Tennessee Supreme Court Holds Records of IMEF Not Subject to Tennessee Open Records Act

THOMAS M. GAUTREAUX v. INTERNAL MEDICINE EDUCATION FOUNDATION, INC

The Tennessee Supreme Court held that because IMEF is neither the functional equivalent of a government agency nor subject to the requirements of the Public Records Act pursuant to Tennessee Code Annotated section 10-7-503(d), IMEF is not required to make its records available to the public. The supreme court reversed the judgment of the lower courts.

Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act.  The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in Hamilton County Chancery Court. Chancellor Peoples held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. The Supreme Court reversed and dismissed the case.

In addition to providing that government records are available for public inspection,the Public Records Act also provides that the records of certain nonprofit entities are available to the public. Tenn. Code Ann. § 10-7-503(d). At issue in this case is whether the legislative grant of access to records of nonprofit entities as provided in Tennessee Code Annotated section 10-7-503(d) applies to IMEF.  Because Chancellor peoples made a finding of fact that IMEF has no full time employees, the supreme court found that the less than two full time employees exemption applied.


What is instructive to lawyers, civil and criminal, plaintiffs to prosecutors, is that an open records request made to a nonprofit must consider two questions. First, is the nonprofit a functional equivalent to a governmental agency; and, second is the nonprofit, as it is organized, subject to the requirements of the Public Records Act? 

Expungement Proper on Dismissed Counts of Indictment Even When There Is A Conviction on Other Counts

STATE OF TENNESSEE v. AMADO RUBIO TAVER  


In this Davidson County case Tavara plead guilty to DUI and the state dismissed, nolle prosequi, the charge of aggravated assault before Judge Dozier. After a year Tavara filed a motion to to have the dismissed count expunged. The trial court denied the motion stating that since there was a conviction in one count of the indictment another count could not be dismissed. The defendant took a writ of certiorari to the Court of Criminal Appeals.

The pertinent statute is: Tennessee Code Annotated section 40-32-101(a). All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if the charge has been dismissed.

But later the statute says: A person shall not be entitled to the expunction of such person’s records in a particular case if the person is convicted of any offense or charge,including a lesser included offense or charge.

The court held that the trial court erred by denying Tavera’s motion to expunge the charge of aggravated assault.  A defendant may have a charge dismissed and expunged from an indictment where a guilty plea has been entered on another count.

Eleventh Circuit holds 18 U.S.C. § 924(j) allows for concurrent sentences

U.S. v. Julian, No. 09-13673 (February 22, 2011)

The issue before the Eleventh Circuit Court of Appeals was whether murder with a firearm in the course of a crime of violence and drug trafficking, in violation of 18 U.S.C. § 924(j), requires an imposition of consecutive, rather than concurrent, sentences?

Sentences for the use of a firearm in the course of a crime of violence, pursuant to 18 U.S.C. § 924(c), must run consecutive to any other sentences. However, 18 U.S.C. § 924(j), which applies to the use of a firearm in the course of a crime of violence causing death, does not include language requiring consecutive sentencing.

The defendant argued that 924(j) should be read separately from 924(c) because it is a separate offense, while the government argued that 924(c) applies to 924(j) as (j) is a sentencing factor rather than a separate offense. The Eleventh Circuit rejected the government’s argument, holding that concurrent sentences could be issued under 924(j).

Relying largely on the tools of statutory interpretation, the Eleventh Circuit reasoned that the plain language of 924(c) indicates that the consecutive sentence requirement applies only to a “term of imprisonment on a person under this subsection.” Also, the court held that subsection (j) is a separate offense rather than a sentencing factor, based on the pattern of construction of the statutory provisions: both subsection (c) and (j) begin with an offense, which are later followed by sentencing factors. Finally, the Eleventh Circuit reasoned that the legislature could have included mandatory language in subsection (j), but chose not to and, therefore, the legislature intended to omit the consecutive sentence requirement from 924(j).

The case was remanded to the District Court for resentencing. The Eleventh Circuit's decision was a departure from interpretations of the statute in both the Eighth and Tenth Circuits.

