State of Tennessee v. Vern Braswell

12/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 3, 2021
STATE OF TENNESSEE v. VERN BRASWELL
Appeal from the Criminal Court for Shelby County
No. 05-03038 Paula L. Skahan, Judge
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No. W2021-00152-CCA-R3-CD
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After the trial court granted the State’s motion to dismiss the “Emergency Motion to Alter
or Adjust Sentence to Conform With the Principles of Compassionate Release” filed by
Vern Braswell, Defendant, this appeal was initiated. On appeal, Defendant challenges the
trial court’s dismissal of his motion. After review, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
Vern Braswell, Tiptonville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant was convicted of second degree murder for the manual strangulation
death of his wife in December of 2005. See State v. Vern Braswell, No. W2006-01081-
CCA-R3-CD, 2008 WL 238014, at *1 (Tenn. Crim. App. Jan. 28, 2008) (“Braswell I”),
perm. app. denied (Tenn. Aug. 25, 2008). On direct appeal from his conviction, Defendant
challenged the sufficiency of the evidence, the length of his sentence, and several
evidentiary issues including the admissibility of hearsay statements and Defendant’s prior
bad acts. Id. at *11-24. This Court affirmed the conviction and sentence on direct appeal.
Id.
Defendant subsequently sought post-conviction relief on the basis of ineffective
assistance of counsel and Brady violations by the State. See Vern Braswell v. State, No.
W2016-00912-CCA-R3-PC, 2018 WL 1719443, at *1 (Tenn. Crim. App. Apr. 9, 2018)
(“Braswell II”), perm. app. denied (Tenn. Sept. 18, 2018). Despite finding trial counsel
deficient in several respects, the post-conviction court determined that Defendant was not
entitled to post-conviction relief because even with the deficiencies by trial counsel there
was no prejudice to Defendant “in light of the strong evidence supporting [Defendant’s]
conviction for second degree murder.” Id. at *60.
Over two years after the Tennessee Supreme Court denied permission to appeal in
his post-conviction case, Defendant filed an “Emergency Motion to Alter or Adjust
Sentence to Conform With the Principles of Compassionate Release.” The document was
signed by Defendant on December 23, 2020, but was not stamped filed by the trial court
until January 4, 2021. The document was accompanied by a motion for appointment of
counsel.
In the document, Defendant asked for an “immediate emergency” hearing to address
various concerns Defendant had about exposure to Covid-19. Defendant complained that
his recent cancer diagnosis, his incarcerated status, and his race made him more vulnerable
to Covid-19. As a result, Defendant asked for “compassionate release to home
confinement” with “periodic probationary supervision” for a variety of reasons. To support
his argument, Defendant cited the constitutional prohibitions against cruel and unusual
punishment, an administrative order from the Tennessee Supreme Court outlining the
administration of the courts during the pandemic, and a Governor’s declaration regarding
the state of the pandemic.
The State filed a response to Defendant’s document, asking the trial court to
summarily dismiss it because there was no legal authority for the request. The trial court
granted the motion to dismiss. Defendant timely filed a notice of appeal.
After filing the notice of appeal, Defendant filed several pro se motions in this Court.
Included in one of these motions was a request for supplementation of the record with “the
transcript from the Appearance Docket date of Jan. 11, 2021,” the date on which the trial
court granted the State’s motion to dismiss. Defendant sought the transcript to determine
if “any exchange” took place between the trial court and the State. This Court remanded
to the trial court for supplementation of the record. The trial court entered an order stating
that there was “no discussion or hearing [that] took place prior to the entry of the [o]rder”
dismissing Defendant’s request. This Court granted Defendant’s request to expedite the
appeal on the basis of Defendant’s cancer diagnosis and treatment.
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Analysis
On appeal, Defendant argues that the trial court had the authority to conduct a
hearing under Tennessee Rule of Criminal Procedure 35 to determine if his “sentence
should be altered or modified, due to his medical vulnerability brought on by his cancer
diagnosis in a prison with COVID-19 during the pandemic.” Relying on principles of
compassionate release, the prohibitions against cruel and unusual punishment, and an
administrative order from the Tennessee Supreme Court regarding the administration of
the state’s courts during the pandemic, Defendant cites Charles Dickens that “it was the
worst of times.” He argues that the “interests of justice dictate[] his sentence be[] altered
or adjusted.” The State insists that Defendant did not file a motion pursuant to Rule 35 in
the trial court and has waived the issue by raising it for the first time on appeal, that there
is no legal authority for Defendant’s position, and that he is not entitled to relief.
The State initially argues that Defendant never sought relief via Rule 35 in the trial
court and, therefore, cannot now ask for such relief on appeal. We agree that “[a]ppellate
review generally is limited to issues that a party properly preserves for review by raising
the issues in the trial court and on appeal.” Tenn. R. App. P. 36(a). However, while it may
be well argued that we are living in “the worst of times,” Tennessee Rules of Criminal
Procedure do not expressly provide for an “Emergency Motion to Alter or Adjust Sentence
to Conform With the Principles of Compassionate Release” as a procedural mechanism to
seek review of a trial court’s judgment. “It is well settled that a trial court is not bound by
the title of the pleading, but has the discretion to treat the pleading according to the relief
sought.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995). Moreover, we construe
the filings of pro se litigants liberally. See Gable v. State, 836 S.W.2d 558, 559-60 (Tenn.
1992); State v. Shelton Hall, No. M2012-01622-CCA-R3-CD, 2013 WL 1200266, at *4
(Tenn. Crim. App. Mar. 26, 2013), no perm. app. filed.
Despite the liberality granted to pro se litigants, even if this Court were to construe
Defendant’s pleading as a motion for relief pursuant to Tennessee Rule of Criminal
Procedure 35, it would be untimely. A motion filed pursuant to Rule 35 must be “filed
within 120 days after the date the sentence is imposed” and there are “[n]o extensions” to
the time limitation and nothing that will “toll the running of this time limitation.” Tenn.
R. Crim. P. 35(a). Defendant was convicted and sentenced many years ago. Defendant is
not entitled to relief pursuant to Rule 35.
If this Court were to review Defendant’s motion not as filed under Rule 35, but
rather on the basis of the supreme court’s administrative order or the prohibition against
cruel and unusual punishment, this Court would not have jurisdiction to hear the appeal.
Rule 3 of the Tennessee Rules of Appellate Procedure explicitly grants the “Availability
of Appeal as of Right by Defendant in Criminal Actions.” Defendant’s request for review
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of the trial court’s dismissal of his motion either on the basis of the application of an
administrative order or the constitutional prohibition against cruel and unusual punishment
does not fit within the available avenues provided to a defendant in Rule 3. Accordingly,
Defendant is not entitled to relief from his sentence.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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