State of Tennessee v. Larenzo Jerome Morgan, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 2, 2016 Session

STATE OF TENNESSEE v. LARENZO JEROME MORGAN, JR.

Appeal from the Circuit Court for Dyer County

No. 09-CR-453A R. Lee Moore, Jr., Judge

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No. W2016-00114-CCA-R3-CD - Filed September 29, 2016

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The State appeals the Dyer County Circuit Court’s order granting Larenzo Jerome

Morgan, Jr.’s, request for jail credit toward his Dyer County sentence for time he spent

serving a sentence in the Missouri Department of Corrections on Missouri convictions.

Because we conclude that the trial court was without authority to award jail credit on the

Dyer County sentence for time served on the unrelated Missouri convictions, we reverse

the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN

EVERETT WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Phil Bivens, District Attorney General; and Karen Burns, Assistant District Attorney

General, for the appellant, State of Tennessee.

James E. Lanier, District Public Defender, Patrick McGill and Sean Day, Assistant

District Public Defenders, for the appellee, Larenzo Jerome Morgan, Jr.

OPINION

I. Factual Background

On June 8, 2010, Larenzo Jerome Morgan, Jr. (“the Defendant”) pleaded guilty in

Dyer County Circuit Court to Aggravated Burglary and Theft Over $1,000, for which the

Defendant was sentenced to concurrent three-year sentences and placed on supervised

probation.1 Thereafter, the Defendant’s probation was transferred to Missouri. On

August 24, 2010, the Dyer County Circuit Court issued a violation of probation warrant,

and following a hearing, the court revoked the Defendant’s probation to time served and

extended probation for two years.

On July 15, 2014, the Defendant pleaded guilty to Theft/Stealing and

Resisting/Interfering with Arrest for a Felony in Pemiscot County, Missouri and was

sentenced to concurrent terms of three years’ incarceration in the Missouri Department of

Corrections. On December 9, 2014, the Dyer County Circuit Court issued a violation of

probation warrant based upon the new convictions and the Defendant’s failure to pay

court-ordered restitution and costs. At a probation revocation hearing, Rebecca Cashion

with the Tennessee Board of Probation and Parole testified that she filed the December 9

violation of probation report based upon the Defendant’s two Pemiscot, Missouri

convictions, for which the Defendant received a sentence of three years’ incarceration.

Ms. Cashion stated that the Defendant also violated probation by failing to pay fifty

dollars a month towards restitution and court costs as ordered by the trial court. She

stated that the Defendant had not made any payments.

The Defendant testified and acknowledged that he had pled guilty to the offenses

in Missouri and had served time on those charges. He explained that he had been in jail

since the date of his Missouri guilty plea but that he had been granted parole by Missouri.

He stated that, while incarcerated, he worked on obtaining his GED, went to church, and

joined a Bible study. The Defendant stated that he had a one-year-old son in Missouri

and that he planned to return to Missouri after his Dyer County case was resolved. On

cross-examination, the Defendant agreed that he had not paid anything toward the $2,700

restitution, explaining that he had “financial problems.”

At the conclusion of the hearing, the trial court found that the Defendant had

violated his probation. The court revoked probation and ordered the Defendant to serve

his sentence. Regarding the issue of jail credit, defense counsel argued that the

Defendant’s Missouri convictions ran concurrently with his Dyer County case according

to Missouri law. Defense counsel explained that, under Missouri law, if a judgment is

silent regarding the alignment of a sentence, then the sentence is to run concurrently with

any prior unserved sentence. Counsel argued that because the Missouri judgments were

silent in regards to the Defendant’s Dyer County sentence, the trial court should treat the

Dyer County sentence as running concurrently with the Missouri sentence. The State

argued that the Defendant was not entitled to Missouri jail credits on his Dyer County

1

The record reflects that the judgment of conviction for Aggravated Burglary was amended on

January 24, 2011, to reflect that the sentence for that offense ran consecutively to Dyer County case

number 10-CR-163. It is unclear from the record how the amendment to the judgment came about.

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sentence. The State asserted that Missouri “can’t tell Tennessee what our credits are” and

that, in order for the Defendant to receive jail credit for time served on the Missouri

sentence, the Dyer County judgments would have to reflect that the Missouri sentence

“was concurrent with this case.”

