        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 8, 2013

       STATE OF TENNESSEE v. CHARLES BRADFORD STEWART

               Appeal from the Circuit Court for Montgomery County
                    No. 40700425      John H. Gasaway, Judge




              No. M2013-00488-CCA-R3-CD - Filed November 18, 2013


The defendant, Charles Bradford Stewart, appeals from his Montgomery County Circuit
Court jury conviction of vehicular assault, claiming that the evidence was insufficient to
support his conviction. Because the defendant’s challenge to the sufficiency of the evidence
is procedurally barred and because the defendant raises no other challenge to the judgment
of the trial court, we affirm.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Roger E. Nell, District Public Defender (on appeal), and Hugh R. Poland, Jr., Clarksville,
Tennessee (at trial, on first direct appeal, and on resentencing), for the appellant, Charles
Bradford Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; John W. Carney, District Attorney General; and Jason Criddle, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On May 18, 2010, a Montgomery County Circuit Court jury convicted the
defendant of one count of vehicular assault by intoxication and one count of aggravated
assault, and the trial court merged the jury verdicts into a single judgment of conviction for
vehicular assault. The defendant, a career offender, received a sentence of 12 years to be
served as one year of incarceration followed by placement in a community corrections
program. Although it was not made a part of the appellate record, the defendant apparently
filed a pro se pleading styled “Notice of Appeal” within the time for filing a motion for new
trial that asked for the specific relief of a new trial. At a September 29, 2010 hearing on that
and other sundry pro se motions filed by the defendant, the defendant indicated a desire to
withdraw the pleading that asked for a new trial. When asked by the trial court to explain,
the defendant said,

                        I was remanded down to the jail, and when I got down to
                the jail - - I have a series of psychological problems, and I got
                down in the jail - - I wasn’t actually expecting to go to jail that
                day, but I got down to the jail, and they put me in the jail
                without giving me any of my medications, and I got emotionally
                stressed on it and wasn’t thinking properly. But since that time
                I’ve realized that this motion, was no need to put in because I
                believe the [c]ourt gave me a fair and impartial ruling, and I
                believe that I should do the time that I’m doing, and accept
                responsibilities for the actions that I had taken, and the
                irresponsible driving that I did. So I want to remove that
                motion, sir.

The trial court observed that the defendant was “to be commended for [his] attitude” and
agreed to “show [the] motion for new trial stricken at [the defendant’s] request.”

                The State filed a timely notice of appeal from the 2010 judgment, challenging
the trial court’s imposition of a sentence involving community corrections placement. In that
appeal, we concluded that because the defendant “was convicted of vehicular assault, which
is a ‘crime against the person as provided in title 39, chapter 13, parts 1-5,’” the defendant
was statutorily ineligible for a community corrections sentence. See State v. Charles
Bradford Stewart, No. M2010-01948-CCA-R3-CD, slip op. at 4-5. Consequently, we
remanded the case for resentencing, stating,

                       On remand, the trial court should impose a sentence in
                accord with the statutory guidelines and should consider all
                relevant available sentencing alternatives. Additionally, the trial
                court should sentence [the defendant] under the pre-2005
                amendments to the Sentencing Reform Act in the absence of the
                completion of a waiver of ex post facto provisions.

Id., slip op. at 5.

                Upon remand, the trial court ordered, via a judgment filed on December 7,

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2011, that the defendant serve the entirety of his 12-year sentence in incarceration. On
December 19, 2011, the defendant filed a pro se “Notice of Appeal” that raised a variety of
trial errors and included a challenge to the sufficiency of the convicting evidence. On
January 4, 2012, the defendant’s counsel filed a motion for new trial challenging the
sufficiency of the evidence and the sentence imposed on remand and claiming a deprivation
of the defendant’s constitutional right to a fair trial. On that same day, the defendant’s
counsel moved the court to provide the now-indigent defendant with transcripts from his
trial. On August 14, 2012, defense counsel informed the court that he still had not received
the requested transcripts. On January 4, 2013, counsel filed an amended motion for new trial,
adding to his original claims a claim that the State failed to establish that the blood samples
that tested positive for the presence of cocaine belonged to the defendant. On February 11,
2013, the trial court denied the motion for new trial, and the defendant filed a pro se notice
of appeal on that same day.

