State v. BilbreyState v. Bilbrey
- Reporters:
- ,
- Before:
- Tipton
OPINION
TIPTON, Judge.
The defendant, Ralph L. Bilbrey, was convicted upon his nolo contendere pleas in the Cheatham County Circuit Court of five counts of fraudulent breach of trust. Judgment was entered on July 7, 1989, by which he was sentenced as a Range I, standard offender to consecutive, maximum sentences of six years on each count for a total sentence of thirty years. On July 24, 1989, the defendant filed a Motion to Reduce Sentence,
The defendant seeks to appeal as of right from his convictions and the sentences, recognizing that his notice of appeal, filed on January 16, 1990, wаs timely for the rule 35 order, but was not within thirty days of the July 7, 1989 judgment. In this appeal, the defendant presents the following issues:
(1) Whether the notice of appeal was timely filed or should be waived pursuant to T.R.A.P. 4(a).
(2) Whether the five convictions should have merged into one conviction since the criminal conduct constituted a continuing design, scheme or plan.
(3) Whether the defеndant should have been sentenced under the Criminal Sentencing Reform Act of 1989 instead of under prior law.
(4) Whether the trial court erroneously imposed maximum and consecutive sentences as to all convictions.
FACTS
The defendant was indicted on twenty-two counts of fraudulent breach of trust of monies due Old South Trucking Company. The record is far from clear as to thе exact actions by the defendant. The defendant was a dispatcher for Old South. Old South would wire money to truckers who were on the road and, upon their return, the advances would be deducted from the money due them from Old South. The defendant owned some of the trucks operated in this fashion. As dispatcher, the defendant was in charge of making the advances аnd keeping records of the advances in the truckers’ files. The record reflects that he, apparently, would remove the records from the files and keep, for himself, the monies supposedly deducted from the truckers’ settlements, including his own trucks, without accounting for them to Old South. The funds proven to be taken totaled $279,-
At the plea hearing, the defendant acknowledged that there was a factual basis for a jury to convict him and it was shown that he admitted civil liability for the full amount, having signed a promissory note. The nolo contendere plea was based upon the defendant’s contention that he did not have criminal intent and did not do the specific things the state alleged, but that it was in his best interest to enter such a plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Pursuant to agreement with the state, the defendant entered pleas to counts one (January 1-31, 1985), six (June 1-30, 1985), eleven (November 1-30, 1985), sixteen (April 1-30, 1986) and twenty-two (October 1-31, 1986) and the remaining seventeen counts were dismissed.
STATUS OF APPEAL
The defendant contends that his notice of appeal was timely filed. Thе significant dates relative to the appeal are as follows:
July 7, 1989 — Judgment and sentence entered.
July 24, 1989 — Motion to Reduce Sentence filed.
January 16,1990 — Notice of Appeal from plea, sentence and denial of motion filed.
January 24, 1990 — Order denying Motion to Reduce sentence entered.
An appeal as of right is initiated by the filing of a notice of appeal, T.R.A.P. 3(e), within thirty days of the entry of the judgment being appealed. T.R.A.P. 4(a). However, if a timely motion (1) for judgment of acquittal, (2) for new trial, (3) for arrest of judgment, or (4) for a suspended sentence is filed, the thirty days run from the entry of the order determining such motion or motions. T.R.A.P. 4(c). The Advisory Committee Comment to this rule notes that it would be undesirable to proceed with an appeal while the trial court was still considering “a motion the granting of which would vacate or alter the judgment appealed from, and which might affect either the availability of or the decision whether to seek appellate review.”
The defendant asserts that his
It would be senseless for this Court to pass on an issue while a motion for rehearing is pending below, and no significant sаving of time would be achieved by altering the ordinary rule to the extent of compelling a notice of appeal to be filed while the petition for rehearing is under consideration.
Obviously, the appellate rules do not specifically allow a
Cumbersome as it may be, the rules of criminal and appellate procedure clearly provide that the action of a trial court on a
A defendant who fails to appeal from the entry of a judgment of conviction, including the sentence, but who elects to appeal after a
MERGER OF CONVICTIONS
The defendant contends that his five convictions were for only one offense and that, thus, four of the convictions should be vacated as merged with the remaining one. He relies upon Nelson v. State, 208 Tenn. 179, 344 S.W.2d 540 (1960) in which our Supreme Court held that if successive takings result from a single, continuing intent or from a continuing larcenous design, scheme or plan, then the takings constitute a single larceny, regardless of the extent of time over which the takings occurred. The defendant reasons that the indiсtment and the plea hearing clearly show that the defendant’s alleged conduct between January 1,1985, and October 31,1986, was part of a continuous larcenous scheme allowing for only one conviction.
However, pursuant to plea agreement, the defendant entered nolo conten-dere pleas to five counts with the remaining counts being dismissed. These pleas were voluntarily, knowingly and understandingly made with the advice of counsel. A nolo contendere plea has the same effect as a guilty plea, absent some statute or rule to the contrary.
