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State v. Trussell

Court of Criminal Appeals of Tennessee, Knoxville

May 30, 2017

STATE OF TENNESSEE
v.
CHARLENE TRUSSELL

          February 22, 2017 Session

         Appeal from the Circuit Court for Bledsoe County No. 2014-CR-33 J. Curtis Smith, Judge

         The Defendant, Charlene Trussell, was found guilty by a Bledsoe County Circuit Court jury of three counts of delivery of a controlled substance, three counts of the attempted sale of a controlled substance, and felony possession of drug paraphernalia. See T.C.A. §§ 39-17-417 (Supp. 2013) (amended 2014) (sale and delivery); 39-17-425 (2014) (drug paraphernalia); 39-12-101 (criminal attempt) (2014). The trial court merged the delivery convictions into the attempted sale convictions and sentenced the Defendant to an effective three years' probation. The court did not impose sentences or enter judgment forms for the delivery convictions. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions and (2) as a matter of plain error, evidence of the confidential informant's previous statements were inadmissible hearsay, violated the Defendant's right to confront and cross-examine witnesses, and were inadmissible because the probative value was substantially outweighed by the prejudicial impact. Although we affirm the Defendant's convictions, we remand the case to the trial court for the imposition of sentences and the entry of judgments for the delivery of a controlled substance convictions, merger of the attempted sale convictions into the delivery convictions, and entry of corrected judgments for the attempted sale convictions.

         Tenn. R. App. P. 3 Appeal as of Right; Convictions Affirmed; Case Remanded

          Elizabeth G. Adams (on appeal), Dayton, Tennessee, and Thomas McEntyre (at trial), Jasper, Tennessee, for the appellant, Charlene Trussell.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Mike Taylor, District Attorney General; and Will Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         In March 2014, the Bledsoe County Grand Jury returned a seven count indictment, charging the Defendant with the sale of morphine, the delivery of morphine, the sale of dihydrocodeinone, the delivery of dihydrocodeinone, the sale of clonazepam, the delivery of clonazepam, and felony possession of drug paraphernalia. On May 11, 2015, the Defendant proceeded to trial, and the jury convicted her of three counts of delivery of a controlled substance, three counts of attempted sale of a controlled substance, and possession of drug paraphernalia. The sentencing hearing was held on July 9, 2015, the judgments reflecting the sentences for the attempted sale and drug paraphernalia were filed on July 23, 2015, and the trial court's written order stating the sentencing determinations was filed on July 28, 2015. The Defendant's motion for a new trial was filed on August 28, 2015, and the trial court's written order denying the motion was entered on December 4, 2015. The Defendant's notice of appeal was filed on December 30, 2015.

         As a preliminary matter, we note that although the judgments reflecting the trial court's sentencing determinations were filed on July 23, 2015, the Defendant's motion for a new trial was not filed until August 28, 2015. The thirty-day requirement for filing a motion for a new trial in Tennessee Rule of Criminal Procedure 33(b) is mandatory and cannot be extended. State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004); see Tenn. R. Crim. P. 45(b). A trial court does not have jurisdiction to determine the merits of an untimely motion for a new trial, and this court is not authorized to waive the untimely filing of a motion for a new trial. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); see State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981).

         The thirty-day time period to file the Defendant's motion for a new trial lapsed on August 23, 2015. However, because August 23 fell on Sunday, the motion had to be filed no later than August 24. The Defendant's motion was not filed until August 28, and was untimely, regardless of the trial court's subsequent order. The issues raised in her untimely motion for a new trial court are considered waived, except sufficiency of the evidence. See Bough, 152 S.W.2d at 460; see also T.R.A.P. 3(e). Furthermore, an untimely motion for a new trial will generally result in an untimely notice of appeal, but the notice of appeal is not jurisdictional and may be waived in the interest of justice. See T.R.A.P. 4(a) (stating the notice of appeal shall be filed within thirty days after entry of the judgment from which a defendant appeals). The Defendant's untimely motion for a new trial resulted in an untimely notice of appeal, but we waive the timely filing in the interest of justice and will consider whether the evidence is sufficient to support her convictions.

         In reaching this determination, we have not overlooked the Defendant's request to grant her a delayed appeal because trial counsel failed to present any defense witnesses at the trial, failed to object to alleged inadmissible hearsay evidence of the deceased confidential informant, failed to file discovery motions, and failed to defend her properly. The Defendant is not permitted to raise an issue for the first time on appeal. See T.R.A.P. 36(a); see also Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). Furthermore, her request for a delayed appeal and her allegations of ineffective assistance of counsel are proper for a petition for post-conviction relief, and we caution counsel about raising ineffective assistance claims outside a petition for post-conviction relief. See T.C.A. §§ 40-30-113(a) (2012), 40-30-111 (2012); Wallace v. State, 121 S.W.3d 652 (Tenn. 2003); see also Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). Our review in the present appeal is limited to sufficiency of the evidence.

         At the trial, Tennessee Bureau of Investigation (TBI) Agent Jeff Sills testified that he worked in conjunction with the Drug Enforcement Administration (DEA) investigating drug conspiracy cases. He said that in 2011 or 2012, Pikeville Police Chief Ronnie Byrd approached him about investigating drug-related cases in the area because the police department did not have adequate funds or officers to devote to drug enforcement. He said that a drug investigation operation was established from 2012 or 2013 to 2014, and that the Defendant was involved in one of the investigations during this time.

         Agent Sills testified that Amber Humphreys worked as a confidential informant in the present case and that Ms. Humphreys had died the week before the trial. Agent Sills said that Ms. Humphreys told him that the Defendant was selling "pills, " that a controlled purchase was arranged by Ms. Humphreys with the Defendant on August 28, 2013, that Agent Sills and his colleagues picked up Ms. Humphreys and ...


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