Tennessee legislators celebrate Independence Day with 151 new laws set to take effect on July 1st

By Lee Davis




Tennessee legislators have been busy these last few months compiling a seemingly never-ending stack of bills for Governor Bill Haslam's signature. This legislation will become law on July 1st. What are they? Well they cover a wide variety of concerns and some will affect criminal law, creating new crimes and escalating criminal penalties.

For example, one of the laws slated to go into affect on the 1st of July includes a provision that permits more people to request expungement of criminal convictions for mostly old and minor offenses--this legislation is remarkable in that it is well thought out and resolved a difficult problem. In the information age, how can someone clean up a minor problem from their past? Up to now you couldn't. Now a few select felonies and a wide array of misdemeanous will be permitted to be expunged from the records of first-time offenders.

Another law creates a fine for those that are found to have encouraged, advocated, urged or condoned students to engage in “gateway sexual activity.” Whatever that is. Educators found teaching a non abstinence-based sexual education curriculum can be punished with up to $500 in fines. In a school somewhere in Tennessee next year a parent is going to insist to a principal that a teacher should be reported for encouraging gateway sexual activity and fined. It is hard to imagine how the courts are supposed to figure out what the legislature intended with this sloppy piece of legislation--gateway sexual activity?

Here’s a run down of some of the important and bizarre additions to Tennessee criminal law:

SB3558 - This requires schools to include in their discipline codes a prohibition on students wearing any clothing on school grounds that exposes underwear or body parts in an indecent manner.

SB0074 – This bill makes it a Class C misdemeanor offense for any person to operate a motorcycle on municipal, county or state roads who is carrying a passenger whose feet are not on footpegs. The amendment specifies that the prohibition will not apply to persons riding in a motorcycle sidecar.

HB2466 – This bill is known as the “Ricky Otts Act” and requires an officer to arrest drivers involved in accidents resulting in serious bodily injury or death when such drivers lack a valid driver license and evidence of financial responsibility. The bill specifically prohibits the issuance of a citation in lieu of arrest in such circumstances.

HB2853 – This bill deals with sexual offenders and adds the offense of promoting prostitution to the list of sexual offenses requiring registration under the state sex offender registry. Similarly, HB3283 authorizes judges, after consideration of facts and circumstances surrounding the case, to require a person convicted of statutory rape for the first time to register as a sexual offender on the sexual offender and violent sexual offender registry.

HB2566 – This was passed in response to the outrage surrounding now disgraced judge Richard Baumgartner and says that elected and appointed public officials ineligible for diversion for criminal offenses committed in their official capacity or that involve the duties of their offices.

HB2749 – This DUI bill authorizes a judge to order the use of an ignition interlock device for any person granted a restricted driver license and the device must remain in the vehicle during the entire period of time the driver has a restricted license.

SB2349 – “Kimberlee’s Law,” says that people convicted of aggravated rape must serve 100% of their sentence.

SB2759 – Creates a new level of criminal offense, a Class E felony of aggravated cruelty to livestock, which will exist when someone has intentionally engaged in specified conduct in a depraved and sadistic manner that results in serious bodily injury or death to the animal and is done without lawful or legitimate purpose.

Finally, and oddly, there’s HB2768, which makes it a Class A misdemeanor criminal offense for any person to knowingly dig, harvest, collect or remove wild ginseng from any land that such person does not own on any date not within the wild ginseng harvest season.

