State of Tennessee v. Candace Renee Bennett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 8, 2016

STATE OF TENNESSEE v. CANDACE RENEE BENNETT

Appeal from the Criminal Court for Davidson County

No. 2011-D-2978 Seth Norman, Judge

No. M2016-00287-CCA-R3-CD – Filed December 12, 2016

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child

neglect in exchange for an agreed eight-year sentence. The trial court ordered that the

Defendant serve her sentence on probation and that her sentence run concurrently with a

sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of

Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw

her guilty plea and have the charges dismissed. The trial court denied her motion. On

appeal, the Defendant contends that her sentence is illegal because it is not authorized by,

and directly contravenes the criminal responsibility statute. After review, we affirm the

trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and ALAN E. GLENN, J., joined.

Chelsea Nicholson, Nashville, Tennessee, for the appellant, Candace Renee Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Catrin

Novak Miller and Brian Holmgren, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

I. Facts

This case arises from injuries sustained by a child placed in a hot bathtub, which

occurred between July 29, 2011, and August 2, 2011. On October 21, 2011, a Davidson

County grand jury indicted the Defendant for one count of aggravated child neglect and

four counts of being an accessory after the fact in aid of Jarico Levon Huey and Suzanne

Ruth Wiley, both of whom were alleged to have committed felonies.

The Defendant filed a motion to dismiss the indictment. In the motion, the

Defendant’s attorney asserted that there had been a hearing on a motion to reduce bond,

and that the following were undisputed facts:

At the time of the indictment, the Defendant was on probation for

unrelated cases in Division II, Criminal Court. A probation violation

warrant was filed on January 6, 2012. This indictment and case was the

sole basis for the violation. A hearing was held on February 16, 2012. At

the hearing the lead detective for this case, Detective John Grubbs, testified.

The Court made an Order with specific findings of fact regarding the

violation. . . . Based on the testimony offered at these hearings and specific

finding of fact made by the Honorable Judge J. Randall Wyatt, Jr., the

Defendant offers the following undisputed facts in support of this Motion:

Detective John Grubbs is the lead detective on this case. He is with

the Youth Services Department with the Metro Nashville Police

Department. He was assigned to this case to investigate allegations of a

victim’s burn injuries. He was contacted on August 2, 2011 by Vanderbilt

Hospital in regards to the victim. He testified that the victim in this case,

[M.D.]1, who was roughly one year and seven months old at the time, had

sustained second degree and third degree burns while in the car of her

mother, Suzanne Wiley, and her mother’s boyfriend, Jarico Huey.

Detective Grubbs could not say when the injury occurred, but based on his

investigation, he believed the injury occurred on July 29, 2011. The

statements of Suzanne Wiley and Jarico Huey indicate that the baby’s

injuries occurred while she was severely burned in the bathtub. The

Defendant . . . was not present when this occurred.

The baby was burned in the bathtub at the mother, Suzanne Wiley’s

apartment located [in] . . . Nashville, TN . . . where the mother resided with

the baby. Jarico Huey, the mother’s boyfriend, resided [on] . . . 1st Avenue

South, Nashville, TN . . . [with] the Defendant . . . and codefendants: Doris

Buford, Donald Higgins, and Karen Higgins Huey. Doris Buford is Jarico

Huey’s grandmother. Donald Higgins is Jarico Huey’s brother, and was at

the time, the Defendant’s boyfriend. Karen Higgins Huey is Jarico Huey’s

mother. The Defendant was renting a room in this house from Doris

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It is the policy of this Court to refer to minor victims by their initials only.

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Buford, which she shared with Donald Higgins. All the persons who

resided in this house located [on] 1st Avenue South are indicated in Counts

5-9 for aggravated child neglect and accessory after the fact.

At some point, the mother, Suzanne Wiley, brought the baby to this

residence located [on] . . . 1st Avenue South. Detective Grubbs is unsure

when. At the probation violation hearing, he stated that it could have been

the next day. Detective Grubbs testified that the Defendant . . . only saw

this baby once after the baby was burned. He cannot say which day during

the 5 days of the indictment [the Defendant] saw the baby. In her

statement, [the Defendant] indicated that she saw the baby once when she

and her boyfriend, codefendant Donald Higgins, spent the night with Ms.

