State of Tennessee v. Marvin Dewayne Bullock

07/29/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 27, 2022 Session
STATE OF TENNESSEE v. MARVIN DEWAYNE BULLOCK
Appeal from the Criminal Court for Campbell County
No. 17288 E. Shayne Sexton, Judge
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No. E2021-00661-CCA-R3-CD
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The Defendant, Marvin Dewayne Bullock, appeals his convictions for four counts of rape
of a child, five counts of rape, nine counts of incest, three counts of sexual battery by an
authority figure, one count of solicitation of sexual exploitation of a minor, two counts of
sexual exploitation of a minor, and one count of aggravated sexual battery, for which he
received an effective sentence of 178 years. On appeal, the Defendant contends that the
evidence was insufficient to support his convictions; that due to a hearing impairment, he
was unable to hear the witnesses’ testimony at trial; that the prosecutor improperly
coached jurors during voir dire in how to avoid jury service; that his sentences are
excessive; and that he received ineffective assistance of counsel at trial. We conclude
that the Defendant’s notice of appeal was untimely and that the untimely filing should not
be waived in the interest of justice. Accordingly, we dismiss the appeal, and we remand
the case to the trial court for entry of corrected judgments as set forth in the opinion.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
Douglas P. Nanney, Knoxville, Tennessee, (on appeal); and Stephanie M. Jernigan,
Maryville, Tennessee, (at trial), for the appellant, Marvin Dewayne Bullock.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Jared R. Effler, District Attorney General; and Lindsey Cadle and
Meredith Slemp, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant was charged in a fifty-six-count indictment with various offenses
based upon his sexual abuse of his three adopted daughters over almost a ten-year period.
Twenty-two counts of the indictment were dismissed prior to trial. During the July 2018
trial and after the State rested its proof, the State conceded that eight additional counts
should be dismissed. The jury convicted the Defendant as charged on the remaining
counts, finding him guilty of four counts of rape of a child, five counts of rape, nine
counts of incest, three counts of sexual battery by an authority figure, one count of
solicitation of sexual exploitation of a minor, two counts of sexual exploitation of a
minor, one count of aggravated sexual battery, and one count of continuous sexual abuse
of a child. At the conclusion of the November 13, 2018 sentencing hearing, the trial
court imposed an effective sentence of 178 years.
The Defendant, through trial counsel, prematurely filed a motion for new trial on
November 29, 2018. On December 6, 2018, the trial court entered a sentencing order,
reflecting its findings during the sentencing hearing. On October 15, 2019, the
Defendant, through new counsel, filed an amended motion for new trial in which he
raised numerous issues, including that he received ineffective assistance of counsel at
trial and that, as a result of a hearing impairment, he was unable to hear the first day of
the trial proceedings in violation of his due process rights.
During the January 21, 2020 hearing on the Defendant’s motion for new trial,
appellate counsel did not present any proof other than the transcript of the trial and the
sentencing hearing to support the claims raised in the motion for new trial. The trial
court announced that it was denying the Defendant’s motion for new trial based upon the
grounds raised but expressed concern regarding the twenty-five-year concurrent sentence
imposed for the conviction of continuous sexual abuse of a child. The State
acknowledged that the conviction may need to be dismissed. At the conclusion of the
hearing, the trial court stated, “I am reviewing the sentence in this case to make sure that
I have not made an error in rendering that sentence. And I will make a ruling on that this
week, and I will let counsel for each side know.” On March 4, 2020, the trial court
entered an order denying the Defendant’s motion for new trial.
On July 24, 2020, the Defendant filed a “Motion for Final Judgment and for
Medical Relief,” in which the Defendant stated that the trial court had not yet issued a
ruling on the sentencing issue raised during the hearing on the motion for new trial and
requested that the trial court revisit the Defendant’s sentence, issue its final order on the
motion for new trial, and order the Tennessee Department of Correction to provide him
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with hearing aids. On August 3, 2020, the trial court entered an “Amended Order,”
stating that the court was “amending” the original order denying the Defendant’s motion
for new trial and providing that “[t]he original Order denying a new trial for the
Defendant shall remain intact with the addition that the Court believes that a sentencing
error is possible” with respect to the Defendant’s conviction for continuous sexual abuse
of a child. The trial court set a hearing for October 5, 2020, “for a final disposition as to
that Count.”
During a hearing on May 17, 2021, the State announced that due to the failure to
provide the defense pretrial notice of the incidents of sexual abuse upon which the
offense of continuous sexual abuse of a child was based, the conviction is “null and void”
and should be dismissed. The trial court agreed to dismiss the conviction and stated,
“[T]his now resolves all of [the Defendant’s] motion for new trial issues and now we can
perfect this case for any further review by the Appellate Courts.” On June 9, 2021, the
trial court entered an order dismissing the conviction for continuous sexual abuse of a
child and noting that the dismissal did not alter the Defendant’s effective sentence since
the sentence for the conviction ran concurrently with the sentences for the Defendant’s
other convictions. On June 15, 2021, the Defendant filed a notice of appeal.