151 New Laws in Tennessee beginning July 1, 2112

by Lee Davis

151 New Tennessee Laws going into effect July 1, 2012.
There are new laws going into effect in Tennessee in a few days that range from expungement of old convictions to new obligations on the sex offense registry for statutory rape convictions. Listed below are all changes to Tennessee criminal law.
Probation and Parole - As enacted, permits private probation providers who meet certain qualifications and contract with the department of correction to supervise Class E felony offenders who are granted probation. - Amends TCA Title 40.
Sentencing - As enacted, establishes enhanced punishment for crimes of force or violence committed while acting in concert with two or more other persons. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, increases the punishment for unlawful possession of firearm by person with previous felony conviction. - Amends TCA Title 39 and Title 40.
Probation and Parole - As enacted, transfers from board of probation and parole to department of correction certain functions relating to probation and parole services and the community correction grant program. - Amends TCA Title 4; Title 38; Title 39; Title 40; Title 41 and Title 55.
Immigration - As enacted, clarifies that a tax form, as such term is used in the part, means any form issued by the United States internal revenue service. - Amends TCA Title 50, Chapter 1, Part 7.
Arrests - As enacted, enacts the "Ricky Otts Act" which requires an officer to arrest drivers involved in accidents resulting in serious bodily injury or death when such drivers lack a valid driver license and evidence of financial responsibility; prohibits the issuance of a citation in lieu of arrest in such circumstances. - Amends TCA Title 39; Title 40; Title 55, Chapter 10; Title 55, Chapter 12; Title 55, Chapter 50 and Title 55, Chapter 8.
Criminal Offenses - As enacted, criminalizes possession, use, transfer or installation of software designed to manipulate retail records of transactions for evading payment of sales tax to the state. Amends TCA Title 38; Title 39; Title 40 and Title 67.

