State v. Guy

683 S.W.3d 763

STATE of Tennessee

v.Christopher GUY

Court of Criminal Appeals of Tennessee, AT JACKSON.

Assigned on Briefs September 12, 2023, at Nashville

FILED November 29, 2023

Appeal from the Criminal Court for Shelby County, Nos. 14-03046; 14-03047; 16-01978, Paula L. Skahan, Judge

Terrell Lee Tooten, Memphis, Tennessee, for the appellant, Christopher Guy.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Senior Assistant Attorney General; Steve Mulroy, District Attorney General; and Danielle McCollum and William Wetter, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Kyle A. Hixson, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Matthew J. Wilson, JJ., joined.

The Defendant, Christopher Guy, appeals the trial court’s revocation of his effective six-year probationary sentence for his convictions for two counts of misdemeanor domestic assault and one count of felony vandalism. The Defendant argues that (1) the trial court lacked jurisdiction to revoke his probation because he had completed his probationary period by the time the revocation warrant was filed and (2) the revocation warrant should have been dismissed due to law enforcement’s failure to. preserve evidence. The Defendant also contends that he should have been granted an appellate bond during the pendency of the appeal. The State responds that we should affirm the trial court’s revocation order and that the Defendant is not entitled to relief on his appellate bond issue. Following our review, we determine that the Defendant had completed the probationary periods on his misdemeanor domestic assault convictions before the issuance of the revocation warrant but that the revocation warrant was timely as to the probation for his felony vandalism conviction. We affirm in part and reverse in part and remand for entry of an amended probation revocation order and a corrected judgment for the Defendant’s felony vandalism conviction in accordance with this opinion.

I. Factual and Procedural

On November 14, 2014, the Defendant pleaded guilty to two counts of misdemeanor domestic assault in cases 14-03046 and 14-03047. In case 14-03046, the Defendant received a sentence of eleven months and twenty-nine days suspended to a probationary period of two years. See Tenn. Code Ann. § 40-35-303(c)(2). The trial court awarded pretrial jail credits in case 14-03046 from July 23, 2013, to July 27, 2013, and from August 21, 2014, to November 14, 2014. In case 14-03047, the Defendant was sentenced to eleven months and twenty-nine days suspended to probation, to be served consecutively to his two-year probationary sentence in case 14-03046. The trial court awarded the Defendant one day of pretrial jail credit, April 28, 2013, for case 14-03047.

On May 10, 2017, the Defendant pleaded guilty to felony vandalism in case 16-01978. At the guilty plea hearing, the Defendant agreed that he had violated his probation in eases 14-08046 and 14-08047. The trial court accepted the State’s recommendation for a three-year sentence on the felony vandalism charge but withheld judgment on that case and the revocation proceedings so that the parties could be heard as to whether the Defendant should.be granted probation.

A probation hearing ensued on July 12, 2017. At the conclusion of the hearing, the trial court ordered the Defendant to serve three years on the felony vandalism charge, suspended to probation, and awarded the Defendant pretrial jail credits from March 10, 2015, to March 12, 2015, and from February 28, 2017, to May 10, 2017. The trial court also reinstated probation in cases 14-03046 and 14-03047. The judgment document for the felony vandalism charge reflects that the Defendant was sentenced to three years suspended to a six-year probationary term. The judgment document is silent as to whether the sentence was to be served concurrently or consecutively to cases 14-03046 and 14-03047. However, the transcript of the hearing indicates that the trial court sentenced the Defendant to serve a three-year probationary sentence in case 16-01978 consecutively to the probationary terms in cases 14-03046 and 14-03047.

On October 19, 2022, a probation revocation warrant pertaining to all three cases was issued alleging that the Defendant was involved in an incident in which the Defendant was shot twice and the Defendant, being a convicted felon, unlawfully possessed a gun. On January 4, 2023, the Defendant filed a motion to dismiss the revocation warrant. In his motion, the Defendant alleged that the State had lost or destroyed a video recording of the incident that had been previously collected by officers. Relying on State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), the Defendant asked the trial court to dismiss the revocation warrant as a remedy for this lost or destroyed evidence.

