# State of Tennessee v. David Parr

> Court of Criminal Appeals of Tennessee · February 8, 2024

URL: https://www.frixlaw.com/law-library/cases/9931456

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 8, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

02/08/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 23, 2023, at Knoxville

STATE OF TENNESSEE v. DAVID PARR

Appeal from the Circuit Court for Stewart County
Nos. 2020-CR-18, 2020-CR-49 David P. Wolfe, Judge

No. M2022-00868-CCA-R3-CD

The defendant, David Parr, appeals the Stewart County Circuit Court’s imposition of a
fully-incarcerative sentence for his guilty-pleaded convictions of possession of
methamphetamine and fentanyl with intent to sell or deliver, asking this court to remand to
the trial court for consideration of Community Corrections under Code section 40-36-
106(2)(c). Because the superseding indictments violated the principles of double jeopardy
and because the trial court lacked jurisdiction to hold the plea submission hearing, the
judgments entered on the superseding indictments are void, and we dismiss the appeal.

Tenn. R. App. P. 3; Appeal Dismissed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Edward DeWerff (at trial) and Gregory D. Smith (on appeal), Clarksville, Tennessee, for
the appellant, David Parr.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney
General; Ray Crouch, District Attorney General; and Josh Turnbow, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

In March 2020, the defendant and co-defendant Jessica L. Black were
charged by indictment in case 2020-CR-18 with one count each of possession of .5 grams
or more of methamphetamine with intent to sell or deliver (Count 1), possession of not less
than one-half ounce nor more than 10 pounds of marijuana with intent to sell or deliver
(Count 2), possession of drug paraphernalia (Count 3), possession of Gabapentin with
intent to sell or deliver (Count 4), and possession of Alprazolam with intent to sell or
deliver (Count 5). In May 2020, the defendant was charged by presentment in case 2020-
CR-49 with two counts of selling heroin, a Schedule I controlled substance, in a drug free
zone (Counts 1 and 3) and two counts of possession of drug paraphernalia (Counts 2 and
4).

The defendant entered into a plea agreement with the State, in which he
agreed to plead guilty as a Range II offender to two amended counts of the selling of a
Schedule II controlled substance in Counts 1 and 3 in case 2020-CR-49 in exchange for
the State’s dismissing the remaining charges in case 2020-CR-49 and all charges in case
2020-CR-18. Pursuant to the plea agreement, the sentences for the two convictions would
run concurrently to each other, but the trial court would otherwise set the length of sentence
and manner of service. At the July 12, 2021 plea submission hearing, in front of Judge
Larry Wallace, the defendant pleaded guilty to two counts of selling a Schedule II
controlled substance, resulting in two Class B felony convictions. The State explained that
the defendant was pleading guilty to amended charges of selling of a Schedule II controlled
substance because the Tennessee Bureau of Investigation laboratory’s testing of the
substance indicated that it was fentanyl instead of heroin. The State provided the following
recitation of facts to support the defendant’s convictions: “[O]n January 24th and January
20th of 2020, [the defendant] sold fentanyl to a confidential informant in Stewart County.”
At the conclusion of the hearing, the trial court stated, “The [c]ourt accepts the . . . plea.”
The court set a sentencing hearing for August 23, 2021. Plea agreement forms reflecting
this agreement were signed by Judge Wallace on July 12, 2021. On July 28, 2021, Judge
Wallace entered judgments indicating that all counts in case 2020-CR-18 were nolle
prosequied.

On August 13, 2021, Judge Wallace entered an order recusing himself from
both cases and setting them for a status hearing. The order did not attempt to dispose of
the defendant’s plea or convictions. The sentencing hearing scheduled for August 23, 2021
did not occur. Judge David Wolfe took over the case and held a status hearing on
November 8, 2021. In that hearing, the State asked whether the defendant “need[ed] to
reenter that . . . plea?” The court responded, “I am of the opinion that he does need to
reenter a[] . . . plea in front of the [j]udge who is going to sentence him.” The court
continued, “I understand it’s redundant, but I think it would be better for the technical
record so that there are no issues that are raised.” The court scheduled a plea submission
hearing for November 23, 2021. The plea submission hearing did not occur until March
21, 2022, but the record does not indicate when or why the hearing was continued.

