         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 9, 2002

                STATE OF TENNESSEE v. FREDERICK SLEDGE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 92-04081   James C. Beasley, Jr., Judge



                   No. W2001-02402-CCA-R3-CD - Filed January 6, 2003


The defendant was convicted of first degree murder and especially aggravated robbery and was
originally sentenced to death and twenty years, respectively. The trial court ordered the sentences
to be served consecutively. On appeal, this court affirmed both convictions but reversed the death
sentence and remanded it for resentencing. On remand, the defendant was sentenced to life
imprisonment after a new sentencing hearing. The life sentence was ordered to be served
consecutively to the original twenty-year sentence for especially aggravated robbery. The only issue
raised on this appeal is whether, on remand, the trial court erred by not reconsidering the issue of
consecutive sentencing when resentencing the defendant for the murder conviction. We affirm the
sentence as imposed on remand by the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and NORMA MCGEE OGLE, JJ., joined.

Paula Skahan and Gerald Skahan, Memphis, Tennessee, for the appellant, Frederick Sledge.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jerry Harris and John W. Campbell, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                        BACKGROUND

       On December 10, 1991, the defendant shot and killed sixty-four-year-old Johnny Harris. The
shooting occurred during a robbery committed by the defendant and two others. According to the
defendant’s statement, he and two others tracked the victim from a grocery store to his apartment
where he demanded money from the victim. The victim gave the defendant his wallet, which
contained six or seven dollars. The defendant rummaged through the victim’s pockets and then shot
him once through the heart and once through the knee. The victim was found dead, lying on his back
with his pockets turned inside-out.

        Subsequently, the defendant was convicted of first degree murder and especially aggravated
robbery for which he received a sentence of death and twenty years, respectively. The sentences
were ordered to be served consecutively. On appeal, this court affirmed both convictions but
reversed and remanded the death sentence for resentencing. See State v. Fredrick Sledge, No.
02C01-9405-CC-00089, 1997 WL 730245 (Tenn. Crim. App. Nov. 25, 1997), perm. to appeal
granted (Tenn. Mar. 1, 1999). Our supreme court affirmed. See State v. Sledge, 15 S.W.3d 93
(Tenn.) (modified on other grounds), cert. denied, 531 U.S. 889, 121 S. Ct. 211, 148 L. Ed. 2d 149
(2000).

        At his resentencing hearing, the defendant presented evidence relevant to this appeal. The
defendant grew up impoverished in rural Mississippi and had little contact with his father. His father
physically abused his mother during her pregnancy. He had a close relationship with his great aunt
who died when he was seventeen. The defendant has two sons with whom he is in contact. At age
seventeen or eighteen, he moved to Memphis and, within two months of his arrival, committed the
instant offenses. Witnesses for the defendant testified that he had matured and had remained in
contact with his family since his incarceration.

       Following a remand, a jury resentenced the defendant to life imprisonment. The defense
argued both at the conclusion of the resentencing hearing, and at a subsequent hearing, that the trial
court order that the defendant’s two sentences be served concurrently. However, the trial court
declined to reconsider the matter, explaining its reasoning:

                       That issue, in my opinion, has been upheld by the court of
               criminal appeals as being a valid ruling by the trial court. The
               mitigating factors that you’re talking about, with reference to the
               sentencing hearing in this case, were presented to a jury; obviously
               the jury felt there was apparently some merit to those mitigating
               circumstances, and returned a verdict of life imprisonment.

                        It would be this Court’s opinion that the prior ruling by the
               original trial court with regard to how those sentences should be
               served, would still stand. That issue has been determined by the
               appellate court to have been a proper sentencing hearing where we’re
               making a – we’re using the term sentencing hearing, and it’s probably
               improper when it refers to this particular case. This case was the
               sentencing phase of the murder trial, but the trial judge, the original
               trial judge, . . . has previously determined at a sentencing hearing that
               has been upheld that the especially aggravated robbery should be
               served consecutive with the murder. The only issue for this Court to



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               determine was what was the punishment in the murder case. That
               punishment has been established as life imprisonment.

                       So it would be my opinion, based on the ruling by the court of
               criminal appeals, the affirmation of that ruling by the supreme court,
               that the sentences in this case should be held consecutively or served
               consecutively as previously ordered by [the original trial judge], and
               I would so rule.

                       I don’t see, nor do I think that it’s necessary to have another
               hearing to determine whether the sentences should be served
               concurrently or consecutively. Obviously, that is an issue that can be
               determined and ruled upon on appeal, if I’m incorrect, but it would be
               my opinion that the law of the case has been established by the court
               of criminal appeals and the supreme court, that being that the
               sentence is, in the especially aggravated robbery and the murder and
               the prior aggravated robberies were to be served consecutively.

                       The only issue before this court was what was the punishment,
               and for that reason, I will deny the Motion to have the sentences run
               concurrently as having been previously determined.

                                             ANALYSIS

        The sole issue on appeal is whether the trial court was required to revisit the issue of whether
the new murder sentence was to run consecutive to, or concurrent with, the original robbery sentence
when the case was remanded for a new sentencing hearing. The defendant argues that common
sense would require the issue to have been reconsidered at the resentencing hearing. However, it is
the State’s position that the issue of consecutive sentencing was finalized in the defendant’s first
appeal and need not be revisited.

