State v. Cleveland Rogers

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1998 SESSION
May 21, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9612-CC-00534
Appellee, )
) MONTGOMERY COUNTY
VS. )
) HON. ROBERT W. WEDEMEYER,
CLEVELAND SONNY ROGERS, ) JUDGE
)
Appellant. ) (Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL J. LOVE JOHN KNOX WALKUP
215 South Second St. Attorney General & Reporter
Clarksville, TN 37040
(On appeal) ELLEN H. POLLACK
Asst. Attorney General
WADE BOBO 450 James Robertson Pkwy.
129 South Third St. Nashville, TN 37243-0493
Clarksville, TN 37040
(At trial) JOHN W. CARNEY
District Attorney General
ARTHUR BIEBER
Asst. District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37040
OPINION FILED:____________________
REVERSED AND REMANDED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged with possessing drug paraphernalia, causing
damage to the property of another, theft of goods totaling less than one hundred dollars
($100), and two counts of aggravated assault. A jury convicted him of aggravated assault
and assault, assessing fines of five thousand dollars ($5000) and two thousand five
hundred dollars ($2500), respectively. The remaining charges were dismissed. The
court below subsequently sentenced the defendant as a Range III persistent offender to
fourteen years incarceration on the aggravated assault offense and to nine months,
suspended, on the assault charge.1 The sentences were run consecutively. In this
appeal as of right, the defendant raises only one issue: whether he is entitled to a new
trial on his conviction for aggravated assault because the trial court erroneously instructed
the jury about the range of punishment applicable to this offense. Upon our review of the
record, we reverse this conviction and remand this matter for a new trial.
A recitation of the facts underlying the offenses is not necessary to our
resolution of the issue. Suffice it to say that the defendant’s convictions arose out of a
domestic dispute.
Eleven days prior to trial, the State filed its Notice of Sentencing Status
indicating the defendant’s sentencing status as Range III persistent offender. The
transcript of the trial indicates that the defendant’s trial attorney had received a copy of
this notice. The record does not indicate who requested that the trial court instruct the
jury about the range of punishment applicable upon conviction of the relevant charges.
1
The trial court also reduced the fines to two thousand five hundred dollars ($2500) and one
thou san d dolla rs ($ 100 0), re spe ctively.
2
However, the written jury charge included in the record2 contains such an instruction.
Unfortunately, it provides only the range applicable to a Range I standard offender:
significantly less than the range applicable to the defendant. Relying on our Supreme
Court’s ruling in State v. Cook, 816 S.W.2d 322 (Tenn. 1991), the defendant asserts that
he is entitled to a new trial because of this misinformation provided to the jury. We must
agree.
In Cook, the defendant was convicted of aggravated rape and aggravated
sexual battery. Because of the age of the victim, Range II sentencing was mandatory.
However, because the State was late in filing its notice of sentencing status, the trial court
ruled that Range I was the appropriate range. Upon motion by the defendant, the trial
court instructed the jury on the possible punishments under Range I. The defendant did
not object, and was subsequently sentenced as a Range I offender. On the State’s
appeal, this Court held that Range II sentencing was mandatory and remanded for
resentencing. Our Supreme Court subsequently granted the defendant’s appeal and
held that “T.C.A. § 40-35-201(b) gives a defendant a claimable statutory right to have the
jury know the range of punishment applicable to the charges before deciding guilt or
innocence.” 816 S.W.2d at 326. Moreover, the Court held, “To deny this defendant that
statutory right constitutes prejudice to the judicial process, rendering the error reversible
under Rule 36(b) T.R.A.P.” 816 S.W.2d at 327.
Cook controls the disposition of this case. Although the trial court was
aware prior to trial that the defendant’s sentencing status was Range III, it instructed the
jury as though the defendant’s status was Range I. The record does not reveal why this
occurred, but the same court subsequently sentenced the defendant as a Range III
2
The record of the trial does not include a verbatim transcript of the jury instructions as they
were delivered.
3
persistent offender. The defendant is entitled to a new trial.
The State argues that the defendant waived this issue because he made
no objection at the time the erroneous instruction was given to the jury. Our rules of
procedure provide otherwise: A defendant’s failure to object to the content of a given
instruction “shall not prejudice the right of [the defendant] to assign the basis of the
objection as error in support of a motion for a new trial.” Tenn. R. Crim. P. 30(b). The
defendant raised this issue in his Amended Motion for A New Trial. Accordingly, it is
properly before this Court on appeal. See State v. Lynn, 924 S.W.2d 892, 899 (Tenn.
1996) (where defendant challenges a positive error in the jury instructions rather than an
error of omission, Rule 30 permits the issue to be raised in a motion for new trial). See
also Cook, 816 S.W.2d at 327 (“We do not hold the defendant responsible for the trial
court’s judgment that the only applicable possible sentences were Range I. . . . [D]efense
counsel would have been less than partisan if he had complained of the favorable action
of the trial judge.”)
Reversible error having been committed below, the defendant’s conviction
for aggravated assault is reversed and this matter is remanded for a new trial.
_________________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
JERRY L. SMITH, Judge
4