In January 2022, the State obtained superseding indictments in both cases.
The superseding indictment in case 2020-CR-18 was identical to the original indictment
other than that it omitted the co-defendant: the defendant was charged with one count each
of possession with intent to sell or deliver .5 grams or more of methamphetamine,
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possession with intent to sell or deliver not less than one-half ounce nor more than 10
pounds of marijuana, possession with intent to sell or deliver Gabapentin, possession with
intent to sell or deliver Alprazolam, and possession of drug paraphernalia. The superseding
presentment in case 2020-CR-49, charged the defendant with two counts of selling
fentanyl, a Schedule II controlled substance, in a drug free zone (Counts 1 and 3), and two
counts of possession of drug paraphernalia (Counts 2 and 4).

The trial court held a plea submission hearing on the superseding indictments
on March 21, 2022, at which hearing the defendant pleaded guilty as a Range II offender
to one count of possession with intent to sell or deliver .5 grams or more of
methamphetamine in case 2020-CR-18 and one count of possession with intent to sell or
deliver fentanyl in case 2020-CR-49, resulting in one Class B felony conviction and one
Class C felony conviction. See T.C.A. § 39-17-417(c)(1), (2)(A) (2018). Plea agreement
forms dated April 8, 2022, indicate that the defendant agreed to plead guilty to one count
of possession with intent to sell or deliver .5 grams or more of methamphetamine in case
2020-CR-18 with the remaining charges in that case to be dismissed and one count of
possession with intent to sell or deliver fentanyl in case 2020-CR-49, with the remaining
charges in that case to be dismissed. Both plea agreement forms were signed by Judge
Wolfe. At the hearing, the State provided the following recitation of facts:

[I]n 2020-CR-49, on January 24th of 2020[, the defendant] sold
.87 grams of fentanyl to a confidential informant, and then in
2020-CR-18, on February the 4th, 2020, there was a search
warrant conducted at [the defendant’s] residence and there was
28.99 grams of methamphetamine found in [the defendant’s]
room.

The trial court held a sentencing hearing on May 16, 2022, at which Dickson
County Sheriff’s Office Detective Chris Freeze testified that in investigating the defendant
for the distribution of narcotics, he arranged for a confidential informant to make a
controlled buy of fentanyl.1 Based on the successful controlled buy, Detective Freeze
obtained a search warrant for the defendant’s residence. Upon execution of the search
warrant, officers recovered “a great big bag of suspected narcotics that was just laying like
on a dresser,” “a bunch of paraphernalia,” and “a significant amount” of methamphetamine.
He acknowledged that some of the paraphernalia “could have been there for use as well.”

The State exhibited to the hearing a presentence investigation report and

1
Officer Freeze explained that fentanyl and heroin were considered interchangeable and that “we
really never know what we are getting. We may ask to purchase heroin and get fentanyl, we may sometimes
get heroin.”
-3-
certified copies of judgments for three prior convictions of aggravated burglary, burglary,
and possession of a firearm while a convicted felon.

Margaret Gregg testified that she worked as a school teacher and for the
Department of Children Services (“DCS”). In her role at DCS, she was “a foster parent
mentor” and “facilitate[d] homes for children.” She said that the defendant’s two children
were placed in her home the night of his arrest in this case and had remained in her care
for “almost a year.” The children were returned to their mother upon her completion of a
drug rehabilitation program. She said that while the children were in her care, the
defendant “was very active with” them despite being incarcerated and would visit with
them by teleconference and telephone approximately twice per week. Ms. Gregg said that
after the children were returned to their mother’s custody, the defendant continued to check
on the children once or twice a week, “want[ing] to know how they’re doing in school, . .
. wishing them happy birthday, happy holidays.”

Julie Utley testified that she worked at Hope Center Ministries, “a long-term
drug and alcohol program.” She said that the program was 12-months long and that
participants could not complete the program sooner even with “good behavior.” She said
that she had received an application to the program from the defendant and that the
defendant qualified for the program in Waverly. Ms. Utley said that the defendant’s fiancée
successfully completed the program and worked as an intern at the center’s location in
Paris. She said that even though the defendant had not used drugs during the two years he
had been incarcerated, “in jail you are not taught the tools to use to be able not to use.”
The Hope Center program “give[s] them the tools that they need and put them in situations
to where . . . they have what they need when they graduate to be able to say no.” She said
that she believed the defendant could “[a]bsolutely” benefit from the program and that the
program had space for him immediately.