CCA Rejects Overly Broad DUI Certified Question in Sequatchie County Case

STATE OF TENNESSEE v. JOHN ANTHONY PARTIN

In this Sequatchie County case before Judge Smith, the defendant pled guilty to first offense DUI and reserved a certified question of law for appeal to the Court of Criminal Appeals.  The CCA dismissed the appeal and found that the question was too broad and therefore the court was without jurisdiction.

The court citing State v. Preston, 759 S.W.2d 647 (Tenn. 1988), indicated the Supreme Court makes it explicit to the bench and bar exactly what the appellate courts require as prerequisites to the consideration on the merits of a certified question of law.

Partin’s certified question is as follows: "Whether the encounter between the Defendant and Deputy Gary Craft of the Sequatchie County Sheriff’s Department on November 14, 2008 on Fredonia Mountain Road in Sequatchie County and the subsequent observations, search, seizure and arrest of the Defendant by Deputy Craft were in violation of the United States and Tennessee Constitutions and the laws of the State of Tennessee."

The CCA agreed with the state that Partin failed to properly reserve his certified question because the question as written does not clearly identify the scope and limits of the legal issue presented.  The opinion instructs that other than a general statement referencing “the encounter,” Partin’s certified question sets out neither specific facts about the encounter that constitute a violation of the federal and state constitutions as well as the laws of Tennessee nor in what way the encounter violated the constitutions and laws.

The certified question as written in this case,the CCA found, would require a dissertation of search and seizure law, and “ this Court is not willing to do so without parameters set by the [defendant]. “   It is the defendants ’s burden to “reserv[e], articulat[e], and identify[ ] the issue.”  Pendergrass, 937 S.W.2d at 838. Because Partin failed to properly reserve his certified question of law, the CCA finds they are without jurisdiction to review the merits of his claim.

CCA Affirms That Pending Charges May Serve As A Basis For Revocation

STATE OF TENNESSEE v. MICHAEL PIERRE ADAMS

In this Hamilton County case Judge Poole revoked Adams' probation after a community corrections violation. The Court of Criminal Appeals stated that the decision to revoke a community corrections sentence rests within the sound discretion of the trial court and will not be disturbed on appeal unless there is no substantial evidence to support the trial court’s conclusion that a violation occurred. State v. Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991). Pursuant to Tennessee Code Annotated section 40-35- 311(e), the trial court is only required to find that the violation of a community corrections sentence occurred by a preponderance of the evidence. In reviewing a trial court’s findings, the CCA stated that "this court must examine the record and determine whether the trial court has exercised a conscientious judgment rather than an arbitrary one. State v. Mitchell, 810 S .W.2d 733, 735 (Tenn. Crim. App. 1991)." Once there is sufficient evidence to establish a violation of a community corrections sentence, the trial court has the authority to revoke the community corrections sentence and order the original sentence to be served in confinement. Tenn. Code Ann. § 40-36-106(e)(4).

As most attorneys know, criminal conduct that is the basis of pending charges may serve as the basis for a revocation of a community corrections sentence. See, State v. Andrew B. Edwards, No. W1999- 01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app. denied (Tenn. Sep. 11, 2000). This opinion points out however, that the trial court cannot rely solely on the mere fact of an arrest or an indictment.  The State must introduce evidence “in order to establish the . . . commission of another offense.” Id.

In short, this CCA opinion directs that the State must produce evidence at the revocation hearing “to establish that the defendant committed the offense with which he has been charged.” State v. Lontrell Williams, No. W2009-00275-CCA-R3-CD, 2009 WL 3518171 at *3 (Tenn. Crim. App. Oct. 30, 2009). Significantly the court also added, "a defendant’s right to due process is not violated when the trial court denies a continuance of the revocation proceedings until the disposition of the pending criminal charges." This is drawn from precedent in State v. Carden, 653 S.W.2d 753, 755 (Tenn. Crim. App. 1983).