Sexual Offenders - As enacted, adds the offense of promoting prostitution to the list of sexual offenses requiring registration under the sex offender registry and adds second offense promoting prostitution to the list of violent sexual offenses. - Amends TCA Title 40, Chapter 39, Part 2.
Sentencing - As enacted, makes elected and appointed public officials ineligible for diversion for criminal offenses committed in their official capacity or that involve the duties of their offices. - Amends TCA Title 39 and Title 40.
Judges and Chancellors - As enacted, terminates the court of the judiciary and replaces it with a 16-person board of judicial conduct; revises provisions governing such a board. - Amends TCA Title 4, Chapter 29 and Title 17, Chapter 5.
Criminal Offenses - As enacted, expands the drugs whose production, manufacture, distribution, sale or possession would be a crime under the present law offense regarding synthetic derivatives or analogues of methcathinone. - Amends TCA Title 39.
Criminal Procedure - As enacted, expands definition of "uses" and "conducts" to include "transport" and "conceal" for purposes of the money laundering criminal offenses. - Amends TCA Title 39 and Title 40 relative to criminal offenses and criminal procedure.
Criminal Procedure - As enacted, deletes provision prohibiting district attorney from applying to judge for a wiretap order in marijuana cases in which the amount is less than 700 pounds. - Amends TCA Title 39, Chapter 17.
Law Enforcement - As enacted, requires that officers who knowingly provide POST with false or misleading information concerning histories be decertified, removed from office, and be deemed ineligible to apply for a new law enforcement position in Tennessee; requires denial of application for POST certification of an applicant who knowingly provides POST with false or misleading information. - Amends TCA Title 4; Title 8; Title 38; Title 39 and Title 40.
Sexual Offenses - As enacted, clarifies that law permits prosecution and conviction for displaying sexual activity to a minor by electronic communication regardless of whether the victim is a minor or an undercover police officer posing as a minor. - Amends TCA Title 39.
Sexual Offenders - As enacted, provides that the conveyance of personal property of a sexual offender used to violate a residential and work restriction of the sex offender registry is subject to forfeiture if the victim was a minor; specifies under the provisions regarding forfeiture of property used in the commission of a sexual offense that property is subject to "judicial forfeiture" instead of "administrative forfeiture". - Amends TCA Title 39, Chapter 13, Part 5.
Sexual Offenders - As enacted, authorizes judge, after consideration of facts and circumstances surrounding the case, to require a person convicted of statutory rape for the first time to register as a sexual offender on the sexual offender and violent sexual offender registry. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 39, Part 2.
Criminal Offenses - As enacted, revises the punishment for the offenses of public indecency and indecent exposure and revises the definition of "public place" with regard to the offense of public indecency. - Amends TCA Title 39 and Title 40.
Criminal Offenses - As enacted, creates defense in prosecution of prostitution where a person is a victim of involuntary labor servitude, sexual servitude, or where the person is a victim as defined under the federal Trafficking Victims Protection Act. - Amends TCA Title 39 and Title 40.
DUI Offenses - As eancted, expands present law to provide that it is not a defense to a violation of the DUI statute that a person is or was lawfully entitled to use an intoxicant, marijuana, controlled substance, or other drug. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, creates Class A misdemeanor offense of knowingly or recklessly maiming or harming a service animal and the Class C misdemeanor of interfering with a service dog in the performance of its duties and provides for restitution to the handler of the dog. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, increases penalty for violation of DUI statute when child under 18 is in the vehicle to require that the mandatory minimum 30-day sentence for this offense be served consecutive to any sentence received for a violation of specified other alcohol-related offenses. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Procedure - As enacted, provides that as part of a defendant's alternative sentencing for a violation of domestic
assault, the sentencing judge may direct the defendant to complete a
drug or alcohol treatment program or available counseling programs that address violence and control issues including, but not limited to, a batterer's intervention program that has been certified by the domestic violence state coordinating council. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, requires that a person convicted of committing a dangerous felony involving a firearm who is subsequently convicted of the same serve a minimum of 15 years imprisonment at 100 percent. - Amends TCA Title 39, Chapter 17 and Title 40.
Criminal Procedure - As enacted, clarifies that a defendant cannot get records expunged if convicted of an offense other than the charged offense or convicted of one offense in a multi-count indictment, including lesser included offenses. - Amends TCA Title 40, Chapter 32, Part 1.
Criminal Offenses - As enacted, creates a Class A misdemeanor for an individual to either: knowingly prevent another individual from placing a telephone call to 911 or from requesting assistance in an emergency from a law enforcement agency, medical facility, or other
agency or entity the primary purpose of which is to provide for the safety of individuals; or intentionally render unusable a telephone that would otherwise be used by another individual to place a telephone call to 911 or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity, the primary purpose of which is to provide for the safety of individuals. - Amends TCA Title 7; Title 39; Title 40 and Title 65.
Criminal Offenses - As enacted, revises definitions of fetus as victim for criminal homicide and assaults to remove viability requirement and include an embryo and remove reference to victim being pregnant; revises legislative intent statement. - Amends TCA Title 39, Chapter 13. Abortion - As enacted, enacts the "Life Defense Act of 2012," which requires that physicians performing abortions have admitting privileges in hospital within certain area of where abortion performed. - Amends TCA Title 37, Chapter 10, Part 3; Title 39, Chapter 15, Part 2 and Title 68.
Bail, Bail Bonds - As enacted, declares a defendant who is unlawfully present in the United States and has committed certain traffic violations may be deemed a risk of flight for bail purposes; authorizes clerks to set bail for such defendants at a higher amount than normally permitted. - Amends TCA Title 39; Title 40 and Title 55.
Criminal Procedure - As enacted, provides that a person may be prosecuted, tried and punished for producing obscene material, sexual exploitation of a minor, aggravated sexual exploitation of a minor or especially aggravated sexual exploitation of a minor, no later than 25 years from the date the child becomes 18 years of age. - Amends TCA Title 40, Chapter 2.
Sexual Offenses - As enacted, enacts "Kimberlee's Law," which requires that persons convicted of aggravated rape serve 100 percent of sentence. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 35.
Criminal Offenses - As enacted, enhances the penalty for involuntary labor servitude where the victim was under age 13 and adds means by which the crime is possible. - Amends TCA Title 39, Chapter 13 and Title 40.
Criminal Offenses - As enacted, clarifies that the offense of trafficking a person for a commercial sex act is Class A felony if the victim is a child under 15 years of age; adds that the offense is a Class A felony if the offense occurs on the grounds or facilities or within 1,000 feet of a public or private school, secondary school, preschool, child care agency, public library, recreational center or public park; adds Class C felony of advertising commercial sexual abuse of a minor; clarifies certain sex offender registry provisions.
Welfare - As enacted, requires the department of human services to develop a plan to implement a program of suspicion-based drug testing for each applicant who is otherwise eligible for temporary assistance for needy families (TANF). - Amends TCA Title 4, Chapter 3, Part 12; Title 4, Chapter 3, Part 18 and Title 71.
Criminal Offenses - As enacted, creates new Class A felony theft provision if the amount stolen is 250,000 or more; allows state to aggregate value of property stolen in certain circumstances; and changes venue for all offenses graded by value. - Amends TCA Title
39, Chapter 14, Part 1.
Animal Cruelty and Abuse - As enacted, creates Class E felony of aggravated cruelty to livestock, which is intentionally engaging in specified conduct in a depraved and sadistic manner that results in serious bodily injury or death to the animal and is done without lawful
or legitimate purpose. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, authorizes judge to order the use of an ignition interlock device for any person granted a restricted driver license; order may be with or without geographical restrictions, but if the device is ordered, then it must remain on the vehicle during the entire period of the restricted license. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, includes the commission of or attempt to commit a criminal gang offense within the definition of racketeering activity and enterprise for purposes of the Racketeer and Corrupt Organization Act (RICO). - Amends TCA Title 39, Chapter 12, Part 2.
Criminal Offenses - As enacted, makes it a Class A misdemeanor for a person 18 years of age or older to knowingly promote or organize a gathering of two or more minors in a public place with the intent to provide a location for such minors to engage in public indecency; any personal property used in the commission of a violation of this offense would, upon conviction, be subject to judicial forfeiture. - Amends TCA Title 39; Title 40; Title 67; Title 68 and Title 71.
Criminal Procedure - As enacted, authorizes persons to petition for expungement of records of conviction for certain non-violent, non-sexual misdemeanors and Class E felonies that were committed on or after November 1, 1989.
Davis & Hoss, PC attorneys will be posting new developments on these legislative changes as they occur.