At the conclusion of the evidence, the trial court concluded that the defendant
was ineligible for Community Corrections because he was facing a minimum 12-year
sentence and because Community Corrections was available only to those who were
eligible for probation with a sentence of 10 years or less. The court found that the defendant
“has a long history of criminal conduct,” that the sale of drugs “is a serious offense” that
“can’t be depreciated,” and that the defendant “has not been successful in serving probation
in the past.” The court noted that the sentencing statutes require the court to consider a
defendant’s potential for rehabilitation and encourage the use of non-incarcerative
sentences but concluded that it could not consider an alternative sentence for the defendant
because the length of his sentence would exceed the maximum sentence allowed to be
considered for probation. The trial court stated, “So under the circumstances, with what I
just read and the case law that I have looked at, indicates to me that there is no eligibility
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for probation, even probation through Community Corrections for someone . . . whose
sentence will be 12 years.” In denying Community Corrections, the trial court said,
“Because of the simple fact that I have no option to grant him the probation that he wants
and put him on Community Corrections, I deny his request to be placed on Community
Corrections . . . .” The trial court sentenced the defendant as a Range II offender to an
effective sentence of 15 years’ incarceration. After imposing the sentence, the court told
the defendant, “It seems like you have finally gotten your life together. I wish that I had
options that I could give you, but I can’t. And I have to follow the law and I have to give
you the sentence that I think is appropriate.”

In this timely appeal, the defendant argues that the trial court erred by failing
to consider his eligibility for Community Corrections under the “special exceptions”
provision. The State argues that the trial court did not abuse its discretion in imposing the
fully-incarcerative sentence.

Because the judgments appealed by the defendant are those issued by the trial
court after the second plea submission hearing, this court ordered supplemental briefing by
the parties to address whether the State’s obtaining superseding indictments after the
defendant pleaded guilty on July 12, 2021, violated principles of double jeopardy and
whether the trial court had jurisdiction to hold a second plea submission hearing.

In supplemental briefing, the defendant argues that the issuance of a
superseding indictment in case 2020-CR-18 violated the principles of double jeopardy and
that the trial court lacked jurisdiction to hold a second plea submission hearing in that case
because the entry of nolle prosequi judgments by the trial court terminated that case. He
argues that the trial court had jurisdiction to hold a second plea submission hearing in case
2020-CR-49 because no final judgments were entered in that case. The State contends that
the trial court’s initial acceptance of the defendant’s plea was conditional, that jeopardy
never attached in either case, and that the trial court had jurisdiction to hold a second plea
hearing.

When a defendant pleads guilty, jeopardy attaches when the trial court
“unconditionally accept[s]” the guilty plea. See State v. Todd, 654 S.W.2d 379, 383 (Tenn.
1983) (“[J]eopardy does not attach at a hearing on a guilty plea until the plea is
unconditionally accepted.” (citations omitted)). However, “[u]ntil a final judgment is
entered a court is free to reject the plea and plea agreement.” Id. (citing United States v.
Sanchez, 609 F.2d 761, 763 (5th Cir. 1980)). Furthermore, “once plea agreements are
approved by the trial court, they become binding and enforceable contracts,” and the trial
court lacks authority to modify the agreement. James R. Blue v. State, No. M2002-00383-
CCA-R3-PC, 2003 WL 1715745, at *7 (Tenn. Crim. App., Nashville, Apr. 1, 2003) (citing
-5-
State v. Howington, 907 S.W.2d 403, 407 (Tenn. 1995)). Here, the trial court
unconditionally accepted the defendant’s guilty plea on July 12, 2021, as evidenced by
the court’s entry of final judgments of the nolle prosequied counts in case 2020-CR-18,
and jeopardy attached as to both cases.

Generally, “a trial court’s judgment becomes final thirty days after its entry
unless a timely notice of appeal or a specified post-trial motion is filed.” State v.
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996) (citing Tenn. R. App. P. 4(a), (c); State
v. Moore, 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991)); State v. Green, 106 S.W.2d
646, 650 (Tenn. 2003) (“We hold that a judgment of conviction upon a guilty plea
becomes a final judgment thirty days after entry.”). After a judgment becomes final, a
trial court loses jurisdiction to modify the judgment, State v. Allen, 593 S.W.3d 145, 154
(Tenn. 2020) (“Once an order becomes final, a trial court loses jurisdiction and generally
has no power to modify or amend the order” (citations omitted)); Green, 106 S.W.3d at
648-49 (“Generally, a trial court has no power to amend its judgment once the judgment
becomes final . . . .” (citations omitted)), with the limited exception of correcting clerical
mistakes, see Tenn. R. Crim. P. 36. “It is well-settled that a judgment beyond the
jurisdiction of a court is void.” Pendergrass, 937 S.W.2d at 837 (citing Brown v. Brown,
281 S.W.2d 492, 497 (Tenn. 1955)). “[J]urisdiction to modify a final judgment cannot be
grounded upon waiver or agreement by the parties.” Moore, 814 S.W.2d at 383.