TN Supreme Court Affirms Johnson City Employee Conviction

STATE OF TENNESSEE v. DANNY LYNN DAVIS
Today the Tennessee Supreme Court affirmed the conviction of Danny Lynn Davis, an employee of Johnson City.  Davis was convicted in Washington County Criminal Court of theft of property, a Class B felony; official misconduct, a Class E felony; and twenty-five counts of forgery, Class E felonies.  Defendant was employed as the day-to-day coordinator of  Johnson City government.

Davis submitted bids for contracted construction work through Gray Home Improvements (GHI), a company he operated and his wife owned. When the bids were accepted, the Defendant hired subcontractors to perform the work for less than the bid amount and kept the difference for his personal use.

Davis alleged that Johnson City lacked standing to prosecute him for these crimes. The Supreme Court noted that Davis was prosecuted by the State of Tennessee under the State’s criminal code. See T.C.A. § 39-11-103 (2010) (“Every person . . . is liable to punishment by the laws of this state, for an offense committed in this state, except where it is by laws cognizable exclusively in the courts of the United States.”). The Court found that Davis is not entitled to dismissal of the prosecution on this basis.

Davis was sentenced to ten years (theft) and one year for each of the Class E felony convictions, all concurrent, to be served on one year of split confinement and the rest on probation.

Sixth Circuit Vacates and Remands Another Child Pornography Case

USA v. SAM L. HOWELL
Today the Sixth Circuit released USA v. Howell.  Howell pleaded guilty to transporting, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), (2) & (5). The district court (Middle District of Tennessee) sentenced Howell to 135 months’ imprisonment, seventy-five months below the bottom of the 210-262 month term recommended by the presentence investigation report. 


On appeal, Howell argues that his sentence is invalid for being unreasonably long and because the district court did not decide whether or to what extent Howell withdrew from the charged criminal activity prior to his arrest; a claimed mitigating act about which Howell testified at sentencing. Fed. R. Crim. P. 32(i)(3)(B) (requiring ruling on any controverted sentencing matter or a determination that resolving the dispute is unnecessary). The Sixth Circuit agreed that the district court did not comply with the strict requirements of the rule and therefore vacated the sentence and remanded for resentencing.

The rub of the case is that Howell claims he renunciated and withdrew from the child pornography conspiracy and therefore should receive a sentence even further below the guidelines.  The government sees it differently and offered proof that images still existed at the time of arrest on Howell's computer and that he accessed them days prior to his arrest.  Quite a different position from Howell's assertion that it had been a year or more since he accessed them.

The problem for the Sixth Circuit was that the district court never resolved, as Rule 32(i)(3)(B) requires, that issue of whether, when or to what extent Howell ceased deliberately to possess or view images of child pornography.  Nor did the district court find that it need not resolve the issue for being irrelevant to the sentence or simply because the court would not consider the argument or evidence in formulating the sentence.

So now Howell get's a second sentencing hearing where he can argue that his  under-guideline sentence is too long and prosecutors can carefully demonstrate that he accessed images within days of arrest.  

Howell is not recommended for Full-Text publication.

Assault & Disorderly Conduct Jury Verdict in Knoxville Reversed By CCA

STATE OF TENNESSEE v. GARY LYNN HARVEY

In State v. Harvey, the defendant was found guilty by a Knox County Criminal Court jury of assault, a Class A misdemeanor, and disorderly conduct, a Class C misdemeanor.  Because Harvey was denied his constitutional right to a jury trial when the trial court substituted a discharged alternate juror for a disqualified original juror during deliberations, CCA reversed the judgments and remanded the case for a new trial.  In this fifty-three (53) page opinion the court finds that defense counsel was right but for all the wrong reasons.

Rule 24(f)(2) addresses methods for selecting alternate jurors. It does not provide a procedure for substituting a juror after deliberations begin. The Supreme Court has said that a permissible procedure is “to discharge the entire panel, declare a mistrial, and continue the cause.” State v. Bobo, 814 S.W.2d 353, (Tenn. 1991). The choice of which option to pursue is a matter for the trial court’s discretion.  Also, a defendant may waive his right to a twelve-member jury (or any jury at all) and according to the opinion may "consent to go forward with eleven jurors."  See, Tenn. R. Crim. P. 23 & 24, for rules regarding jurors.

