State v. Rowland

• Decision Date: 02 June 2017
• Docket Number: No. W2014-02311-SC-R11-CD,W2014-02311-SC-R11-CD
• Citation: 520 S.W.3d 542
• Parties: STATE of Tennessee v. Ray ROWLAND
• Court: Tennessee Supreme Court

520 S.W.3d 542

STATE of Tennessee

v.Ray ROWLAND

No. W2014-02311-SC-R11-CD

Supreme Court of Tennessee, AT JACKSON.

November 2, 2016 Session

Filed June 2, 2017

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jennifer L. Smith, Associate Solicitor General; M. Todd Ridley, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity and Billy Bond, Assistant District Attorneys General, for the appellant, State of Tennessee.

M. Haden Lawyer, Memphis, Tennessee, for the appellee, Ray Rowland.

Sharon G. Lee, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby, and Roger A. Page, JJ., joined.

OPINION

Sharon G. Lee, J.

The issue we address is whether a defendant has an appeal as of right from the denial of a Tennessee Rule of Criminal Procedure 41(g) motion for return of property when the defendant did not file a pretrial motion to suppress and pleaded guilty. The defendant was indicted on charges of aggravated assault by use or display of a deadly weapon. Law enforcement officers seized guns and other related items from the defendant's home. The defendant did not challenge the seizure of his property and pleaded guilty to reduced charges of reckless endangerment. Three years later, he filed a Rule 41(g) motion for the return of property. The trial court dismissed the motion, and the defendant appealed. The Court of Criminal Appeals reversed and remanded, finding that the defendant may be entitled to relief under Rule 41(g) based on the court's determination that an illegal seizure occurs when, after a conviction, the State retains possession of property that is not stolen and not connected to the commission of a crime. See State v. Rowland , No. W2014-02311-CCA-R3-CD, 2015 WL 6601315, at *3 (Tenn. Crim. App. Oct. 30, 2015), perm. app. granted (Mar. 23, 2016). We hold that the defendant had no appeal as of right under Tennessee Rule of Appellate Procedure 3(b) from the trial court's order denying the Rule 41(g) motion. The Court of Criminal Appeals erred by hearing the defendant's appeal when it lacked jurisdiction under Rule 3(b) and by determining that the defendant could be entitled to relief under Rule 41(g).

I.

In May 2010, a Shelby County Grand Jury indicted Ray Rowland on two counts of aggravated assault by use or display of a deadly weapon. In August 2011, he pleaded guilty to a reduced charge of reckless endangerment on each count and received concurrent probated and suspended sentences of eleven months and twenty-nine days.

On August 22, 2014, Mr. Rowland filed a Tennessee Rule of Criminal Procedure 41(g) motion for return of property in the Shelby County Criminal Court.¹ Mr. Rowland's motion alleged that, on February 24, 2010, the police went to his house after receiving a report that he had fired two gunshots in the direction of another individual. Mr. Rowland, who collected firearms, told the police he owned guns. The police informed Mr. Rowland that if he did not consent to a search of his house, "they would come back with a warrant, tear up his house, and blowtorch his safe." Mr. Rowland consented to the search; the police seized at least forty-seven items, most of which were firearms. Many of the firearms were new, had never been used, and could not have been used in the crime. Mr. Rowland sought return of the seized property based on the illegality of the warrantless search.

In October 2014, the trial court heard the Rule 41(g) motion for return of property. Neither party introduced any evidence. Following argument of counsel, the trial court dismissed the motion for lack of jurisdiction, noting that Mr. Rowland consented to the search of his house and waived any issue with the search by pleading guilty.

Mr. Rowland then appealed, and the Court of Criminal Appeals reversed and remanded to the trial court for a hearing on Mr. Rowland's Rule 41(g) motion. Rowland , 2015 WL 6601315, at *4. The intermediate appellate court reasoned that the State's continued retention of Mr. Rowland's property was an illegal seizure because the property was not stolen and was not connected to the crime for which Mr. Rowland was convicted. Id. at *3. Therefore, the Court of Criminal Appeals found that Mr. Rowland may be entitled to the return of his property under Rule 41(g) based on the State's retention of his property following his guilty plea. Further, the Court of Criminal Appeals ruled that, as long as the State continued to retain Mr. Rowland's property, it did not matter when the Rule 41(g) motion was filed.

We granted the State's Rule 11 application for permission to appeal.

II.

