Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville December 9, 2014
Appeal from the Circuit Court for Williamson County No. 0012 Michael W. Binkley, Judge
Geoffrey Coston, Franklin, Tennessee, for the appellant, American Bonding Company.
Herbert H. Slatery, III, Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Kim R. Helper, District Attorney General; and Mary K. White, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., joined. Timothy L. Easter, J., Not Participating.
ALAN E. GLENN, JUDGE
FACTS and PROCEDURAL HISTORY
This case has a somewhat involved history. To aid in an understanding of the background of the instant appeal, we find it useful to turn to the facts section of our direct appeal opinion in a related case in which Karshenas appealed the trial court's suspension of his status as a bonding agent in the 21st Judicial District:
The case at bar originates with a long-standing dispute between American Bonding Company and Grumpy's Bail Bonds. The record reflects that as far back as 2002, Leah Hulan, the President of Grumpy's Bail Bonds, filed a complaint with the Williamson County courts regarding three instances in which American Bonding Company allegedly solicited bonds in a place where prisoners were confined, an activity designated as "unprofessional conduct" by Tennessee Code Annotated section 40-11-126(6).
On May 26, 2011, in response to "numerous complaints" of unprofessional conduct filed by Grumpy's Bail Bonds against American Bonding Company, Judge Robbie Beal sent a letter to Amir Karshenas of American Bonding Company. The letter indicated that certain allegations of violations were "supported in part by employees of the Sheriff's Department" and by the affidavit of an inmate bonded out by Grumpy's Bail Bonds. The letter listed the dates of alleged violations as September 8, 2010; September 18, 2010; October 22, 2010; November 17, 2010; November 19, 2010; November 29, 2010; January 31, 2011; and March 29, 2011.
The trial court, however, disavowed the intention of eliciting a formal response, holding a hearing, or sanctioning the company. The court instead, citing its desire to "attempt to start anew, " asserted that the letter was "a mere warning that any conduct of the nature complained of will not be tolerated" and suggested that American Bonding Company review the law with its agents. It also warned, in a comment apparently aimed at Grumpy's Bail Bonds, that frivolous complaints would be dealt with harshly.
On June 23, 2011, the trial court filed a notice of hearing to determine if any violations had occurred. This hearing was prompted by a complaint regarding the solicitation of the business of Paul Cox in Williamson County Juvenile Court on May 25, 2011, the day prior to the trial court's letter. The hearing was ultimately scheduled for September 12, 2011, but on August 9, 2011, the trial court issued a second notice of hearing regarding allegations that Amir Karshenas had solicited the business of Patrick Hamilton on July 11, 2011.
At the September 12, 2011 hearing, the trial court heard evidence solely regarding the alleged solicitation of Mr. Cox. Citing some inconsistencies in testimony, the trial court found that Mr. Cox's testimony was not reliable and concluded that it could not find, by a preponderance of the evidence, that the violation had taken place.
On October 4, 2011, the trial court filed an order and notice of hearing based on Mr. Karshenas's arrest for the September 28, 2011 aggravated assault of Kevin Davis, Ms. Hulan's husband and an agent of Grumpy's Bail Bonds, with a motor vehicle. The trial court subsequently gave a separate notice on November 10, 2011, regarding allegations that on October 13, 2011, Mr. Karshenas, while speaking to Harold Reid, made threats against Mr. Davis and displayed a firearm. The trial court also intended to hold a hearing regarding a misdemeanor assault against Ms. Hulan on October 21, 2011, arising out of an incident in which he was alleged to have struck her and then threatened her in the courtroom.
At the December 19, 2011 hearing, the State elected not to proceed with the charges based on allegations by Mr. Hamilton or Mr. Reid, and Mr. Karshenas made an offer of proof regarding certain witnesses who would have contradicted the testimony of those witnesses. The trial court also concluded that the misdemeanor assault charge should not result in suspension. Because Mr. Karshenas represented to the trial court that Mr. Davis had brandished a weapon, that the aggravated assault took place as Mr. Karshenas attempted to escape, and that Mr. Karshenas intended to bring charges against Mr. Davis, the trial court did not act to suspend Mr. Karshenas based on the aggravated assault charges. Instead, the trial court determined that it would suspend Mr. Karshenas if the grand jury did not indict Mr. Davis when it next met. On February 17, 2012, the District Attorney General's office moved to suspend Mr. Karshenas based on his failure to file notice of his September 29, 2011 felony arrest within seventy-two hours, in violation of Tennessee Code Annotated section 40-11-319.
On March 1, 2012, Judge Robbie Beal suspended Mr. Karshenas's ability to act as a bonding agent, stating the court would review the suspension when the criminal proceedings had been completed.
Mr. Karshenas filed a motion to be reinstated as a bonding agent on January 11, 2013. At the February 12, 2013 hearing, the State acknowledged that the charge had been reduced to a misdemeanor for which Mr. Karshenas was on judicial diversion, and the State conceded that there was no legal basis to oppose reinstatement. On February 13, 2013, Judge Michael Binkley ordered Mr. Karshenas's reinstatement, noting that he had pled guilty to misdemeanor assault pursuant to Tennessee Code Annotated section 40-35-313 and that "no further legal basis for excluding Mr. Karshenas" existed.
The trial court, on February 21, 2013, entered an sua sponte order setting a hearing to reconsider the order reinstating Mr. Karshenas. At a hearing held on February 25, 2013, the trial court informed the parties that, having reviewed the entire file, it intended to vacate its order reinstating Mr. Karshenas. The trial court explained:
Had I known . . . what I know now the morning that this motion was made I would have never, ever under any circumstances granted the motion. There is a substantial amount of information in this file that I, frankly, was not told about. . . . I don't think this gentleman should ever be writing ...