State of Tennessee v. Brady O'Brien Holmgren

06/10/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 14, 2024 Session

STATE OF TENNESSEE v. BRADY O’BRIEN HOLMGREN

Appeal from the Circuit Court for Rutherford County

Nos. 82838, 82870 James A. Turner, Judge

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No. M2023-00795-CCA-R3-CD

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The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health

court program following his convictions for domestic assault and aggravated assault. The

furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later,

the Defendant filed a motion to modify his sentence. The trial court denied the motion,

and the Defendant appealed. Upon our review, we hold that the Defendant has waived any

issues by failing to properly prepare his brief in accordance with Tennessee Rule of

Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Circuit Court Affirmed

TOM GREENHOLTZ, J., delivered the opinion of the court, in which J. ROSS DYER and

KYLE A. HIXSON, JJ., joined.

John D. Drake, Murfreesboro, Tennessee, for the appellant, Brady O’Brien Holmgren.

Jonathan Skrmetti, Attorney General and Reporter; James E. Gaylord, Senior Assistant

Attorney General; Jennings H. Jones, District Attorney General; and Dana Minor, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On August 23, 2021, the Defendant pled guilty to the offenses of domestic assault

and aggravated assault. Pursuant to the plea agreement, the trial court sentenced the

Defendant to an effective sentence of seven years. The trial court also furloughed the

Defendant to participate in a mental health court program after he served ninety days in

confinement.

On March 25, 2022, the mental health court issued an order finding that the

Defendant violated the terms and conditions of the program (“March 2022 Order”). The

order revoked the Defendant’s furlough and ordered him to serve his original sentence in

confinement. The clerk filed the order on the same day.

On February 15, 2023, the Defendant filed a “Motion to Set Aside Revocation of

Furlough into Mental Health Court, For a Furlough Order into the Program, a Suspended

Sentence Hearing, or in the Alternative, for a Writ of Error Coram Nobis.” In the motion,

the Defendant challenged the March 2022 Order and alleged that the mental health court’s

revocation of his furlough did not comply with due process principles.

The trial court held a hearing on the Defendant’s motion on May 5, 2023. At the

hearing, the trial court initially questioned whether it had jurisdiction to hear the

Defendant’s concerns, but it allowed the Defendant to offer evidence supporting his

motion. Following the hearing, the trial court found that the Defendant’s termination from

the mental health court program was not arbitrary and that it complied with due process

principles. The court also denied coram nobis relief, finding that the request was “time

barred by the statute of limitations.” Finally, the trial court denied the Defendant’s motion

to modify his sentence. Although the court expressed doubts about whether it had

jurisdiction to grant that motion given that the Defendant was in the custody of the

Department of Correction, it nevertheless denied the motion on the merits. The trial court

filed a written order on May 5, 2023 (“May 2023 Order”).

The Defendant filed a notice of appeal on May 26, 2023.

ANALYSIS

In this appeal, the Defendant appears to broadly challenge his 2022 removal from

the mental health court program. Beyond this generalization, however, it is unclear what

is being challenged or why. The confusion principally comes from the Defendant’s not

including the required statement of issues in his appellate brief. It also stems from the fact

that the nature and scope of the issues presented cannot be otherwise identified from the

structure of the brief.

These omissions are significant. Our supreme court has been clear that “an appellate

court’s authority ‘generally will extend only to those issues presented for review.’” State

v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022) (quoting Tenn. R. App. P. 13(b)). As an

intermediate court of appeals, our function is principally to review and correct errors. State

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v. Phifer, No. M2013-01401-CCA-R3-CD, 2014 WL 4698499, at *16 (Tenn. Crim. App.

Sept. 23, 2014), no perm. app. filed. Properly conceived, our role is not to “sit as self-

directed boards of legal inquiry and research, sallying forth each day looking for wrongs

to right.” Bristol, 654 S.W.3d at 924 (citations and alteration omitted). Instead, we rely

upon the parties to identify the errors they believe were committed in the trial court and to

show why they believe the law entitles them to relief on appeal. See Berry v. State, 366

S.W.3d 160, 169 (Tenn. Crim. App. 2011) (stating that the appellant should identify “those

issues most amenable to success on appeal and present those issues to the court supported

by citation to authorities and appropriate references to the record”). Neither the court nor

the parties should have to guess about what issues an appellant advances as grounds for

relief. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Rather than searching for

hidden questions, appellate courts prefer to know immediately what questions they are

supposed to answer.”).

