State of Tennessee v. Isaiah M.

09/23/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 18, 2022 Session

STATE OF TENNESSEE v. ISAIAH M.

Appeal from the Circuit Court for Madison County

No. 21-356 Donald H. Allen, Judge

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No. W2021-01133-COA-R3-JV

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This appeal arises out of delinquency proceedings that originated in the Madison County

Juvenile Court. The State filed an initial delinquency petition, but the petition was

unverified. The defect in the petition remained undiscovered by the State until the first

witness was sworn at the adjudicatory hearing. The juvenile court dismissed the petition

and found that jeopardy attached. The State filed a second verified delinquency petition.

However, the juvenile court dismissed the petition finding that it violated principles of

double jeopardy. The State appealed to the circuit court. The circuit court dismissed the

petition finding that jeopardy attached on the initial petition. The State appeals. We

reverse and remand.

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

Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and KENNY W. ARMSTRONG, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor

General, and Andrew C. Coulam, Senior Assistant Attorney General, for the appellant,

State of Tennessee.

Tim Edward Fowler, Jr., Humboldt, Tennessee, for the appellee, Isaiah M.

OPINION

I. FACTS & PROCEDURAL HISTORY

On or about February 10, 2020, fifteen-year-old Isaiah M. (“Defendant”) was

residing in his foster home, just a week before he was to be adopted by his foster parents,

when he allegedly committed child rape and aggravated sexual battery. As a result, the

State filed a delinquency petition against Defendant in juvenile court. However, the

petition was unverified, and the exact filing date of the petition is unknown. Beginning in

April 2020, Defendant participated in treatment for sexually reactive and sexually abusive

males at Cedar Grove Treatment Program. He attended treatment with the program for

approximately nine months.

In March 2021, Defendant filed a motion to dismiss for failure to have an

adjudicatory hearing pursuant to Tennessee Rules of Juvenile Practice and Procedure Rule

210, which requires a hearing within 30 days of a juvenile being removed from his or her

home or 90 days for any case. In May 2021, the juvenile court held an adjudicatory

hearing.1 During the hearing, counsel for Defendant brought the unverified petition to the

court’s attention after the first witness was sworn. Therefore, the court entered an order

dismissing the charges and dismissing the case due to the unverified petition. The court

stated in its order that jeopardy attached because the first witness had taken the stand.

Afterward, instead of appealing the court’s order of dismissal, the State filed a

second verified petition. Defendant then filed another motion to dismiss. Defendant

contended that the State did not have a right of de novo appeal because of double jeopardy,

but, even if it did, the proper remedy for the State after issuance of the juvenile court’s

order was to file a timely appeal to the circuit court within ten days, which it failed to do.

The State then filed a memorandum in support of its refiling of the petition. The State

argued that a defective charging instrument (the initial petition) did not place Defendant in

jeopardy. Furthermore, the State argued that it had a right to refile a second petition and

that the second petition did not place Defendant in double jeopardy. After a hearing, the

juvenile court entered an order with the following findings: (1) the State could have filed

an appeal of the dismissal of the initial petition and did not; (2) the filing of the second

petition violated principles of double jeopardy based on the court’s previous ruling; (3) the

State’s argument against double jeopardy was not compelling because the cases cited were

not juvenile delinquency cases and the court did not find adequate similarities between an

indictment and a delinquency petition; and (4) Defendant’s attendance of an extensive

rehabilitation program and the recommendations of his forensic evaluation negated any

need for rehabilitation, which was a requirement to file a delinquency petition. Therefore,

the court dismissed the State’s second petition.

The State timely filed an appeal to the circuit court. Defendant then filed a motion

to dismiss the appeal. After a hearing in August 2021, the circuit court entered its order.

The court summarized the State’s argument in its order:

1

At the beginning of the adjudicatory hearing, the judge heard Defendant’s argument concerning

Rule 210, after which the judge explained that the Tennessee Supreme Court did not allow the court to hear

cases at that time unless it was an emergency hearing. This was presumably due to COVID-19.

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The State filed a timely appeal from the order dismissing the second petition

alleging that an unsworn petition does not invoke the jurisdiction of the Court

and a Court that has no jurisdiction cannot place a defendant in jeopardy.

