# FILED July 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE JUNE 1997 SESSION

ROGER LEE SA

WYERS, ) ) C.C.A . NO. 03C01-9 607-CC-00255 Appellant, ) ) HAMBLEN COUNTY VS. ) ) HON. WILLIAM H. INMAN, STA TE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conv iction)

FOR TH E APPEL LANT: FOR THE APPELLEE:
GR EG EI CH EL MAN JOHN KNOX WALKUP Public Defender Attorney Gen eral & Repor ter D. CLIFTO N BA RNES MICHA EL J. FA HEY, II Asst. Public

Defender Asst. Attorney General 1609 CollegePark Dr., Box 11 450 Jame s Rob erts on Pk wy. Morristow n, TN 37813-1618 Nashvil le, TN 37243-0493 C. BERKELEY BELL Distric t Attorney General VICTOR J. VAUGHN Asst. Dist rict Attor ney General 510 Allison St

. Morristow n, TN 37814

OPINION FILE D:____________________

AF FIRMED
JOHN H. PE AY, Judge1 Sa wyers v. State , 814 S.W .2d 725, 727 (T enn. 1991). 2 O P I N I O N

The petitioner fil ed for post-conv iction relief whi ch was deni ed by the tri al court. This Court affirmed. TheTennessee Supreme Cou rt subsequent ly reversed and remanded for a hearing . Follow ing the order ed hearing, the court b elow deni ed reli ef, from which the petitio ner now appeals. Upon our rev iew of the re cord, we affirm the judgm ent b elow.

In 1976, when he was seventeen years an d sev en months old, the petitioner

murdered Elmer Trent in the cour se of robbing hi m with a firearm. He was not indicted until 1978; he pl ed guilty to the murder “ a few week s shy of his

19th birthday .” 1 At the time he pled g uilty, t he petitioner a pparently t hought that he had been over

the age of eighteen at the t ime he murdered Tren t. He did not discover his real ag e until 1986. He subsequently

filed for post-conviction relief alleg ing that the c riminal court in whic h he pled guilty had not had subject-matter j urisdict ion over hi m because he had been a juvenile at the time he committe d Trent’s murder.

When the petitioner’s claim for relief reached our

Supreme Court, it ordered the case “retur ned to the trial court for a de novo hearing to determine w hether or not [the petitioner] would have been transferred from j uvenile to criminal court, based on the facts existingat the time of his indictment an d trial.” Sawyer s v. State , 814 S.W.2d 725, 729 (Tenn. 1991). This hear ing was hel d in 1996 and the co urt below found that the petitioner

would have been transferred and therefore denied p ost-con victi on reli ef a second time. It is from this ruling that the petitioner now appeals.

In ordering this matter remanded, ou r Supreme Court specifically referred2 In 1978, this statute was codified at T.C.A. § 37-234 (1976).
3 W e have om itt ed the citations and footnotes included in this portion of the l ower cou rt’s order. 3 to T.C.A. § 37-1- 134(a) and stated that an order of transfer from juvenile to criminal court “must be predicated on a determination .

. . that there are < reas ona ble gr oun ds’ to belie ve thatthe child ( a) committed the de linquent act alleged, (b ) is not commi ttable to an institution for the mentally ill or retarded, and (c) needs to be placed under < legal restraint or discipli ne’ for the good of the community.” 2 Sawyers , 814 S.W.2d at 728. In making this determinat ion after the req uired hearing , the court bel ow ruled:

Itseems obviou s beyond pera dventure th at the juvenile court, if proceedings

in that court

had been instituted, would have determined that t here was [ sic] reasonab le grounds to beli eve that Sawyers committed themurder alleg ed, was not c om mittable to an institu tion for the mentall y ill or retarded, and needed to be placed under < legal restraint or

discipli ne’ forthe good of the communi ty. This being s o, it woul d have been the duty of

the juveni le court totransfer Saw yers to t he criminal court. Thus i t is, for the s econd time, that itshould be held that common sens e, superimposed up on the si mplest definitionsof justice and statutory constructi on, dictates thatSawyer

s wasproperlytried as an ad ult. The transfer was < unassailably

appropriate,’ and the pet ition is di smissed. 3 In making its findings, the court below re lied on a 1978 report from the Forensic Service s Divisi on of Middle Tennessee Mental Health Insti tute that the peti tioner was competent to stand trial and thata defense of insanity could not be supported, and that the petiti oner had committed a “comparable murder” in anothe r county af ter he ha d reache d the age of majority bu t before he had been arrested for t he instant murder . The court als o had before it astatement the peti tioner had given to the policein whi ch he admitted to hav ing shot an d kil led Tre nt in t he cour se of ro bbing him.