To facilitate this essential principle, the Tennessee Rules of Appellate Procedure

require that an appellant’s brief include a statement of the issues presented for review. See

Tenn. R. App. P. 27(a)(4). The supreme court has rejected the notion that this requirement

is a “mere formality,” and it has “made clear that, to be properly raised on appeal, an issue

must be presented in the manner prescribed by Rule 27[.]” City of Memphis v. Edwards by

& Through Edwards, No. W2022-00087-SC-R11-CV, 2023 WL 4414598, at *2 (Tenn. July

5, 2023) (Per Curiam Order); Donovan v. Hastings, 652 S.W.3d 1, 9 (Tenn. 2022) (“The

requirement of a statement of the issues raised on appeal is no mere technicality[.]”

(citation and internal quotation marks omitted)). Indeed, so important is this requirement

that our supreme court has emphasized that “[d]eclining to address questions not properly

raised is a way that we achieve fairness and ensure the perceived integrity of the courts.”

City of Memphis, 2023 WL 4414598, at *2 (citation and internal quotation marks omitted).

In at least some cases, the supreme court has indicated that an issue may be

addressed even when it was not formally raised in a party’s statement of the issues

presented. One such example can occur when the issue is clearly and unequivocally

identified from the brief and basic fairness principles are not otherwise compromised.

Hodge, 382 S.W.3d at 337. This may be particularly the case where the appellee has

understood that a particular issue is raised and has prepared a proper response to it. Id.;

City of Memphis, 2023 WL 4414598, at *1 n.2 (noting that a briefing requirement may be

suspended where, among other reasons, “the sole issue appealed is not hindered by the

deficiencies” (citations omitted)). That said, these examples are rare, and the supreme court

has been clear that “an issue may be deemed waived when it is argued in the brief but is

not designated as an issue in accordance with Rule 27(a)(4).” City of Memphis, 2023 WL

4414598, at *2; State v. Bishop, 431 S.W.3d 22, 43 (Tenn. 2014) (finding issue waived

when presented in the argument section of the brief, but not included in the statement of

issues presented).

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In this case, two separate orders—the March 2022 Order and the May 2023 Order—

arguably affect the Defendant’s removal from the mental health court program. These two

orders were entered by different judges, addressed different legal issues, were considered

under different legal standards, and were entered at separate times more than a year apart.

In other words, each order has its own separate substantive and procedural issues that could

possibly be associated with it.

Yet, the Defendant’s appellate brief does not clearly identify whether he takes issue

with only one order or with both. For example, the Defendant’s appellate brief does not

contain a statement of the issues presented for review. See Tenn. R. App. P. 27(a)(4). His

notice of appeal identifies the later May 2023 Order as being the subject of the appeal, 1 but

his appellate brief states instead that the appeal is taken from the earlier 2021 judgment and

the March 2022 Order. The Defendant mentions the May 2023 Order only in passing in

his brief, and his argument and request for relief largely focus on the propriety of the earlier

March 2022 Order. For its part, the State generally disregards the March 2022 Order in its

brief and, consistent with the Defendant’s notice of appeal, focuses its attention on the later

May 2023 Order.

Given the seeming inconsistencies, this court asked at oral argument about the

nature of the issues being presented for review. Consistent with his brief, the Defendant

initially responded that he was only challenging the March 2022 Order as failing to comply

with due process principles. At other times, however, both he and the State indicated that

the later May 2023 Order was the proper subject of the appeal.

Whatever the Defendant’s issues may be, we conclude that they are not fairly

presented in accordance with Tennessee Rule of Appellate Procedure 27. As such, we find

ourselves in the untenable position of either searching for hidden questions to review or

scouring the appellate record for possible reversible error. Hodge, 382 S.W.3d at 334;

Donovan, 652 S.W.3d at 9. This is not the function of an appellate court. Because we

cannot determine with any certainty what grounds for relief are presented for review, we

respectfully decline to address issues we think might be raised for relief. See City of

Memphis, 2023 WL 4414598, at *2.

