1 Courtof Appea ls Rule 10: Th is Court, with the conc urrence o f all judges participating in the case, ma y affirm, reverse or modif y t he act ions of t he t ria l cou rt by memorandu m opini on when a f ormal opinion would have

no precedential value. W hen a case is decided by memorandum o pinion, it shall be designa ted “MEMORANDU M OPIN IO N,” shall not be published, and shall not be cited or relied on for any

reaso n in a sub sequ ent unre lated c ase. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs J uly 1, 2001

STATE OF TENN ESSEE v. MICHAEL E . PATE
Appeal from the Circuit Court for Dickson County No. CR5291 Allen Wallace, Judge

No. M2001-00076-COA-R7-CV - Filed October 16, 2002

This case originated in the Juvenile Court of Dickson County, Tennessee and was appealed

to the circuit court pursuant to Tennessee Code Annotated section 37-1-159(a). Michael Pate appe als the action of the circuit court adopting the juvenile court actionwith slight modifications. We affirm the actio n of the tr

ial cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in wh ich B EN H. C ANT RELL , P.J. and P AT RICIA J. C OTT RELL , J., joined.
John P. Cauley, Franklin, Tennessee , for the appellant, Michael E. Pate.

Paul G. Summ

ers, Attorney

Genera l & Repor

ter; and Kim R. Helper, Assistant Attorney Genera l, Nashville, Tennessee, for the appellee, State of Tennessee.

MEMORAN

DUM OP

INION 1

On October

11, 2000, Defendant, Michael Pate, signed a wa iver of his right to remain silent withright to appointed counsel if he was unable to aff ord an at torney and rig ht to a jury

trial, together with other c onstitutional and statutory rights. I n this document, he waived all of the conventional constituti onal rig hts listed above and entered a plea of g uilty before Judge A . Andrew Jackson, Juvenile Judge of Dickson County. The plea of guilty was to the charge of driving without

a driver’ s license

and in viol ation of a

valid cou rt order . Based

upon this plea of guilty

he was found delinque nt in an or

der prov iding:-2- Deniedrepresentation by

attorney. Any driving

privileg es revok

ed until 19 th bi rt hd ay. Placed on indefinite county a nd adult probation. Patsy Vaughn as county probation office

r. Three hundred hours pub lic servi ce work . State to be notified of court’s order. Placed on curfew. Pay $50.00 fines andcosts on each. Out of court review set for 11-28-2000.

This 11th day of Octobe

r 2000. Signed A. Andrew Jackson, Juvenile Court Judge.

On October

19, 2000, Michael Pate, represented by Attorney Timothy

B. Potter of Dickson, Tennessee, filed his notice of appeal to the Circuit Court of Dickson County, which notice provides : “Comes now the defendant, MICHAEL PATE, and d oes hereby

give notice of his appeal to the Circuit Court for Dickson Co

unty , Tennes se e fro m the judgment of the Dickson Co

unty Juvenile Court entered on Wednesday , October 11, 2000.”

On October

17, 2000, C ircuit

Judge Allen W. Wallace entered an order in the Circuit Court of Dickso n County

providing :
Upon the motion of App ellee MICHAEL PATE from a judgment in the Dickson County

Juvenile Cou

rt on Wedne sd a y, October 11, 2000, to stay the judgment of the Dickson County Juvenile Court pending a hea ring on appea

l by this Court, the Court finds t hat the mo tion is well taken a nd should b e gran

ted, as to curfew . The cur

few will s tay

in effe ct except

for extra curricular school activities.

It is therefore ordere d, adju dged and decreed that all orde rs of the Dickson County Juvenile Cour t en tered o n Octo ber 11 , 2000 , are he reby stayed pe ndin g a hearing on appeal in this court; said notice of appea l having been filed.
Entered this 17th day of O ctober 2000.

