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07/05/96 STATE TENNESSEE v. MICHAEL PARKS

July 5, 1996

STATE OF TENNESSEE, APPELLEE,
v.
MICHAEL PARKS, A/K/A PAC MAN, APPELLANT.



ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF MAURY COUNTY. HON. JIM T. HAMILTON, JUDGE. (Sentencing).

David H. Welles, Judge, Concur: Paul G. Summers, Judge, Joseph M. Tipton, Judge

The opinion of the court was delivered by: Welles

The Defendant, Michael D. Parks, was granted this delayed appeal by the trial court to seek review of the denial of his request for a community corrections sentence. The Defendant was indicted on four counts of the sale of cocaine, was convicted by jury trial in one count, and pleaded guilty to the remaining three counts. At the sentencing hearing, he asked to be considered as a candidate for community corrections. The trial court denied this request, and the Defendant now brings this delayed appeal. We affirm the judgment of the trial court.

We will briefly address the facts of this case. The Defendant owned and operated a night club called "Sweet Daddy's," in Columbia, Tennessee for about one year. During this time, specifically from June through September of 1991, the local drug task force ran an undercover drug operation in the area where Sweet Daddy's was located.

At the trial in this matter, Trooper Quinn Erving Hall *fn1, an undercover officer with the narcotics division, testified that he bought cocaine from several individuals inside the club and that he bought cocaine from the Defendant four times. Hall testified that because of the competitiveness among the cocaine dealers, the Defendant instructed him not to buy from any other dealer.

Two other law enforcement officers, Officer Bill Doley and Trooper John Albertson, also worked the areas surrounding the bar, generally the corners of Ninth and Glade and Eighth and Woodside. Officer Doley testified that the drug task force made thirty arrests for drugs in the area, sixteen of which were made in front of Sweet Daddy's.

Trooper Albertson, as a member of the narcotics division of the Tennessee Highway Patrol, testified that he worked the Defendant's night club. He said that he usually worked with an informant. The informant would go into the night club, find a dealer, and return to where the trooper was waiting in the car. Albertson would then drive the dealer around the block and buy cocaine from him. He also testified that he saw other drug deals taking place outside of the club in a parking lot across the street. Although he never purchased drugs from the Defendant, Officer Albertson's undercover work resulted in the arrest of eight people charged with fifteen crimes.

On April 21, 1992, the Defendant was indicted by the Maury County Grand Jury on four counts of selling cocaine. A misdemeanor theft charge was later dismissed by the prosecution when the Defendant agreed to forfeit the weapon involved. The Defendant was tried on August 26, 1992 for one count of the sale of cocaine. The jury found him guilty on this charge and fined him $50,000. The Defendant subsequently pleaded guilty to the remaining three counts. In exchange for his guilty pleas, the State agreed to recommend the length of the sentences to be served.

On February 12, 1993, the court held a sentencing hearing and sentenced the Defendant to the following terms recommended by the State: For case number 7317, the jury trial conviction, the Defendant was ordered to serve eleven years imprisonment. In case number 7315, he was ordered to serve five years imprisonment and fined $2,000. In case number 7316, he was ordered to serve eight years imprisonment and fined $2,000. For case number 7318, he was ordered to serve eight years imprisonment and fined $2,000. The court ordered the eight-year sentence and the eleven-year sentence to be served consecutively, for an effective term of nineteen years. The other two sentences were to be concurrently served with the eleven-year sentence. The Defendant agreed to the recommended sentences.

At the sentencing hearing, the Defendant requested that he be considered for community corrections. The prosecution called the three law enforcement officers mentioned above as witnesses at the hearing. The Defendant was the sole witness for the defense.

The Defendant testified that he knew that cocaine was being sold in and around his night club, but that he could do nothing to stop it. At trial, the Defendant denied ever having sold cocaine to Trooper Hall; however, at the sentencing hearing, he admitted that he sold cocaine to the officer, gave the officer his beeper number, and told the officer to buy only from him. The Defendant further admitted to having used and sold cocaine on other occasions.

The Defendant testified that he wanted to serve his sentence in community corrections because he had two children that he wanted to support. He said that he wanted to get a college education and start a career in the concrete business and eventually learn blueprinting.

The trial court denied the Defendant's request for community corrections. As a basis for his denial, the court stated that the Defendant was a role model for many of the black youths in the area who subsequently were serving time in jail for drug charges. The trial court also noted the need for deterrence, stating that it could not grant community corrections because of the large volume of cocaine sales going on in the vicinity of the Defendant's club. The court did allow the Defendant to be placed in a facility that had resources from which he could pursue a higher education. The Defendant now appeals the trial court's denial of a community corrections sentence.

Although the Defendant's sole issue for our review is the denial of community corrections, the State also argues that this appeal was not timely filed and is not properly before this court. We are persuaded to disagree.

The Defendant was sentenced on the four drug convictions on February 12, 1993, and the judgment in the case was filed on February 16, 1993. Apparently, the Defendant did not attempt to file any direct appeal after the judgment was entered. On September 7, 1994, more than a year and a half later, the Defendant filed a pro se "Motion to Correct Judgment."

However, the Defendant had also filed a post-conviction relief petition on May 13, 1993, alleging that his pleas were not voluntarily given, that he was unconstitutionally denied an appeal of his conviction and sentence from the jury verdict, and that he received ineffective assistance of counsel. The Defendant and the district attorney then entered into an agreement wherein the Defendant would dismiss the post-conviction petition with prejudice, and in return, the district attorney would allow the Defendant to pursue a delayed appeal in the case sub judice for the sole purpose of challenging the trial court's denial of community corrections. The Agreed Order between the district attorney and the Defendant was approved by the Maury County Circuit Court on March 3, 1995. On March 31, 1995, the Defendant filed a Notice of Appeal. On June 7, 1995, the trial court issued a final order dismissing the Defendant's Motion to Correct Judgment and granted the Defendant a delayed appeal.

We must conclude that the delayed appeal was incorrectly obtained by the Defendant through the Agreed Order. A delayed appeal is authorized by Tennessee Code Annotated section 40-30-120 *fn2 if the petitioner was improperly denied the right to appeal his original conviction in violation of the United States or Tennessee Constitutions. However, to obtain a delayed appeal, the petitioner must comply with the procedures of the Post-conviction Procedure Act. Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App.), perm to appeal denied, id. (Tenn. 1994). Moreover, while the right to a delayed appeal may be brought by post-conviction proceedings in ...


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