ANALYSIS
The State contends that the Defendant failed to file a timely notice of appeal and
that, therefore, his appeal should be dismissed. The Defendant responds that the issues
related to the motion for new trial were not entirely resolved until the May 2021 hearing
and the entry of the trial court’s order on June 9, 2021, and that, thus, the notice of appeal
filed within six days of the entry of the order was timely. The Defendant also responds
that even if the notice of appeal was not timely filed, this court should waive the untimely
filing in the interest of justice.
A defendant has thirty days from entry of the judgment in which to file a notice of
appeal. Tenn. R. App. P. 4(a). If the defendant files a motion for new trial, “the time for
appeal for all parties shall run from entry of the order denying a new trial.” Tenn. R.
App. P. 4(c) (emphasis added.) A trial court’s statements during the hearing denying a
motion for new trial are not sufficient to grant this court jurisdiction to hear an appeal or
to trigger the time period in which a defendant must file a notice of appeal. See State v.
Byington, 284 S.W.3d 220, 223, 225 (Tenn. 2009) (providing that this court did not
acquire jurisdiction of the defendant’s appeal pending the trial court’s entry of an order
denying the defendant’s motion for new trial even though the transcript of the hearing
reflected that the trial court denied the motion). Once a defendant files a motion for a
new trial, this court does not have jurisdiction to hear the defendant’s appeal until the trial
court enters an order denying the motion for new trial. Id. at 225. A court minute entry
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reflecting the trial court’s denial of a motion for new trial may be sufficient to satisfy the
requirement of a written order set forth in Rule 4(c). Id. at 226. Thus, the entry of an
order or court minutes reflecting the denial of a motion for new trial triggers the time for
filing an appeal regardless of the trial court’s findings during the hearing.
During the January 2020 hearing on the Defendant’s motion for new trial, the trial
court announced that it was denying the motion based upon the grounds raised. The trial
court also stated that it would review an issue related to sentencing for the conviction of
continuous sexual abuse of a child, would issue a ruling “this week,” and would inform
the parties. On March 4, 2020, the trial court entered an order denying the Defendant’s
motion for new trial. Although the order did not reference the sentencing issue or
otherwise include any specific findings of fact or conclusions of law, the Tennessee
Supreme Court has recognized that “unless a party moves the trial court to set forth
findings of fact and conclusions of law, the court’s order need state only whether the
motion for new trial was granted or denied.” Id. (construing Tenn. R. Crim. P. 33(c)(3)).
We conclude that the trial court’s order entered on March 4, 2020, was an “order denying
a new trial” in accordance with Tennessee Rule of Appellate Procedure 4(c).
Generally, the Defendant would have had thirty days from entry of the trial court’s
March 2020 order in which to file a notice of appeal. See Tenn. R. App. P. 4(a).
However, in response to the COVID-19 pandemic, the Tennessee Supreme Court issued a
series of orders extending the deadlines for filing a notice of appeal. See, e.g., In re:
Covid-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 31, 2020); In re: Covid-19
Pandemic, No. ADM2020-00428 (Tenn. Mar. 25, 2020); In re: Covid-19 Pandemic, No.
ADM2020-00428 (Tenn. Mar. 13, 2020). The Defendant does not assert that he met any
of the deadlines for filing a notice of appeal imposed by the Tennessee Supreme Court
due to the COVID-19 pandemic. Rather, he asserts that his notice of appeal filed on June
15, 2021, was timely because it was filed within thirty days of the trial court’s June 9,
2021 order. Generally, a judgment becomes final thirty days after its entry unless a
notice of appeal or specified post-judgment motion is filed. State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App. P. 4(a)-(c). When the judgment has
become final, the trial court generally loses jurisdiction to amend it. State v. Moore, 814
S.W.2d 381, 382 (Tenn. Crim. App. 1991). Accordingly, the trial court was without
jurisdiction to enter the August 2020 order amending the order denying the motion for
new trial entered almost five months earlier, to conduct the additional hearings in
accordance with the amended order, or to enter the June 2021 order. See e.g., State v.
Ronnie Wayne Blair, No. M2009-01987-CCA-R3-CD, 2011 WL 743396, at *6 (Tenn.
Crim. App. App. Mar. 3, 2011) (concluding that the trial court’s second order denying the
defendant’s motion for new trial entered more than one month after the trial court entered
its initial order “was of no legal effect” and that the defendant’s notice of appeal filed
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upon entry of the second order was untimely). Therefore, we conclude that the
Defendant’s notice of appeal is untimely.
Tennessee Rule of Appellate Procedure 4(a) provides that “in all criminal cases
the ‘notice of appeal’ document is not jurisdictional and the timely filing of such
document may be waived in the interest of justice.” A defendant has “the responsibility
to properly perfect his appeal or to demonstrate that the ‘interests of justice’ merit waiver
of an untimely filed notice of appeal.” State v. Steven C. James, No. E2021-00559-CCA-
R3-CD, 2022 WL 633540, at *1 (Tenn. Crim. App. Mar. 4, 2022), no perm. app. filed
(citing State v. Carl T. Jones, No. M2011-00878-CCA-R3-CD, 2011 WL 5573579, at *1
(Tenn. Crim. App. Nov. 15, 2011)). In determining whether waiver of the notice
requirement is in the interest of justice, this court will examine the nature of the issues
presented for review, the reasons for and the length of the delay in seeking relief, and
other relevant factors. State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007).
