State of Tennessee v. John Ruff

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 2, 2004 Session

STATE OF TENNESSEE v. JOHN RUFF

Appeal from the Criminal Court for Shelby County

No. 97-06150 John P. Colton, Jr., Judge

No. W2004-00438-CCA-R3-CD - Filed March 16, 2005

The petitioner was convicted for assault in Shelby County. During the proceedings on these

convictions, the trial court found the petitioner in contempt of court on two occasions. On appeal,

we reversed the petitioner’s convictions for assault. Upon remand, the State moved to nolle prosequi

the petitioner’s assault charges, and the trial court entered nolle prosequi on September 7, 1999,

without cost, which dismissed the assault charges against the petitioner without prejudice. These

charges were later expunged. On March 18, 2003, the petitioner filed two petitions to expunge the

contempt judgments. The trial court denied the petitioner’s petition to expunge the contempt

convictions in January of 2004. The petitioner filed a notice of appeal to this Court on February 20,

2004. The petitioner presents five issues for review: (1) whether the trial court erred under

Tennessee’s Expungement Statute by refusing to expunge the petitioner’s contempt records and the

related records in general sessions court; (2) whether the trial court clerk and the chief administrative

official of the State violated petitioner’s due process rights and the provisions of Tennessee Code

Annotated section 40-32-102 by not expunging petitioner’s contempt records within sixty days of

filing an expungement petition; (3) whether the trial court and district attorney general violated the

petitioner’s constitutional rights of due process and equal protection by causing petitioner to be held

in contempt; (4) whether the trial court improperly allowed petitioner to waive counsel on December

5, 1997, in case number 97-06150; and (5) whether the trial court had jurisdiction in case numbers

96-09407,-08 and 97-06150. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and J. C.

MCLIN , JJ., joined.

John Ruff, Pro Se, Memphis, Tennessee.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General, and Perry Hayes, Assistant District Attorneys

General, for the appellee, State of Tennessee.

OPINION

Factual Background

In 1996, some Memphis Police Department officers stopped the defendant for a traffic

violation. They arrested the defendant when he refused to sign the traffic citation the officers issued.

When they arrived at the Shelby County Jail the defendant “passively resisted” the thumb printing

procedure and then allegedly assaulted the officers. State v. John D. Ruff, No. 02C01-9801-CR-

00006, 1999 WL 281072, at *1 (Tenn. Crim. App., at Jackson, May 7, 1999). The Shelby County

Grand Jury indicted the defendant on two counts of assault. Id.

On September 5, 1997, the trial court entered a judgment against the petitioner for contempt

in case number 97-09407. He was sentenced to ten (10) days in the workhouse for this offense.

At proceedings on January 23, 1998 that were leading up to the petitioner’s trial for the

assault charges, case number 97-06150, he informed the court that he was unhappy with the

performance of his public defender and asked the trial court to appoint private counsel. The trial

court approved the withdrawal of the public defender. The trial court then found that the petitioner

was not indigent for purposes of appointing private counsel. The trial court offered the defendant

the opportunity to represent himself if he wanted, but otherwise ordered the petitioner to be prepared

for trial in May.

The petitioner’s case was set for trial on May 12, 1998. When he appeared before the trial

court, the petitioner argued that he was supporting two other people and, therefore, he could not

afford private counsel. The court found the petitioner in contempt because he was not prepared for

trial and sentenced the petitioner to two days in the county jail. The petitioner then complained that

he had the right to represent himself. The petitioner then asked the trial court to reconsider and

appoint private counsel for him. The trial court denied the motion for the appointment of private

counsel.

The petitioner went on to represent himself at trial. He was eventually convicted in a jury

trial for the two assault charges. The petitioner then appealed these convictions to our Court. John

D. Ruff, No. 02C01-9801-CR-00006, 1999 WL 281072. Our Court reversed the petitioner’s

convictions for assault because the trial court failed to scrutinize the factors necessary before

granting the petitioner’s request to represent himself at trial. Id. at *4. This Court never reached the

issue of the sufficiency of the evidence. Id. The petitioner however never appealed his contempt

convictions and they became final judgments.

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Upon remand, the State moved to nolle prosequi the petitioner’s assault charges. The

petitioner did not object, and the trial court entered nolle prosequi on September 7, 1999, without

cost, which dismissed the assault charges against the petitioner without prejudice. State v. John

Ruff, No. W1999-01536-CCA-R3-CD, 2001 WL 58732 (Tenn. Crim. App., at Jackson, Jan. 19,

2001). The assault charges were thereafter, expunged.