The defense says DA knew of Judge Baumgartner's misconduct

by Lee Davis


The Christian/Newsom case saw another development today as defense attorneys Tom Dillard and Stephen Ross Johnson responded to the prosecution’s motion to have Judge Blackwood removed due to supposed unethical conduct. The defense fired back with a motion of their own accusing district attorney Randy Nichols and his staff of hiding information about Judge Baumgartner’s misconduct while he was still presiding over the case.

The defense counsel’s motion said that they agree that a motion to recuse was appropriate and should have been granted, however, the motion should not be against the current judge. “A motion to recuse should have been filed years ago in this case concerning Judge Baumgartner.”

The current controversy involves the decision by Judge Blackwood to order new trials of the defendants in the Christian/Newsom murder case following news that Judge Baumgartner was addicted to narcotic pills and abused his position to win sexual favors from some of those that he presided over. An investigation by the TBI showed that many of the crimes were committed while Baumgartner was presiding over the Christian/Newsom murder trials.

Previous releases of information have made clear that others were aware of Baumgartner’s misdeed. For instance, two prosecutors who were working on the Christian/Newsom case reported seeing Baumgartner swearing his way down I-40 following jury selection in Nashville for Vanessa Coleman’s trial. It was also revealed that District Attorney Nichols confronted Baumgartner about such behavior and that the judge admitted to drinking a bottle of wine every night to help him sleep.

The defense attorneys brought forward not only these known instances of prosecutorial awareness of Baumgartner’s problems but another not previously made public: “During this visit, former Judge Baumgartner told Mr. Nichols that he was drinking a bottle of wine a night while at the same time going to the Bradford Rehabilitation Clinic (an outpatient center in Knoxville) and Alcoholics Anonymous meetings.”

Not only did Nichols allegedly know this information, but he also kept it secret from the defense attorneys in the Christian/Newsom case. The defense said that there were many other cases before Judge Baumgartner at the time and that attorneys across the region with clients before the judge would have wanted to know about his conduct. The motion said that despite this “extraordinary step of an ex parte direct inquiry of Judge Baumgartner about his problems…” nothing was ever disclosed by Nichols or his office.
For his part, Nichols’ special counsel, John Gill, responded to the allegations saying that the District Attorney’s meeting with Baumgartner had nothing to do with any particular case and therefore was not ex parte contact.

Ex parte communication refers to any contact between a judge and one party of the case without the presence of the other party. Such communication is frowned upon. The prosecution has hinted that the current judge, Blackwood, has engaged in such contact with unidentified people and has complained that it is objectionable. The defense denies any such one-sided communication with the judge, as has Blackwood.

Read: “DA Randy Nichols hid signs of ex-judge Richard Baumgartner's misdeeds, attorneys contend,” by Jamie Satterfield, published at KnoxNews.com.