The trial court initially stated that its “inclination . . . was . . . [the Defendant]

ought not to get credit[.]” However, noting that the Missouri judgments were silent as to

whether the effective three-year sentence imposed in that state was concurrent with the

Defendant’s Dyer County sentence, the trial court found that there was a presumption

“that it is a concurrent sentence.” Accordingly, the court awarded the Defendant 494

days of jail credit, including “credit for the time that this defendant was incarcerated in

the Missouri Department of Corrections serving the sentence imposed on the Missouri

charges from August 5, 2014[,] to August 20, 2015.” The State filed this timely appeal.

II. Analysis

Rule 3 Appeal

Initially, we note that the State filed a notice of appeal pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. On appeal, the State acknowledges that Rule 3

contains no provision for the State to appeal from the award of sentencing credits.

However, the State asks this court to accept its improperly filed Rule 3 appeal under the

common law writ of certiorari or, alternatively, to exercise its authority to suspend the

Rules of Appellate Procedure and consider the merits of the appeal. The State contends

that there is no support in the law for the trial court’s award of jail credits in this case and

that the trial court’s ruling is “fundamentally illegal” and a “plain and palpable abuse of

discretion.”

Rule 3 of the Tennessee Rules of Appellate Procedure provides:

In criminal actions an appeal as of right by the state lies only from an order

or judgment entered by a trial court from which an appeal lies to the

Supreme Court or Court of Criminal Appeals: (1) the substantive effect of

which results in dismissing an indictment, information, or complaint; (2)

setting aside a verdict of guilty and entering a judgment of acquittal; (3)

arresting judgment; (4) granting or refusing to revoke probation; or (5)

remanding a child to the juvenile court. The state may also appeal as of

right from a final judgment in a habeas corpus, extradition, or post-

conviction proceeding.

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Tenn. R. App. P. 3(c). Thus, the plain language of the statute allows the State an appeal

in only six limited circumstances, to the exclusion of all others. State v. Adler, 92

S.W.3d 397, 400 (Tenn. 2002). The instant appeal does not fall under any of the

circumstances available for a direct appeal by the State. Therefore, we conclude that the

instant case does not fall within the purview of Rule 3.

Writ of Certiorari

In certain instances the common law writ of certiorari, as codified at Tennessee

Code Annotated section 27-8-101, may be granted to a party where no appeal of right is

authorized. Code section 27-8-101 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. The common law writ of certiorari is limited in its

application and may not be used to “inquire into the correctness of a judgment issued by a

court with jurisdiction.” Moody v. State, 160 S.W.3d 512, 515 (Tenn. Crim. App. 2005)

(quoting Adler, 92 S.W.3d at 401). However, a writ of certiorari is proper when a trial

court is acting “without legal authority,” and there is no other “plain, speedy or adequate

remedy.” Id. (quoting Adler, 92 S.W.3d at 401).

Thus, whether this court grants the State’s request to treat its improperly filed Rule

3 appeal as a petition for writ of certiorari is determined by the question of whether the

trial court had the legal authority to give the Defendant jail credit on his Dyer County

sentences for time he spent incarcerated in the Missouri Department of Corrections on his

Missouri convictions. Because we conclude that the trial court acted without legal

authority and that there is no other plain, speedy, or adequate remedy for the State, we

will treat the State’s appeal as that of a writ of certiorari. Adler, 92 S.W.3d at 401; see

e.g., State v. Teresa L. Herman, No. M2006-01384-CCA-R3-CD, 2007 WL 3275275, at

*2-3 (Tenn. Crim. App. Nov. 5, 2007) (considering an improperly filed Rule 3 appeal as

a petition for a writ of certiorari when the trial court acted without legal authority in

granting sentence credits toward the mandatory forty-eight-hour jail service required for

D.U.I.); State v. Donald W. Streck, No. E2003-01991-CCA-R3-CD, 2004 WL 2709152,

at *1 (Tenn. Crim. App. Nov. 29, 2004) (considering under certiorari review the State’s

improperly filed Rule 3 appeal from the trial court’s order granting the defendant’s

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motion to receive jail credits toward his Tennessee sentence for time spent in federal

custody serving federal sentences).