Reasoning that because the Juvenile Court lacked jurisdiction because of the

original unsworn petition[,] then no jeopardy attached when the first witness

was sworn in because the Court never had jurisdiction and the proceedings

were a nullity.

Despite this argument, the court dismissed the appeal. The court’s order stated in pertinent

part as follows:

The State’s appeal of the dismissal of the original juvenile petition [in case

No.] 59-53-245 which was not sworn is dismissed because there was no

timely appeal (filed by the State, as to that Juvenile Court order.)

The [S]tate’s appeal is dismissed as to the appeal in case No. 59-53-929

because (this Court finds that) once a witness is sworn jeopardy attaches even

on a petition that is not sworn. Because jeopardy attached on the original

unsworn petition then the State’s appeal is dismissed.2

The order noted that the transcript of the proceedings was attached and incorporated by

reference, but it was not attached to the order in the technical record.3 Thereafter, the State

timely filed an appeal with this Court.

II. ISSUES PRESENTED

The State presents the following issues for review on appeal, which we have slightly

restated:

1. Whether the constitutional prohibition against double jeopardy precluded the State

from filing a second delinquency petition against Defendant after the initial petition

was found to be a nullity because it was unverified; and

2. Whether the juvenile court’s premature double-jeopardy ruling—made before a

second delinquency petition had even been filed and therefore before the issue was

ripe for adjudication—compelled the State to fruitlessly appeal the initial dismissal

instead of simply curing the initial petition’s flaw by filing a second verified

petition.

For the following reasons, we reverse the decision of the circuit court and remand for

2

Parentheticals indicate handwritten portions in the court’s order.

3

A supplemental record was filed with this Court in August 2022 which included the circuit court’s

order with the transcript of the proceedings attached.

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further proceedings consistent with this opinion.

III. STANDARD OF REVIEW

The issues for review on appeal involve double jeopardy principles. These are

“question[s] of law with constitutional implications and, as such, our review is de novo

with no presumption of correctness afforded to the determinations of the trial court.” State

v. Houston, 328 S.W.3d 867, 875 (Tenn. Crim. App. 2010); see State v. Davis, 266 S.W.3d

896, 901 (Tenn. 2008) (citing State v. Burns, 205 S.W.3d 412, 414 (Tenn. 2006)).

IV. DISCUSSION

The State first contends that the prohibition against double jeopardy does not

prevent it from filing a second delinquency petition when the initial petition was a legal

nullity. We begin with a discussion on the subject of double jeopardy.

The Double Jeopardy Clause of the United States Constitution provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

U.S. Const. amend. V. Similarly, the Tennessee Constitution states that “no person shall,

for the same offence, be twice put in jeopardy of life or limb.” Tenn. Const. art. 1, § 10.

The purpose of the protection against double jeopardy has been expressed by the United

States Supreme Court and recognized by the Tennessee Supreme Court:

The underlying idea, one that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State with all its resources and

power should not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him to embarrassment,

expense and ordeal and compelling him to live in a continuing state of

anxiety and insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty.

State v. Pennington, 952 S.W.2d 420, 422 (Tenn. 1997) (quoting Green v. United States,

355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). Just like adults, children

are entitled to the protections afforded by the Constitution. Doe v. Norris, 751 S.W.2d 834,

839 (Tenn. 1988); see Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207

(1984); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); In re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct.

1428, 18 L.Ed.2d 527 (1967); State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 789 (Tenn.

1980); State v. Jackson, 503 S.W.2d 185 (Tenn. 1973). This includes the protection against

double jeopardy, which extends to delinquency proceedings in juvenile court such as the

one here. Jackson, 503 S.W.2d at 188; but cf. Burns, 205 S.W.3d at 418 (concluding that

juveniles adjudged delinquent on the basis of an offense which would be a felony if

committed by an adult are not entitled to a jury trial upon their de novo appeal to the circuit

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court).