Wiley at her apartment where she and the baby lived. Detective Grubbs

testified that the Defendant told the mother on this occasion to take [the]

baby to the hospital at least once. Detective Grubbs stated in her statement

that on this date, she applied ointment and saline solution to the baby’s

injury.

Based on this one incident, the Defendant is charged with aggravated

child neglect and four (4) counts of accessory after the fact. The Defendant

is not the child’s mother, not the child’s caretaker or baby-sitter, and not the

child’s relative. The Defendant was not present at the apartment when the

baby’s injuries were inflicted. On August 2, 2011, when the mother took

the baby to the hospital, the Defendant was not present.

The State responded to the Defendant’s motion contending that the charges should not be

dismissed.

The trial court filed an order granting in part and denying in part the Defendant’s

motion. The trial court found:

Ms. Wiley’s eighteen-month-old daughter was severely burned when

Mr. Huey placed the child in a hot bath. While visiting Mr. Huey and Ms.

Wiley, the Defendant observed and helped treat the victim’s wounds. She

apparently advised the couple to seek medical attention for the child at the

emergency room and recommended other types of treatment as well. Ms.

Wiley’s mother eventually convinced her to take the child to the hospital,

where the child was treated for second and third degree burns.

The Defendant . . . argues that the State must first show that the

Defendant owed a legal duty to the Victim in order to prove neglect. . . .

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The State counters that the [law upon which the Defendant relies to support

her contention] was misapplied and should therefore not control. Initially,

it should be noted that the statutory provisions for the offense of child

neglect include neither a definition for the term nor is there any mention of

what particular degree of relationship must exist between the victim and the

defendant before a duty arises.

....

In the opinion of the Court, it appears . . . [a] jury may conclude that

a relationship existed between the Defendant [who was a nurse’s assistant

by trade] and the Victim wherein the former owed a duty to protect and

care for the former. Therefore, the Defendant’s Motion to Dismiss is

respectfully denied with regard to the charge of aggravated child neglect.

The trial court went on to dismiss the charges against the Defendant of accessory

after the fact. It stated:

The Defendant did not provide Mr. Huey and Ms. Wiley any aid in

avoiding arrest, trial, conviction or punishment. Rather, since she was a

nurse’s assistant by trade, her help was requested in administering

treatment for the victim’s wounds. The indictment does not contend that

the Defendant harbored, concealed or warned the principal of impending

apprehension or discovery.

Considering the aforementioned undisputed facts, in conjunction

with the pertinent statutory provisions, the Court is of the opinion that the

indictment on counts five through nine in this matter need not be

determined by a jury. Therefore, the Defendant’s Motion to Dismiss is

hereby granted with respect to counts six through nine.

On September 12, 2012, after the trial court’s ruling on the Defendant’s motion to

dismiss, the Defendant entered a plea of guilty to the lesser-included offense of attempted

aggravated child neglect in exchange for a sentence of eight years, to be served at 45%.

The parties agreed to allow the trial court to determine the manner of service of the

sentence and the extent to which it ran concurrently with or consecutively to another case

in which she had been convicted and sentenced. The trial court’s judgment, entered

September 19, 2012, reflects that the trial court sentenced the Defendant to eight years of

probation. The judgment does not reference the Defendant’s other sentence.

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The Defendant’s boyfriend at the time, Mr. Higgins, proceeded to trial on his

charges. A jury convicted him of aggravated neglect. Mr. Higgins appealed, and, on July

27, 2015, this Court held that the evidence presented by the State was insufficient to

sustain Mr. Higgins’s conviction. We concluded that there was no relationship between

Mr. Higgins and the victim that gave rise to a legal duty to seek medical treatment for the

victim. State v. Donald W. Higgins, III, No. M2014-01171-R3-CD, 2015 WL 4515122,

at *5 (Tenn. Crim. App., at Nashville, July 27, 2015), no Tenn. R. App. P. 11 application

filed.

On October 12, 2015, the Defendant filed a motion to correct an illegal sentence

pursuant to Tennessee Rule of Criminal Procedure 36.1(a). The Defendant contended

that her sentence was illegal based upon this Court’s ruling in Higgins. She asserted that,

because Mr. Higgins had no legal duty to the victim she also had no legal duty to the

victim, and she never should have been indicted. This, she asserted, resulted in her

sentence being illegal and in contravention to statute. The Defendant asked the trial court

to allow her to withdraw her plea.

