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Cowart v. State

Court of Criminal Appeals of Tennessee, Knoxville

January 5, 2015

GROVER D. COWART
v.
STATE OF TENNESSEE

Assigned on Briefs October 21, 2014

Appeal from the Criminal Court for Knox County Nos. 49900 & 50934 Mary Beth Leibowitz, Judge

Grover D. Cowart, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Senior Counsel for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

PROCEDURAL BACKGROUND

The Petitioner was indicted in Case No. 49900 on October 2, 1992. He was eventually convicted by a jury on Counts 4 and 5 of the indictment, which were especially aggravated robbery and attempted first degree murder, respectively. On April 24, 1995, the trial court sentenced the Petitioner to twenty-five years on Count 4 and twenty years on Count 5. The twenty-year sentence imposed in Count 5 was ordered to run consecutively to the twenty-five-year sentence imposed in Count 4, resulting in a total effective sentence of forty-five years.

On August 1, 1995, in Case No. 50934, the Petitioner pled guilty to aggravated robbery in Count 1, aggravated robbery in Count 2, and burglary of an automobile in Count 4.[1] In the same guilty plea, the Petitioner pled guilty to three separate counts of aggravated robbery in Case Nos. 50928, 50929, and 50932.

In Case No. 50934, the judgment form for Count 1 shows that the trial court ordered a twelve-year sentence to be served consecutively to "Case No. 49900 previously imposed by Knox County Criminal Court." On the judgment form for Count 2, the trial court ordered that an eleven-year sentence be served consecutively to the "[first] count of th[e] indictment"; and on Count 4, the court ordered that a two-year sentence be served consecutively to the "[second] count of th[e] indictment." Thus, the Petitioner received a total effective sentence of twenty-five years in Case No. 50934, to be served consecutively to the forty-five-year sentence already imposed in Case No. 49900. The record before us does not contain judgment forms for Case Nos. 50928, 50929, or 50932.

On January 8, 1999, on direct appeal in Case No. 49900, we affirmed the Petitioner's conviction and sentence on Count 4 for especially aggravated burglary, but we reversed the conviction on Count 5 for attempted first degree murder. State v. Grover Donnell Cowart, No. 03C01-9512-CR-00402, 1999 WL 5174 (Tenn. Crim. App. Jan. 8, 1999), perm. app. denied (Tenn. June 28, 1999) ("Cowart I"). Furthermore, this court concluded that the trial court had failed to make adequate findings regarding the imposition of a consecutive sentence in Count 5. Id. at *30. Thus, we concluded that if the State chose to re-prosecute the charge of attempted first degree murder in Count 5, the trial court could impose a consecutive sentence only after making appropriate findings. Id. This court's opinion did not disturb the conviction or sentence on Count 4. On September 9, 2000, the State nolle prosequied the attempted first degree murder charge, leaving only the twenty-five-year sentence remaining in Count 4 in Case No. 49900.

On July 27, 2010, the Petitioner filed a petition for writ of habeas corpus. This court affirmed the habeas corpus court's summary dismissal of that petition. Grover D. Cowart v. David Sexton, No. E2011-00774-CCA-R3-HC, 2011 WL 3896942 (Tenn. Crim. App. Sept. 6, 2011), perm. app. denied (Tenn. Dec. 14, 2011) ("Cowart II"). We summarized the Petitioner's argument in that petition as follows:

[In his petition, ] he asserted that our court's remand of case number 49900 for a new trial for the attempted first degree murder count and for findings in support of consecutive sentencing meant that both counts of the indictment were "pending final disposition" at the time he was sentenced in case number 50934. According to the [P]etitioner's reasoning, this had the effect of "rearranging the order of the sentencing courts, " thereby depriving the court in case number 50934 of "authority to require the [P]etitioner to ...

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