A violation of double jeopardy arises “only when an individual is twice placed in

jeopardy for the same offense.” Pennington, 952 S.W.2d at 422. Stated differently, “[a]

defendant must be put in jeopardy at least once, ‘for only if that point has once been reached

does any subsequent prosecution of the defendant bring the guarantee against double

jeopardy even potentially into play.’” Id. (quoting Crist v. Bretz, 437 U.S. 28, 32-22, 98

S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978)). The Tennessee Supreme Court has explained

when jeopardy attaches in both jury and nonjury proceedings: “Customarily, in jury

proceedings, jeopardy attaches when the jury is sworn, and in nonjury proceedings,

jeopardy attaches when the first witness testifies.” State v. Thompson, 285 S.W.3d 840,

847 (Tenn. 2009) (quoting Pennington, 952 S.W.2d at 422 (quoting Crist, 437 U.S. at 32-

33, 98 S.Ct. at 2160)). Therefore, given that this case involved a nonjury proceeding,

jeopardy attaches, and potentially triggers the protection against double jeopardy, when the

first witness is sworn to testify. See State v. Myers, 581 S.W.3d 173, 182 n.1 (Tenn. 2019)

(explaining that “jeopardy attaches in a bench trial, when, inter alia, the witnesses are

sworn”); see State v. Daniels, 531 S.W.2d 795, 801-02 (Tenn. Crim. App. 1975) (holding

that jeopardy attaches “after the witnesses are sworn, whether they be sworn singly or in a

group”).

Yet, our Supreme Court has held that a defendant is not put in jeopardy when a court

acts without jurisdiction. See State ex rel. Austin v. Johnson, 404 S.W.2d 244, 248 (Tenn.

1966) (“[O]ne is not put in jeopardy when the court which tries him, or attempts to try him,

has no jurisdiction of the person or subject matter.”) (citations omitted); State v. Clark, 2

S.W.3d 233, 237 (Tenn. Crim. App. 1998) (explaining that, by virtue of the void charging

instrument, the court had no jurisdiction to impose the defendant’s conviction and that

jeopardy had not attached because there had been no lawful prosecution of the defendant

based on the events which formed the basis of his conviction). The rationale is based on

the well-established principle that “[a] court acting without jurisdiction is acting without

authority of law, and its decrees are absolutely void.” Sheffy v. Mitchell, 215 S.W. 403,

404 (Tenn. 1919) (citations omitted); see In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn.

2012) (“[T]he orders and judgments entered by courts without jurisdiction over the subject

matter of a dispute are void . . . .”) (citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.

1955)). “A void judgment is one in which the judgment is facially invalid because the

court lacked jurisdiction or authority to render the judgment . . . .” Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999) (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998);

Archer v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). When a judgment is void, it “binds

nobody; it bars nobody; it is a nullity, and no judgment at all; and justifies no act done

under it.” Hunt v. Liles, 243 S.W.2d 149, 151 (Tenn. Ct. App. 1950) (citation omitted);

see Hodges v. State, 45 Tenn. 7, 9 (1867) (“If the tribunal had no competent jurisdiction,

or the proceedings were illegal, or the indictment invalid, the conviction will be treated as

a nullity.”). Additionally, when a judgment is void because the court acts without

jurisdiction, it “may be attacked at any time.” Autin v. Goetz, 524 S.W.3d 617, 629 (Tenn.

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Ct. App. 2017); see Turner v. Turner, 473 S.W.3d 257, 279 (Tenn. 2015) (noting some

exceptions to the general rule). Our Supreme Court has equated a void judgment to “a dead

limb upon a judicial tree, which may be cut off at any time . . . .” Acuff v. Daniel, 387

S.W.2d 796, 798 (Tenn. 1965); see Brown, 281 S.W.2d at 501.

The Court of Criminal Appeals has addressed a similar question as the one presented

in this case, although it did not involve a delinquency adjudication in juvenile court. In

State v. Martindale, which is discussed by the parties, the State indicted the defendant with

first degree murder and the case proceeded to trial. State v. Martindale, No. M2004-00872-

CCA-R3CD, 2005 WL 1190748, at *1 (Tenn. Crim. App. 2005). After the jury was sworn,

defense counsel moved to dismiss the indictment on the ground that it failed to charge an

offense. Id. The trial court agreed, dismissed the indictment, and discharged the defendant.