Jail Credits

The State asserts that the trial court’s ruling with regard to jail credits is erroneous

because there is no provision of law in Tennessee that permits a trial court to “restructure

a sentence at a probation revocation hearing” and that a Missouri court has no authority

to amend a Tennessee judgment. The Defendant responds that the trial court properly

awarded jail credit toward his Dyer County sentences for time served in Missouri. He

asserts that because the Missouri judgments are silent as to whether the sentences run

concurrently or consecutively to his Dyer County sentences and because the offenses to

which he pled guilty in Missouri are not in the list of enumerated offenses which are

mandatory consecutive sentences under Missouri law, his Missouri sentences “ran

concurrently with his Dyer County cases.” For the reasons discussed below, we agree

with the State.

First, the Dyer County judgments of conviction for aggravated burglary and theft

over $1,000 were final on February 23, 2011, and July 8, 2010, respectively. State v.

Green, 106 S.W.3d 646, 650 (Tenn. 2003) (concluding that a judgment of conviction

entered upon a guilty plea becomes final thirty days after acceptance of the plea

agreement and imposition of sentence). The judgments do not reflect that the Dyer

County sentences were to run concurrently with the Defendant’s Missouri sentence

because the Missouri sentence did not exist at the time the Dyer County judgments

became final. The State does not dispute the Defendant’s contention that because his

Missouri judgments are silent as to whether the sentences are concurrent or consecutive

to his Dyer County sentences, Missouri would consider its sentence to be running

concurrently with the Dyer County sentences.2 However, a conclusion that the Missouri

court ordered its sentence to run concurrently with the Defendant’s Dyer County

sentences does not work to amend the Dyer County judgments to make, retroactively, the

Dyer County sentences concurrent with the Missouri sentence. See Smith v. McWherter,

1987 WL 6069, at *2 (Tenn. Crim. App. Feb. 4, 1987) (stating that a California court had

no power to affect how the defendant’s Tennessee sentences would be served).

Tennessee is not bound by the law of its sister states. State v. Jones, 598 S.W.2d 209,

219 (Tenn. 1980); Maurice Booker v. State, No. 01C01-9606-CC-00271, 1997 WL

359235, at *1 (Tenn. Crim. App. June 30, 1997), perm. app. denied (Tenn. Nov. 17,

2

In contrast to Missouri law, if at the time of sentencing, a defendant in Tennessee has a prior

unserved sentence from another state court, the trial court must impose a sentence that is consecutive to

the prior sentence “unless the court determines in the exercise of its discretion that good cause exists to

run the sentences concurrently and explicitly so orders.” Tenn. R. Crim. P. 32(c)(2)(B) (emphasis added).

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1997). Thus, a provision for concurrent sentencing under Missouri law would have no

effect upon a previously entered judgment in Tennessee and does not bind our courts.

Additionally, there is no provision of Tennessee law that would allow a trial court

to amend a defendant’s sentence in such a manner following the revocation of probation.

Upon finding that a defendant has violated the conditions of probation, the trial court may

revoke the probation and implement one of the following: (1) order incarceration; (2)

order the original probationary period to commence anew; or (3) extend the remaining

probationary period for up to two additional years. State v. Hunter, 1 S.W.3d 643, 644

(Tenn. 1999); see also Tenn. Code Ann. §§ 40-35-308, -310, -311; State v. Alvin Donnell

Davis, No. E2012-00398-CCA-R3-CD, 2013 WL 703711, at *4 (Tenn. Crim. App. Feb.

25, 2013), perm. app. denied (Tenn. June 11, 2013). “[W]hen a trial court determines

that a probation violation has occurred, it can only cause execution of the original

judgment as it was originally entered.” State v. Taylor, 992 S.W.2d 941, 945 (Tenn.

1999) (citing Tenn. Code Ann. §§ 40-35-310, -311(d)) (emphasis in original).

