State of Tennessee v. Anthony Jared Ross

06/12/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 24, 2024 Session

STATE OF TENNESSEE v. ANTHONY JARED ROSS

Appeal from the Circuit Court for Sevier County

No. 22-CR-698 Rex Henry Ogle, Judge

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No. E2023-00381-CCA-R3-CD

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ROBERT H. MONTGOMERY, JR., J., concurring in part and dissenting in part.

I dissent from the majority’s conclusion that the case must be remanded for

resentencing on the basis that the record fails to reflect that the trial court considered a

validated risk and needs assessment (“RNA”). The majority concludes from the parties’

arguments and from the absence of an RNA in the appellate record that no RNA was

prepared and, therefore, that the trial court did not consider one. See T.R.A.P. 13(c)

(limiting an appellate court to consideration of those facts which appear in the record or

are within the parameters of certain post-judgment facts of which the court may take

judicial notice pursuant to T.R.A.P. 14); Threadgill v. Board of Prof’l Resp., 299 S.W.3d

792, 812 (Tenn. 2009) (stating that allegations in pleadings or a party’s brief are not

evidence that is before an appellate court for review), overruled on other grounds by

Lockett v. Board of Prof’l Resp., 380 S.W.3d 19, 28 (Tenn. 2012); State v. Draper, 800

S.W.2d 489, 493 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.

Crim. App. 1988). As the majority has observed, the Defendant did not object to the trial

court’s sentencing the Defendant in the purported absence of an RNA at sentencing.

To support his argument that he should be resentenced, the Defendant relies on cases

which hold that a trial court errs in sentencing a defendant for a felony without the court’s

having ordered and considered a presentence report. See, e.g., State v. Rice, 973 S.W.3d

639, 642 (Tenn. Crim. App. 1997); see generally T.C.A. §§ 40-35-205(a) (2019) (directing

the trial court to order a presentence report), 40-35-210(b)(2) (Supp. 2023) (directing the

trial court to consider the presentence report). In Rice, this court remanded for resentencing

with instructions that a presentence report be prepared and be considered by the trial court.

Rice, 973 S.W.2d at 642. As the majority observes, the RNA is a component of a

presentence report. See T.C.A. § 40-35-207(a)(10) (2019).

The wholesale absence of a presentence report, as in Rice, presents a different

scenario than the case currently before this court, which presents, at most, the trial court’s

sentencing the Defendant after consideration of a merely incomplete presentence report.

In my view, if the trial court sentenced the Defendant without the benefit of an RNA as a

component of the presentence report, then the Defendant has waived any objection to its

absence and to the court’s procedure because he did not raise the issue at the time of

sentencing. See T.R.A.P. 36(a).

Assuming for the sake of argument that the trial court did not have an RNA before

it when it sentenced the Defendant, defense counsel should have objected at the time in

order to preserve that fact on the record. See T.R.A.P. 13(c). To the extent that the defense

believed an RNA would benefit the Defendant in his bid for an alternative sentence, and

particularly probation, he had the burden of establishing his suitability for probation, an

additional reason why a timely objection was imperative. See State v. Souder, 105 S.W.3d

602, 607 (Tenn. Crim. App. 2002) (holding that a defendant must demonstrate that

probation will “‘subserve the ends of justice and the best interest of both the public and the

defendant’” (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see

also T.C.A. § 40-35-303(b); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).

Admittedly, the lack of an RNA, despite the statutory mandate that it be prepared,

and the failure of a trial court to consider an RNA, despite the statutory mandate that it do

so, have not been viewed uniformly by panels of this court. See State v. Christopher David

Pace, No. W2022-01092-CCA-R3-CD, 2023 WL 6626457, at *2 (Tenn. Crim. App. Sept.

1, 2023) (2-1 decision, majority holding that the trial court erred in sentencing the

defendant without considering an RNA but that the issue was waived because the defendant

failed to object to the procedure at sentencing), reh’g denied (Oct. 11, 2023), perm. app.

denied (Tenn. Apr. 11, 2024); State v. Ronald Ailey, No. E2017-02359-CCA-R3-CD, 2019

WL 3917557, at *31 (Tenn. Crim. App. Aug. 19, 2019) (holding that the defendant waived

objection to sentencing without the RNA because he failed to object at sentencing). To

date, the supreme court has declined to resolve the conflicting opinions expressed by

members of this court. The supreme court denied the defendant’s application for

permission to appeal in Christopher David Pace. In a second case in which the assigned

panel of this court reached a split, 2-1 decision on the issue of waiver, State v. Antonio D.

