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State v. Smith

Court of Criminal Appeals of Tennessee, Nashville

November 4, 2016

STATE OF TENNESSEE
v.
STEPHEN GERARD SMITH

          Session: January 12, 2016

         Appeal from the Circuit Court for Franklin County No. 20336 J. Curtis Smith, Judge

          Robert T. Carter, Tullahoma, Tennessee, for the appellant, Stephen Gerard Smith.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Courtney Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         In July 2012, the Franklin County Grand Jury indicted the Defendant for three counts of aggravated assault and four counts of domestic assault. The victim in the first six counts was the Defendant's wife, and the victim in Count 7 was the Defendant's daughter. Count 7 was dismissed by the State. On June 26, 2013, the State filed a "Notice of Intention to Seek an Upper Range Punishment . . ." listing six prior felony convictions-two Class D and four Class E felonies. On July 15, 2013, a jury found the Defendant guilty of aggravated assault, attempted aggravated assault, and three counts of domestic assault. The jury found the Defendant not guilty of aggravated assault in Count 5.

         We glean from the briefs and record that the Defendant and the State reached an agreement shortly after the jury trial on a proposed sentence for the five Franklin County convictions, as well as a plea agreement for two pending Grundy County charges. On July 18, 2013, the trial court signed an order finding that the Defendant, after being "fully informed by his attorney, " "waives all issues related to the jury trial and verdict in this case and the possible appeals thereof." The order also provided that "issues related to bond revocation are moot" and that the Defendant "waived venue so that these judgments and order can be entered in Grundy County[.]" On July 19, 2013, judgments of conviction were entered in Franklin County sentencing the Defendant to fifteen years as a career offender for aggravated assault, twelve years as a career offender for attempted aggravated assault, and eleven months and twenty-nine days for each of the three domestic assaults. All sentences were ordered to be served concurrently. Based on the briefs and statements of counsel at the motion hearing, the Defendant pleaded guilty to the Grundy County charges and was sentenced to twelve years as a career offender for Class D felony vandalism and to fifteen years as a career offender for Class C felony aggravated assault. The Grundy County sentences were ordered to be served concurrently with each other and with the Franklin County sentences as part of a global sentencing agreement. The effective sentence for the seven convictions was fifteen years in the Department of Correction with a 60% release eligibility date.

         On November 4, 2013, the Defendant filed a pro se Rule 35 motion in which he asked the trial court to either reduce his sentence or to grant a new sentencing hearing. The motion specifically asked the trial court to sentence the Defendant as a Range II offender and to release the Defendant on probation or parole for time served.

         On February 11, 2014, the Defendant's Rule 35 motion was argued in the trial court. The Defendant was represented at the hearing by the attorney who represented him in the jury trial, the entry of the plea to the Grundy County cases, and the sentencing hearing (trial counsel). The State admitted that it erred in determining that the Defendant had sufficient prior convictions to justify sentencing the Defendant as a career offender on the Class C felony aggravated assault, and trial counsel admitted that he incorrectly advised the Defendant that he was a career offender for the Franklin County Class C felony. After statements by counsel, the trial court stated, "In my opinion I cannot grant him a new sentencing hearing and leave the [Grundy County] pleas in place." The trial court stated, "[The Defendant] can go to trial on the [Grundy County charges], he can plead them out, but I'm not telling you I will do anything, Mr. Smith, but you run the risk of getting somewhere between [ten] and [fifteen] years on the one that you're convicted [of] and then going to trial and getting those stacked on top of those." The Defendant responded, "Yes, sir."

         Thereafter, the trial court granted the Rule 35 motion, set aside the prior judgments for both the Franklin County and Grundy County convictions and granted a new sentencing hearing for the Franklin County convictions. In addition, the trial court set aside the order dismissing Count 7. In its order entered on February 18, 2014, the trial court stated that it was treating the Rule 35 motion as a "Motion to Withdraw" his guilty pleas in the two Grundy County cases and as a "Motion to Set Aside the Judgment[s] previously entered in [Franklin County] Case #20336[.]" Because the judgments sentencing the Defendant to the Department of Correction were set aside, the trial court ordered the Defendant to be held in the Franklin County Jail. The order further stated that the Defendant "shall have no contact" with his wife, his daughter, a witness who testified at trial, and the witness' husband. The judgments of conviction for aggravated assault and attempted aggravated assault also contained a no contact provision concerning the Defendant's wife. Trial counsel was relieved of further representation, and new counsel was appointed.