“Waiver is not automatic and should only occur when ‘the interest of justice’ mandates
waiver. If this court were to summarily grant a waiver whenever confronted with
untimely notices, the thirty-day requirements of Tennessee Rule of Appellate Procedure
4(a) would be rendered a legal fiction.” Id. (citing Michelle Pierre Hill v. State, No.
01C01-9506-CC-00175, 1996 WL 63950, at *1 (Tenn. Crim. App. Feb. 13, 1996)).
The Defendant’s notice of appeal was filed more than one year after the deadline.
Although the trial court expressed its belief during the May 2021 hearing that the
Defendant was unable to pursue an appeal until the court issued a ruling in accordance
with its amended order, the trial court was without jurisdiction to amend an order denying
a motion for new trial entered approximately five months earlier and to conduct
proceedings in accordance with the amended order. While the Defendant, the prosecutor,
and the trial court appeared to believe that the trial court had such authority, this court
previously has recognized that a misunderstanding of the law as a reason for delay
weighs against a finding of waiver. See id.Consideration of the nature of the issues, through a review of the Defendant’s
brief, also supports dismissal. The Defendant raises five issues on appeal, asserting that
the evidence was insufficient to support his convictions; that due to a hearing impairment,
he was unable to hear the witnesses’ testimony at trial in violation of his due process
rights; that the prosecutor improperly coached jurors during voir dire in how to avoid jury
service; that his sentences are excessive; and that he received ineffective assistance of
counsel at trial. Some of these claims are unsupported by citations to authority; some are
unsupported by citations to the record; some were not raised during trial; and some were
not supported by the introduction of proof at the hearing on the motion for a new trial.
See Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7), 36(a). Given the
circumstances leading to the Defendant’s untimely notice of appeal, the inadequacies of
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the Defendant’s brief, and his failure to present evidence to support some issues raised on
appeal, we decline to waive the Defendant’s untimely filing of his notice of appeal.
Therefore, the appeal is dismissed.
We note that there are numerous clerical errors in the judgments relating to the
fifty-six counts in the indictment. Because twenty-two counts of the indictment were
dismissed prior to trial, the trial court renumbered the counts for purposes of instructing
the jury so that the charges appeared as thirty-four continuous counts. These instructions
properly ensured that the jury was not made aware of the numerous other criminal
offenses with which the Defendant was originally charged. The jury returned verdicts
referencing the counts as instructed by the trial court. In sentencing the Defendant, the
trial court referenced the counts as presented to the jury rather than the counts as they
appeared in the indictment. It appears that a large number of the judgments reflect the
charge and disposition of the counts as referenced at trial rather than the counts as they
appear in the indictment. While we recognize the sound rationale behind renumbering
the counts for the jury, the judgments must correctly reflect the charges as presented in
the indictment and the disposition for each indicted offense.
Some judgments incorrectly state the offense charged. For example, count 19 of
the indictment charged continuous sexual abuse of a child, which was dismissed prior to
trial, but the judgment for count 19 reflects that the indicted and subsequently dismissed
charge was sexual battery by an authority figure. As a second example, count 23 of the
indictment, which was referred to as count 20 at trial, charged the offense of rape, and
although the judgment for count 23 correctly reflects that the convicted offense was rape,
a Class B felony, the judgment incorrectly states that the charged offense was sexual
battery by an authority figure, a Class C felony. See T.C.A. §§ 39-13-503(b), 39-13-
527(b). Numerous other judgments include similar errors. Furthermore, some judgments
reflect the incorrect disposition. For example, in count 47 of the indictment, which was
referred to as count 33 at trial, the Defendant was charged with and convicted of
aggravated sexual battery, but the judgment for count 47 incorrectly reflects that the
charge was dismissed. As a second example, the Defendant was indicted in count 49 for
aggravated sexual battery, which was dismissed prior to trial, but the judgment for count
49 incorrectly reflects that the charge resulted in a conviction at trial. Many of the
judgments also do not correctly reflect what counts to which the sentence for the
conviction is to run consecutively or currently. The judgment for count 16, for example,
reflects that the Defendant’s five-year sentence for an incest conviction is to run
concurrently with count 13, but the rape charge in count 13 of the indictment was
dismissed prior to trial.
Given the numerous clerical errors in the judgments, we remand the case to the
trial court to review and correct each judgment to ensure that each judgment corresponds
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with each count in the indictment and correctly reflects the charge and disposition for
each of the indicted counts.
CONCLUSION
Due to the Defendant’s untimely filing of the notice of appeal, we dismiss the
appeal. We remand the case to the trial court for correction of the judgments as reflected
in the opinion.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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