On November 30, 2000, the case came on to be hea rd in the cir

cuit court on appeal from the juvenile court order of

October 11, 2000, with Attorney Timothy Potter representing Michael Pate. The follo wing fr

om the tra

nscript o f the hea

ring is p ertinen

t:

MR. PO TT ER : -

-- -- al l a ft er no on , d oe s t ha t e ve ry da y of the week; and he didn’thave a

way to get ba ck and fo rth from w ork or school. His f ather wo rks. His

mo th er works in N ashville, so what he did was he

went up to

the drive r’s lice nse testing center and he lied to them; and he told them thathis driver’s license had been lost; and he submitted an application; and they g ave him a new driver’s license. Well, some time after that, somehow Juvenile court or someone at Juveni le

c ourt got the word that Mr. Pate was driving on a drive r’s license that ha d bee n ordered revoked; and he was running for senior class president of his class up here-3-

at Dickson county; and he ha s this pickup truck that he’s got; and he put in the back window of the pickup truck a sign that said “Vote for Micha el Pate.” He was coming off the hill at the high school and Off icer David Cole, w ho directs traffic

down there, noticed the sign; and pulled him over; and asked him for

a driver’s license; and he

gave him this new driver’s license; and I thin k Office r Cole called it in and realized that Judge Jackson had ordered it to be suspended. Well
, he was cited fo

r contem pt, drivin g on a su spended license , I su

ppose
or revoked license. He went back to Juvenile court on a contempt violation; and Judge Jackson on that

day, that was October the 11th, Judge Jackson then extended the revocation of his license until his 19th birthday. G ave him three hundred hours of public service work to do; and o rdered that he ha

ve a six o’c lock cur

few, in addition to paying c ourt costs and maybe a fine. I think there was a

fine. Well, at t hat time Mr. P ate cam

e to me; and I fi led the notice of a ppeal to Your Honor; a nd Your H onor sig ned an or der on the 17th of Oct ober staying the curfew because

he is - - he wa s electe d preside nt of his hig

h school se

nior cla ss incidently - - THE COURT : Stay

ing only at school activitie s. MR. POTTER: Yes, sir. THE COURT: Otherwise he was on curfew. MR. POTTER: Yes, sir. You signed an order lifting the curfew with reg ards to the extra

curricular school activities. As you kno w, probab ly the high school c lass president has a lot of responsibilities to his class during homecoming week and football season, and there is one wee k inci dentl y over ther e where they spen d all e venin g long w orking on a float until elev en to twelv e o’clock at night; and he was able to do that when Your Honor lifted the order; and that’s appreciated. The reason we are here

is because - - not because we ar e contesting guilt

or innocence; but the reason we are here - - I

heard Your Honor say

this morning in a juvenile case that the pri mar y in tent of Juve

nile cour t obviously

is - - it’s not to punish. It does punish, and ther

e is an intent to punish; but the primary intent is to try and make the se y oung pe ople res ponsible a dults; and turn them into respo nsible adults. And I wo uld saythat the reason we are here is we ’re contesting - - we are contesting the sentence of theJuvenile c ourt and a sking fo r a coupl e of things. Mr. Menke ha s indicated the State opposes th

is. But we are asking that he be g ranted a restricted driver’s license - - narro wly restric ted; but wi ll allow him to drive to

high school or to sc

hool. He will be in

college when he is nineteen. You’re allowing him to get back and forth to sc

hool; and a

lso allo w him to go

to work. This job at Tenso is an importantjob to him; and he has been wa lking. H e will test

ify to, if we have to, from the high school ove

r to Tenso

in the afte

rnoons, w hich is quite a walk. It is over at-4-

the Dickson City L

ake; and he has also w alked recently from Charlotte where he meets his county probation offic er to work in Dickson. I think there is an incentive or should be an incentive on the part of

the Courts to make sure that these y oun g people do well in sc hool, whic

h he’s doing. He i s president of his senior class, which is quite an honor at Dickson County. There are about five hundred kids in his class - - president of the clas s - - to do w ell in

school;

an d a ls o t o h ol d j ob s; an d d o s om et hi ng re sp on si bl e i n t he co mm un it y. He is doing a

good job over at Tens o. He has been working there f or two ye ars, and he is well thought of over there. He c an’t get back and forth. It’s posing a burden on him. Now he didn’t do right. Helied and he shouldn’t have done what he did; and I’ve asked him

- - I said, Michael, wh

y di d yo u do that? That’s a

clear violation of what Judge Jackson ordered you to do; and he said, well, Tim, I

had to get back and forth . He rea lize s it w as wro ng. Ms. Vaughn is his county

probation officer, she will testify if you hear

d from her today that he has since

being in court on that contempt charge completed over a hundre d sixty hou rs of p ubli c servi ce out of the three h undre d hour s that Judge Jackson ordered him to do. He is completing the pu blic serv ice work . He is reporting to his county probation office r. He is go ing to school. He is holding down

a job sever al hours a week; a nd I w ould ask th

e Court - - I don’t care

and his family doesn’t care if y ou wantedto even modify the orde r andmay be - - if y ou wante d to give him more pr

obation or give him a fine; but what the justice I think would require that he be given - - we’re

not asking that his driver’s license be reinstated.