         The State filed a petition for contempt alleging that the Defendant willfully violated the no contact by telephoning his parents from the jail and speaking with his daughter. The trial court set the hearing on the contempt petition on the same day as the sentencing hearing.

         At the sentencing hearing, Josh Rogers, a probation officer, testified that he prepared the presentence report, which was entered as an exhibit. Mr. Rogers was also actively supervising the Defendant's probation on previous misdemeanor convictions at the time the Defendant was indicted for the seven assaults in this case. The Defendant's probation was revoked after he was indicted. The presentence report listed the following six prior felony convictions: Class E felony reckless endangerment involving a deadly weapon; Class E felony evading arrest; Class E felony theft; Class D felony burglary; Class D felony theft; and Class E felony schedule VI controlled substance. The report indicated that the Defendant was sentenced to concurrent sentences of three years for Class D felony theft of property and two years for a Class E felony marijuana offense on July 10, 2001, and placed on probation. On December 5, 2001, he was sentenced to consecutive, two-year sentences for Class E felony theft and Class D felony burglary, and as a result, his probation was revoked. He was sentenced to community corrections after service of ninety days in jail. The Defendant's community corrections was revoked on March 11, 2003, and he was ordered to serve his sentence in the Department of Correction. He was sentenced to two years for the reckless endangerment and two years for felony evading on March 27, 2003. Those sentences were ordered to be served consecutively to his prior convictions. He was paroled October 11, 2004, and his parole was revoked on March 1, 2005. He was sentenced to three consecutive eleven-month and twenty-nine day sentences for two assaults and one count of vandalism and thirty days for criminal trespass on March 17, 2009. He was ordered to serve eleven months and twenty-nine days in the jail followed by probation. He was sentenced to eleven months and twenty-nine days for vandalism on April 29, 2009, and that sentence was ordered to be served consecutively to the prior misdemeanor sentences. His probation was fully revoked on July 12, 2010.

         It is unclear from the presentence report as to which charges Mr. Rogers was referring when he stated the Defendant's probation was revoked when he was charged with the assaults in this case. Mr. Rogers also testified that the Defendant was convicted of DUI in Coffee County immediately after his jury trial in Franklin County. The presentence report also showed that the Defendant had charges pending against him in Franklin County for vandalism over $1, 000, leaving the scene of an accident, aggravated burglary, and misdemeanor theft. The Defendant had also been convicted of a number of traffic offenses.

         Following the testimony of Mr. Rogers, the State called John Smith, the Defendant's father, as a witness on the pending contempt petition. The State advised the court that it wanted to play several audio recordings of telephone calls made by the Defendant to his father from the Franklin County Jail. Additionally, the State argued the audio recordings were admissible on the issue of alternative sentencing because the Defendant had asked to be released into the community on probation or parole in the Rule 35 motion. The Defendant's counsel advised the trial court that the Defendant's father and Ginny Smith, the Defendant's mother, would be "invoking their 5thAmendment right not to incriminate themselves." After the Defendant's counsel stipulated that it was the Defendant's voice on the audio recordings, the State released Mr. and Mrs. Smith from the subpoenas. The Defendant's counsel then stated "that [the Defendant] would be willing to offer a stipulation as a matter of law that he did violate conditions of his release by contacting or attempting to contact prohibited people in the conditions." The State stated that it wanted to play the audio recordings "for the substance of those as to his candidacy for release" and announced that it would call Scotty McKay, Jail Administrator for the Franklin County Sheriff's Department, as its next witness.

         Mr. McKay explained that except for the initial call made when a prisoner is booked, all calls after a prisoner enters the general population are recorded. He testified that inmates are advised that telephone calls are recorded each time a call is made. The State asked to play the audio recordings. The Defendant made a "blanket objection" stating that the audio recording contained "some inflammatory thing" and argued that the Defendant had stipulated that he violated the court's order. Concerning the audio recordings, the trial court asked the State "where do they fit into the sentencing matrix[?]" The State responded that the Defendant's blatant disregard for the Court's order shows that he is not a candidate for release. The trial court overruled the objection and allowed the audio recordings to be played.

         During one telephone call, the Defendant was "talking to [his daughter] about her mother's truthfulness[.]" During another telephone call, this time speaking with his father, the Defendant made numerous offensive and vulgar remarks about the trial court and stated that the trial court cannot "tell me when I can or cannot talk to my child." The trial court, after acknowledging that the Defendant's statements were disparaging of the court, asked the State how they are relevant to sentencing. The State argued that the statements showed that the Defendant did not intend to follow the court's orders. The trial court stated that, "I take no personal offense in what he says about me." ...


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