Dave's (weekly) Criminal Law Review

Dave’s (weekly) criminal law review July 11, 2016

no. 03

2012). Wlodarz held that the writ of error coram nobis statute also encompassed guilty pleas.

As a preliminary matter, the Court found no constitutional right to a writ of error coram nobis.

Then, based on statutory construction, it found that there is nothing ambiguous about the words used in the statute: “trial,” “litigated at trial,” and “litigated on the trial.”

“Guilty plea” does not appear.

Additionally, a guilty plea is nonadversarial and does not involve “evidence.”

Further, at a guilty plea, the defendant “waive[es] his right to trial” (emphasis in the original). Therefore, a trial and a guilty plea are mutually exclusive.

Finally, the holding did not trivialize guilty pleas because there are other avenues to attack a plea like a motion to withdraw or claim for post-conviction relief.

The Tennessee Supreme Court Death sentences upheld.

State v. Howard Willis, July 6, 2016 The Tennessee Supreme Court upheld the death sentences for Howard Willis.

If you want a refresher on when selfincriminating statements to non-law enforcement persons can be used in court, you might want to check out those sections.

Otherwise, there is nothing of significance regarding law or procedure.  Coram Nobis does not apply to guilty pleas.

Clark Frazier v. State, July 7, 2016 The Court held that guilty pleas are not subject to collateral attack by a writ of error coram nobis overturning Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012).

In Frazier v. State, the State charged Clark Frazier with first degree murder. He pled guilty to second degree murder and was sentenced to 25 years.

Mr. Frazier applied for post-conviction relief and was denied at the trial and appellate courts.

Mr. Frazier then filed a petition for writ of error coram nobis based on a newly discovered evidence. The trial court denied it.

The Court of Criminal Appeals affirmed the trial court. The Supreme Court granted permission to appeal to review Wlodarz v. State, 361 S.W.3d 490 (Tenn.

Dave’s Analysis: This decision is troubling but not surprising. I think many more Tennessee precedents strengthening the rights of the accused will fall as the Court appears more amenable to the State’s arguments in those areas.

Back to Frazier. First, as the dissent argued, stare decisis is a powerful mandate and should be used sparingly. The ambiguity of the statute regarding the coverage of guilty pleas is debatable and reasonable minds could support both sides. It is not enough to buck stare decisis. As also noted by the dissent, the legislature did not correct the “misinterpretation” by statute which is some

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Dave’s (weekly) criminal law review July 11, 2016

no. 03

proof that it approved of Wlodarz. (I would be interested to see if a bill was even introduced to change it.)

Second, it does trivialize the guilty plea because it places a guilty plea conviction below one from a trial. As we know, people plead guilty to crimes they did not commit because of the weight of the punishment if they were to be convicted. If new, exonerating evidence appears past the statute of limitations—google “crime lab problems”—the person who pled guilty is without relief. See Freshwater v. State, 160 S.W.3d 548, 556-58 (Tenn. Crim. App. 2004). Of course, the trial participant is fine.

Likewise, habeas would not be available for that person who is out of custody and has already served his sentence.

You could argue that a felony conviction still restrains the liberty of an individual, e.g. jobs, rental units, professional licenses. However, you would not get far in the court system.

Although use of the writ is rare and granting of the writ even rarer, it does, as the dissent argued, “correct a wrong or unjust result” when there is no other option. Based on the Court’s opinion, the best advice you can give to a person, out-of-custody, who has pled guilty but has discovered new evidence years later is “too bad.”

State v. Richard Smith, July 6, 2016 State v. Smith is just another friendly reminder that we must strictly abide by the rules to reserve a certified question of law or your appeal will be dismissed in a very short opinion.

In this case, the State charged Mr. Smith with failure to maintain lane, D.U.I., and D.U.I. per se. Mr. Smith filed a motion to suppress evidence based on an illegal traffic stop. The trial court denied his motion.

Mr. Smith then pled guilty and attempted to reserve a certified question of law. The guilty plea stated that he, the State and the trial court consented to the reservation of the certified question and were of the opinion that it was dispositive of the case. (Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure governs the reservation of certified questions of law.)

Unfortunately for Mr. Smith, the judgment stated a certified question of law, but it omitted a statement that the parties consented to the certified question and that the same question was dispositive of the case.

We know what happens next. The Court of Criminal Appeals dismissed the case because (1) the judgment did not state the parties and the trial court “are of the opinion that the certified question is dispositive of the case” and (2) the judgment did not say the question was reserved with the consent of the parties and the trial court.

The appellate court acknowledged that those statements appeared in the guilty plea, but they did not appear in the judgment.