. . . . He is half way thr

ough his high school year; and he is president of the senior class; and he doeshave things he ha s got to be at in the e

vening s. And I think if You r Honor put a reasonable restriction in there - -now any other punishment that the State wants to offer - - THE COURT: Well, here’s the situation. Y o u want me to c hange J udge Jackson’s order. Mr. Menke doesn’t want to set any kind of precedence over there to get people to come over here to get the Judge to change the order; and I don’t blame Mr. Menke. I’d be taking the same position. You’re talking about two judges say ing something different. Unfortun ately it’s in my lap now and I thi nk from w hat you’ve told me; and I don’t think Mr. Menke would disagree with possible truth that you said y

ou were going to offer

about the young man. But let’s tal k about punishment. That’s kind of fits the situation, you know, most people we have in this court here that punishmen

t would probably be all rig ht. Would be more thanjust losing the license; but here’s a young manthat works, goes to school, mo st

people w e have in

this cour t here, a lot of them

his age and a littl e bit older, they wouldn’t wor

k in a pie factory

if they wer

e starving to death. I’d like to help the young

man. I think he ought to have a way to g et to and from work. Now he ought not be up in the shopping center. He ’s already got a-5-

speeding ticket. Every police man in town is g oing to be watching him. That’ s just the facts of life, young ma n. I can’t help it. You might as well put you a big red light

on y our car; and let it just spin around when y ou go through town. That’s just the way it is; and I

can’t do any

thing about it. Nobody ca n. But you let an other s ixteen or seventeen ye ar old boy drive throug h town, they ’ll never s ee him . They’ll see you dri ving t hrough town, just like they saw your
name in your car

. You might

as well just have a big siren on y our car, say

here I’m coming, you a

ll stop me because it’s going to happen.

. . . . MR. POTTER : Your H onor, ag ain I ’m going to say , we’re

not oppose d to the Court restructuring thepunishment- restructuring the punishment may be doing something in addition to what the Juvenile court has done; but what we’re asking for is for - - when

the young

man has got classes, he’s got school and he’s gotten a job. When we’ve got young pe ople that come into

this court all the time and adults who

come i nto this court all the time who are not even an ounce as r esponsible. They don’t wor k. They are a me nace on society ; and he w orks. He works. He does well in school. All that I’m asking is that he be allowed to get bac k and for th to schoo l and allo wed to fulfill the r esponsibi litie s he took to his classmates. Now, yea h, he filled out a fa

lse applic ation. He

told them th at he did

that

. He should not have done that. I think he needs(phoneti c) contr ite for it. He

will tell the court tha

t he did it in

order to get bac k and for th. He did

n’t do it in order to just drive an y where he

wants. He’ll also testi fy

that when

he did it, he used that

license to get ba ck and fo rth to school a

nd work. T

hat’s ab out all he

does. So I’m a sking the

Court to do t

hat. Any thing el se the State is notpropo sing, any modification of the punishment thing the Juvenile Court imposed; but we’ve got to remember, too, I think that this sprung from a speeding ticket violation; and now it’s snowballed on the young man; and then because - - THE COURT : Well, it sno wballed b ecause of him. MR. POTT ER: R ight. It snowb alled becaus e he di dn’t d o what the J udge told him to do. THE COURT: If it had just been a s peeding ticket, he’d prob ably

been all right. MR. POTTER: But if you’ll re member the speeding ticket resulted in a loss of license with no restricted license for a y ear. THE CO URT: For how long? MR. POTTER: For a yea r. THE COURT: How old is he now? MR. POTTER: He’s eighteen. He turned eighteen not long ago. GENERAL

MENKE: I don’t believe the cour t order say s he can’t g et a restric ted licen se. I

t may , but I

don’t re member r eading it.-6- MR. P OTTER: It did, Your Honor. He could not g et a restricted licens e

