State v. Hammons, 86-143-III
| Decision Date | 12 May 1987 |
| Docket Number | No. 86-143-III,86-143-III |
| Citation | 737 S.W.2d 549 |
| Court | Tennessee Court of Criminal Appeals |
| Parties | STATE of Tennessee, Appellee, v. Eddie Gene HAMMONS, Appellant. 737 S.W.2d 549 |
Charles Lynn Haston, Sparta, for appellant.
W.J. Michael Cody, Atty. Gen. & Reporter, Albert L. Partee, III, Asst. Atty. Gen., Nashville, John M. Roberts, Dist. Atty. Gen., John C. Knowles, Asst. Dist. Atty. Gen., Sparta, for appellee.
The appellant, Eddie Gene Hammons, entered pleas of guilty to the offenses of aggravated rape and assault with intent to commit murder first degree, accompanied by bodily injury. The trial court sentenced the appellant to life imprisonment for the offense of aggravated rape, and a term of fifteen (15) years for the offense of assault with intent to commit murder first degree, accompanied by bodily injury. The trial court ordered the appellant to serve the two sentences consecutively.
The appellant has appealed to this Court as of right. See Tenn.R.Crim.P. 37(b)(2)(ii); Tenn.R.App.P. 3(b); T.C.A. Sec. 40-35-402(a). In this Court the appellant has raised two issues. The appellant contends (1) the trial court abused its discretion by not accepting a plea bargain agreement submitted to the trial court by the parties and (2) the trial court committed error in finding the appellant committed an especially aggravated offense and imposing a Range II sentence for the offense of aggravated rape.
There were three sentencing hearings in this case. The record reflects the first sentencing hearing was conducted on the 18th day of December, 1985. The assistant district attorney general advised the trial court the parties had entered into a plea bargain agreement. According to the terms of the agreement, the appellant agreed to enter pleas of guilty to the offense of aggravated rape and assault with intent to commit murder first degree, the State agreed to recommend a life sentence in each case, and the sentences were to be served concurrently. The State presented two witnesses to establish the factual basis for the pleas, and the trial court asked the required litany of questions for the purpose of determining the voluntariness of the pleas. At the conclusion of the sentencing hearing the trial court called counsel to the bench, and an off-the-record bench conference ensued. At the conclusion of the hearing the trial court told the appellant he was not going to "accept the plea", and set the case for trial, stating "I don't want to take a plea that I am not sure about." The trial court expressed hope that "there will be some effort to resolve the questions we have in our minds " before the trial date. [Emphasis added.]
The holding of off-the-record bench conferences impairs the ability of this Court to afford the parties a full and complete review of the issues. Such conferences create a void in the record, and prevent this Court from determining why the trial court may have ruled in a certain manner. For this reason trial judges should not conduct off-the-record bench conferences. In the recent case of State v. William Taylor, Davidson County No. 85-279, May 1986 Session at Nashville, opinion filed August 22, 1986 [Available on WESTLAW, TN-CS database], Judge Scott, speaking for a unanimous panel of this Court, said:
There is absolutely no justification, particularly in criminal cases, for the [trial] court to be conducting off-the-record discussions with anyone. The State of Tennessee provides official court reporters for the purpose of recording criminal proceedings in order to preserve the record for appellate review. T.C.A. Sec. 40-14-301, et. seq. The designated reporter is required to attend 'every stage of each criminal case' and 'shall record verbatim' 'all proceedings had in open court' and other proceedings, as the judge may direct. T.C.A. Sec. 40-14-307(a). The holding of off-the-record discussions violates this section of our code, since 'all proceedings in open court' are not recorded verbatim when such discussions are held. Such discussions do nothing but impede the appellate process, creating issues such as this one that should never have occurred. Sidebar conferences may be utilized to prevent having to frequently inconvenience the jury, but they must be recorded to preserve the record.
Counsel should refuse to engage in off-the-record bench conferences unless ordered to do so by the trial court. If required to appeal an issue discussed at an off-the-record bench conference in which counsel voluntarily participated, counsel may find this Court stating the issue was waived because he or she "failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error." Tenn.R.App.P. 36(a).