See State v. Teague,
680 S.W.2d 785, 789 (Tenn.1984). A guilty plea constitutes a waiver of all nonjurisdic-tional and procedural defects or constitutional infirmities.
State v. Wilkes,
684 S.W.2d 663, 667 (Tenn.Crim.App.1984);
Shepard v. Henderson,
1 Tenn.Cr.App. 694, 449 S.W.2d 726 (1969). For the purposes of an аppeal, the nolo contendere plea has the same effect as a guilty plea. In fact, upon the entry of a nolo contendere plea, any issue which might be dispositive of the case must be explicitly reserved with the consent of the state and the trial court. T.R.A.P. 3(b). Otherwise, it is waived.
See
T.R.A.P. 3(b);
APPLICATION OF 1989 SENTENCING ACT
The defendant contends that he was entitled to be sentenced under the 1989 Sentencing Act since his
Several circumstаnces belie the defendant’s claim. The sentence imposed on July 7, 1989, was subject to appeal as of right as in other criminal cases and at the same time the appeal, if any, of the conviction was to be taken. T.R.A.P. 3(b);
MAXIMUM AND CONSECUTIVE SENTENCES
The defendant quarrels with the maximum and consecutive nature of his sentences. Since the sentences were imposed under the 1982 Sentencing Act, as amended, appellate review is
de novo
without a presumption of correctness.
The defendant was a forty-eight-year-old army veteran with two adult children. He was employed as a truck driver and reрorted earning up to one thousand dollars per week. At the sentencing hearing, James Rex Raines, the owner of Old South Trucking Company, testified about the serious problems that the theft caused his business and him personally. The probation officer testified that he determined that the defendant had defrauded another couple out of some money in a truck аnd trailer transaction in 1985 and that the defendant had obtained some money, through forgery, from his deceased wife’s estate in 1987. His prior record reflected three 1978 marijuana conspiracy and felony possession convictions in Tennessee, Kentucky and Florida, which, apparently, arose from the same transaction.
The defendant did not testify, but he put оn witnesses to show that Old South’s bookkeeping was lax. His employer testified that he was dependable and reliable in his work. The defendant’s statement to the probation officer attributed the defi
Apparently, the defendant turned assets over to the victim for sale toward any restitution. It apрears that, ultimately, some eighty-two thousand dollars was deemed repaid. However there was a question as to whether or not this constituted a good faith effort to recover the proceeds of the crime, as a mitigating factor, since there was proof that the defendant had substantial gross income in past years, such as, three hundred seventy thousаnd dollars in 1985 and seven hundred thirty-four thousand dollars in 1986. The record does not reflect to what extent these figures would be reduced for the substantial operating costs related to trucking.
At the hearing, the trial court set the maximum of six years for each offense, stating that enhancement was based upon the particularly great amount of property damage to the victim,
This Court notes that the violation of trust is inherent in the crime of fraudulent breach of trust and was not a statutory enhancement factor under the 1982 Act. Its use as a sentence enhancer under these circumstances is highly suspect and this Court will not rely upon it in this case. Obviously, the record reflects sufficient previous history of criminal convictions and criminal behavior as to justify a sentence above the minimum. Likewise, as to the circumstances of the offensеs, the total theft nearly destroyed the victim’s business. In response, the defendant asserts that he is entitled to the application of mitigating factors in his sentences since his conduct did not cause or threaten serious bodily injury and he made attempts at compensating the victim.
See
At the sentencing hearing the trial court did not specify any different reasons for requiring the service of the sentences to be consecutive. In the judgment entered on July 7, 1989, it stated that the consecutive sentences were based upon the fоllowing:
(1) Defendant was in a position of utmost trust.
(2) The amount of money taken was great.
(3) It was a well planned scheme continuing over a period of almost two years.
(4) The sentence is the least severe to achieve the purposes contemplated by the trial court.
(5) Rehabilitation is unlikely.
Most of the trial court’s findings have little relationship to the criteria in Gray v. State, supra, and consecutive sentences totaling thirty years are not justified. However, the record does reflect an extensive scheme for almost two years by which substantial sums of money were taken by the defendant. This would meet the criterion in Gray for a multiple offender, i.e., “the crimes for which he has been convicted indicate criminal activity so extensive and continuing for such a period of time as to warrant consecutive sentencing.” 538 S.W.2d at 393.
At the trial levеl, the state did not seek consecutive sentencing for all of the convictions. The state’s brief, on appeal, did not address the issue of consecutive sentences. The defendant asks this Court to compare his case to that in
State v. Candler,
728 S.W.2d 756 (Tenn.Crim.App.1986) in which
The six year sentences imposed in counts one, six and eleven are to be served concurrently to each other. The six year sentences in counts sixteen and twenty-two are to be served concurrently with each other, but consecutively to the sentences imposed in counts one, six and eleven. The case is remanded to the trial court for entry of a judgment consistent with this opinion.
SCOTT and JONES, JJ., concur.