his motions to dismiss the 1987 indictment against him for obtaining
money under false pretenses and grand larceny. See Tenn. Code Ann. §§ 39-3-
901, -1101 (1982) (repealed 1989). The defendant pleaded guilty to obtaining
money under false pretenses on December 5, 1990.1 The trial court has not
imposed a sentence on the defendant. In this appeal, the defendant alleges his
right to a speedy trial has been violated because a sentence has not been imposed
during the eight-year period since his guilty plea. Additionally, the defendant claims
the indictments against him should be dismissed because the state has failed to
comply with the Interstate Compact on Detainers Act.2 After a review of the record,
the briefs of the parties, and the applicable law, we reverse the trial court’s order
dismissing the defendant’s speedy trial issue and remand for further consideration
consistent with this opinion, and we affirm the trial court’s order dismissing the
defendant’s Interstate Compact on Detainers issue.
1
The defendant pleaded guilty to count 1, obtaining money under false
pretenses, and no mention was made in the plea agreement about the
disposition of count 2, grand larceny. Because no judgment has been entered,
no disposition of count 2 has been made. The state approved the count 1 plea
and certain sentencing recommendations, and it is likely that the parties’
agreement included the dismissal of count 2. We point out to the trial court for
its information, however, that count 2 is still pending and is not the subject of a
plea.
2
Article III of the Act provides a period of 180 days for a person in custody
of a party state to be tried in any other party state on “any untried indictment,
information or complaint on the basis of which a detainer has been lodged
against the prisoner.” Tenn. Code Ann. § 40-31-101, art. III(a) (1997). The 180-
day period is triggered by the prisoner “having caused to be delivered to the
prosecuting officer and the appropriate court of the prosecuting officer’s
jurisdiction written notice of the place of the person’s imprisonment and request
for a final disposition to be made of the indictment, information or complaint.” Id.
If a trial does not occur prior to the return of the prisoner to the original place of
imprisonment, the court shall dismiss with prejudice the untried indictment,
information or complaint. Id. at art. III(d).
2
The defendant pleaded guilty to obtaining money under false
pretenses on December 5, 1990. At that time, a sentencing hearing was scheduled
for February 11, 1991. The defendant failed to appear for the rescheduled
sentencing hearing on February 28, 1991, and a capias was issued. In August
1991, the defendant was taken into federal custody where he has remained since
that time. On May 12, 1992, the defendant demanded a speedy trial in the trial
court. In 1994, 1996 and 1997, the Dyer County Sheriff’s Department was notified
of the defendant’s location in federal prison and tentative release dates. On
November 4, 1997, the Dyer County Sheriff’s Department requested a detainer be
placed on the defendant, and this request was granted on November 18, 1997 by
the institution where the defendant resided.
The defendant filed a pro se Motion to Dismiss Indictments on July 20,
1998 and alleged a violation of his right to a speedy trial. On September 22, 1998,
the defendant filed a pro se Motion for Speedy Trial or Speedy Disposition of
Warrants, Information, Detainer, Indictment. The trial court denied the defendant’s
motion to dismiss the indictment of obtaining money by false pretenses by finding
the defendant’s right to a speedy trial had not been violated because the defendant
pleaded guilty. Subsequently, the defendant filed a motion to reconsider which was
denied by the trial court on February 5, 1999. The defendant filed a notice of
appeal on February 19, 1999.
The first determination which must be made is whether the
defendant’s appeal is properly before this court at this time. Because there has
been no sentence imposed, there is no judgment of conviction to appeal. See
Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b); Tenn. R. Crim. P. 32(e) (“A judgment
of conviction shall set forth the plea, . . ., and the adjudication and sentence”). This
case is still pending in the trial court until a sentence is imposed upon the
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defendant. Accordingly, the defendant’s appeal can only be before this court as a
Rule 10 extraordinary appeal.
This court may treat an improperly filed Rule 3 appeal as a Rule 10
extraordinary appeal. See State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App.
1998); State v. James Doe, No. 01C01-9102-CR-00046, slip op. at 5-6 (Tenn. Crim.
App., Nashville, June 29, 1992). Tennessee Rule of Appellate Procedure 10(a)
provides that an extraordinary appeal may be sought “if the lower court has so far
departed from the accepted and usual course of judicial proceedings as to require
immediate review . . . .” In State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980),
our supreme court held that an extraordinary appeal should only be granted when
it is established that: (a) the ruling of the court below represents a fundamental
illegality, (b) the ruling constitutes a failure to proceed according to the essential
requirements of the law, (c) the ruling is tantamount to the denial of either party of
a day in court, (d) the action of the trial judge was without legal authority, (e) the
action of the trial judge constituted a plain and palpable abuse of discretion, or (f)
either party has lost a right or interest that may never be recaptured.