Apparently, following the entry of the nolle prosequi on the assault charges, the petitioner

orally moved the trial court to dismiss his conviction for contempt. State v. John Ruff, No. W1999-

01457-CCA-R3-CD, 2000 WL 307317, at *1 (Tenn. Crim. App., at Jackson, Mar. 24, 2000). The

trial court denied the request and the petitioner filed a motion for reconsideration on January 26,

1999. Id. The trial court also denied this written motion on May 11, 1999. Id. The petitioner filed

a notice of appeal on June 7, 1999, challenging the validity of the judgment for contempt of court.

Id. This Court denied the petitioner’s request for relief based on an untimely notice of appeal. Id.

at *2.

On March 18, 2003, the petitioner filed two petitions to expunge the contempt judgments.

The trial court held a brief hearing on January 21, 2004, in which the trial court denied the

petitioner’s petition. That same day, the trial court entered a written order also denying the

petitioner’s petition to expunge the contempt convictions. The petitioner filed a notice of appeal to

this Court on February 20, 2004.

ANALYSIS

The petitioner presents five issues for review: (1) whether the trial court erred under

Tennessee’s Expungement Statute by refusing to expunge the petitioner’s contempt records and the

related records in general sessions court; (2) whether the trial court clerk and the chief administrative

official of the State violated petitioner’s due process rights and the provisions of Tennessee Code

Annotated section 40-32-102 by not expunging petitioner’s contempt records within sixty days of

filing an expungement petition; (3) whether the trial court and district attorney general violated the

petitioner’s constitutional rights of due process and equal protection by causing petitioner to be held

in contempt in case numbers C96-09407 and C97-06150; (4) whether the trial court improperly

allowed petitioner to waive counsel on December 5, 1997, in case number 97-06150; and (5) whether

the trial court had jurisdiction in case numbers 96-09407,-08 and 97-06150.

Issues I & II - Denial of Petition to Expunge Contempt Convictions

We first address the petitioner’s issues in which the petitioner argues that the trial court erred

in not expunging his convictions for contempt of court. The petitioner’s appeal stems from a final

judgment which makes petitioner’s appeal an appeal under Rule 3(b) of the Tennessee Rules of

Appellate Procedure. Rule 3(b) enumerates the judgments from which a defendant may appeal as

of right. “A final judgment in a criminal contempt” is included as a judgment from which a

defendant may appeal. Tenn. R. App. P. 3(b). However, the petitioner is not appealing from a final

judgment in a criminal contempt.

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The petitioner is instead appealing from the trial court’s denial of his petition to expunge his

contempt convictions. Our supreme court has held that “[b]ecause of plain and unambiguous

language of Rules 3(b) and 3(c) . . . neither the State nor a criminal defendant has the authority to

appeal as of right an unfavorable ruling concerning an expungement order under Rule 3.” State v.

Adler, 92 S.W.3d 397, 401 (Tenn. 2002). Therefore, the petitioner has no appeal of right of the trial

court’s denial of his petition under Rule 3.

Despite the fact that an appeal is unavailable under Rule 3 of the Tennessee Rule of

Appellate Procedure, we must determine whether to permit the appeal to proceed as a petition for

a writ of certiorari, as the Supreme Court did in Adler when it heard the State’s appeal that the trial

court erroneously granted an order of expungement. See id. at 401-03 (disagreeing with the State

and concluding that defendant convicted of lesser-included offense is entitled to have record

expunged of any greater offense for which jury returned not guilty verdict).

The common law writ of certiorari has been codified in Tennessee Code Annotated section

27-8-101. That section provides:

The writ of certiorari may be granted whenever authorized by law, and also in all

cases where an inferior tribunal, board, or officer exercising judicial functions has

exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of

the court, there is no other plain, speedy, or adequate remedy. This section does not

apply to actions governed by the Tennessee Rules of Appellate Procedure.

Tenn. Code Ann. § 27-8-101. “Generally, the writ of certiorari is limited in application and does not

normally lie to inquire into the correctness of a judgment issued by a court with jurisdiction.” Adler,

92 S.W.3d at 401. Even so, “an appellate court is within its province” to grant the writ when the trial

court’s action is without legal authority.” Id. A writ of certiorari is an order from a superior court

to an inferior tribunal to send a complete record for review, so that the court can determine whether

that tribunal has exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. Yokley

v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). The writ is not available as a matter of right;

its grant or denial is within the sound discretion of the trial court and will not be reversed on appeal

unless there is an abuse of discretion. Boyce v. Williams, 389 S.W.2d 272, 277 (Tenn. 1965).

In the case sub judice, the petitioner has not met the requirements to obtain review by a writ

of certiorari. The trial court has not “exceeded its jurisdiction, or acted illegally, fraudulently or

arbitrarily.” See Yokley, 632 S.W.2d at 126. The authority and procedure for expungement is found

at Tennessee Code Annotated section 40-32-101. That statute states:

All public records of a person who has been charged with a misdemeanor or a felony,

and which charge has been dismissed, or a no true bill returned by a grand jury, or a

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verdict of not guilty returned by a jury, and all public records of a person who was

arrested and released without being charged, shall, upon petition by that person to the

court having jurisdiction in such previous action, be removed and destroyed without

cost to such person . . . .