Id. However, the court stated that the State could seek another indictment against the

defendant if it chose to do so, which it did. Id. Upon being re-indicted, the defendant

moved to dismiss on the grounds that the indictment violated his constitutional guarantees

against double jeopardy, his due process rights, and Tennessee Rule of Criminal Procedure

8. Id. The court denied the motion. Id. The defendant subsequently entered a “best-

interest” plea of guilt to a lesser offense, but reserved a certified question of law regarding

the arguments presented in the motion to dismiss. Id. at *1-2. On appeal, the Court of

Criminal Appeals stated as follows:

Although cited to by neither party, this Court has previously considered the

effects of an indictment which fails to charge an offense. See State v. Clark,

2 S.W.3d 233 (Tenn. Crim. App. 1998). In that case, the defendant had been

convicted of attempted aggravated robbery. On direct appeal, this Court

noticed as plain error that the indictment on which the conviction was based

“fail[ed] to charge an offense.” Id. at 236. Accordingly, this Court

determined that “the judgment based thereon is a nullity and cannot stand.”

Id. at 237. Indeed, we noted that “we do not have jurisdiction to affirm a

conviction imposed by a court which had, by virtue of the void charging

instrument, no jurisdiction to impose the conviction.” Id.

Of particular import to the instant case, we determined that, because the

original prosecution was a nullity, initial jeopardy never attached with

respect to the facts underlying the attempted aggravated robbery conviction.

Id. Relying on this Court’s earlier holding that “it is fundamental that a

defendant is not placed in jeopardy in a void criminal trial,” Rivera v. State,

1 Tenn. Crim. App. 395, 398, 443 S.W.2d 675, 677 (1969), we held that, “the

state may, within the applicable statutorily prescribed period, obtain a new

indictment which conforms to the dictates of Tennessee law and prosecute

the defendant accordingly.” Clark, 2 S.W.3d at 237 (footnote omitted).

The same result obtains here. The Defendant complains that the subsequent

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indictment violated his constitutional protections against double jeopardy.

However, to be placed in double jeopardy, one must have been previously

placed in initial jeopardy. See State v. Pennington, 952 S.W.2d 420, 422

(Tenn. 1997) (acknowledging that “[d]ouble jeopardy violations arise only

when an individual is twice placed in jeopardy for the same offense.”) (latter

emphasis added). As the Clark case makes clear, the Defendant was not

placed in jeopardy as a result of the original defective indictment, and the

subsequent indictment therefore has not placed him in double jeopardy. The

trial court did not err in refusing to dismiss the second indictment on this

ground, and this issue is therefore without merit.

Id. at *2. Similar to the Martindale case, the juvenile court in this case dismissed the initial

petition because it was defective. Yet, in dismissing the initial petition, the court here also

found that jeopardy attached because the first witness had been sworn. The State did not

appeal this dismissal, and consequently the State did not appeal the court’s finding that

jeopardy attached.

Following the Clark and Martindale cases, however, the same result obtains here.

The initial unverified petition failed to confer jurisdiction upon the juvenile court.

Therefore, we find that the juvenile court was without jurisdiction “by virtue of the void

charging instrument,” i.e., the initial unverified petition. Id. (citing Clark, 2 S.W.3d at

237). Since any judgment based on the initial petition would have been “a nullity,”

jeopardy never attached. Id. (citing Clark, 2 S.W.3d at 237). Indeed, whatever the juvenile

court stated in its order regarding jeopardy was superfluous because it was without

jurisdiction and its order was void and a nullity. See In re Baby, 447 S.W.3d 807, 837

(Tenn. 2014) (“[I]f the juvenile court lacked jurisdiction as to a particular subject matter,

its ruling as to that issue is a nullity.”) (citing In re Estate of Trigg, 368 S.W.3d at 489). It

follows then that the second verified petition filed by the State did not place Defendant in

double jeopardy.

As such, we conclude that the constitutional prohibition against double jeopardy did

not preclude the State from filing a second delinquency petition against Defendant because

Defendant was not placed in jeopardy as a result of the initial unverified petition. Based

on our conclusion as to the first issue, the State’s second issue is pretermitted.

V. CONCLUSION

For the aforementioned reasons, we reverse the decision of the circuit court and

remand for further proceedings consistent with this opinion. Costs of this appeal are taxed

to the appellee, Isaiah M., for which execution may issue if necessary.

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CARMA DENNIS MCGEE, JUDGE

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