Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 17, 2014
Direct Appeal from the Criminal Court for Montgomery County No. 40700673 Michael R. Jones, Judge
Richard C. Strong, Nashville, Tennessee, for the appellant, Stephano L. Weilacker.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Roger A. Page, J., and Jerry L. Smith, Sp. J., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
In June 2007, the Montgomery County Grand Jury indicted the appellant, Jacobi K. Allen, and David A. Selby for the especially aggravated kidnapping of Frank Levarre and the aggravated robbery of Brandi Perry. The appellant was tried separately from his co-defendants, and the jury convicted him as charged on November 24, 2009. The facts at trial were as follows:
On June 30, 2006, the Triangle Kwik Stop in rural Montgomery County was staffed by Brandi Perry. Ms. Perry observed two young men come into the store. One of them was armed with a pistol. The man pointed the gun at her, then pointed the gun at Frank Lavarre, a vendor who was stocking a display at the store. The man demanded money and cigarettes. He ordered Mr. Lavarre to lie on the floor. Ms. Perry complied with the request, handing over money and cigarettes. The man then shot Mr. Lavarre in the leg.
The men left the market and jumped into the back of a large white car. Ms. Sandra Lewis, who was shopping next door at the Food Lion, saw two young African-American men leave the market laughing and running. Ms. Lewis was alarmed by the situation, so she wrote down the license plate number of the car and called the police.
Several days later, Appellant and David Selby were arrested while riding in Appellant's white Mercury Grand Marquis. Police Officer Scott Beaubien initiated a traffic stop of Appellant's vehicle. The weapon used in the Triangle Kwik Stop robbery was found in the car. Mr. Selby's fingerprints were found on the pistol.
Appellant, Jacobi K. Allen, and David Selby were indicted by the Montgomery County Grand Jury for aggravated robbery and especially aggravated kidnapping for their involvement in the Triangle Kwik Stop robbery.
At trial, Mr. Selby testified that Appellant called him on the day of the robbery and asked him to ride around with him and to go buy some fireworks. Appellant was driving his white Mercury Grand Marquis. When Mr. Selby got into the car, he stated that there were two other younger African-American males in the back seat. As the group passed the Triangle Kwik Stop market, Appellant asked the men in the back seat if they wanted to make a little money. Appellant told them what to do and provided a pistol to the men. After the men robbed the market, the money and cigarettes were divided between Appellant and the two men.
Mr. Selby admitted that his fingerprints were found on the pistol that was used in the robbery. He explained that when police initiated the traffic stop of the vehicle, Appellant handed Mr. Selby the weapon. Mr. Selby then handed the weapon back to Appellant, who placed it under the seat.
Appellant presented the videotape from the store security camera in support of his defense. The videotape showed that the armed robbery was committed by two men other than Appellant.
At the conclusion of the proof, the jury found Appellant guilty of aggravated robbery and especially aggravated kidnapping. The trial court, at a sentencing hearing, sentenced Appellant to ten years for aggravated robbery and twenty years for especially aggravated kidnapping, to be served concurrently to each other but consecutively to the sentence in case number 40600977, a previous sentence. The trial court entered the judgments on December 16, 2009.
State v. Stephano L. Weilacker, No. M2010-00497-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 144, at **2-5 (Nashville, Mar. 3, 2011), perm. to appeal denied, (Tenn. 2011).
On February 4, 2010, the appellant filed a motion for new trial. Although the motion was untimely, the trial court addressed the appellant's issues and denied the motion. On appeal to this court, the appellant argued that the evidence was insufficient to support the convictions because Selby's testimony was not sufficiently corroborated, that the trial court improperly failed to instruct the jury on all lesser-included offenses, and that the trial court improperly ordered consecutive sentencing. Id. at *2. This court, noting that the appellant's notice of appeal also was untimely, held that any issue other than sufficiency of the evidence and sentencing was waived because the motion for new trial was filed more than one month after the entry of the judgments. Id. at **7-8. Nevertheless, this court waived the untimely filing of the notice of appeal to address the issues, including the jury instruction issue for plain error. Id. at *9. This court held that the evidence sufficiently corroborated Selby's testimony, that the appellant was not entitled to plain error relief because he failed to include the jury instructions in the appellate record, and that the trial court properly ordered consecutive sentencing. See id. at *2.
After our supreme court denied the appellant's application for permission to appeal, he filed a timely petition for post-conviction relief, arguing, in part, that he received the ineffective assistance of counsel because trial counsel failed to file a timely motion for new trial. On June 3, 2013, the post-conviction court granted relief in the form of a delayed appeal and stayed its consideration of the Petitioner's remaining post-conviction claims.
The appellant did not file a motion for new trial. In this delayed appeal, he again argues that the evidence is insufficient to support the convictions and that consecutive sentencing was improper. He also contends that the trial court erred by denying his motion to suppress evidence found in his vehicle, that the State committed prosecutorial misconduct during closing arguments, and that the trial court erred by failing to instruct the jury as provided by White.
Initially, we note that the State argues that the appellant has waived all issues other than sufficiency of the evidence and sentencing because he failed to file a timely motion for new trial and that he has failed to establish plain error. The State also argues that we cannot address sufficiency and sentencing because this court addressed them in the appellant's first direct appeal of his convictions. We agree with the State.
The appellant's February 2010 motion for new trial was untimely and, therefore, a nullity. See Tenn. R. Crim. P. 33(b). Moreover, because the trial court did not have jurisdiction to hear and determine the merits of the untimely motion, the court's "erroneous consideration [and] ruling on a motion for new trial not timely filed . . . [did] not validate the motion." State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). Pursuant to Tennessee Code Annotated section 40-30-113, the post-conviction court granted the appellant's request for a delayed appeal. Tennessee Code Annotated section 40-30-113(a)(3) provides that when a trial court "finds that the petitioner was denied the right to appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee and that there is an adequate record of the original trial proceeding available for review, " the court can, when no motion for a new trial was filed in the original proceeding, "authorize a motion to be made before the original trial court within thirty (30) days." In this case, the post-conviction court's order granting the delayed appeal did not specify that the Petitioner was to file a motion for new trial within thirty days. Although the better practice would have been for the trial court to have done so, Tennessee Code Annotated section 40- 30-113(b) provides that "[a]n order granting proceedings for a delayed appeal shall be deemed the final judgment for purposes of review." Therefore, the Petitioner should have ...