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State v. Rhodes

Court of Criminal Appeals of Tennessee, Nashville

August 28, 2019

STATE OF TENNESSEE
v.
NATHANIEL A. RHODES

          Assigned on Briefs May 15, 2019

          Appeal from the Criminal Court for Wilson County Nos. 15-CR-1060, 15-CR-1061 Brody N. Kane, Judge

         The Defendant-Appellant, Nathaniel A. Rhodes, entered guilty pleas to one count of TennCare fraud in case number 15-CR-1060 and to one count of sale of Alprazolam in case number 15-CR-1061, with the trial court to determine the range, length, and manner of service of his sentences following a sentencing hearing. See Tenn. Code Ann. §§ 71-5-2601(a)(5)(A), 39-17-417. Thereafter, the trial court imposed two consecutive ten-year sentences in confinement. On appeal, Rhodes argues that the trial court imposed an excessive sentence.[1] After reviewing the record in this case, we affirm the judgment of the trial court but remand the case for entry of corrected judgments as specified in this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded

          Thomas A. Maynard, Lebanon, Tennessee, for the Defendant-Appellant, Nathaniel A. Rhodes.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason L. Lawson, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On August 20, 2015, Rhodes was indicted in case number 15-CR-1060 for three counts of TennCare fraud. The same day, Rhodes was indicted in case number 15-CR-1061 for sale of Alprazolam in Count 1, sale of Oxycodone in Count 2, and sale of Alprazolam in Count 3. Thereafter, Rhodes retained trial counsel to represent him.

         On May 19, 2017, Rhodes entered into a plea agreement and asked the trial court to accept his guilty pleas to TennCare fraud in Count 1 of 15-CR-1060 and to sale of Alprazolam in Count 1 of 15-CR-1061, with the trial court to determine the range, length, and manner of service of his sentences following a sentencing hearing. At the plea submission hearing the same day, the State provided the following facts in support of Rhodes' guilty pleas:

[Mr. Rhodes] went to the doctor and . . . because of the issues . . . described by Mr. Rhodes, the doctor did prescribe him [A]lprazolam.
Mr. Rhodes went and picked up that prescription. Tenn[C]are did pay for the doctor office visit at which he obtained the prescription for the [A]lprazolam. When he picked it up he did pay for that with his own funds, however, the Tenn[C]are fraud is based upon the office visit, Tenn[C]are having to spend monies.
Mr. Rhodes went out a very short time after obtaining that prescription and he did sell some of those pills to a confidential informant [who] was working with the Wilson County Sheriff's Department. The confidential informant told the detectives that Mr. Rhodes had [A]lprazolam for sale and that he could purchase [A]lprazolam from him.
The informant met with the detective and was searched making sure that there were no drugs or money on his person, then the informant was fitted with a video recording device. The informant then left and went to a location here in Wilson County, which was the Knight's Inn at 941 Murfreesboro Road, I believe.
Once there he went in to Room 115 and at that time met with Mr. Rhodes. There was a hand to hand exchange in which Mr. Rhodes gave the informant the pills. The informant gave Mr. Rhodes the money. Once that was completed the informant left and went and met back with the detectives.
He turned the pills that he had purchased from Mr. Rhodes over to the detectives. The detectives sent those pills to the Crime Lab and they were confirmed to be [A]lprazolam, and Mr. Rhodes was identified as the person who had made that sale.

         At the conclusion of this hearing, Rhodes entered his guilty pleas to TennCare fraud and to sale of Alprazolam. Pursuant to Rhodes' plea agreement, the remaining counts in case numbers 15-CR-1060 and 15-CR-1061 were dismissed.

         On July 28, 2018, following a sentencing hearing, the trial court sentenced Rhodes as a Range III, persistent offender to two consecutive ten-year sentences in confinement for these convictions. The judgment forms for these two convictions show a "Date of Entry of Judgment" of July 28, 2017 but also reflect that they were not filed in the clerk's office until August 1, 2017.

         On August 22, 2017, trial counsel filed a notice of appeal on Rhodes' behalf in the trial court seeking relief from the sentences entered in case numbers 15-CR-1060 and 15-CR-1061. On August 29, 2017, the trial court clerk's office sent a letter to trial counsel informing him that the notice of appeal must be filed in the appellate court and that the clerk's office was returning his original notice of appeal. The record does not show that trial counsel ever filed the notice of appeal with this court, and it does not provide an explanation as to why trial counsel failed to do so.

         On September 5, 2017, a corrected judgment, which reflected the correct felony classification for the TennCare fraud conviction, was entered. Although this corrected judgment was not filed in the clerk's office until September 5, 2017, the "Date of Entry of Judgment" was listed on the judgment form as "08-24-17 nunc pro tunc for 07/28/2017."

         On January 19, 2018, Rhodes filed a pro se notice of appeal, stating that he was filing "[t]his delayed notice" of appeal due to trial counsel's "gross incompetence" in filing the initial notice of appeal in the trial court rather than in the appellate court. In this pro se notice of appeal, Rhodes attached a copy of the initial notice of appeal filed by trial counsel in the trial court.

         Thereafter, Rhodes filed a motion to be declared indigent and to receive the appointment of counsel. On April 6, 2018, this court remanded this motion to the trial court. Rhodes was subsequently declared indigent and appointed appellate counsel.

         ANALYSIS

         I. Untimely Filed ...


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