      On his first appeal, the defendant argued that the imposition of consecutive sentences was
improper. Sledge, 1997 WL 730245, at *32. This court responded:

               The trial court found that the defendant had an extensive history of
               criminal activity and that he was a dangerous offender whose
               behavior indicates little or no respect for human life. See T.C.A. §
               40-35-115(b)(2) and (4). The defendant's contentions as to the
               impropriety of these findings are without merit. The defendant cites
               no authority in support of his proposition that the term "extensive" is
               unconstitutionally vague. The trial court properly considered the
               defendant's prior criminal activity as being extensive. Though the
               defendant may not have any prior juvenile convictions, the statute


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                does not state that there must be a conviction, just prior criminal
                activity. Furthermore, State v. Stockton, 733 S.W.2d 111, 112-13
                (Tenn. Crim. App. 1986), suggests that the trial court can review
                juvenile records when making a sentencing determination. Finally,
                the defendant was properly classified as a dangerous offender. See
                State v. Wilkerson, 905 S.W.2d 933, 935-39 (Tenn. 1995).
                Accordingly, this issue is without merit.

Id. This court then concluded:

                        In consideration of the foregoing and the record as a whole,
                we hold that the first degree murder conviction is affirmed but that
                the sentence is reversed. We affirm the judgment of conviction for
                the especially aggravated robbery. The case is remanded to the trial
                court for a new sentencing hearing for the first degree murder and the
                entry of a judgment of conviction under count two of Case No. 92-
                04081.

Id. at *33. The Tennessee Supreme Court modified this court’s decision on other grounds and
affirmed with respect to the remaining issues, including sentencing. Sledge, 15 S.W.3d at 96.

        The defendant contends that neither this court nor our supreme court expressly limited the
scope of the resentencing hearing on remand to preclude a new ruling on the issue of consecutive
sentencing. Therefore, he reasons, the issue was properly before the trial court during the
resentencing hearing. However, simply because the defendant was being resentenced in one of his
cases did not erase the factors upon which the trial court had based its earlier order that the sentences
be served consecutively, which this court affirmed on appeal.

        In State v. Jefferson, 31 S.W.3d 558 (Tenn. 2000), our supreme court explained the “law of
the case” doctrine:

                        “The phrase ‘law of the case’ refers to a legal doctrine which
                generally prohibits reconsideration of issues that have already been
                decided in a prior appeal of the same case. In other words, under the
                law of the case doctrine, an appellate court's decision on an issue of
                law is binding in later trials and appeals of the same case if the facts
                on the second trial or appeal are substantially the same as the facts in
                the first trial or appeal. The doctrine applies to issues that were
                actually before the appellate court in the first appeal and to issues that
                were necessarily decided by implication. The doctrine does not apply
                to dicta.

                        The law of the case doctrine is not a constitutional mandate


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               nor a limitation on the power of a court. Rather, it is a longstanding
               discretionary rule of judicial practice which is based on the common
               sense recognition that issues previously litigated and decided by a
               court of competent jurisdiction ordinarily need not be revisited. This
               rule promotes the finality and efficiency of the judicial process,
               avoids indefinite relitigation of the same issue, fosters consistent
               results in the same litigation, and assures the obedience of lower
               courts to the decisions of appellate courts.

                        Therefore, 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 generally must be followed upon remand by the trial
               court, and by an appellate court if a second appeal is taken from the
               judgment of the trial court entered after remand. There are limited
               circumstances which may justify reconsideration of an issue which
               was [an] issue decided in a prior appeal: (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.”

Id. at 560-61 (quoting Memphis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd.,
975 S.W.2d 303, 306 (Tenn. 1998)).

        This court affirmed the trial court’s imposition of consecutive sentencing, remanding to
determine the sentence for the first degree murder conviction. While not an explicit limitation of the
scope of the remand, the implication of the remand was that the issue of consecutive sentencing need
not be revisited. The law of the case doctrine proscribes reconsideration of the issue. None of the
limited exceptions to the law of the case doctrine apply. Our supreme court affirmed this decision.
Accordingly, we conclude that the trial court’s refusal to reconsider the issue was not error. The
defendant’s argument is without merit.

        The defendant also argues that new evidence was presented at the resentencing hearing that
required the trial court to revisit the issue of consecutive sentencing. Testifying on behalf of the
defendant at the resentencing hearing were his uncle, Michael Howard; his cousin, Velda Smith; his
former girlfriend, Melvia Brown; and his mother, Minnie Sledge. They testified, generally, as to his
difficult background and his efforts to maintain contact with his family and his children.

        The defendant characterizes the testimony from the resentencing hearing as “[e]vidence in
mitigation.” However, the trial court is only required to consider mitigating evidence in determining
sentence length and sentencing alternatives. See Tenn. Code Ann. § 40-35-113, Sentencing
Commission Cmts.; State v. Baker, 751 S.W.2d 154, 167 (Tenn. Crim. App. 1987) (holding that


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mitigating factors are not involved in the determination of whether sentences are to run consecutive
or concurrent). Furthermore, according to statute, the ordering of consecutive sentences is purely
discretionary; nevertheless, the trial court must find by the preponderance of the evidence that at least
one of seven criteria is met. See Tenn. Code Ann. § 40-35-115(b). Here, the trial court correctly
applied criteria (2), “[t]he defendant is an offender whose record of criminal activity is extensive,”
and (4), “[t]he defendant is a dangerous offender whose behavior indicates little or no regard for
human life, and no hesitation about committing a crime in which the risk to human life is high.” Id.
§ 40-35-115(b)(2), (4). None of the evidence the defendant presented at the resentencing hearing
rebuts the application of those two factors. Accordingly, we cannot conclude that the trial court
erred in refusing to review the prior order that the sentences be served consecutively.

                                           CONCLUSION

        Based on the foregoing authorities and reasoning, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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