The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1998 SESSION
December 3, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9712-CR-00556
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN,
CAROLYN WHEELER, ) JUDGE
)
Appellant. ) (Theft, Forgery)
FOR THE APPELLANT: FOR THE APPELLEE:
DALE M. QUILLEN JOHN KNOX WALKUP
95 White Bridge Road Attorney General and Reporter
Suite 208
Nashville, TN 37205-1407 LISA A. NAYLOR
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
STEVE R. DOZIER
Assistant District Attorney General
Washington Square Building
Suite 500
222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Carolyn Wheeler, appeals the manner of service of her
agreed sentence as imposed by the Criminal Court of Davidson County. The
defendant pled guilty to theft over $10,000 and forgery over $10,000. She
agreed to concurrent three (3) year sentences with the manner of service to be
determined by the trial court. The trial court ordered the defendant to serve one
(1) year incarcerated with the balance served on community corrections. On
appeal, the defendant contends:
1) the trial court erred in sentencing her to
confinement; and
2) the trial court erred in ordering a community
corrections sentence as she could subsequently
be subjected to a sentence in excess of her plea
agreement.
After an examination of the record, we AFFIRM the judgment of the trial court..
FACTS
Investigating a tip from the defendant’s neighbor, Detective Mike Owens
of the Metro Police Department learned that the defendant purchased a car by
assuming the identity of “Cassandra Rhule.” Detective Owens found at the
defendant’s residence a car matching the dealer’s description with a temporary
tag listing “Cassandra Rhule” as the owner. When the detective showed a copy
of “Cassandra Rhule’s” driver’s license to the defendant’s neighbor, the neighbor
identified the defendant as the person depicted in the photograph.
Detective Owens subsequently obtained an arrest warrant for the
defendant charging her with theft. After forcibly entering the defendant’s
residence in order to serve the warrant, the detective observed mail, bank
statements, and other documents addressed to other persons. Numerous
articles of partially burned mail were also observed in the fireplace. The
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defendant was found hiding in a closet under a pile of clothes and served with
the arrest warrant.
Based upon their observations while serving the arrest warrant on the
defendant, the police received a search warrant for the defendant’s residence.
While executing the search warrant, the officers discovered a copy of the
defendant’s application for a Tennessee driver’s license in Cassandra Rhule’s
name and the identification used to obtain that license. The officers also found a
document containing Rhule’s personal information.
The victim, Cassandra Rhule, testified that she did not know the
defendant. She testified that the defendant opened a checking account in
Rhule’s name at First American Bank with $14,000 of forged checks. Rhule also
testified that the defendant made more than fifteen (15) charges on Rhule’s
credit card.
SENTENCING
A. Incarceration
The defendant appeals the trial court’s sentence of one year of
incarceration. This Court twice denied defendant’s motions appealing the trial
court’s denial of bond pending appeal. Presently, it appears the defendant has
served this portion of her sentence. We find, therefore, this issue is moot. See
State v. Samuel D. Perry, C.C.A. No. 02C01-9611-CR-00435, Shelby County
(Tenn. Crim. App. filed January 29, 1998, at Jackson).
B. Violation of Plea Agreement
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The defendant further appeals the trial court’s order of community
corrections for the remainder of her sentence. She contends that conceivably, if
community corrections is revoked, she could be resentenced in excess of her
plea agreement. See Tenn. Code Ann. § 40-36-106(e)(4).
Unfortunately, the transcript of the guilty plea has not been made a part of
the appellate record. We may not speculate as to whether there was or was not
a discussion of the possibility of a community corrections sentence. The
absence of the guilty plea transcript precludes appellate review of this issue.
See State v. Davis Oliver Brown, C.C.A. No. 03C01-9608-CR-00313, Hamilton
County (Tenn. Crim. App. filed December 16, 1997, at Knoxville).
We also note that this issue is premature. We may not speculate as to
whether the defendant’s community corrections sentence will be revoked and, if
so, whether she will be resentenced in excess of three (3) years. We elect not to
give an advisory opinion on this issue.
Accordingly, the judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
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CONCUR:
_________________________
PAUL G. SUMMERS, JUDGE
_________________________
JOSEPH M. TIPTON, JUDGE
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