. Now he could have gotten an attorney a

nd petitioned the Court within ninety day s, in Juvenile Court to have it returned; and he would have - - probably would have had it returned had he done every thing he was supposed to do. But he didn’t have a restricted

driver’s license then; and that’s why he felt the need to g o and ge

t this lice nse and te ll this lie to

the depa rtment. But again, Y our Honor, I think the punishment has got to fit the cr ime. I think he will lose hi s job. You’ll hear some testimony about that bec ause he can’t continue to walk. He also has t

o get to Charlot

te to his pr

obation meetings. His pare nts simply can’t take him; and we give restrictive dr iver’s license to people - - THE COURT: Well, we’ re going to giv e him a restric ted licen se, to com e to Charlotte to see his probation officer, go to school and g o to work. MR. POTTER: Well, I do n’t know a bout that. But I’m asking f or school and work. Those are the two things I ’m asking for. THE COURT: Maybe like - - MR. POTTER: B ut the re’s one thing af ter anot her. I mean in a

ddition to walking to school and work, he is also going to the probation officer; and that’s a lot of getting around; and then g etting home at night and doing y our work.

. . . . Even set it for ano ther r eview . I don’t know. Bring it back here or do something with it or send it back to Juvenile Court; but he’s got three hundred hours of public service work to do, walking to school, walking to work, if he canget there

or hitching a ride with somebody , if he ca n find one; and t rying to fulfill his responsibilities at

school and at home, so Your Honor, I would ask you to modify

the sentence. THE COURT: L

et me think

about it. I don’t

see why y

ou all don’t go back to the Juvenile Judge, himself, and get at least a restricted license. MR. POTTER: Judge Jackson is understandably ang ry, Your Honor

. THE COURT : I don ’t blame h im. MR. POTTER: I doubt

that he would do that; andI didn ’t repre sent him in Juvenile Court, but that’s why we exercised our rig ht of appeal and came here. THE COURT: Well, let me think about it. I’ll give y ou all something - -
Following this proceeding, on December 1, 2000, Judge Wallac e entered the following or der :

This matter c ame bef

ore the H onorable

Allen W. Wallace, Cir

cuit Judge, on November

30, 2000, pursuant to the Notice of Appeal taken by the juvenile from the order o f the Juven

ile Court ma

de on Oct ober 11, 2000. The

Court took t

he matt e r under adviseme

nt and now

makes its rulin g. The appe al is of the sentenc e only impos ed by t

he Juvenile

Court. The

Court find s that the o ffense in this cas e wa s serious, showing the minor using his intellectual ability or with the help of someone else, practicing a fraud upon the court. Granted, the defendant has many mitigating-7-

factors in his favor, but the enhanc ement factor s in t his ca se are s o great a nd go directly to the integrity of

the justice system. This was a we ll-planned and intentional fraud upon the Court, and a

penalty necessa ry for dete rrence must be applied. The Courtfinds that the sentence imposed by Judge Jackson should be the judgment of this court with the modification of curfew as indicated.

Accordingly , it hereby is ORDERED AND ADJUDGED that 1. The juvenile’s dri ving p rivileg es are s uspende d until his 19 th bi rt hd ay; 2. The juvenile shall be placed on indefinite County and Adult probation under the Juvenile Court, and as directed by the juvenile court, his county proba tion officer will be Patsy

Vaughn; 3. The juvenile

will comple

te 300 hoursof public

service work, and he will receive credit for service wor k performed since October 11, 2000; 4. The State of Tennesse e, Depa rtment of Safety is to be notified of

the Court’s order; 5. The juvenile is placed on curfew as part of his probation, but that curfew shall be mo dified so as to allo w the juve nil e to attend high school related function s and act

ivities; 6. The juvenile

wil l have a $50.00 f

ine and pa

y the fine a

nd costs imposed in Juvenile Court and is taxed with the costs of this ca u se in the Ci rcuit Court, and he will receive credit for any costs and fines already

paid. 7. This case is remanded back to the Juvenile Court for all fur the r procee dings deemed necessa ry to the enf

orceme nt of this orde r and the

Juvenile Court prob ation re quireme nts. Made, this 1st day of December, 2000.

On December 22, 2000, now represented by Attorney John P. Cauley of Franklin, Tennessee
, Michael E. Pate fi led his not

ice of a ppeal to t his Court.
Appellant’s first issue on appeal is “did the Circuit Court of Dickson County fail to observe

ev en min ima l du e p ro ce ss s ta

nda rd s du ring Mr. Pat

e’ s a ppe al from t he Juv en ile Cou rt? ”
Appellant asserts t hat he wa s not acc orded a t rial de n ovo in the Circuit court under Tennessee Code Annotated section 37-1-159(a).

