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Stewart v. State

Court of Criminal Appeals of Tennessee, Nashville

June 20, 2017

CHARLES BRADFORD STEWART
v.
STATE OF TENNESSEE

          Session Date: August 9, 2016

         Appeal from the Circuit Court for Montgomery County No. 40700425 John H. Gasaway, III, Judge

         The 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 conviction.

         Tenn. 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.

          B. Nathan Hunt, Clarksville, Tennessee, for the appellee, Charles Bradford Stewart.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and J. Ross Dyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         At the 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.

         Specifically, 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.
[PROSECUTOR]: Okay.
THE COURT: Go ahead.
[PROSECUTOR]: State joins in the motion to pass these transcripts up.
THE COURT: Okay. But I - - is there anything else you want to say?
[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. Anything else?
[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 saying?
[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 relief].
[PETITIONER'S COUNSEL]: I believe that's accurate, Your Honor.
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.

         Subsequently, 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 herein:

         The Court hereby finds as follows:

         FINDINGS OF FACT

         1. On July 19, 2004, Petitioner was involved in a traffic accident.

         2. On 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.

         3. On December 5, 2005, the Montgomery County Grand Jury returned an indictment charging Petitioner with reckless endangerment, vehicular assault, and violation of the financial responsibility law.

         4. On 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.

         5. On August 10, 2007, the State filed notice seeking to have Petitioner sentenced as a career offender, if convicted.

         6. 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.

         7. On August 10, 2010, a sentencing hearing was conducted and the trial court took the matter under advisement.

         8. On 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 ...


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