Domestic Abuse Ambiguous But Specific Enough For Conviction

This February Opinion from the Court of Criminal Appeals originated from Hamilton County Criminal Court, Poole, J., following a bench trial, where the defendant, Alan Dale Bobyarchick, was convicted of violating an order of protection, a Class A misdemeanor. See Tenn. Code Ann. § 39-13-113(g). In this direct appeal, he contends that, in the Order of Protection, the circuit court did not make any specific findings of fact that he committed domestic abuse, sexual assault, or stalking, and, therefore, he could not be convicted of violating the Order of Protection pursuant to Tennessee Code Annotated section 39-13-113(f)(3). CCA affirmed the judgment of the trial court. See, State v. Bobyarchick.  Brian L. O’Shaughnessy, Chattanooga, for the appellant.

The CCA found that although the circuit court’s striking out of the first clause, stating “Domestic Abuse in that Respondent committed the acts alleged in the Petition” is somewhat ambiguous, it is clear that the circuit court made the specific finding that “Petitioner possesses a reasonable fear for her safety.” The CCCA did not follow  the defendant’s argument that it was improper to convict him under Tennessee Code Annotated section 39-13-113 because the circuit court did not make the required specific findings of fact in the Order of Protection.

DUI Legislation Introduced in the Tennessee House 2011

The following are ten House Bills introduced in 2011 that effect DUI Laws in Tennessee.

1. DUI Offenses - As introduced, lowers the DUI enhancement that would require an ignition interlock from .15 percent to .08 percent and removes the DUI enhancements that would require an ignition interlock relative to implied consent. HB0138
2. DUI Offenses - As introduced, increases the classification of the offense for DUI with a child in the car from a Class A misdemeanor to a Class E felony; requires the court to report to the department of children's services the name of any person convicted of DUI who, at the time of such violation, was accompanied by a child and the person was the parent or legal guardian of such child. HB0141
3. DUI Offenses - As introduced, increases the minimum time that a driver license may be revoked for third and fourth and subsequent DUI convictions from three and five years to six and eight years. HB0394
4. DUI Offenses - As introduced, increases the application fee for a restricted license, after having a driver license suspended based on a failure by a driver to submit to tests determining blood alcohol content, from $20.00 to $50.00; increases the fine for both the offense and the delinquent act of underage driving while impaired from $250 to $500. HB0446
5. DUI Offenses - As introduced, allows person issued a restricted driver license to drive to and from a doctor's office, hospital, pharmacy or other location to obtain necessary medical care or to obtain an item for which the person has a prescription. HB0582 
6. DUI Offenses - As introduced, increases the penalty for the offense of boating under the influence of an intoxicant to approximate DUI penalties.HB0610
7. DUI Offenses - As introduced, provides that if a person with a prior DUI commits another one and is being released on bail, rather than denying bond because the defendant poses a danger to the community, the court or judicial commissioner may set conditions on the bond to eliminate the danger posed by the defendant. HB0718
8. Criminal Offenses - As introduced, creates a per se DUI offense for driving with Schedule I or II drugs in a person's system unless the person has a valid prescription for the Schedule II drug. HB0942
9. DUI Offenses - As introduced, requires a court prior to accepting a guilty plea or a verdict or finding of guilty for a violation of Section 55-10-401, to review the defendant’s official driver record maintained by the department to determine the factual basis for determining whether a defendant is a repeat or multiple offender.HB1275 
10. DUI Offenses - As introduced, requires an officer to immediately cause a driver to submit to a test to determine the alcohol or drug content of the driver's blood if the officer has probable cause to believe that the driver was driving under the influence and such driving resulted in an accident causing injury or death to another. HB1894

We will keep changes in the status in the legislation posted as it occurs.