IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 28, 2010

STATE OF TENNESSEE v. JERRY ORLANDO WEAVER

Direct Appeal from the Criminal Court for Anderson County

No. A7CR0576 Donald R. Elledge, Judge

No. E2009-01767-CCA-R3-CD - Filed June 21, 2010

An Anderson County jury convicted the defendant, Jerry Orlando Weaver, of two counts of

facilitation of possession of less than one-half gram of cocaine for sale or delivery, Class D

felonies. The trial court sentenced the defendant as a career offender to twelve years for each

count, to be served consecutively in the Tennessee Department of Correction. On appeal, the

defendant argues that the trial court erred in sentencing him as a career offender and in

imposing consecutive sentences. Following our review of the record, the parties’ briefs, and

the applicable law, we conclude that the defendant failed to timely file his notice of appeal

and that his claims do not warrant consideration in the “interest of justice.” Therefore, we

dismiss his appeal.

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

J.C. MCLIN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

JAMES CURWOOD WITT, JR., J., joined.

Brennan Patrick Lenihan, Oak Ridge, Tennessee, for appellant, Jerry Orlando Weaver.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; David S. Clark, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Background

In November 2007, an Anderson County grand jury indicted the defendant, Jerry

Orlando Weaver, on three counts of possession of less than one-half gram of cocaine with
intent to sell, Class C felonies. The state amended the first and second counts to facilitation

of possession of less than one-half gram of cocaine with intent to sell or deliver.

At the January 2009 trial, an undercover officer testified thatshe participated in a joint

operation between the Clinton Police Department and the Oak Ridge Police Department.

During the operation, she purchased cocaine from the defendant on three occasions, and a

hidden camera in her car recorded each transaction. On each occasion, the officer asked the

defendant for $40 worth of cocaine. On the first two occasions, the defendant, who

identified himself as “Knot Knot,” used the officer’s money to buy two-tenths of a gram of

crack cocaine from a third party, which he then gave to the officer. On the third occasion,

the officer testified that she bought crack cocaine directly from the defendant, but he did not

identify himself.

An Oak Ridge police detective and a Clinton police detective both testified that they

personally knew the defendant and that the defendant’s street name was “Knot Knot.” Both

detectives reviewed the video tapes of the undercover officer’s transactions and identified

the defendant as the man from whom the undercover officer purchased crack cocaine. The

Clinton police detective who supervised the joint operation testified that each transaction

involved two-tenths of a gram of crack cocaine.

Following the close of proof, the jury convicted the defendant of two counts of

facilitation of possession of less than one-half gram of cocaine for sale or delivery and

acquitted him of one count of possession of less than one-half gram of cocaine. Following

a sentencing hearing on May 4, 2009, the trial court found that the defendant had five Class

B felonies, three Class C felonies, and one Class E felony on his record, that he was on

probation for a Class A misdemeanor when he committed the charged offenses, and that he

was a professional criminal. The trial court sentenced the defendant as a career offender to

twelve years on each count, to be served consecutively in the Tennessee Department of

Correction. The court entered the judgments in this case on May 12, 2009. The defendant

did not file a motion for new trial but filed a notice of appeal on August 21, 2009.

Analysis

On appeal, the defendant argues that the trial court erred in sentencing him as a career

offender and in imposing consecutive sentences. The state responds that the appeal was

untimely and should be dismissed. We agree with the state.

A defendant who challenges his or her sentence has the burden of proving the

sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s

-2-
duty to conduct a de novo review of the record with a presumption the trial court’s

determinations are correct when a defendant appeals the length, range, or manner of service

of his or her sentence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d

540, 543-44 (Tenn. 1999).

A notice of appeal must be filed within thirty (30) days after the date of entry of the

judgment from which the petitioner is appealing. Tenn. R. App. P. 4(a). Thus, the defendant

had thirty days from the entry of the judgments on May 12, 2009 to file an appeal. As the

defendant did not file a notice of appeal until August 21, 2009, it was untimely. However,

the untimely filing of a notice of appeal is not always fatal to an appeal. As stated in Rule

4(a), “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the filing

of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “In

determining whether waiver is appropriate, this [c]ourt will consider the nature of the issues

presented for review, the reasons for and the length of the delay in seeking relief, and any

other relevant factors presented in the particular case.” State v. Markettus L. Broyld, No.

M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. at Nashville, Dec.

27, 2005). Waiver should only occur when “the interest of justice” mandates waiver. See

State v. Scales, 767 S.W.2d 157, 158 (Tenn. 1989).

In this case, the defendant has not offered an explanation for the untimely filing of his

appeal. Furthermore, the defendant, in his appellate brief, merely recites statutory and case

law without articulating any grounds for relief. Therefore, we conclude that “the interest of

justice” does not mandate waiver in this case.

Conclusion

Based on the foregoing reasons, we dismiss the appeal.

___________________________________

J.C. McLIN, JUDGE

-3-