The record reveals few clues concerning the nature of the "questions" raised at the bench conference. However, it takes very little imagination to perceive the reason why the appellant's pleas and the plea bargain agreement were not accepted by the trial court, and the reason the parties withdrew and abandoned the plea bargain agreement. The parties and the trial court apparently assumed that a Range II sentence could not be imposed in the absence of proper statutory notice, even though the enhanced sentence was proposed as part of a plea agreement. Although this Court has previously held that such a sentence would be valid, the question is now before the Supreme Court for determination. See State of Tennessee v. Thomas Lee Mahler, Court of Criminal Appeals at Knoxville, October 1, 1986, review granted December 1, 1986 [Available on WESTLAW, TN-CS database].
This conclusion is supported by the record. Immediately before the bench conference occurred the trial court asked the assistant district attorney general if he had filed "a notice of range two, or aggravated offense, or anything?" The assistant district attorney general advised the court he had not filed such a notice. The record reflects he subsequently filed the notice mandated by Rule 12.3(a), Tenn.R.Crim.P., and alleged the appellant had committed an especially aggravated offense. At the second hearing defense counsel, while engaging in a colloquy with the trial court, stated "there was some discussion as to the range" and the parties "withdrew it [the plea bargain agreement] at that time." At the third sentencing hearing defense counsel, addressing the trial court, commented that "had we not had some disagreement as to the sentencing, he [the appellant] would have entered a plea at that time."
The appellant's first issue is without merit. The trial court did not abuse its discretion in refusing to accept the plea bargain agreement and the appellant's pleas of guilty at the initial sentencing hearing. First, defense counsel admitted at a subsequent hearing "we withdrew it [the pleas and agreement]." And, contrary to the statements contained in the appellant's brief, the trial court did not accept the appellant's pleas of guilty and reject the plea bargain agreement. The trial court made it quite clear he was not accepting the appellant's pleas; and counsel stated at the third sentencing hearing "I will admit that the Court didn't accept the plea...." At another point defense counsel stated: "... I will admit, ... it is true that it [the guilty pleas] was not accepted." Second, the appellant has waived this issue. Rule 10(b) of this Court provides: "Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court." In the case sub judice the appellant has failed to cite authorities in support of his abbreviated argument. The appellant also waived this issue by subsequently pleading guilty to the offenses. See Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970).
The appellant's second issue requires a recitation of the salient facts which resulted in the appellant being charged and convicted of the offenses of aggravated rape and assault with intent to commit murder first degree.
On July 2, 1985, the appellant broke into the home of the victim, removed his clothing, obtained a large knife from the kitchen, and waited for the victim to return home. When the victim returned home from her place of employment, and entered the residence, the appellant was standing behind the door. He "kicked the door shut", and, while armed with the large knife, pushed the victim into the living room, where he disrobed her. He then forced the victim into the bedroom where he sexually penetrated her at knife point.
After the appellant finished penetrating the victim he attempted to cut the victim's throat. When the appellant released the victim's right hand, she was able to push the appellant to the floor. However, before she could escape, the appellant crawled into the bed and stabbed her. He then threw the victim onto a mattress situated in the floor and ordered her to perform fellatio on him. The victim refused. Shortly thereafter she escaped the appellant's clutches and ran into the living room. The appellant pursued the victim, caught her in the living room, stabbed her approximately seven times, and attempted to cut her throat. The appellant departed the residence when he thought the victim was dead. While the victim made a miraculous recovery, she remains scarred physically as well as mentally.
One of the investigating officers recalled a similar entry and sexual encounter with a woman approximately a month earlier. The appellant was arrested for this offense, but he was not prosecuted because the woman left town. An array of photographs, which included a photograph of the appellant, was presented to the victim at the hospital. The victim made a positive identification of the appellant as the person who raped and stabbed her.
Initially, the appellant gave an exculpatory statement. Later the appellant admitted his entry into the victim's home, the...
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...the record will be treated as waived in this court." Tenn.Ct. Crim.App. R. 10(b); see also Tenn.R.App.P. 27(a)(7); State v. Hammons, 737 S.W.2d 549, 552 (Tenn.Crim.App.1987). Accordingly, the defendant has waived our consideration of this In another related issue, the defendant asserts that......
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