Here, because the first judgments in case number 2020-CR-18 disposing of
all five counts as nolle prosequied, were entered on July 28, 2021, they became final on
August 25, 2021. Judge Wallace’s order of recusal of August 13, 2021, set the case for a
status hearing but did not attempt to dispose of the judgments or permit the defendant to
withdraw his guilty pleas. Consequently, the trial court was without jurisdiction to enter
subsequent judgments in case 2020-CR-18 after the second plea submission hearing, and
those judgments are void because jeopardy had attached to the July 21, 2021 judgments,
and although the judgments resulted from the State’s nolle prosequi dismissal, the
dismissal was with prejudice.

With respect to the nolle presequied charges in case 2020-CR-18, the law is
well-settled that a nolle prosequied charge “leaves the prosecution just as though no such
count had ever been inserted in the indictment,” Dealy v. United States, 152 U.S. 539, 542
(1894), and “does not bar further prosecution under a new indictment,” Pace v. State, 566
S.W.2d 861, 867 n.4 (Tenn. 1978) (Henry, C.J., concurring) (emphasis added) (citing
State ex rel. Hobbs v. Murrell, 93 S.W.2d 628 (Tenn. 1936)). Because a “superseding
indictment is an indictment obtained without the dismissal of a prior indictment,” State v.
Harris, 33 S.W.3d 767, 771 (Tenn. 2000), a superseding indictment is not the proper
mechanism by which to prosecute a defendant on charges that have been nolle prosequied.
-6-
Furthermore, although “[t]he power to seek a superseding indictment lies within th[e]
broad discretion of the State,” id., the State may not obtain a superseding indictment after
jeopardy has attached, State v. Batey, No. M2017-02440-CCA-R3-CD, 2019 WL 6817059
(Tenn. Crim. App., Nashville, Dec. 13, 2019) (“Where there has been no jeopardy on the
first indictment, a grand jury may return a new indictment against an accused even though
another indictment is pending. . . .” (emphasis and alteration in Batey) (quoting Harris, 33
S.W.3d at 771)); see also Murrell, 93 S.W.2d at 630 (stating that a nolle prosequi “is not
a bar to a subsequent prosecution, unless it shall be entered after the defendant has been
put to his trial upon a valid indictment before a jury duly sworn and impaneled” (quoting
Scheibler v. Steinburg, 167 S.W. 866, 866 (Tenn. 1914) overruled on other grounds by
Mynatt v. Nat’l Treasury Emps. Union, Chapter 39, 669 S.W.3d 741 (Tenn. 2023)); c.f.
Tenn. R. Crim. P. 7(b) (“Without the defendant’s consent and before jeopardy attaches,
the court may permit . . . an amendment [to the indictment] if no additional or different
offense is charged and no substantial right of the defendant is prejudiced.”). After
jeopardy has attached, however, the entry of “a nolle prosequi would terminate the
prosecution, as the defendant would have been in jeopardy.” Scheibler, 167 S.W. at 866
(citing State v. Fleming, 26 Tenn. (7 Humph.) 152, 154 (1846)). Jeopardy attached when,
as noted above, the trial court accepted the defendant’s guilty plea on July 21, 2021. In
other words, the dismissal via nolle prosequi after jeopardy attached is with prejudice in
case 2020-CR-18. Furthermore, although no judgments were initially entered in case
2020-CR-49, the unconditional acceptance of the pleas in that indictment with the
attendant attachment of jeopardy barred new charges via the superseding indictment.

Consequently, the superseding indictments in cases 2020-CR-18 and 2020-
CR-49 violated the principles of double jeopardy, and the trial court was without
jurisdiction to hear them. Accordingly, the superseding indictments are void, the trial
court lacked jurisdiction to hold a plea submission hearing on those indictments, the
defendant’s second guilty plea was void, and the judgments entered by Judge Wolfe after
the second plea submission hearing are void.

As the defendant’s case stands, he pleaded guilty to two counts of selling a
Schedule II controlled substance in case 2020-CR-49, and the remaining counts in that
case and all counts in case 2020-CR-18 have been dismissed. He has not yet been
sentenced on that plea. The appeal is dismissed, and the case is remanded to the trial court
for further proceedings consistent with this opinion.

___________________________________
JAMES CURWOOD WITT, JR., JUDGE

-7-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9931456. Public record. Not legal advice.