Location:Tatarrax Dr,Manhattan,United States

Supreme Court Strikes Down Mandatory Life Sentences For Juveniles

By Jay Perry

On Monday the Supreme Court issued a ruling on Miller v.Alabama, a case previous discussed here.  The case involved two fourteen year old defendants who had been mandatorily sentenced to life without parole after they were convicted of murder.  In a 5-4 decision, the Court ruled that the imposition of mandatory life without parole for juveniles violates the 8^th Amendment prohibition on “cruel and unusual punishment”.  The decision (and its announcement) is particularly interesting for two reasons: the dissents were particularly vigorous and the media coverage surrounding the decision misstated the holding of the case.

The decision came complete with three separate dissenting opinions authored by Justices Roberts, Alito, and Thomas.  These dissents demonstrate that there was strong disagreement among the Justices about this case.  In particular, Justice Alito read his dissent from the bench, an unusual occurrence that seems to demonstrate extremely strong disagreement with the majority ruling.

  Chief Justice Roberts cited the fact that there are currently an estimated 2,500 juveniles serving such sentences and that a majority of states impose such mandatory sentences.  Thus, part of his argument is that they are in no way “unusual”.  In the end he concludes that although there may be moral arguments against mandatory life sentences, there are not good legal ones and hence it “is not our decision to make.”  This argument for judicial restraint, which is echoed in all of the dissents, is interesting because it often is used inconsistently by members of the Court.  After all, it was Chief Justice Roberts who wrote the majority opinion in Citizens United, explicitly overturning Supreme Court precedent from twenty years earlier.

Also worth highlighting is the inaccuracy of much of the media coverage regarding the decision.  Many of the headlines read that the Supreme Court had banned life sentences for juveniles (examples here, here, and here).  That was not what the Court ruled however, what they said was unconstitutional was the mandatory imposition of life without parole sentences.  States are still free to sentences juveniles to these sentences but must take into account their age and circumstances before doing so.  Many of the news accounts mention this in the body of the article which begs the question of why the inaccurate headlines?  It is just sloppy reporting or an attempt to oversimplify what happened?  It is important with the Supreme Court so prominent recently in public discourse that coverage of their decisions is accurate.  

As to the ruling itself, it makes good sense.  Juveniles are different from adults, we all understand this.  If a juvenile convicted of murder is mandatorily sentenced, it ensures that their age or mitigating circumstances are never taken into account during the process.  Once prosecutors make the decision to try them as adults their individualized circumstances are not considered.  Under this scheme, juries cannot consider their age or mitigating circumstances, their focus is on guilt or innocence.  All criminal punishment rests of a framework of moral reckoning, an understanding that we as a society are punishing an individual for their morally culpable behavior.  Because of circumstances often beyond their control and which they cannot escape, juveniles can be less morally culpable.   When we sentence them, we should consider not only the terrible crimes they have committed but their entire story, to do less is dehumanizing.

TN Court of Criminal Appeals Rejects Petition From Defendant With Life Sentence

• State of Tennessee v. David Edward Niles

The Tennessee Court of Criminal Appeals recently rejected a petition from a man serving a life sentence for first-degree murder. The defendant, David Edward Niles, was convicted in January of 2010 for the death of Laura Parker. Niles claimed that circuit Court Judge Robert Crigler erred by denying his motion to suppress evidence that was sized during the search of his residence. Niles also said there was not sufficient evidence to convict him and that the judge abused his discretion in denying a motion for money for a psychiatrist.

According to the appeal, public defenders working for Niles discovered he had told one of his jailers that God told him to kill Parker because she was an unfit mother to their 4-year-old son. Niles then told his attorneys that he initially believed God told him this but later though it may have been the devil. 

Judge Crigler ruled that Niles had already been examined once and was found competent to stand trial. The Court here agreed, saying that Niles provided “only unsupported assertions” that a psychiatrist might have been of help in his case, failing to show that testimony from an expert was necessary in order to receive a fair trial.

