Capri Adult Cinema v. State

• Decision Date: 22 March 1976
• Parties: CAPRI ADULT CINEMA et al., Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 896

537 S.W.2d 896

CAPRI ADULT CINEMA et al., Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

March 22, 1976.

Frierson M. Graves, Jr., and Michael F. Pleasants, Memphis, for petitioners; Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, of counsel.

R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Noel R. Bagwell, Dist. Atty. Gen., for respondent.

OPINION

HARBISON, Justice.

Petitioners, together with a codefendant Earl L. Heath, were named in seven indictments, returned on February 21, 1973, charging them with violation of T.C.A. §§ 39--3003 et seq., a portion of the then obscenity laws of the state.

After plea bargaining, petitioners entered a plea of guilty to one of the indictments and expressly agreed for the trial court to fix the sentence. Sentence was imposed under this indictment, fixing separate fines upon the corporation and the individual petitioners. The latter also received a jail sentence, which was suspended.

As the result of the plea bargaining, a nolle prosequi was entered as to a codefendant of the petitioners, Earl L. Heath. All of the films which were the subject of the indictments in all of the seven cases were 'released to the Sheriff's Department to be destroyed by the said department,' according to the final judgment in the record before us. The other six indictments against the petitioners and their codefendant were dismissed as the result of the agreement reached between the parties.

The final judgment referred to was entered on January 8, 1974. No motion for a new trial was filed and no appellate review sought, and at the end of thirty days the judgment became 'final', in the parlance of state practice and procedure. Only a technical record has been filed before this Court, but it is stated in briefs of counsel that the fine imposed in the final judgment was immediately paid. The one-year probation provided for the individual petitioners in connection with their suspended sentence has expired, so that the sentence imposed upon the petitioners has been fully executed according to its terms.

On December 20, 1973, more than two weeks prior to the entry of the guilty plea, petitioners had filed a motion for a continuance, alleging that the constitutionality of the obscenity statute under which they were indicted was then under consideration in the Tennessee Supreme Court, in another case, the style of which was cited in the motion. The record reveals that this motion for continuance was overruled on December 26, 1973. On December 28, 1973 petitioners filed a second motion for a continuance, again referring to the constitutional question pending in this Court. In the alternative petitioners asked the trial court to respond to a series of questions as to the test for obscenity which would be applied in their trial, which was set on January 8, 1974. No order in response to this motion appears in the brief technical record filed before us, but we assume that this supplemental motion was also denied, since on January 8, 1974 an order was entered, signed by the petitioners individually and by their counsel, as follows:

'After being advised of all rights regarding the Court fixing a fine in excess of $50.00, the Defendants expressly waive all constitutional provisions and agree for the Court to fix a fine in excess of $50.00.'

On the same date the final judgment previously referred to was entered.

Some forty-two days later, on February 19, 1974, this Court rendered an opinion in the case which had been referred to in the motion for continuance, Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S.W.2d 258 (Tenn.1974), holding the statute under which petitioners were indicted to be unconstitutionally vague and overbroad. Responding to a petition to rehear, the Court filed a supplemental opinion on May 6, 1974, in which the Court indicated that its ruling should be applied retrospectively as well as prospectively. Thereafter, petitioners in the present case took no action in the trial court.

On January 6, 1975, two days prior to the anniversary date of the guilty plea, petitioners filed a petition for writ of error in the Court of Criminal Appeals, seeking reversal of their guilty plea and the vacation of their sentence, together with restitution of the fines paid, in reliance upon the ruling of this Court in the Art Theater Guild case.

The Court of Criminal Appeals denied the petition, holding that there had been an implicit waiver of the right to appellate review in the plea bargaining process and the resulting guilty plea. We granted certiorari to give further consideration to this question.

It is suggested in the brief for petitioners that the guilty plea entered in the case was not entirely 'voluntary', but there is a complete absence of any evidentiary record to sustain any such suggestion. Of course, it is elementary that if a guilty plea is entered through coercion, fraud, duress or mistake, appropriate relief may be obtained. The only argument advanced suggesting that the plea was involuntary, however, in the present case is that the petitioners were facing trial with the possibility of much larger fines or greater terms of imprisonment than were actually imposed. This, of course, is present in almost every plea bargaining situation with a resulting guilty plea, and, in itself, is wholly insufficient to sustain any suggestion that the guilty plea was 'involuntary' as that term has been used in cases granting relief from such a plea.

As previously stated, no evidentiary record of any sort was filed in support of the petition for writ of error, nor are there any affidavits or other material upon which a finding of involuntariness could be predicated.

Stripped of any issue as to the voluntary nature of the guilty plea, therefore, the question which remains for consideration is whether or not appellate review can be sought of this guilty plea, when the sentence imposed thereunder has been fully and finally executed, upon the sole ground that the criminal statute upon which the indictment was based was subsequently declared unconstitutional.

We are of the opinion that the Court of Criminal Appeals was correct when it determined that there was an implied waiver of the right of appellate review by the proceedings reflected in this record. The guilty plea was entered at a time when it was known by all parties that the statute upon which the indictments rested was being challenged. The statute had been sustained by the Court of Criminal Appeals, and had originally been upheld by this Court. On appeal, however, the United States Supreme Court had remanded the case for reconsideration in light of its decision in the case of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The case had been re-argued in this Court. The decision was pending at the time when the guilty plea in the instant case was entered.

It thus appears that the petitioners deliberately and knowingly dealt with the State on the strength of a statute whose constitutionality was being challenged, and accepted the benefits of their plea bargaining, including the dismissal of six of seven indictments as to all of them and the complete dismissal of the charges as to their codefendant, suspended jail sentences, and fines much less than those with which they were faced had they stood trial.

Petitioners concede that ordinarily there can be no appeal from a plea of guilty. This principle has been stated in a number of cases in this state. See Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970); McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561 (1960); Washington v. Tollett, 4 Tenn.Cr.App. 296, 470 S.W.2d 841 (1971).

Petitioners insist, however, that none of these cases involved a constitutional issue, and it is their insistence that when an underlying criminal statute is declared unconstitutional, subsequent to a guilty plea, then appellate review may be sought to vacate the guilty plea and resulting sentence, without any resort to the trial court whatever.

Some authority for recovery of fines in such situations is cited in the brief of petitioners, principally federal cases resting upon the Tucker Act, 28 U.S.C.A. § 1346, ¹ although all of these differ procedurally from the present case.

We have already noted that the judgment in the present case became final, and not subject to the ordinary method of appellate review in criminal cases, which is an appeal in the nature of writ of error. Since no steps were taken within thirty days after the entry of the judgment on the guilty plea, this method of appellate review was no longer available to the petitioners.

Tennessee still preserves the older writ of error as a method of appellate review, T.C.A. §§ 27--601 et seq. This method of review is available in criminal cases. T.C.A. § 40--3402. Under it, appellate review may be sought as late as two years from and after the final judgment in the trial court. T.C.A. § 27--605. This does not mean, however, that judgments in either civil or criminal cases remain open or unsettled for any such length of time, and separate application must be made to the appellate court in order to supersede any judgment of a trial court which has become final by passage of time and is no longer subject to the regular methods of review by appeal or by appeal in the nature of writ of error. No supersedeas was obtained in this case.

Although the constitutional issue upon which petitioners now seek to vacate their judgment was known to them, they did not present it for determination to the trial judge, but instead plea bargained with the State upon the basis of the existence of the criminal statute in question and agreed to the imposition of penalties thereunder. This case is therefore not analogous to cases in which a criminal defendant has unsuccessfully litigated a constitutional issue and has been convicted upon the basis of a statute which is subsequently...