Accordingly, the trial court in this case did not have the authority after revoking

probation to alter the Dyer County judgments to run those sentences concurrently with

the Defendant’s Missouri sentence.3

Finally, a trial court’s statutory authority to award post-trial jail credits is limited

to allowing credit on a sentence only when the time served arose out of the offense for

which the defendant was convicted. Tennessee Code Annotated section 40-23-101(c)

provides:

The trial court shall, at the time the sentence is imposed and the defendant

is committed to jail, the workhouse or the state penitentiary for

imprisonment, render the judgment of the court so as to allow the defendant

credit on the sentence for any period of time for which the defendant was

committed and held in the city jail or juvenile court detention prior to

waiver of juvenile court jurisdiction, or county jail or workhouse, pending

arraignment and trial. The defendant shall also receive credit on the

sentence for the time served in the jail, workhouse or penitentiary

subsequent to any conviction arising out of the original offense for which

the defendant was tried.

Tenn. Code Ann. § 40-23-101(c) (emphasis added). This court has repeatedly held that

section 40-23-101(c) provides for credits against a defendant’s sentence only if the

3

While it does not appear from the record that the trial court entered amended judgments of

conviction to reflect that the Dyer County sentences were to retroactively run concurrent with the

Defendant’s Missouri sentence, this was the practical effect of the trial court’s ruling.

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incarceration claimed as the basis for the credits arises from the offense for which the

sentence was imposed. See State v. Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App.

1983); Majeed v. State, 621 S.W.2d 153, 154-55 (Tenn. Crim. App. 1981); Trigg v. State,

523 S.W.2d 375, 376 (Tenn. Crim. App. 1975); see also State v. Timothy Maurice

Reynolds, No. M2003-02551-CCA-R3-CD, 2005 WL 351254, *2 (Tenn. Crim. App.

Feb. 10, 2005).

In this case, the Defendant was incarcerated in Missouri, serving a prison sentence

for crimes committed in that state. Aside from forming the basis for the revocation of the

Defendant’s probation, the Missouri crimes were wholly unrelated to the Defendant’s

Dyer County convictions. Because the time served in Missouri did not arise out of the

Dyer County offenses, the trial court acted without authority when it awarded the

Defendant jail credit against his Dyer County sentences for his incarceration in Missouri.

Accordingly, we reverse the trial court’s awarding to the Defendant jail credit on his

Dyer County sentences for time served on his Missouri sentence.

We note that, in reaching its decision, the trial court appears to have relied upon an

opinion filed by a panel of this court in another Dyer County case, State v. Jeffery D.

Rhoades, No. W2004-00154-CCA-R3-CD (Tenn. Crim. App. Dec. 15, 2004).4 In Jeffery

D. Rhoades, the defendant pleaded guilty to burglary and theft in 1996 and was sentenced

to concurrent three-year sentences, which were suspended to probation following the

service of six months’ confinement. The sentences were further ordered to be served

concurrently with the defendant’s three-year sentence in Jefferson County, Arkansas, and

the judgments specifically reflected that the Tennessee sentences ran concurrently with

the defendant’s Arkansas sentence. Id. In 1997, a violation of probation warrant was

filed against the defendant, alleging that he had absconded to Arkansas. When the

defendant was eventually returned to Tennessee in 2004 and a revocation hearing

conducted, the defendant offered proof that he had fully served the Arkansas sentence in

confinement and argued that because the Tennessee sentences ran concurrently with the

three-year Arkansas sentence, he was entitled to jail credit on his Tennessee sentences for

his time served in Arkansas. Following the defendant’s appeal of the revocation of his

probation, this court determined that when the defendant went into custody to serve his

Arkansas sentence “which, by the terms of the Tennessee judgments, ran concurrently

with the effective, three-year Tennessee sentence,” the defendant “simultaneously served

his effective Tennessee sentence.” Id. The court held that the defendant was entitled to

credit toward his Tennessee sentences on account of his time in custody serving the

concurrent Arkansas sentence.

4

There is no Westlaw citation available for this case.

7

The court in Jeffery D. Rhoades was enforcing the terms of the Tennessee

judgments as pronounced. However, the Defendant’s Dyer County judgments do not

reflect that his sentences run concurrently with his Missouri sentence. The record shows

that the Defendant entered his guilty plea in Dyer County, had his probation transferred

to Missouri, and then committed new crimes in that state. Thus, Jeffery D. Rhoades has

no application to the instant case.

III. Conclusion

Based upon the foregoing, we reverse the trial court’s awarding to the Defendant

jail credit on his Dyer County sentences for time served on his Missouri sentence.

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ROBERT L. HOLLOWAY, JR., JUDGE

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