Before his trial, Niles attempted to have evidence seized at his residence suppressed. A detective, Brian Crews, had asked Niles’ wife, Patricia, about ammunition for the gun her husband was found with the night of the shooting. Patricia allowed Crews and another detective to enter the home to get the ammunition. While they were in the house they found receipts for a replacement barrel and firing pins. Both items ended up being important pieces of evidence that were used to prove that he had planned the killing weeks in advance. 

Crews also asked if police could have a day planner and the computer at the home, but his wife objected saying she needed it for schoolwork. The detective ended up making copies of both. The Court decided that Mrs. Niles freely, specifically and intelligently gave her consent to the search. The day planner and computer were never used as evidence so the issue regarding their copying is moot. 

The Court of Criminal Appeals also said that the record of the case showed that there was “overwhelming evidence of premeditation,” including evidence indicating that an attempt was made to conceal the crime prior to the murder. 

Niles confessed to another one of his jailer’s that he had done research on the internet about how to defeat ballistics testing by using a replacement barrel and firing pin. Thus the Court found that “there was sufficient evidence supporting Niles’s conviction for first degree premeditated murder.”

To read the full opinion, click here. 

See Our Related Blog Posts:

TN Court of Criminal Appeals Says Petition Regarding 1988 Drug Conviction is Moot

Tennessee Court of Criminal Appeals Finds Career Criminal Not Entitled to Alternative Sentencing

Supreme Court Overrules Sixth Circuit and Reinstates Murder Convictions

by Lee Davis

• Parker v. Matthews

Earlier this week the U.S. Supreme Court restored murder convictions against a Kentucky man who broke into his estranged wife’s home and killed his mother-in-law before raping and killing his wife. 

A three-judge panel from the Sixth Circuit decided to overturn the nearly 30-year-old convictions which the Supreme Court was a decision “based on the flimsiest of rationales.”

David Matthews had a stormy marriage with his late wife, Mary Marlene Matthews and the two fought and reconnected many times. Just weeks before the murders, Matthews spent time in jail on charges that he sexually abused his wife’s 6-year-old daughter. In June of 1981, Matthews bought a gun and broke into the home he shared with his wife, entering the room where her mother was sleeping and shooting her at point-blank range. He then spent several hours having sex with his wife before shooting her too. When he was arrested later that day he had already started the process of destroying evidence, cleaning clothes and burying guns in the backyard. 

A jury convicted Matthews of first-degree murder, and sentenced him to death. This was over his objections that the crimes occurred due to an extreme emotional disturbance on his part. The Sixth Circuit granted him relief after a series of appeals but the Supreme Court struck down the ruling, saying it was based on invalid grounds. The Court said that there is no evidence that the lower courts improperly shifted the burden of proving extreme emotional distress onto Matthews. The high court further stated that the jury had an appropriate basis to find Matthews did not suffer from an extreme emotional disturbance. 

The Court wrote, “As the Kentucky Supreme Court observed, Matthews’ claim of extreme emotional disturbance was belied by ‘the circumstances of the crime’ - including the facts that he borrowed money to purchase the murder weapon the day of the murders, that he waited several hours after buying the gun before starting for his wife’s home, and that he delayed several hours between shooting his mother-in-law and killing his wife.” Furthermore, “The claim was also belied by his behavior after the murders, including his ‘[taking] steps to hide the gun and clean his clothes.’”
      

Despite the testimony during the trial by Matthews’ psychiatrist who attempted to show the disturbance the defendant was under at the time of the murders, the Court ruled that the jury was entitled to consider the doctor’s testimony along with their own “common-sense understanding of emotional disturbance.” The Court held that the Sixth Circuit went astray by resolving the matter in favor of the physiatrist’s testimony which was an act overstepping its authority. 

To read the full opinion, click here. 

Read: “Double Homicide Verdict Restored by High Court,” by Barbara Leonard, published at CourthouseNews.com.

See Our Related Blog Posts:

Sixth Circuit Court of Appeals: No recovery for man released from prison 17 years too late

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony? 

The Tennessee Court of Criminal Appeals on Split Confinement

By Stevie Phillips

Harvey Brian Cochran was convicted of reckless homicide, a Class D felony.  On appeal, he argued that the trial court erred by failing to follow the sentencing guidelines before denying him an alternative sentence.  An alternative sentence is any sentence that does not involve complete confinement. 

