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State v. Coleman

Court of Criminal Appeals of Tennessee, Nashville

April 6, 2018


          Session November 14, 2017

          Appeal from the Circuit Court for Giles County No. 13022, 13272 Stella L. Hargrove, Judge

         The Defendant, Chastity Coleman, entered into a plea agreement with the State with an agreed-upon sentence. During the plea colloquy, the trial court invited and met with the Defendant outside the presence of the prosecutor and trial counsel after which the court decided to reduce the Defendant's period of incarceration. The State appeals. We conclude that we have jurisdiction to review the trial court's judgments under Tennessee Rule of Appellate Procedure 3. We further conclude that the trial court committed three errors that each independently require reversal: (1) the trial court acted improperly by engaging in ex parte communication with the Defendant; (2) the trial court erred in failing to rule on the State's motion to recuse while continuing to hear matters involving this case; and (3) the trial court lacked the authority to unilaterally modify the plea agreement. Because the trial judge has predetermined the sentence to be imposed, we remove the trial judge from further consideration of this case. We vacate the judgments and remand for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated; Case Remanded

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Brent A. Cooper, District Attorney General; and Jonathan W. Davis, Assistant District Attorney General, for the appellant, State of Tennessee.

          Shara A. Flacy (on appeal), Ardmore, Tennessee, and Robert D. Massey (at hearing), Pulaski, Tennessee, for the appellee, Chastity Coleman.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.




         The Defendant was charged with multiple drug-related crimes in multiple indictments. In indictment 12866, the Defendant was charged with unlawful possession of drug paraphernalia committed on July 13, 2015. In indictment 13022, the Defendant was charged with five offenses committed on January 9, 2015: possession of 0.5 grams or more of cocaine with intent to sell; possession of less than 14.175 grams of marijuana; possession of hydrocodone with intent to sell; introduction of contraband into a penal institution; and possession of drug paraphernalia. The five-count indictment 13022 was a superseding indictment which took the place of a prior indictment charging all of the crimes in indictment 13022 as well one count of the sale of less than 0.5 grams of cocaine in a school zone, which the record indicates took place on December 31, 2014.

         The Defendant entered into a plea agreement with the State. Under the agreement, the Defendant was to plead guilty to two of the offenses in indictment 13022: possession of 0.5 grams or more of cocaine with intent to sell and introduction of contraband into a penal institution. The other three counts of indictment 13022, as well as the charge in indictment 12866, were to be dismissed by the State. As part of the agreement, the Defendant was also to plead guilty to an additional charge of delivery of less than 0.5 grams of cocaine. This charge was to be brought by criminal information in place of the offense originally charged in the preceding indictment as the sale of less than 0.5 grams of cocaine in a school zone. The recommended sentences were to be ten years for the possession of cocaine with intent to sell, three years for introduction of drugs into a penal institute, and three years for the sale of under 0.5 grams of cocaine. The Defendant was to serve one hundred and twenty days of each sentence in prison on weekends and to serve the remaining time on probation, and all sentences were to be served concurrently.

         On August 9, 2016, the parties came to court to finalize the agreement. The Defendant waived her right to indictment by a grand jury in the delivery of cocaine charge. The trial court then went over the terms of the plea agreement with the Defendant. The trial court determined that the Defendant was not under the influence of drugs or alcohol and reviewed the Defendant's right to plead not guilty, to insist on a jury trial, to call witnesses and cross-examine the State's witnesses, and to refrain from incriminating herself. The trial court informed the Defendant that if the court chose to "accept the paperwork today … it ends here." The trial court elaborated, "You understand there will be no further trials, no hearings, and no appeal of these cases?" The Defendant confirmed that she understood that the entry of the pleas would settle the cases. The trial court asked the Defendant if she was guilty of the charges and if she gave up her right to a jury trial, and the Defendant answered in the affirmative.

         The trial court then asked the Defendant if she was satisfied with her counsel's performance and if there was "anything at all you want to discuss with me privately about that." The Defendant responded that she wished to avail herself of the private discussion with the judge, and the trial judge, Defendant, and court reporter went into the judge's chambers outside the presence of the prosecutor and defense counsel. The discussion in chambers was transcribed by the court reporter, who, according to a motion filed by the State, refused to release the transcript to the prosecutor prior to obtaining the trial court's permission, which was granted by order approximately a month after the private conference, on September 6, 2016.

         In chambers, the Defendant expressed her belief that the State was being "a little hard" on her considering that these were her first felony charges. She told the judge that she believed the State was retaliating because the Defendant had not been able to give them information regarding a Mr. Jimenez.[1] The Defendant told the judge that her sentence would be a hardship on her because her daughter was a senior in high school and the terms of her probation would prevent her from attending various school events, including graduation. She was also concerned that she might lose her job as a supervisor in a local factory. She explained that her job required mandatory overtime on weekends and that missing the required time could lead to her dismissal. The trial judge told the Defendant that an exception could be made for her daughter's graduation. The judge then told the Defendant that she could still withdraw from the plea. The Defendant asked if that would mean going to trial, and the judge affirmed that it would unless another settlement could be reached. The judge informed the Defendant, "I can't make them plea bargain, " and told the Defendant that it was not the court's "role" to make a recommendation regarding sentence. The judge and the Defendant discussed pretrial jail credits and the feasibility of the Defendant serving weekends in jail given her job requirements. The transcript then notes, "A discussion was held off the record."

