stating that the appellant should identify “those issues most amenable to success on appeal and present those issues to the court supported by citation to authorities and appropriate references to the record”
How later courts described this case
- stating that the appellant should identify “those issues most amenable to success on appeal and present those issues to the court supported by citation to authorities and appropriate references to the record”
Written by the judges who cited it.
The opinion
08/02/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville July 23, 2024
STATE OF TENNESSEE v. AUSTIN CUNNINGHAM
Appeal from the Circuit Court for Maury County
No. 2021-CR-29283 J. Russell Parkes, Judge
___________________________________
No. M2023-00909-CCA-R3-CD
___________________________________
A Maury County jury convicted the Defendant, Austin Cunningham, of possession of
methamphetamine with the intent to sell and possession of a firearm during the commission
of or attempt to commit a dangerous felony, among other offenses. The trial court ordered
the Defendant to serve an effective twelve-year sentence. On appeal, the Defendant asserts
that the evidence is legally insufficient to sustain his convictions and that the trial court
erred when it denied alternative sentencing. Upon our review, we hold that the Defendant
has waived his issues by failing to properly prepare his brief in accordance with Tennessee
Rule of Appellate Procedure 27. Although we remand Count 6 for entry of a modified
judgment as to the sentence imposed, we respectfully affirm the trial court’s judgments in
all other respects.
Tenn. R. App. P. 3 Appeal as of Right;
Judgments of the Circuit Court Affirmed as Modified; Case Remanded
TOM GREENHOLTZ, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and MATTHEW J. WILSON, JJ., joined.
William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Austin Cunningham.
Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney
General; Brent A. Cooper, District Attorney General; and J. Victoria Haywood and Pamela
S. Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
In the early morning hours of March 9, 2021, Tennessee Highway Patrol Sergeant
Adam Smith and Trooper David Greene stopped the Defendant, suspecting him of impaired
driving. During the stop, Trooper Green saw a loaded 9mm KelTec gun in the back driver’s
side floorboard of the vehicle, and the officers asked the Defendant to exit his car for safety
reasons. During a pat-down search, the officers found a small bag of methamphetamine in
the Defendant’s pants pocket. When questioned, the Defendant revealed that
approximately thirty grams of methamphetamine were located in a box in the vehicle.
The officers inspected the box and found digital scales; two plastic baggies
containing a green plant material that appeared to be marijuana; and two other baggies that
contained methamphetamine. The officers also found $742 in cash.
The officers asked the Defendant to perform several standardized field sobriety
tests. On each of the tests, the Defendant showed multiple indicators of being under the
influence of an intoxicant. The Defendant acknowledged that he had smoked marijuana
and methamphetamine within the previous five hours, and a later test confirmed the
presence of Delta 9 THC and methamphetamine in his blood.
On October 4, 2021, a Maury County grand jury charged the Defendant with two
felony offenses: possession of 26 grams or more of methamphetamine with the intent to
sell, a Class B felony, and possession of a firearm during the commission of or attempt to
commit a dangerous felony, a Class D felony. It also charged him with five misdemeanor
offenses, including driving under the influence of an intoxicant and driving while in
possession of methamphetamine. After a trial conducted in January 2023, the jury found
the Defendant guilty of these charges. 1
The trial court imposed an effective sentence of twelve years. The court sentenced
the Defendant as a Range I, standard offender to serve nine years for the Class B felony
and a consecutive three-year term for the Class D felony. After also imposing sentences
for each of the various misdemeanor convictions, the court aligned these sentences
concurrently with the felony sentences.
1
The indictment also charged the Defendant with failing to wear a seatbelt law and violating
the financial responsibility law. The State dismissed these charges before trial, and the Defendant has raised
no issue with these charges on appeal.
2
The Defendant filed a timely motion for a new trial, which the trial court denied on
June 8, 2023. The Defendant filed a timely notice of appeal twelve days later.
ANALYSIS
On appeal, the Defendant challenges the legal sufficiency of the evidence supporting
his convictions and the denial of alternative sentencing. In response, the State argues that
the evidence is sufficient to sustain the convictions and that the Defendant has waived
consideration of sentencing issues by failing to present supporting arguments or authorities.
In our view, the Defendant has waived each of these issues.
A. WAIVER OF ISSUES
The Defendant first challenges the legal sufficiency of the evidence supporting each
of his convictions. He asserts that his arrest was not supported by probable cause and that
the case should have been dismissed. He also questions whether he could have been found
guilty of the possession offenses given that his brother owned the car. As to sentencing,
the Defendant asserts only that “sentencing [him] to serve the twelve (12) year portion of
his sentence was improper.”
The Defendant has clearly identified the issues, but, respectfully, has fallen short of
his other obligations as an appellant. As an intermediate court of appeals, our function is
principally to review and correct errors. State v. Phifer, No. M2013-01401-CCA-R3-CD,
2014 WL 4698499, at *16 (Tenn. Crim. App. Sept. 23, 2014), no perm. app. filed. Properly
conceived, our role is not to “sit as self-directed boards of legal inquiry and research,
sallying forth each day looking for wrongs to right.” State v. Bristol, 654 S.W.3d 917, 924
(Tenn. 2022) (citations and alteration omitted). Instead, we rely upon the parties to identify
the errors they believe were committed in the trial court and to show why they believe the
law entitles them to relief on appeal. See Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim.