The CCA determined that Cochran was a favorable candidate for alternative sentencing because he was convicted of a Class D felony.  Under T.C.A. § 40-35-101(6)(A), the burden therefore fell to the State to present “evidence to the contrary.”  In determining whether such evidence exists, the trial court should consider the factors set out in T.C.A. § 40-35-103(1)(A)(C):  whether confinement is necessary to protect society, avoid depreciating the seriousness of the offense, or deter others.  The trial court should also consider whether less restrictive sentences have been applied unsuccessfully to the defendant in the past. 

Here, the trial court explicitly found that these factors did not apply, and the CCA saw nothing in the record on appeal to refute this finding.  Nonetheless, the trial court denied alternative sentencing on the basis of lack of remorse or truthfulness as it related to Cochran’s potential for rehabilitation under T.C.A. § 40-35-103(5).  As the CCA explained, a defendant’s potential for rehabilitation should only be considered when determining the type and length of the alternative sentence once the court has ruled that complete confinement is improper. 

As a result, Cochran was still a candidate for alternative sentencing.  The CCA reversed and ordered a sentence of split confinement – ninety days in jail and the remainder on supervised probation. 

The full opinion can be found here.  

Baumgartner’s Attorneys Get Three Months to Prepare

The Knoxville case involving disgraced former judge Richard Baumgartner moved forward last week with news that his defense attorneys, Don Bosch and Ann Short, filed a motion before U.S. Magistrate Judge Clifford Shirley asking that he declare the case “complex.” 

Though the name may seem odd and beside the point, it’s important to a case’s timeline. If a case is declared “complex” it will give the defense more time to review discovery submitted by the prosecution, postponing the currently scheduled July 18 trial. 

Bosch and Short told Judge Shirley that they had only begun to scratch the surface of the voluminous discovery turned over by the government. Moreover, for them to do their jobs properly they’ll need additional time to review everything and properly brief their client. They state that the July 18 date currently set for trial is inappropriate given the amount of work still left to do.

Federal prosecutors disagreed, saying that the defense was only seeking a delay for delay’s sake. They raised that Bosch and Short represented Baumgartner back in 2011 when he pled guilty to one count of official misconduct. The TBI had initiated an investigation of him in 2010 and after news came to light of his misdeeds the government offered a deal to avoid further damage to the Knox County criminal justice system. Given that both Bosch and Short reviewed all the evidence at the time, the prosecution now says their claims of unpreparedness are ridiculous. The prosecutors wrote, “It is unlikely that defense counsel would have advised defendant to plead guilty to a felony in state court without first evaluating the evidence against defendant.”

The defense counters saying that the investigation against their client was continued by the TBI after the plea deal was accepted and that, as a result, mountains of new information remains to be reviewed. Interviews were conducted and filed were gathered, none of which were available the first time around. 

It was announced later last week that Judge Shirley approved a deal struck between the two sides granting a three-month continuance, so that trial is not set to begin until October 23^rd. This amounts to a victory for both sides. The defense received a delay and longer time to review and prepare their case. The prosecution avoided having the trial labeled “complex” and kept the case subject to the federal speedy trial act. 

Though Baumgartner pled guilty to avoid further prosecution just like the one currently proceeding, further allegations of misconduct that he was not initially charged with have since been unearthed. These include his doctor shopping, using his mistress (one of his own Drug Court graduates, Denna Castleman) to get pills, using his influence to help her avoid trouble with prosecutors and judges, lying about being her lawyer and helping her hide a failed drug test. His actions with Castleman are at the heart of the current federal case filed in May. Baumgartner is currently charged with and scheduled for trial on July 18^th for seven counts of misprision of a felony. Each count accuses him of either covering up Castleman’s crimes or failing to report them to the proper authorities. Misprision of a felony carries a maximum prison term of three years. 

Yet another interesting twist occurred earlier last week when, on Wednesday, U.S. District Judge Thomas Phillips, who was scheduled to preside over Baumgartner’s trial, recused himself. Phillips has not released any word as to why he asked to have the case reassigned and the decision now rests in the hands of Chief U.S. District Judge Curtis Collier to assign Phillips’ replacement.