Therefore, the appellate court concluded it

 The Tennessee Court of Criminal Appeals Cross your t’s and dot your i’s on your certified question of law guilty pleas (please).

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Dave’s (weekly) criminal law review July 11, 2016

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had “no choice but to add [Mr. Smith’s] case ‘to the growing heap of appellate fatalities that have resulted when would-be appellants failed to heed the Preston-Pendergrass litany of requirements for certified-question appeals.’” Ouch.

specifically referenced in and attached to the judgment form. The attachment contains an explicit statement that both the state and the trial court agree that the certified question is dispositive of the case and consent to the appeal.”)

Additionally, make sure the judgment sheet explicitly and unequivocally references that order in the judgment. Id. Finally, the question is dispositive if the appellate court, upon deciding the question, only has two choices: (1) affirm the conviction or (2) reverse and dismiss the case. State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007). Good luck.

Dave’s Analysis: Although it contradicts the general spirit of the rules of criminal and appellate procedure, the courts have demanded strict compliance in this area, even if it frustrates the intentions of everybody involved in the case.

There is no question that both parties and the trial court intended to reserve a certified question of law that was dispositive of the case. Yet, the appeal failed because of what amounted to misplacing the crucial statements even though all the requirements of Rule 37 are in the record. It doesn’t matter.

We must abide, strictly. Follow or perish.

Don’t add to the carnage. If you reserve a certified question of law, just use Rule 37(b)(2)(A) as your checklist and guide.

The best practice appears to be that all the Rule 37 statements should be within the judgment sheet. Unfortunately, your handwriting is atrocious, and there is no way you are fitting all of that in the “Special Conditions” box.

Therefore, it might be second best practice to draft your own order that satisfies Rule 37 and attach it to the judgment sheet as an exhibit. See State v. Bowery, 189 S.W.3d 240, 246 (Tenn. Crim. App. 2004) (finding that “the first version of the certified question fully complies with the requirements[.] It is

 A court must conduct a hearing for diversion.

State v. Aimee Wallace, July 7, 2016 In State v. Wallace, the appellate court reversed the trial court because it did not conduct a hearing and consider the factors for granting or denying diversion in accord with State v. Electroplating, 990 S.W.2d 211 (Tenn. Crim. App. 1998) and State v. Parker, 932 S.W.2d 945 (Tenn. Crim. App. 1996).

The Defendant, Aimee Wallace, pled no lo contendere to possession of drug paraphernalia. Her presentence report and TBI certificate revealed that she was eligible for diversion even though she had a Class A misdemeanor on her record because she never served a sentence of incarceration for it.

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Dave’s (weekly) criminal law review July 11, 2016

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The trial court denied diversion because it found the prior conviction indicated a lack of amenability of correction.

It also refused Ms. Wallace’s request for a hearing making clear that it denied the diversion based on the prior conviction.

The Court of Criminal Appeals reversed and remanded for a hearing. It found that the trial court did not explain thoroughly on the record why it denied diversion.

Further, the record did not allow a de novo review.

The court, in dicta, suggested that Ms. Wallace might be a suitable candidate for diversion: “We note that the Defendant does not have an extensive criminal history, and it appears from the presentence report that the Defendant completed her probation from her prior reckless endangerment conviction . . .

The Defendant asserts that the fact that she had no ‘health or physical condition’ that would cause her not to understand the plea proceedings indicates that her mental and physical health should be a factor that weighs in favor of granting judicial diversion.”

getting diversion (controversial in some courts).  The State’s designated witness may not have to testify first.

State v. Randall Beaty, July 8, 2016 State v. Beaty provides a lot for procedural nerds. Since the Court of Criminal Appeals filed this on Friday, I haven’t had a chance to fully digest it and give my thoughts.

However, trial lawyers take note: Beaty overturned State v. Stephens, 264 S.W.3d 719 (Tenn. Crim. App. 2007). Beaty stands for the rule that, if a party calls for sequestration, the State does not have to call its representative first. This holding effectively abolishes a procedural rule over 35 years old. See Mothershed v. State, 578 S.W.2d 96.

At trial, I would still object to preserve the issue. We don’t know if it will be appealed to the Tennessee Supreme Court to firmly settle this question or even it will be designated for publication. I would hardly call it firm. However, this decision is out there, and you should be aware of it.

Dave’s Analysis: Although it comes close, the appellate court did not say if it will be an abuse of discretion when the trial court denies diversion after the hearing on remand. The panel of the appellate court appeared to be rooting for Ms. Wallace.

Cynical jokes aside, the two takeaways here are that a court must have a hearing on the Electroplating and Parker factors (uncontroversial) and a Class A misdemeanor does not necessarily prevent a person from

D.A.S.

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