         The judge and the Defendant finished conferring and subsequently returned to court to continue the plea colloquy with the attorneys present. The trial court began by asking the Defendant whether she was satisfied with her attorney's performance, whether her attorney had explained the elements of each offense to her, and whether her attorney had informed her of her exposure if she were convicted at trial of the offenses to which she was pleading guilty, and the Defendant responded in the affirmative.

         The State's attorney recited the factual bases for the convictions. He stated that the January 9, 2015, offenses resulted from a search warrant which revealed that the Defendant had over one ounce of cocaine in her possession and that the Defendant was taken to jail, where additional cocaine was found on her person. The charge brought by criminal information was based on the Defendant's involvement with the sale of .42 grams of cocaine to a confidential informant on December 31, 2014. Defense counsel noted additionally that this last charge "could have been a school zone case that would have caused [the offense] to be a B felony in the eight to twelve range with a required minimum service of eight years" but that the State had agreed to bring a criminal information consistent with the offense to which the Defendant was pleading guilty.

         The trial court found that the pleas had a factual basis, informed the Defendant of the consequences of a felony conviction, and questioned her on the record regarding her employment situation. Then the following discussion took place:

THE COURT: And I want to knock it down to 90 days, instead of 120, for this first offender. I understand there's some serious charges here; however, she's doing so well I don't want to risk her losing that job on the weekends. So I would accept 90 days, credit for time served, the rest on consecutive weekends. That's what I want to approve.
[PROSECUTOR]: Well, Your Honor, the State's not going to be willing to go forward with that. We -
THE COURT: Well, the judge is.
[PROSECUTOR]: That's fine, Your Honor, but the State's - we'll withdr[a]w our criminal information on this matter and withdraw our signatures from the plea agreement.
THE COURT: Well, that's fine. I'll set it for trial, and if she's convicted that would be her punishment.

         The court asked defense counsel for his "position, " and he responded that while he thought the disposition was "a bit stiff, " the Defendant had preferred the option that would allow her to keep her job rather than "run the risk of going to trial and maybe get convicted of a case that would have mandatory prison time at a minimum of eight years." The trial court noted its belief that the State was retaliating for the Defendant's refusal to help with the conviction of Mr. Jimenez, and the prosecutor protested that this belief was inaccurate. The court concluded, "[T]his Judge will not accept 120 days for this defendant."

         At the conclusion of the hearing, then, it appeared that the trial judge had chosen to reject the plea agreement as too harsh on the Defendant. The day after the hearing, the State withdrew the criminal information and sought a new indictment, indictment number 13272, in which it charged the Defendant with the sale of cocaine in a school zone. Faced with the possibility of going to trial on this charge, the Defendant filed a motion to "finalize" her plea, arguing that the plea was not one with a negotiated sentence and that the trial court could properly alter it. The State, after requesting the transcript of the ex parte hearing, filed a motion asking the trial judge to recuse herself. The State asserted that the judge had violated certain Rules of Judicial Conduct, that the judge erred by considering evidence presented outside the court, and that the judge was no longer impartial.

         The court, addressing these motions at a hearing on December 20, 2016, was swayed by the Defendant's argument that the agreement did not contain a negotiated sentence, and it determined that it had the authority under Tennessee Rule of Criminal Procedure 11 to modify the plea agreement. The court noted that it had previously "completed that acceptance of the plea agreement with that modification, " and defense counsel agreed that the court did not need to recite the terms of the plea or make sure that the Defendant understood her rights because the court had already done so at the previous hearing. The Defendant was then placed under oath, recited her understanding of the revised agreement, and testified regarding the overtime requirement at her job. When the Defendant broached the subject of seeking an exception to go to church, the prosecutor left the courtroom. The trial court requested the prosecutor to return "as a courtesy" and to sign the revised plea agreement as to form, and the prosecutor did so. The trial court then formally accepted the plea, as altered. The prosecutor noted that the State was objecting "not so much" to the reduction of thirty days as to the fact "that the Court gleaned much of its information from the ex parte communication with [the Defendant] privately in chambers, " and that the court was unilaterally amending the charge related to the sale of drugs in a school zone. The prosecutor ultimately signed the form, "approved as to form as instructed requested[2] by the Court." The judge declined to rule on the motion for recusal, instead concluding that, if her decision were reversed on appeal, then she would "probably … recuse" herself. The State filed a timely appeal.


         On appeal, the Defendant contends that the State has no appeal as of right from the trial court's decision and that this court therefore lacks jurisdiction to consider the matter. The Defendant argues in the alternative that the trial court had the authority to modify the sentence because the plea agreement did not contain an agreed-upon sentence, but only a sentencing recommendation. The State counters that this court has jurisdiction and that the trial court acted improperly in holding an ex parte meeting with the Defendant, in basing the sentencing decision on this meeting, and in altering a plea agreement that contained an agreed-upon sentence.

         I. ...

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