We find the defendant’s appeal is an appropriate case to grant a Rule
10 extraordinary appeal because the defendant has lost a right or interest that may
never be recaptured. While this court and our supreme court have consistently held
that there is no legal right to parole, see, e.g., State v. Bush, 942 S.W.2d 489, 503
(Tenn. 1997); Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn. Crim. App. 1995)
(citing Tenn. Code Ann. § 40-28-117(a) which states parole is "a privilege and not
a right"), we find that the defendant, while not having a right, has an interest in being
paroled from the federal charges, which he is losing with the passage of time while
he remains unsentenced. Accordingly, via Rule 10, we will review the merits of his
claims.
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I. Speedy Trial
First, the defendant alleges his right to a speedy trial has been
violated because a sentence has not been imposed during the eight-year period
since his guilty plea. The defendant contends that the sentencing phase is included
in the right to a speedy trial. The state contends that the defendant’s right to a
speedy trial ceased once he pleaded guilty. Alternatively, the state further contends
that if the right to a speedy trial extends to sentencing, the defendant’s right to a
speedy trial was not violated.
The United States and Tennessee Constitutions guarantee the
criminally accused the right to a speedy trial in all criminal prosecutions. U.S. Const.
amends. XI & XIV; Tenn. Const. art. I, § 9. The right to a speedy trial is also
statutory in Tennessee. Tenn. Code Ann. § 40-14-101 (1997). Whether the right
to a speedy trial includes the sentencing phase has not been directly addressed by
the United States Supreme Court. However, Supreme Court decisions provide
some limited guidance.
In one decision, the Supreme Court assumed that the sentencing
phase was included. In Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481(1957), the defendant pleaded guilty to a charge of embezzlement. Id. at 355, 77
S. Ct. at 482. The trial court failed to sentence Pollard while he was in the
courtroom, but after Pollard left the courtroom and the prosecutor asked the trial
court about Pollard's sentence, the trial court sentenced Pollard to probation
commencing after his release from an unrelated charge. Id. at 356, 77 S. Ct. at
483. Because the sentence was imposed after the defendant had left the
courtroom, it was void. Id., 77 S. Ct. at 483. Nearly two years later, Pollard violated
the terms of his probation and was brought before the trial court. Id. at 356-57, 77
S. Ct. at 483. The trial court set aside the original judgment and sentenced Pollard
5
to two years imprisonment. Id. at 357, 77 S. Ct. at 483. Pollard appealed the
conviction, and the Supreme Court considered whether his Sixth Amendment right
to a speedy trial was violated. Id. at 359, 77 S. Ct. at 484. In addressing this issue,
the Supreme Court assumed "arguendo that sentenc[ing] is part of the trial for
purposes of the Sixth Amendment." Id. at 361, 77 S. Ct. at 486. The Supreme
Court affirmed the sentence and held that the trial court promptly corrected its error
and that any delay was not purposeful or oppressive. Id. at 361-62, 77 S. Ct. at
486.
Many state and federal courts have concluded that sentencing
proceedings are part of the Sixth Amendment speedy trial provision. The courts
that found sentencing to be included in the speedy trial protection have relied on
Pollard. See, e.g., Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987);
Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir. 1986); United States v. Reese, 568
F.2d 1246, 1252-53 (6th Cir. 1977) (court analyzed sentencing delay as speedy trial
violation without explicitly finding that the sentencing phase was included in speedy
trial protection); Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974);
United States v. Tortorello, 391 F.2d 587, 589 (2d Cir. 1968) (per curiam); Gonzales
v. State, 582 P.2d 630, 632-33 (Alaska 1978). But see State v. Johnson, 363 So. 2d
458 (La. 1978).
Our supreme court has considered the scope of proceedings
encompassing the right to a speedy trial. See Allen v. State, 505 S.W.2d 715(Tenn. 1974). In Allen, the defendant, incarcerated on another conviction,
experienced a two-and-one-half year delay before his probation revocation hearing.
Id. at 716-17. In deciding that the defendant's right to a speedy trial included the
probation revocation hearing, our supreme court held that the probation revocation
proceeding is a continuation of the original criminal prosecution. Id. at 719.