               In this appeal, the defendant challenges the sufficiency of the convicting
evidence, claiming that the mere presence of cocaine in his blood, without more, was
insufficient to establish that he was intoxicated for purposes of the vehicular assault statute.
The State contends that the defendant’s challenge to the sufficiency of the evidence is
procedurally barred by his failure to raise it in his first direct appeal. The defendant concedes
that his challenge is likely barred by his failure to raise it in his first direct appeal but asks
the court to consider his claim anyway.

               The State initiated the first direct appeal in this case, but that did not prevent
the defendant from raising the issue of the sufficiency of the evidence in his reply brief. See
Tenn. R. App. P. 27(b) (“If appellee is also requesting relief from the judgment, the brief of
the appellee shall contain the issues and arguments involved in his request for relief as well
as the answer to the brief of the appellant.”); see also State v. Watkins, 804 S.W.2d 884, 886
(Tenn. 1991) (deeming “the filing of a separate cross-appeal . . . unnecessary” to preserve
an issue for appeal when the issue was “properly . . . raised in the . . . reply brief”). As the
State observes, and the defendant concedes, a panel of this court has held that a defendant’s
failure to raise issues in a first appeal results in a waiver of those issues in a subsequent
appeal. See State v. Ronnie Henry, No. W2009-00089-CCA-R3-CD, slip op. at 3 (Tenn.
Crim. App., Jackson, Sept. 28, 2009).

               Although the term “waiver” may not be apt, we do believe that the defendant
forfeited his challenge to the sufficiency of the evidence by failing to raise it in his first
appeal. “Under the doctrine of the law of the case, when an initial appeal results in a remand
to the trial court, the decision of the appellate court establishes the law of the case, which
must be followed upon remand.” State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003) (citing
State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000)). “The phrase ‘law of the case’

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refers to a legal doctrine which generally prohibits reconsideration of issues that have already
been decided in a prior appeal of the same case.” Memphis Publ’g Co. v. Tennessee Petrol.
Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). Because the defendant
failed to challenge the sufficiency of the convicting evidence in his first direct appeal, the
issues to be resolved in the case were narrowed to the single issue of the propriety of the
sentence. This court’s opinion remanding the case for resentencing further narrowed the case
to the imposition of a sentence that complied with the terms of the Sentencing Act. See
Charles Bradford Stewart, slip op. at 5. The trial court was obliged to abide by the remand
order:

              Moreover, “it is a controlling principle that inferior courts must
              abide the orders, decrees and precedents of higher courts. The
              slightest deviation from this rigid rule would disrupt and destroy
              the sanctity of the judicial process. There would be no finality
              or stability in the law and the court system would be chaotic in
              its operation and unstable and inconsistent in its decisions.”

State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (quoting Barger v. Brock, 535 S.W.2d 337,
341 (Tenn. 1976)). A trial court may deviate from the confines of a remand order only when

              (1) the evidence offered at a trial or hearing after remand was
              substantially different from the evidence in the initial
              proceeding; (2) the prior ruling was clearly erroneous and would
              result in a manifest injustice if allowed to stand; or (3) the prior
              decision is contrary to a change in the controlling law which has
              occurred between the first and second appeal.

Memphis Publ’g Co., 975 S.W.2d at 306. None of these exceptions apply here.
Consequently, the trial court was bound by the remand order strictly to the issue of the
defendant’s sentence. That the trial court actually considered the defendant’s challenge to
the sufficiency of the evidence and denied the defendant’s motion for new trial does not
change our decision. We realize that the defendant’s conviction judgment was not finally
settled until the entry of the February 11, 2013 order, but to allow a litigant to “backtrack”
in this situation would disserve both the interests of justice and the fluent administration of
the judicial system.

              Because the defendant’s challenge to the sufficiency of the convicting evidence
is procedurally barred and because the defendant does not challenge the propriety of the
sentence imposed on remand, we affirm the judgment of the trial court.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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