Our interpretation of Tennessee Rule of Appellate Procedure 3(b) and Tennessee Rule of Criminal Procedure 41(g) is a question of law which we review de novo with no presumption of correctness. See State v. Wooden , 478 S.W.3d 585, 589 (Tenn. 2015). When we construe rules of procedure, we apply the same rules of construction as we use to construe statutes. Id. Our primary objective is to effectuate the intent of the rule without broadening or restricting its intended scope. Fair v. Cochran , 418 S.W.3d 542, 544 (Tenn. 2013). When the text is clear and unambiguous, we need not look beyond the plain language of the text to ascertain its meaning. State v. Brown , 479 S.W.3d 200, 205 (Tenn. 2015) (citing Lee Med., Inc. v. Beecher , 312 S.W.3d 515, 527 (Tenn. 2010) ). "We do not base our interpretation of a procedural rule on a single sentence, phrase, or word of text, however, but instead endeavor to give effect to every clause, phrase, or word used." Id. (citing Lee Med., Inc. , 312 S.W.3d at 527 ). "We presume that every word was used deliberately, that each word has a specific meaning and purpose, and that the intent was not to enact a useless or absurd procedural rule." Id. (citing Lee Med., Inc. , 312 S.W.3d at 527 ).

The issue of Mr. Rowland's right to appeal under Rule 3(b) was raised by the State for the first time in its Tennessee Rule of Appellate Procedure 11 application for permission to appeal. Generally, issues raised for the first time on appeal are waived. See Fayne v. Vincent , 301 S.W.3d 162, 171 (Tenn. 2009). However, Tennessee Rule of Appellate Procedure 13(b) requires us to consider whether the appellate court has jurisdiction over the subject matter even though the issue is not presented for review. Tenn. R. App. P. 13(b). Subject matter jurisdiction is a question of law we review de novo with no presumption of correctness. Turner v. Turner , 473 S.W.3d 257, 268 (Tenn. 2015).

A defendant in a criminal case does not have an appeal as of right in every instance. Tennessee Rule of Appellate Procedure 3(b) provides when a defendant in a criminal case has an appeal as of right:

In criminal actions an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved the right to appeal a certified question of law dispositive of the case pursuant to and in compliance with the requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure, or if the defendant seeks review of the sentence and there was no plea agreement concerning the sentence, or if the issues presented for review were not waived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedings already had. The defendant may also appeal as of right from an order denying or revoking probation, an order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding, and from a final order on a request for expunction.

Tenn. R. App. P. 3(b).

Rule 3(b) does not specifically provide for an appeal as of right from an order resolving a Rule 41(g) motion. A defendant in a criminal case has no appeal as of right unless it is enumerated in Rule 3(b). State v. Adler , 92 S.W.3d 397, 399–400 (Tenn. 2002)superseded by statute , Act of May 8, 2003, ch. 175, 2003 Pub. Acts 292 (codified as amended at Tenn. Code Ann. § 40-32-101 ), as recognized in State v. L.W. , 350 S.W.3d 911, 914 (Tenn. 2011) (holding the defendant had no appeal as of right from an adverse ruling concerning an expungement order); see State v. Lane , 254 S.W.3d 349, 353 (Tenn. 2008) (holding there is no appeal as of right from an order denying a defendant's motion to modify a condition of probation); Moody v. State , 160 S.W.3d 512, 516 (Tenn. 2005) (holding the defendant (in a case decided prior to the amendment of Rule 3(b) to allow for an appeal as of right for orders under Tennessee Rule of Criminal Procedure Rule 36 ) did not have an appeal as of right from the dismissal of a Rule 36 motion to correct an illegal sentence); State v. Hegel , No. E2015-00953-CCA-R3-CO, 2016 WL 3078657, at *1–2 (Tenn. Crim. App. May 23, 2016) (ruling the defendant had no right to appeal the denial of his motion to suspend court costs); State v. Moses , No. W2011-01448-CCA-R3-CD, 2011 WL 6916487, at *1–2 (Tenn. Crim. App. Dec. 28, 2011) (holding the defendant did not have a Rule 3 appeal as of right from an order denying his motion to reinstate probation); State v. Bean , No. M2009-02059-CCA-R3-CD, 2011 WL 917038, at *2 (Tenn. Crim. App. Mar. 16, 2011) (holding a defendant has no right of appeal from an order denying his motion for a furlough); State v. Childress , 298 S.W.3d 184, 186 (Tenn. Crim. App. 2009) (holding a defendant cannot appeal from an order allowing the State to nolle prosequi the charges against him); State v. Coggins , No. M2008-00104-CCA-R3-CD, 2009 WL 482491, at *3–4 (Tenn. Crim. App. Feb. 25, 2009) (ruling a defendant has no appeal...