6
Because sentencing must occur before a probation revocation
hearing, the constitutional right to a speedy trial necessarily includes the sentencing
phase. Accordingly, we apply the constitutional speedy trial provision to the pending
sentencing procedure in the present case.
In determining whether a criminal defendant’s right to a speedy trial
has been violated, the Tennessee Supreme Court has adopted the approach
announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514,
92 S. Ct. 2182 (1972). Under the Barker analysis, four factors determine whether
a defendant’s right to a speedy trial has been violated. The factors are (1) the
length of the delay, (2) the reason for the delay, (3) whether the defendant asserted
his right to a speedy trial, and (4) whether the defendant has suffered prejudice from
any delay. State v. Bishop, 493 S.W.2d 81, 84 (Tenn. 1973). On appellate review,
the trial court’s determination in this regard is subject to review for abuse of
discretion. See State v. Jefferson, 938 S.W.2d 1, 9 (Tenn. Crim. App. 1996).
Delays of more than a year automatically trigger further inquiry under
the other Barker factors. State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997), State
v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. (1997). Tennessee Code Annotated
section 40-35-209 requires the trial court to conduct a sentencing hearing “without
unreasonable delay, but in no event more than forty-five (45) days” after acceptance
of a guilty plea. Tenn. Code Ann. § 40-35-209(a) (1997).
A review of the existing record shows that the defendant has
presented a claim upon which relief might be granted if the claim is established by
proof upon a hearing.
The defendant entered a guilty plea on December 5, 1990, with
7
sentencing set for February 1991. The defendant had not yet been sentenced at
the time the trial court denied his motion to dismiss for lack of a speedy trial in
January, 1999. Therefore, the delay in sentencing is about eight years. This factor
would weigh against the state.
The reason for the delay can be partially attributed to the defendant.
He failed to appear for sentencing in February 1991. He was taken into federal
custody in August 1991 on an unrelated charge. He filed his first demand for a
speedy trial in May 1992. The reason for the delay in sentencing for the time in
which the defendant failed to appear for sentencing until he requested a speedy trial
must be attributed to the defendant. He cannot now complain of not receiving a
speedy trial for the time in which he was at fault for avoiding the court. See e.g.,
State v. Taylor, 771 S.W.2d 387, 399 (Tenn. 1989) (no speedy trial violation
because the delay was the result of defendant’s action).
The reason for the delay after the defendant was incarcerated and first
requested a speedy trial in 1992 is not clear from the record. The state was aware
of the defendant’s federal incarceration because it was in contact with federal
officials regarding the defendant’s tentative release date from as early as 1994. At
this juncture, the state offers no explanation for failing to transport the defendant to
Tennessee in order for a sentencing hearing to be conducted; however, at a
hearing, the state would have the opportunity to prove justification or excuse for the
delay.
The defendant asserted his right to a speedy trial in 1992 and again
in 1998. As the Barker court noted, the “defendant’s assertion of his speedy trial
right . . . is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S. Ct. at
8
2192-93. The state was aware that the defendant wanted to have a sentencing
hearing and finish these proceedings in 1992. The Supreme Court has declared
that the state has “a constitutional duty to make a diligent, good-faith effort to bring
him [to] trial.” Smith v. Hooey, 303 U.S. 374, 383, 89 S. Ct. 575, 579 (1969).
The defendant asserts that he has been prejudiced by this delay in
sentencing. However, because the trial court decided the defendant’s motions
without a hearing, the defendant was not afforded the opportunity to present
evidence of prejudice. Our supreme court has held that showing prejudice is the
most important part of the Barker weighing process. See State v. Wood, 924
S.W.2d 342, 348 (Tenn. 1996).
The defendant is currently serving a sentence in a federal prison. He
claims that he has been prejudiced because he is subject to an increased security
classification; he has been incarcerated with violent offenders, even though he has
not committed any violent crime; he has been denied access to rehabilitative
programs; and he has been denied federal parole. Additionally, he correctly states
that the possibility of concurrent state and federal sentences is being lost as he
nears completion of his current federal incarceration.
The defendant also asserts that until he is sentenced, he can, upon
a showing of any fair and just reason, withdraw his guilty plea. Tenn. R. Crim. P.
32(f). If he were to withdraw his plea, he would be subject to a trial on the charge.3
Considering that the defendant has not been afforded an opportunity to present
evidence supporting his claims, the weight of the factor of prejudice cannot be
determined.
3
See n.1. A withdrawal of the guilty plea on count 1 apparently would
leave both counts of the indictment unresolved.
