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Appellate counsel says trial judge imposed consecutive sentence based on error; asks court to modify or remand
Summary
Appellant counsel argued the trial court imposed consecutive sentences for Lorenzo Brown based on a mistaken belief that stacked time was mandatory; counsel asked the appellate panel to modify the sentence or remand for resentencing, while the state urged plain-error review and highlighted the defendant's burden to show prejudice.
Drew Justice, attorney for appellant Lorenzo Brown, told a three-judge appellate panel that the trial court imposed consecutive sentences “based on the erroneous premise that he was required to do so,” and asked the court to modify Brown’s sentence or remand for resentencing.
The argument matters because, Justice said, correcting the error would reduce Brown’s total prison term by 12 years; he urged the panel that the five-factor plain-error standard is satisfied where the judge announced the sentence was consecutive only because counsel and the parties thought it was mandatory. “The trial court gave mister Brown consecutive sentencing, based on the erroneous premise that he was required to do so. And that was error it was not only error, but it was plain error,” Justice said.
Justice told the panel the sentencing transcript shows the district attorney initially conceded that mandatory consecutive sentencing was “far fetched,” then defense counsel “conceded that it had to be mandatorily consecutive,” and the judge sentenced on that conception without making the statutory findings required for discretionary consecutive sentences. Justice quoted the trial judge’s remark from the sentencing transcript: “I believe you all are correct that the aggravated assaults and the attempted voluntary manslaughter would I believe that should be run concurrently, and the possession of a firearm by a convicted felon would have to run consecutive to those.” He added that the court “didn't give any other reason for why he would want to run it consecutive or why he should run it consecutive.”
The attorney relied on statutes cited in the record (identified in briefing as 40 35 2 10 e and 40 35 1 15 in the transcript) and the Tennessee Supreme Court's guidance that a judge must place reasons on the record when ordering consecutive sentences. Justice argued that the trial judge made no mandatory or permissive findings on the record and that absent those findings the consecutive order cannot stand.
The state, represented by Alan Groves, agreed that appellate review is limited to plain-error review because defense counsel’s concessions at sentencing “invited” the error. “The defendant has agreed that this issue is only reviewable for plain error because under rule 36 b, defense counsel invited this error and caused the error that he's now complaining of,” Groves said. Groves told the panel the pre-sentence report documents extensive prior convictions — “4 or 5 felony convictions and I think 25 misdemeanor convictions” — and that on a de novo review the record might support consecutive sentencing on discretionary grounds.
Panel members asked whether the record is adequate for de novo review or whether the proper remedy is remand for the trial court to make findings if the panel cannot ascertain statutory findings from the record. Justice said he believed the record lacks the factual findings the trial court should have made and that the only reason given on the record was the parties’ concession that the sentence “had to be consecutive.” Groves replied the defendant bears the burden under plain-error review to show substantial injustice.
No decision was announced from the bench. The panel recessed until 1:30 p.m., leaving disposition pending.