Tenn. Code Ann. § 40-32-101(a)(1).

The petitioner’s convictions for assault were dismissed under a nolle prosequi and

subsequently expunged. The petitioner argues that because these assault convictions were expunged,

the trial court’s judgments for contempt of court should also be expunged. However, the contempt

of court judgments are judgments separate and apart from that of the assault judgments. When this

Court reversed the petitioner’s convictions for assault on direct appeal, we did not address the trial

court’s judgments for contempt of court. State v. John D. Ruff, No. 02C01-9801-CR-00006, 1999

WL 281072, at *1 (Tenn. Crim. App., at Jackson, May 7, 1999). Therefore, our reversal, and the

subsequent nolle prosequi, only addressed the assault convictions.

The petitioner has also not timely appealed his contempt convictions under Rule 3 of the

Tennessee Rules of Appellate Procedure. The petitioner never filed a notice of appeal from his C97-

09407 contempt of court conviction. The petitioner did file a notice of appeal from C97-06150

contempt conviction, but this Court dismissed the appeal because the notice to appeal was not timely

filed.

Therefore, the contempt of court convictions have not “been dismissed, or a no true bill

returned by a grand jury, or a verdict of not guilty returned by a jury” as required by Tennessee Code

Annotated section 40-32-101(a)(1) for the records to be expunged. The trial court has ruled

according to both the statutory law, as provided under Tennessee Code Annotated section 40-32-

101(a)(1), and the current case law, under State v. Adler, 92 S.W.3d 397 (Tenn. 2002).

These issues are, therefore, without merit.

Issue III - Violation of Petitioner’s Due Process Rights

The petitioner also argues that his due process rights were violated by the trial court and

district attorney when he was held in contempt. The petitioner’s argument in his brief begins with

a statement of his issue. The petitioner’s argument in its entirety, is as follows:

The above Statement of the Facts show that petitioner was held in contempt of court

under C96-09407 for exercising his constitutional right to request recusal of the trial

court. Such Statement of the Facts further shows that petitioner was held in contempt

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of court under C97-06150 on the misstatement of an assistant attorney general that

petitioner allegedly failed to comply with a trial court order requiring counsel at a

May 12, 1998, proceeding when no such order existed. In Veach v. State, [sic] 491

S.W.2d 81, 83 (Tenn. 1973) the Tennessee Supreme Court stated that “a

constitutional question may be raised at any time.”

This argument is followed by a restatement of the petitioner’s issue.

In his argument, the petitioner makes no citation to the record, nor does he cite any cases that

support his argument. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure provides that

a brief shall contain “[an] argument . . . setting forth the contentions of the appellant 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 . . . relied

on.” Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are not supported

by argument, citation to authorities, or appropriate references to the record will be treated as waived

in this court.” See also State v. Sanders, 842 S.W.2d 257 (Tenn. Crim. App. 1992) (determining that

issue was waived where defendant cited no authority to support his complaint). The appellant fails

to cite any authority for his claim and fails to cite to the record. For these reasons the petitioner’s

issue is waived. Moreover, the contempt convictions were not appealed, have become final, and any

issues with respect to them cannot be raised at this time.

Issues IV & V - Waiver of Right to Counsel and Trial Court’s Lack of Jurisdiction

The petitioner also argues that the trial court forced the petitioner to waive his constitutional

right to counsel in proceedings concerning his assault convictions and that the trial court did not have

jurisdiction to hear the cases for simple assault, evading arrest, obstruction of process of service and

the contempt charges.

Initially we point out that the notice of appeal refers only to the judgments from the trial court

that deny his petition to have the contempt convictions expunged. Therefore, the trial court’s

judgments denying the petitioner’s petition to expunge the contempt convictions are the only basis

for appeal in the case sub judice. Any issues dealing with the petitioner’s previous charges should

have been brought in that direct appeal. Furthermore, the assault charges have now been expunged,

so there is no adverse order from which he could launch any action, such as a direct appeal or a

petition for post-conviction relief.

We are precluded from granting the petitioner relief with respect to this issue.

Potential Pardon

While it is highly unlikely that given the finality of the contempt convictions, the petitioner

can receive relief from the courts, he is not entirely without a means to seek redress. He may file an

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application for executive clemency. Art. III, Sec. 6 of the Constitution of Tennessee gives the

governor of this State the power to pardon the petitioner for the contempt convictions. Of course,

the decision of whether to grant the request for a pardon rests wholly with the governor and neither

the courts nor the legislature have any power to regulate that decision. See Ricks v. State, 882

S.W.2d 387 (Tenn. Crim. App. 1994).

CONCLUSION

In light of the foregoing, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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