App. 2011) (stating that the appellant should identify “those issues most amenable to
success on appeal and present those issues to the court supported by citation to authorities
and appropriate references to the record”).
To that end, “simply raising an issue is not sufficient to preserve it for appellate
review.” State v. Gooch, No. M2022-01395-CCA-R3-CD, 2024 WL 2814624, at *4 n.4
(Tenn. Crim. App. June 3, 2024). Instead, Tennessee Rule of Appellate Procedure
27(a)(7)(A) requires the appellant to set forth the contentions “with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record
(which may be quoted verbatim) relied on[.]” Reinforcing this requirement, Rule 10(b) of
the rules of this court cautions that “[i]ssues which are not supported by argument, citation
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to authorities, or appropriate references to the record will be treated as waived in this
court.” See also State v. Molthan, No. M2021-01108-CCA-R3-CD, 2022 WL 17245128,
at *2 (Tenn. Crim. App. Nov. 28, 2022) (finding waiver when the defendant did not “make
any argument in support of this issue in his brief” and did not “cite to any authorities or
appropriate references in the record”), no perm. app. filed.
In his brief, the Defendant generally alleges that the proof does not support his
convictions. However, he does not identify any element of his seven convictions that he
believes is not supported by sufficient evidence. In his argument, he cites no cases or other
authorities apart from those identifying the appropriate standard of appellate review.
Although he asserts that his “arrest is no good” and “the case should have been dismissed,”
he cites no statutes, cases, or other authority that could advance or support either
conclusion. 2
As to the sentencing issue, the Defendant alleges that the trial court should have
imposed an alternative sentence to incarceration. However, he does not support this issue
with any argument, citations to authority, or reference to the record from the trial or
sentencing hearing.
In essence, to address the Defendant’s concerns, we must construct developed
arguments from his conclusory statements and make assumptions about the extent of his
requests for relief. We must then examine the record for relevant testimony, evidence, and
information necessary to address and resolve those arguments in the context of the
applicable law and proper standards of appellate review.
Our role as an error correction court does not include—and perhaps does not even
permit—our undertaking the efforts required by the Defendant’s submission. See City of
Memphis v. Edwards by & Through Edwards, No. W2022-00087-SC-R11-CV, 2023 WL
4414598, at *2 (Tenn. July 5, 2023) (“[D]ecades of caselaw and the very foundations of
our adversarial justice system dictate that courts cannot and should not shoulder the burden
of fashioning the arguments of the parties who have chosen not to do so for themselves.”
(citation omitted)). After all, the parties generally “know what is best for them and are
responsible for advancing the facts and argument entitling them to relief.” State v.
Manning, No. E2022-01715-CCA-R3-CD, 2023 WL 7439203, at *5 (Tenn. Crim. App.
Nov. 9, 2023) (citation omitted), perm. app. denied (Tenn. May 16, 2024). Because the
Defendant’s brief does not comply with Tennessee Rule of Appellate Procedure 27(a)(7),
we must conclude, regretfully but respectfully, that he has waived appellate consideration
2
The record contains no indication that the Defendant filed a motion to suppress evidence.
4
of the issues raised. See State v. Moss, No. E2022-01227-CCA-R3-CD, 2023 WL 5702902,
at *5 (Tenn. Crim. App. Sept. 5, 2023), no perm. app. filed.
B. MODIFICATION OF CLASS B MISDEMEANOR SENTENCE
The State notes that a clerical error exists in the judgment for Count 6 relating to the
Defendant’s conviction for driving a motor vehicle while in possession of
methamphetamine. Although the judgment of conviction correctly reflects that this
conviction is for a Class B misdemeanor offense, the judgment reflects a sentence greater
than the maximum of six months authorized for this crime. See Tenn. Code Ann. §§ 55-
50-506(a)(1); 40-35-111(e)(2).
It is clear that the trial court intended to impose the maximum sentence for this
offense, and the Defendant does not challenge the length of this sentence on appeal. As
such, we respectfully order that the judgment be modified to reflect a sentence of six
months. See State v. Guin, No. E2022-00391-CCA-R3-CD, 2023 WL 8675582, at *12
(Tenn. Crim. App. Dec. 15, 2023), perm. app. denied (Tenn. May 16, 2024); State v. Hines,
No. E2012-02456-CCA-R3-CD, 2013 WL 5940634, at *9 (Tenn. Crim. App. Nov. 5,
2013), no perm. app. filed. All other aspects of the original judgment of conviction for this
offense shall remain as ordered by the trial court.
CONCLUSION
In summary, we hold that the Defendant has waived the challenges to his convictions
and sentences by failing to properly prepare his brief in accordance with Tennessee Rule
of Appellate Procedure 27. We also remand Count 6 of the indictment for entry of a
modified judgment to reflect a sentence of six months. In all other respects, we respectfully
affirm the judgments of the trial court.
____________________________________
TOM GREENHOLTZ, JUDGE
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