Our consideration of the Defendant’s appeal is also barred for other reasons as well.

To the extent that the Defendant challenges the March 2022 Order, his notice of appeal is

untimely. The March 2022 Order was filed with the clerk on March 25, 2022, and the

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The notice of appeal states that the appeal is taken “from the Orders imposed by the

Honorable Circuit Court Judge James A. Turner, of the l6th Judicial District of Rutherford County. The

said orders imposing the judgments of conviction for Appellant’s [seven-year] total sentence in the

Tennessee Department of Correction[.]” The March 2022 Order was not issued by Judge Turner and is thus

not apparently included among the orders from which this appeal is taken.

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Defendant had thirty days to file a notice of appeal. See Tenn. R. App. P. 4(a). However,

he did not file a notice of appeal until 427 days later on May 26, 2023. Given the substantial

unexplained delay, the possible lack of appellate jurisdiction involved, 2 and the absence of

a request to waive the late filing, we find that the “interest of justice” does not weigh in

favor of waiving the requirement of a timely notice of appeal. See id.; State v. Manning,

No. E2022-01715-CCA-R3-CD, 2023 WL 7439203, at *5-6 (Tenn. Crim. App. Nov. 9,

2023), perm. app. denied (Tenn. May 16, 2024). As such, even if issues related to the

March 2022 Order were properly presented for review—and they are not—the Defendant

would not be entitled to relief from that order.

Similarly, to the extent that the Defendant challenges the May 2023 Order, the trial

court was without jurisdiction to modify his sentence. No modification could have been

granted pursuant to Tennessee Rule of Criminal Procedure 35, as more than 120 days had

passed since the sentence was imposed or probation was revoked. 3 See Tenn. R. Crim. P.

35(a); State v. Jabal, No. M2020-01093-CCA-R3-CD, 2021 WL 3184958, at *2 (Tenn.

Crim. App. July 28, 2021) (“Because the defendant’s motion was filed outside the 120-day

limitations period, the trial court was without jurisdiction to consider the motion under

Rule 35.”), no perm. app. filed. Moreover, the Defendant’s felony sentence could not have

been modified pursuant to Tennessee Code Annotated section 40-35-212(d) because, as the

trial court noted, he had already been transferred to the custody of the Department of

Correction. See State v. Taylor, 992 S.W.2d 941, 945 (Tenn. 1999). The Defendant has not

identified any other basis on which the trial court had jurisdiction to address his motion.

As such, even if issues related to the May 2023 Order were properly presented for review—

and they are not—the Defendant would not be entitled to relief from that order.

2

A defendant “has no appeal as of right unless it is enumerated in Rule 3(b) of the Tennessee

Rules of Appellate Procedure or by a separate statute.” State v. Novatne, No. M2023-00114-CCA-R3-CO,

2023 WL 8081706, at *3 (Tenn. Crim. App. Nov. 21, 2023) (citations and internal quotation marks omitted),

perm. app. denied (Tenn. Apr. 11, 2024). Although Rule 3(b) allows a defendant to appeal an order revoking

probation, the Rule does not expressly address furloughs. Cf. State v. Bean, No. M2009-02059-CCA-R3-

CD, 2011 WL 917038, at *2 (Tenn. Crim. App. Mar. 16, 2011) (holding that a defendant had no right of

appeal from an order denying his motion for furlough), no perm. app. filed. The Defendant cites no

authority showing that an appeal of the March 2022 Order comes within the scope of Rule 3.

3

Of course, this case does not involve a revocation of probation, and the Defendant cites no

authority showing that a revocation of an extended furlough is tantamount to a revocation of probation for

Rule 35 purposes. In any event, because the 120-day deadline under Rule 35 cannot be extended or tolled,

the Defendant’s motion to modify his sentence would be untimely under all circumstances. See Tenn. R.

Crim. P. 35(a).

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CONCLUSION

In summary, we hold that the Defendant has waived any issues by failing to properly

prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27.

Accordingly, we respectfully affirm the judgment of the trial court.

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TOM GREENHOLTZ, JUDGE

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