Blaylock, No. W2020-00080-CCA-R3-CD, 2021 WL 2156447, at *9 (Tenn. Crim. App.

May 27, 2021), perm. app. denied (Tenn. Nov. 17, 2021) (designating the Court of

Criminal Appeals’ opinion “not for citation” in accord with Tenn. R. Sup. Ct. 4, § E), the

supreme court likewise denied the defendant’s application for permission to appeal.

Because I believe that if no RNA was prepared and considered, the question

becomes whether the Defendant has established a compelling case for plain error relief.

Plain error relief is limited to errors which are “clear, conspicuous, or obvious” and which

affect the defendant’s substantial rights. State v. Martin, 505 S.W.3d 492, 504 (Tenn.

2016). Five factors are relevant

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when deciding whether an error constitutes “plain error” in the absence of an

objection at trial: “(a) the record must clearly establish what occurred in the

trial court; (b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected; (d)

the accused did not waive the issue for tactical reasons; and (e) consideration

of the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)); see also State v. Minor, 546 S.W.3d 59, 70 (Tenn.

2018). All five factors must exist in order for plain error to be recognized. Smith, 24

S.W.3d at 283. “[C]omplete consideration of all the factors is not necessary when it is

clear from the record that at least one of the factors cannot be established.” Id. In order for

this court to reverse the judgment of a trial court, the error must be “of such a great

magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d

at 642.

I do not believe the Defendant has shown an availing case for plain error relief.

First, I do not think the record “’clearly establish[es] what occurred in the trial court.’” See

Smith, 24 S.W.3d 274 at 282 (quoting Adkisson, 899 S.W.2d at 641-42 (1994)). The

presentence report is included in the technical record, and neither the victim impact

statement, to which the trial judge referred at the hearing, nor the RNA, to which no one

referred at the hearing, is attached to the presentence report that appears in the technical

record. None of these documents were offered as exhibits at the sentencing hearing. As I

have noted, the defense did not object to the purported absence of the RNA from the

presentence report or otherwise ensure that the fact of its purported absence was

memorialized on the record. Although the court did not refer specifically to an RNA when

making its findings, the court was not required to give the RNA any particular weight. See

T.C.A. § 40-35-210(b); State v. Christopher C. Solomon, No. M2018-00456-CCA-R3-CD,

2018 WL 5279369, at *8 (Tenn. Crim. App. Oct. 23, 2018). The record affirmatively

reflects that the court considered at least one document which is ancillary to the presentence

report – the victim impact statement – that did not make its way into the appellate record.

In view of the absence of the victim impact statement from the record despite the court’s

having affirmatively acknowledged that it had reviewed the victim impact statement, I view

the record as ambiguous on the question of whether the court had before it an RNA when

it sentenced the Defendant. See T.R.A.P. 24(a), (b), (e), (g); State v. Bobadilla, 181 S.W.3d

641, 643 (Tenn. 2005) (“It is well-settled that the duty to prepare a record which ‘conveys

a fair, accurate, and complete account of what transpired with respect to those issues that

are the bases of the appeal’ rests on the appellant.” (quoting T.R.A.P. 24(b)). This alone

is fatal to a plain error analysis. See Smith, 24 S.W.3d at 282; Adkisson, 899 S.W.2d at

641-42.

Second, I note that in Christopher David Pace, a panel of this court observed on

rehearing, “[I]t is a stretch to hold that remanding this case for consideration of the

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validated risk and needs assessment is necessary to do substantial justice where the trial

court need not have afforded the results of the assessment any weight in sentencing.” See

Christopher David Pace, 2023 WL 6626457, at *7 (order denying rehearing); see also

Smith, 24 S.W.3d at 282 (stating that one of the five requirements for plain error relief is

that consideration of the error be necessary to do substantial justice). Because at least two

of the five factors for plain error relief cannot be established on the record before the court,

I would not grant relief as a matter of plain error.

My review of the record leads me to conclude that the Defendant has not carried his

burden of establishing reversible sentencing error as to the carjacking sentence.

As to the majority’s conclusion that the case should be remanded for entry of an

appropriate disposition on Count 2, the theft charge, I concur. The record reflects that the

Defendant only pleaded guilty to Count 1, the carjacking charge, and that the trial court

commented that the theft charge would merge with the carjacking conviction. As such, it

appears that dismissal of Count 2 is the appropriate disposition.

For these reasons, I would affirm the Defendant’s conviction and sentence for

carjacking in Count 1, and I would remand for correction of the judgment for theft in Count

2 to reflect a dismissal.

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ROBERT H. MONTGOMERY, JR., JUDGE

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