The record from the Juvenile court indicates that before ente ring his plea of guilty on O ctober 11, 2000, App ellant wa s informe d by the juven ile judge of all of

his constitutional rights including the appointment of counsel and acknowledged that he understood those rights. He then entere d his plea of guilty which w as accepted by the Juvenile court. Thereafter, he obtained counsel and appealed to the Circuit court pursuant to Tennessee Code Annotated section 37-1-159(a). He was then and there vested with the right to a trial de novo upon all issues including the issue of guilt. He chose, however, through his attorney in open court, not to challenge the finding of g uilt by the Juvenile court but only sought to modify the sentence imposed by

the juvenile judge. If e

ver there-8-

was an open court waiver of the right to a de novo trial on th e issue of guilt, it is evidenced by the affirmative statements made to Judge Wallace by Mr. Potter in his capa city as attorney

for Appellant at the hearing of November 30, 2000. All nonjurisdictional and proc edural def ects and even constitutional infirmities are subject to waiver by Defendant if the record shows such waive r. Patterson v. State , 684 S.W.2d 110, 1 1 1 (Tenn. Crim. App. 1984). It is worthy of note that Appellan t, at the time

of the No vember 3 0, 2000 he aring, was an a dult and not a m

inor. App ellant, having waived his rights to de novo trial in the circu it court on

the issue of guilt or innoce nce, is limited in the circuit court to the issue of his juvenile court sentence. The December 1, 2000 order granted him some

relief, (modific ation of c

urfew) , but other

wisesimply adopted the same sentenc e provided by t he juveni le court

.
The remaining issues sought to be raised in this Court do not compla in about the sentence imposed by the circuit cour t but rather attack the underpinnings of the juvenile cour t judg ments

. None of these

matters w ere add

ressed t o the circuit

court on the appeal from the juvenile court action but are r aised fo r the fir st time on a

ppeal to t he court of appea ls.

As a general

matter, appellate courts will decline to conside

r issues r aised fo r the fir st time

on appeal that

were not raised and considered in the trial cour t.” Heatherly v. Merrimac Mutual Fire Ins. Co., et al. , 43 S.W.3d 911, 916 (T enn. C t. App . 2000 ) citi ng Reid v. S tate , 9 S.W.3d 788, 796 (Tenn. Ct. App. 1999). In spite of this rule we would observe tha t the juvenile court had continued jurisdiction over Mr. Pate pursuant to Tennessee Code Annotated section 37-1-103(c) at the time of the December 1, 2000 order remanding the case back to the juvenile court under the modified sentence.

One other ma

tter commands the a

ttenti on of this Court. In the appellate brief f iled by Attorney John P. Caule

y of Franklin, Tenne ssee, ce

rtain impe

rtin en t and improper statements are made. Says Mr. Cau ley: “It also bears mention that the language of the circuit court order affirming the judgment of the juvenile court indicates complete ignor ance of thepurpose o f the juve nile code.” Furth er say s Mr. Caule

y in refer ence to t he juveni le judge

in Dickson

County “here, th e juvenil e court sends business to its friends in the local recy cling industry with the added advantage of lining the pockets of the court well beyond the permitted $50.00 fine.” This portion of the Appel lant’s argume nt is stricken pursu ant to Rule 9 of the Te

nnessee Rules of th

e Court of

Appeals

.
Such remarks indicate that counsel is either ignorant of or in disregar d of his duty to observe self-re straint a

nd decor um. As this Co

urt has sa id:

A brief in no case can be used as a ve hicle for the convey ance of h atre d, contempt , insult, disrespect or professional discourtesy of any natur

e for the court of review, tr ial judge, or opposing counsel; invectives are not a rgument, and have no place in lega

l discussio n, but tend

only to produce prejudic e and disc ord.” 5 C. J.S. Appeal an d Error § 1327, pag e 346; Ward v. Univ. of South , 209 Tenn. 412, 354 S.W.2d 246.-9- We admonish Co

unsel of h is duty to observe

self-re straint a

nd decor um. We trust he will heed this warning in the future.
Trice v. Hewgley , 53 Tenn. App. 259, 276, 381 S.W.2d 589, 597 (1964).

The judgmen

t of the tr ial cour t is in all respects affirmed and the case is remanded to the trial court for such other proceeding s as may be necessary or proper.

Costs are assesse d again st Appella nt.

___________________________________

WILL IAM B. CAI

N, JUDGE