IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 21, 2010

STATE OF TENNESSEE v. ROBERT CONLEY

Direct Appeal from the Criminal Court for Davidson County

No. 2004-A-597 Cheryl Blackburn, Judge

No. M2009-00676-CCA-R3-CD - Filed February 8, 2011

Defendant, Robert Conley, filed a pro se notice of appeal which was timely as to the trial

court’s order denying Defendant’s motion for reduction of sentence pursuant to Tennessee

Rule of Criminal Procedure 35. The trial court subsequently appointed counsel to represent

Defendant. In his brief on appeal, Defendant challenges the trial court’s order revoking his

community corrections sentence and ordering service of the fourteen-year sentence by

incarceration, in addition to arguing that the trial court erred by denying his Rule 35 motion.

We conclude that the issue regarding revocation of the community corrections sentence is

waived by Defendant’s failure to timely appeal that order. Further, we find that the trial court

did not abuse its discretion by denying Defendant’s Rule 35 motion, and, accordingly affirm

the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAST.WOODALL,J., delivered the opinion of the Court, in which DAVID H.WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Robert Conley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Burks, Assistant

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

OPINION

A concise outline of the procedural history of Defendant’s case is beneficial in our

review in this appeal. While the original judgment of conviction is not included in the

appellate record, we glean from the amended judgment and the trial court’s comments in the
transcripts that, following a jury trial in June 2006, Defendant was convicted of sale of less

than 0.5 grams of cocaine. He was originally sentenced to twelve years at 45% as a

persistent offender. He was allowed to serve the sentence in the community corrections

program.

A community corrections violation by Defendant in September 2006 resulted in an

increase in the sentence length to fourteen years, but Defendant was still allowed to serve it

in the community corrections program. In February of 2007 another violation resulted in

Defendant having to serve a year of incarceration, after which he was again placed into

community corrections.

Finally, in July 2008, another community corrections violation warrant was filed,

alleging that Defendant tested positive for cocaine in a June 2008 urine sample, that he was

delinquent in paying supervision fees and court costs, and that he had violated his curfew.

Following a hearing on August 6, 2008, at which Defendant conceded he had violated

conditions of his community corrections sentence, the trial court took the issue of disposition

under advisement until August 22, 2008.

However, an amended violation warrant that was filed August 22, 2008, and another

warrant filed September 12, 2008, resulted in the final hearing being delayed until October

3, 2008. The amended warrants alleged that Defendant had absconded by not reporting to

his supervising officer and had been arrested (and convicted) in Williamson County for

driving on a suspended driver’s license, after being stopped by police for driving without

using a seat belt. As a result of that hearing, the trial court entered an amended judgment on

October 3, 2008 which revoked Defendant’s community corrections sentence and ordered

him to serve his fourteen-year sentence, with consideration of appropriate statutory jail

credits, in the Tennessee Department of Correction.

On December 8, 2008, Defendant, through his appointed counsel, filed a motion to

reduce the sentence imposed on October 3, 2008, pursuant to Tennessee Rule of Criminal

Procedure 35. Following a hearing on the Rule 35 motion, the trial court denied the motion

on February 20, 2009. On Monday March 23, 2009, Defendant filed a pro se notice of

appeal “from the adverse judgment he received in this cause.”

Revocation of Community Corrections

The trial court’s order revoking Defendant’s sentence in the community corrections

program and requiring him to serve his sentence by incarceration in the Tennessee

Department of Correction was entered on October 3, 2008. Defendant did not file any notice

of appeal in his case until he filed a generalized notice of appeal on the last available date to

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timely appeal from the trial court’s order denying the Rule 35 motion. While Tennessee Rule

of Appellate Procedure 4(a) states that a notice of appeal must be filed within thirty days of

entry of the judgment appealed from, the notice of appeal in criminal cases is not

jurisdictional, and Rule 4(a) provides that the timely filing of a notice of appeal “may be

waived in the interest of justice.” In considering whether the timely filing of the notice of

appealshould be waived, we note that Defendant had twice before the instant violations been

found in violation of his conditions of the community corrections sentence, yet he was

ultimately placed back into the community corrections program. He conceded the violations

which led to the ultimate revocation of his community corrections sentence in October 2008.

While the issue of disposition was under advisement, Defendant was arrested and found

guilty of driving on a suspended driver’s license after being stopped by police for driving

without using a seat belt. The “interest of justice” does not require that a generic notice of

appeal, which was filed more than four months late, and which did not specifically describe

the order from which the appeal was taken, should suffice to waive the timely filing of the

notice of appeal.

Accordingly, this issue is waived.

Denial of Rule 35 Motion

Appellate review of the trial court’sruling which denied a Tennessee Rule of Criminal

Procedure 35 motion is governed by the “abuse of discretion” standard. State v. Irick, 861

S.W.2d 375, 376 (Tenn. Crim. App. 1993). This Court should find that a trial court has

abused its discretion only when the trial court has applied an incorrect legal standard, or has

reached a decision which is illogical or unreasonable and causes an injustice to the party

complaining. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

Relying on Ruiz, Defendant argues that it was illogical and unreasonable for the trial

court to order his fourteen-year sentence to be served by incarceration “because of an arrest

for driving on a suspended license.” Defendant asserts that the trial court “reiterated” at the

Rule 35 motion hearing that “[the court] had sent [Defendant] to the Department of

Correction[] on a lengthy sentence [fourteen years] for being arrested on a moving violation.”

Despite hearing testimony from Defendant’s girlfriend at the Rule 35 motion hearing

that Defendant was compelled to drive her car on the day of his arrest when she became too

ill to drive, the trial court saw no reason to justify granting the extraordinary relief authorized

by Tennessee Rule of Criminal Procedure 35. In so ruling, the trial court stated:

And I recall my struggle with this because it’s awful to send somebody to the

Department of Correction[] for a lengthy sentence when it’slike being arrested

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on a seat belt violation. But that wasn’t the only thing. If you look at the

warrant, there was also positive screens for cocaine. So anyway I just

remember my struggle with it because it seems like such a harsh punishment

even though he originally agreed to it. But we worked with [Defendant], we

worked with [Defendant], and we worked with [Defendant]. So the question

is: Is there anything that’s contemplated by Rule 35 that I’ve heard today?

Because if you look at the comments under Rule 35, it says the intent of this

rule is to allow modification only in circumstances where an alteration of the

sentence may be proper in the interest of justice. It’s a modification where

there’s no other mechanism for which you could do this. It’s sort of a safety

valve in the law. I’ve always considered it basically for manifest injustice.

And I understand [Defense counsel’s] position in that – the question is then

would I have done anything differently if I heard from his girlfriend at the time

[of the revocation hearing]. Quite honestly I wouldn’t have. I mean, I

understand what she’s saying, but I already knew about all that. (emphasis

added).

Clearly, the trial court did not revoke Defendant’s community corrections sentence

and send him to serve a fourteen-year sentence, or deny his Rule 35 motion, solely because

Defendant was “arrested on a moving violation.” We find nothing in the record to indicate

that the trial court abused its discretion by denying Defendant’s Rule 35 motion. Defendant

is not entitled to relief in this appeal.

CONCLUSION

For the reasons stated, we affirm the judgment of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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