Source: “Baumgartner seeks delay in his federal trial,” by Jamie Satterfield, published at KnoxNews.com.

See Our Related Blog Posts:

The Baumgartner Debacle Continues

Judge Baumgartner Saga Continues 

Tennessee Court of Criminal Appeals Finds Career Criminal Not Entitled to Alternative Sentencing

by Bryan Hoss

• State of Tennessee v. William Henry Wiggins

The defendant, William Henry Wiggins, was convicted in Davidson County Circuit Court of felony possession of a controlled substance, in this case oxycodone, and a violation of the state’s sex offender registry. He was ordered to serve a six-year sentence in prison which he then appealed claiming insufficient evidence and an excessive punishment. The Court of Criminal Appeals reviewed the case and affirmed the trial court’s initial decision. 

When Wiggins was indicted for possession and a sex offender registry violation the grand jury indictment indicated his five prior convictions for unlawful possession of a controlled substance. The evidence presented at trial consisted of testimony by officers that they observed a car where Wiggins was the passenger cruising a gas station in search of drugs. When the officers pulled the car over and ran the driver’s and passenger’s names against their database they discovered Wiggins had a warrant out for a sex offender registration violation. When he was arrested, Wiggins admitted to having some pain pills given to him by the driver of the car in exchange for gas money. 

On appeal Wiggins claimed that the state failed to show that he knowingly possessed a controlled substance, believing them to be “pain pills” and not a controlled narcotic. The Court pointed out that Wiggins did not dispute that he possessed the pills or that oxycodone is a controlled substance, he only claimed that he did not know what he was given was oxycodone. The Court disagreed, citing evidence of a prescription label found in the car Wiggins was arrested in and Wiggins’ own statements to officers concerning the pills he had in his pocket. 

Regarding Wiggins’ contention that the length of confinement was too severe, the Court noted that the trial court found him to be a Range III, career criminal and thus not a good candidate for alterative sentencing. The trial court considered the possibility of probation but rejected it in favor of the minimum prison sentence allowed for his crimes. The Court of Criminal Appeals noted that Wiggins does not admit to having a drug problem, making rehabilitation next to impossible. Given his status as a career criminal, the Court found Wiggins’ initial sentence proper.

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Discusses Factors for Determining Whether a Plea was Voluntary and Intelligent

TN Court of Criminal Appeals Finds Video Must Be Reviewed by Trial Court

TN Court of Criminal Appeals Says Petition Regarding 1988 Drug Conviction is Moot

• Joby Lee Teal v. The Criminal Court of Shelby County, Tennessee

Joby Lee Teal, a pro se petitioner, sought declaratory judgment concerning the legality of his five 1988 convictions for drug offenses and resulting concurrent five-year sentences. He argues the sentences are void because he committed them while on bail and should have received consecutive sentences. The Criminal Court of Shelby County found that such relief was not available because the five concurrent sentences had expired and the Court of Criminal Appeals agreed. 

The plea deal was struck with deal in November of 1988 and his negotiated sentence expired in 1993. It’d odd then that so many years later, in 2011, Teal filed a pro se petition attacking the five-year sentences he received back in the 80s. He claimed the original trial court did not have jurisdiction to enter concurrent sentences for felony offenses he committed while released on bail. 

The Court of Criminal Appeals discussed the state’s Declaratory Judgment Act, found in Tennessee Code Annotated Section 29-14-102, which states:

1. Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.
2. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.
3. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

The Court said that Tennessee law is clear that in order to maintain an action for declaratory judgment, a justiciable controversy must exist. The question before the court must be a real one, not simply a theoretical one. The Court says that even a simple review of the records shows that Teal’s claim is moot because it lost its “character as a present, live controversy.” 

Because Teal did not pursue this remedy during the time available to him and because he has long since completed the sentence about which he now complains, the Court can do nothing today. Apparently the return address on Teal’s brief indicated he is currently residing at the Federal Correctional Institute in Memphis, Tennessee. The fact that he is currently incarcerated on unrelated charges does not help the fact that the underlying claim before the court is moot.  

To read the full opinion, click here.

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