9
After considering these factors, we conclude that the defendant has
stated a presentable claim for consideration of a deprivation of speedy trial rights.
We reverse the trial court’s order dismissing the defendant’s speedy trial claim
without a hearing and remand this case to the trial court so that either party may
offer evidence on this issue.
The defendant raised, but did not provide appellate argument on, the
issue of a due process violation because of the delay in sentencing. For purposes
of this appeal, that issue has been waived. We leave it to the defendant to develop
any due process violation claim on remand.
II. Interstate Compact on Detainers
The defendant contends the indictments against him should be
dismissed because the state failed to comply with the Interstate Compact on
Detainers Act (the "Act"). The Act is an agreement between the United States and
the states which have adopted the Act and among the individual states which have
adopted it. The purpose of the Act is “to encourage the expeditious and orderly
disposition of [outstanding] charges and determination of the proper status of any
and all detainers based on untried indictments, informations or complaints.” Tenn.
Code Ann. § 40-31-101, art. I (1997) (emphasis added). Article III of the Act
requires that if a person has any "pending . . . untried indictment, information or
complaint . . ., the person shall be brought to trial within one hundred eighty (180)
days after" requesting a final disposition. Tenn. Code Ann. § 40-31-101, art. III
(1997).
The Supreme Court has held that Article III of the Act does not apply
to detainers based on probation violation charges. Carchman v. Nash, 473 U.S.
716, 734, 105 S. Ct. 3401, 3410-11 (1985). The Court relied on the plain language
10
of the Act in reaching its conclusion. Id., 105 S. Ct. at 3410-11. Article III applies
to any pending "untried indictment, information or complaint." Id. at 718-19, 105 S.
Ct. at 3402-03. The natural interpretation of this language is that Article III applies
only to matters that can be brought to a full criminal trial, that is, pending criminal
charges or charges being prosecuted. Id. at 724-25, 105 S. Ct. at 3405-06. The
Carchman majority held that a probation violation fell outside Article III because the
Article III language applied to the guilt phase of criminal trials. Id. at 725-26, 105
S. Ct. at 3406. The Court found that a probation violation hearing would determine
whether the probation conditions should be modified or the probationer should be
resentenced. Id., 105 S. Ct. at 3406. In either case, the probationer would not be
entitled to "the panoply of due process rights accorded a defendant at a criminal
trial.” Id., 105 S. Ct. at 3406.
The dissent in Carchman felt that Article III's reference to "trial"
embodied the broad concept of "final disposition," Id. at 744, 105 S. Ct. at 3416
(Brennan, J., dissenting), but we agree with the Carchman majority that Article III
applies only to untried criminal charges. Although Carchman did not specifically
address at which point a criminal charge becomes untried, we hold that after the
guilt phase is completed, the charges are no longer untried for purposes of Article
III. This position is consistent with the finding in Carchman that the resentencing
function of probation revocation is outside the ambit of Article III. Id. at 725-26, 105
S. Ct. at 3406.
The above position is consistent with State v. Evitts, 915 S.W.2d 468(Tenn. Crim. App. 1995), where this court held the Act did not apply to a defendant
who had pleaded guilty, received judicial diversion, violated the terms of his
diversion, and was awaiting sentencing. The defendant in Evitts was in jail in
another jurisdiction when he sought to invoke Article III of the Act and be sentenced
11
within 180 days of his request for final disposition. Id. at 469-70. This court held
that the remaining proceeding against the defendant was not an "untried indictment,
information, or complaint." Id. at 470 (quoting Tenn. Code Ann. § 40-31-101, art.
III(a)). See also State v. Hill, 875 S.W.2d 278 (Tenn. Crim. App. 1993).
We also note that the proceedings which constitute a trial for the
constitutional right to a speedy trial are not necessarily the same proceedings to
which Article III applies. While there is some similarity in purposes and policy
behind the constitutional and statutory rights, there is not enough to warrant the
broad definition of trial as required for the constitutional right.
In this case, the defendant pleaded guilty in 1990 to the indictment for
obtaining money by false pretenses. Accordingly, this indictment was no longer
“untried.” The state lodged a detainer on the defendant in 1997 for the purpose of
sentencing. The Interstate Compact on Detainers does not apply to the defendant’s
sentencing detainer.
The judgment of the trial court dismissing the speedy trial claim is
reversed. Otherwise, the judgment of the trial court is affirmed. The case is
remanded to the trial court for further proceedings.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
JOSEPH M. TIPTON, JUDGE
12
_______________________________
JOHN EVERETT WILLIAMS, JUDGE
13