The trial court initially heard the Defendant’s Ferguson motion on January 4, 2023. The State conceded at the hearing that the video had in fact been lost and agreed "that there was negligence involved in the video being lost." Regarding negligence, the State argued that the trial court would "have to make a determination [as to] the degree after [the court] hear[d] from the officers." Regarding the contents of the lost video, the State explained, "The officers obtained a video and allegedly watched it and th[ey] say it was consistent that [the Defendant] had a gun on video." The trial court reserved ruling on the Ferguson issue, informing the parties that it would need to hear proof before it could make an appropriate ruling.

Prior to the revocation hearing on January, 19, 2023, counsel for the Defendant stated his understanding that the State had agreed that the witnesses would not be allowed to talk about the video or what they had seen on the video.¹ The State agreed that it would not elicit such proof at the hearing.

Defense counsel then argued that the Defendant’s October 19, 2022 revocation warrant was untimely filed and that the trial court should dismiss the revocation. Defense counsel argued that the Defendant was serving an effective six-year probationary sentence because the three-year probationary sentence for the felony vandalism conviction was to be served consecutively to the effective three-year sentence for the misdemeanor domestic assault convictions. Defense counsel argued that by the, time the October 19, 2022 probation revocation warrant was filed, the Defendant had completed his effective six years’ probation. As part of his contention on this point, the Defendant argued that one of his misdemeanor probations had expired before the 2017 revocation proceedings. Ultimately, the trial court rejected the Defendant’s jurisdictional, argument. While the trial court speculated that the argument might have been viable had it been raised in 2017, the trial court found that the argument was not raised in 2017, that "decisions were made[,]" and that the Defendant "was reprobated" at that time. The trial court then proceeded to hear proof on the revocation warrant.

Lonnie Orr testified that he was married to the Defendant’s ex-wife, Ms. Brittany Gaston. Mr. Orr said that approximately one week before his altercation with the Defendant, he made a social media post which stated, "RIP to the Guy family." Mr. Orr explained that the Defendant misinterpreted this post as a threatening message.

On March 3, 2022, L.C., who was Mr. Orr’s fifteen-year-old stepson, as well as the Defendant’s biological son, had run away from home. Mr. Orr paid someone to tell him where L.C. was located, and Mr. Orr learned that L.C. was located at a gas station. Mr. Orr went to the gas station to retrieve L.C., and his wife met him there. Mr. Orr put L.C. in his wife’s car, and as he was walking back toward the gas station, Mr. Orr heard his wife yelling. As Mr. Orr turned around to face the commotion, he noticed the Defendant. He said the Defendant pulled out a gun, cocked it, and asked Mr. Orr, "What [are] you going to do[?]" Mr. Orr pulled out his own gun and started firing at the Defendant because he was afraid the Defendant intended to shoot him. Mr. Orr explained that he believed the Defendant intended to kill him because the Defendant had threatened to kill him before. Mr. Orr said he saw the Defendant throw his gun, so Mr. Orr dropped his gun and fled to "somewhere safer." Approximately five minutes later, a detective called Mr. Orr and asked him to return to the gas station or else it was "going to be worse[ ] on" Mr. Orr. Mr. Orr returned to the gas station. On cross-examination, defense counsel asked Mr. Orr if he knew how the Defendant had been shot multiple times in the back of his body if Mr. Orr and the Defendant had been facing each other at the time of the shooting, and Mr. Orr replied that he did not know.

The Defendant testified that on March 3, 2022, L.C. had been missing for three days and that a family member showed him Mr. Orr’s social media post stating "RIP to the Guy family." The Defendant said that L.C. called him and asked the Defendant to come pick him up at the gas station, and the Defendant drove to the gas station. He explained that by the time he arrived, Mr. Orr and the Defendant’s ex-wife were already at the gas station with L.C. The Defendant argued with them about his son. The Defendant said that Mr. Orr shot him in the arm and that after the Defendant took two steps back and turned around, Mr. Orr shot him in the leg. The Defendant hid behind a car and waited for help. He said that he did not have a gun or any weapons. On cross-examination, the Defendant acknowledged that, as a convicted felon and a person on probation, he was not allowed to have a gun.

At the conclusion of the proof, counsel for the Defendant again argued that the Defendant had completed his probationary period prior to the issuance of the revocation warrant. Counsel repeatedly asked the trial court for a ruling as to whether this had...