Court of Criminal Appeals of Tennessee, Nashville
Session Date: August 9, 2016
from the Circuit Court for Montgomery County No. 40700425
John H. Gasaway, III, Judge
State appeals from the post-conviction court's grant of
post-conviction relief to Petitioner, Charles Bradford
Stewart. Petitioner was convicted of vehicular assault and
originally sentenced to serve twelve years as a career
offender, with split confinement of one year in jail and
eleven years in community corrections. The State appealed the
sentence on the basis that community corrections was
erroneously granted. This court reversed and remanded.
State v. Charles B. Stewart, No.
M2010-01948-CCA-R3-CD, 2011 WL 4794942, at *1 and *3 (Tenn.
Crim. App. Oct. 11, 2011). Upon remand the trial court
sentenced Petitioner to serve the entirety of the twelve-year
sentence by incarceration. This Court affirmed. State v.
Stewart, 439 S.W.3d 906, 907-08 (Tenn. Crim. App. 2013).
Petitioner timely filed, pro se, a petition for
post-conviction relief. Counsel was appointed, and Petitioner
subsequently filed a "corrected" petition.
Following an evidentiary hearing, the post-conviction court
granted relief. After review, we reverse the judgment of the
post-conviction court and reinstate the judgment of
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed and Remanded.
Herbert H. Slatery III, Attorney General and Reporter; James
E. Gaylord, Senior Counsel; John Wesley Carney, Jr., District
Attorney General; and Arthur Bieber, Assistant District
Attorney General, for the appellant, State of Tennessee.
Nathan Hunt, Clarksville, Tennessee, for the appellee,
Charles Bradford Stewart.
T. Woodall, P.J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ.,
T. WOODALL, PRESIDING JUDGE
outset we address the unusual procedure utilized by the
post-conviction court in reaching its ruling on the
post-conviction petition in this case. Only two witnesses
testified at the post-conviction hearing - Petitioner and his
trial counsel. Trial counsel represented Petitioner
pre-trial, during the trial, through Petitioner's first
direct appeal, and through a motion for new trial hearing
following disposition of the first appeal. The sole issue in
the first appeal was the State's challenge to the
sentence of split confinement, with community corrections
after one year of incarceration. See State v. Charles B.
Stewart, 2011 WL 4794942. No exhibits were introduced at
the post-conviction hearing. It appears that the
post-conviction court declined to accept the State's and
Petitioner's requests for the Court to take the
transcripts and copies of motions from the trial which were
tendered at the conclusion of the post-conviction hearing.
the following transpired after Petitioner rested his case in
the post-conviction hearing:
[PETITIONER'S COUNSEL]: . . . We have that [trial]
transcript. The initial sentencing hearing on August 10th of
2010, we have that transcript for the court as well as pro se
motions including his motion for new trial. If we could pass
those forward, Your Honor.
THE COURT: You can but - - but wait just a minute.
[PETITIONER'S COUNSEL]: Yes, sir.
THE COURT: Go ahead.
[PROSECUTOR]: State joins in the motion to pass these
THE COURT: Okay. But I - - is there anything else you want to
[PROSECUTOR]: I think the only thing the State would want to
say is it looks like the blood alcohol motion is in here. I
think we do not have the transcript of the new trial motion
on the merits. And we're going to have to check on that.
We may be missing just one transcript here.
THE COURT: Okay. But before you - - okay, just hold on.
[PROSECUTOR]: The State does not wish to introduce anything
other than the transcripts.
THE COURT: All right. But the reason that I'm hesitating
taking that right now is because, [Petitioner's Counsel],
using that I want you to draft me an order that is in the
form of a finding of fact and a conclusion of law, and draft
it as if I'm granting you relief. I don't know
whether I'm going to grant relief or not. But if you
present me with an order that's drafted in that way I
will be able to refer to what you say in your order, and X
out what I disagree with or . . . you see what I'm
[PETITIONER'S COUNSEL]: I do, Your Honor.
[PROSECUTOR]: Makes sense, Your Honor. It's - - it's
really rather complex.
THE COURT: This case - - well, do that. And I know that's
a lot of work, but - - but . . .
[PROSECUTOR]: The only thing - -
THE COURT: I'm thinking very seriously about this, and I
want you to draft that as if I'm going to grant it but
then I'm going to take out my pen and I'm going to -
- I'm going to reform it in my own way, and the outcome
may be granted and the outcome may be denied.
. . .
[PROSECUTOR]: I would just ask to - -
THE COURT: Yeah, you copy - -
[PROSECUTOR]: For a copy.
THE COURT: You copy [Prosecutor] now, because - -
[PETITIONER'S COUNSEL]: Sure.
THE COURT: He wants to take out his pen too, so.
[PETITIONER'S COUNSEL]: I understand.
[PROSECUTOR]: Well, it's - - it's the Court's red
pen that counts. In case something comes up.
THE COURT: I know it is, but that doesn't mean you
don't get to use your blue pen to cull - - to bring it to
my attention, what you think about it.
[PROSECUTOR]: The only thing we would ask, Your Honor, is if
there's missing pages in a transcript or - - we think
it's correct and complete; if there's some sort of
problem, if the Court would please let Counsel know.
THE COURT: Oh, I will, I will.
[PETITIONER'S COUNSEL]: Your Honor, can I retain - -
should I retain these for now?
THE COURT: Yes. And then based on what you said this original
petition is really - - it's - - it's super[s]eded by
this ["corrected" petition for post-conviction
[PETITIONER'S COUNSEL]: I believe that's accurate,
THE COURT: Okay.
[PETITIONER'S COUNSEL]: I believe that's accurate.
THE COURT: And then you do that, and submit that to me, and -
- and we'll go from there.
Petitioner's counsel submitted a proposed findings of
fact and conclusions of law, but later filed an amended
proposed findings of fact and conclusions of law. The
appellate record indicates that the State filed no objections
to Petitioner's findings of fact and conclusions of law,
in its original form or as amended. Approximately three weeks
later, the post-conviction court filed the order granting
post-conviction relief. The language in the order as to the
court's findings of fact and conclusions of law are
identical (it appears to be word for word) to
Petitioner's amended proposed findings of fact and
conclusions of law. The order granting relief is set forth
Court hereby finds as follows:
July 19, 2004, Petitioner was involved in a traffic accident.
February 28, 2005, warrants were issued for Petitioner's
arrest, charging him with vehicular assault and violation of
the financial responsibility law and said warrants were
served on Petitioner on May 17, 2005.
December 5, 2005, the Montgomery County Grand Jury returned
an indictment charging Petitioner with reckless endangerment,
vehicular assault, and violation of the financial
March 6, 2007, the Montgomery County Grand Jury returned a
superseding indictment charging Petitioner with reckless
endangerment, vehicular assault, violation of the financial
responsibility law, aggravated assault by use of a deadly
weapon (the vehicle Petitioner was operating), and aggravated
assault by causing serious bodily injury.
August 10, 2007, the State filed notice seeking to have
Petitioner sentenced as a career offender, if convicted.
Counts 2 (vehicular assault) and 4 (aggravated assault by use
of a deadly weapon) were tried by a jury on May 17-18, 2010.
Following trial, Petitioner was found guilty by a jury of
both counts as charged.
August 10, 2010, a sentencing hearing was conducted and the
trial court took the matter under advisement.
August 12, 2010, the trial court merged count 4 into count 2
and imposed a twelve-year sentence with one year to be served
in the Montgomery County Jail and the balance of the sentence