The petitioner complains that the court below should not have cons idered thathe had committed anothe r murder because he had not been conv icted of that offense atthe time the transfer decision would have been made. We agree, but find that the court below

could properl y have considered that t he petitioner hadbeen indicted for4 See Sawyers , 814 S. W .2d at727 (“ [a}t the same ti me this case was bei ng prosecut ed, Sa wyers was also u nde r indictm ent a nd s ubje ct to the dea th pe nalty for” this oth er m urde r.)

5 Th e cu rren t statu te m ak es c ons idera tion of thes e fac tors m and atory. See T.C.A. § 37-1- 13 4( b) . H ow ev er , the sta tute in e ffe ct in 19 78 utilize d th e w or d “m ay” in c on jun ctio n w ith th e c ou rt’s con side ration of the se fa ctors
. See T.C.A. § 37-23 4(b) (1976). 4 this secondmurder

at the relev

ant ti me . 4 We also no te that the petiti oner had been convicted of two counts of larceny from t he person in 1977, receivi ng a three yea r sent ence for e ach c oun t. Th is inf orma tion would also have been available to the court in 1978 at the ti me of the transfer heari ng.

Alth ough not m enti one d by ou r Sup reme Court , we note that the relev ant statute in effect in 1978 prov ided that, in making the determina tion to transfer, the cou rt could 5 consider the extent and nature of the child’s prior delinquency records; the nature of past treatment efforts and the child’s response thereto; w hether the offense had been against property or person w ith greater wei ght in favor

of transfer giv

en to offenses against the person; w hether the offense had b een committed in an aggress ive and premeditated manner; and the possible rehabilitation of the child by use of procedures, service s and facilities

currently

availabl e. T.C.A. § 37-2 34(b) (1976) . In the instan t case, the petitioner’s prior delinquency record consi st ed of a 1973 order by the Hamblen County juvenile court finding him to be a “dependent a nd neglected c hild” and or dering him “committed to th e Tennessee Preparatory School for an indefinite per iod of time.” This past

tre atme nt eff ort was obv iously uns uccessful, gi ven the numerous crimes the petitioner

ha d committed or been charged with by the time he was arrested for Trent’s murder. The o ff ense unde r con side ratio n wa s a murder : the most seri ous of the offenses against the person and theref ore entit led to substanti al weig ht in favor of transfer.
Moreover, ithad been committe d in an aggres sive and at least somew hat premeditated manner. Accor ding to the pet itioner’s statementto the police, he and two5

cohortshad driven to a market w ith a shotgun which the petitioner loaded with four shells, chambering one of them. When the vi ctim drove up and walked toward the door of his market, the petitioner called out to him “and told him to stick up his hands and drop those moneybags.” As the victim stoppe d and began to tur n around, accor ding to the statement, the petitioner thought hewas reaching for his front pocket. At that point, the petitioner

“pulled the t rigger

and blasted him four times.”Thus, at least three of t he f ive sta tutoryconsid erations miti gated heavi ly in favor of transfer. There is no proof in the record as t o the possible rehabilitation of the petitioner by services and facilities which woul d have been available in 197 8. However, because the p etitioner was no long er a child in 1978, we find this factor to be inappos ite.

The proof adduced at the hearingwas more t han sufficient for the cou rt to have “reasonable g rounds tobelieve” that the petiti oner had committed t he murder, that he wasnot committable, and thatthe community’ s interests required him to be put under legal restr aint or dis cipli ne. A ccord ingly, we af firm the j udgm ent b elow.

_ ___________

____________________ _ JOHN H. PEA Y, Judge

CONCUR:

______________________________ JOSEPH M. TIPTO N, Judge

______________________________ J. CURW OOD W ITT, JR., Judge