The State responded that Tennessee Rule of Criminal Procedure 36.1 did not apply

to this sentence and that the Defendant had not presented a colorable claim that her

sentence was illegal. The State asserted that the Defendant was raising the sufficiency of

the evidence supporting her conviction, which was not a proper ground for a Rule 36.1

claim.

On January 28, 2016, the trial court issued an order denying the Defendant’s Rule

36.1 motion. The trial court noted that four of the Defendant’s five co-defendants had

pleaded guilty and that only Mr. Higgins had proceeded to trial, where a jury convicted

him. The trial court acknowledged that this Court had found that there was insufficient

evidence to sustain Mr. Higgins’s conviction and that, based upon this, the Defendant had

asserted that there was no legal basis upon which her indictment could stand. The trial

court then found:

Tenn. R. Crim. P. 36.1 permits a party to seek correction of an

illegal sentence by filing a motion claiming the sentence is either

unauthorized or contravenes applicable statutes at any time. Thus, similar

to post-conviction relief, if [a] Petitioner not only makes a colorable claim

warranting a hearing, but also succeeds on the merits of his claim, all

charges are reinstated – including any that were dismissed as part of the

plea negotiations – and the case starts anew with the original charges (not

the lesser included offenses to which Petitioner pled). The parties may

reach a different settlement agreement complying with all sentencing

requirements, the State may dismiss the charges, or, should the State

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decline to extend a plea offer or the defendant reject any offers extended,

the case would proceed to trial on the original charges set forth in the

indictment.

Before this Court may grant [the Defendant] a hearing to determine

if there was an illegal sentencing provision that was material to her plea,

this Court must determine whether [the Defendant] has met her burden of

establishing a colorable claim. If the facts were as [the Defendant] stated in

her petitioner she would nevertheless have failed to meet the burden

because the sentence is not void. . . .

[The Defendant] fails to assert a claim that her sentence is illegal.

[The Defendant] instead asserts that there is no legal basis to her

conviction. Without reaching any conclusions on [the Defendant’s]

assertions, this Court must find that Rule 36.1 does not provide a remedy

even if [the Defendant’s] assertion[s] were correct. The sentence of eight

years of probation for the charge of attempted aggravated child neglect is a

legal sentence authorized by [statute].

It is from this judgment that the Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that her sentence is illegal because, based on

Higgins, the evidence is insufficient to sustain her conviction. The State counters that

Rule 36.1 contemplates only the challenging of an illegal sentence, not an underlying

conviction. We agree with the State.

Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

(a) Either the defendant or the state may, at any time, seek the correction of

an illegal sentence by filing a motion to correct an illegal sentence in the

trial court in which the judgment of conviction was entered. For purposes

of this rule, an illegal sentence is one that is not authorized by the

applicable statutes or that directly contravenes an applicable statute.

(b) Notice of any motion filed pursuant to this rule shall be promptly

provided to the adverse party. If the motion states a colorable claim that the

sentence is illegal, and if the defendant is indigent and is not already

represented by counsel, the trial court shall appoint counsel to represent the

defendant. The adverse party shall have thirty days within which to file a

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written response to the motion, after which the court shall hold a hearing on

the motion, unless all parties waive the hearing.

Tenn. R. Crim. P. 36.1(a), (b) (2014).

A “colorable claim” within the language of Rule 36.1 is defined as “a claim that, if

taken as true and viewed in a light most favorable to the moving party, would entitle the

moving party to relief under Rule 36.1.” State v. Brown, 479 S.W.3d 200, 213 (Tenn.

2015) (citing State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn. 2015)).

As stated, an “illegal sentence,” as defined by this statute, is one that is “not

authorized by the applicable statutes or that directly contravenes the applicable statute.”

The Defendant does not argue, and we see no basis for concluding, that her sentence is

illegal. Her argument is based upon the fact that she would like this Court to revisit

whether she had a legal duty to the victim, based upon our conclusion in Higgins that her

boyfriend did not have a legal duty to the victim. The Defendant chose to enter a plea of

guilty, and Rule 36.1 does not provide her an avenue for withdrawing that guilty plea.

This is not a proper ground for a Rule 36.1 claim, and she is not entitled to relief.

III. Conclusion

Based on the foregoing reasoning and authorities, we affirm the trial court’s

judgment.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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