            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                                JUNE 1997 SESSION              July 25, 1997

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

ROGER LEE SAWYERS,                    )
                                      )    C.C.A. NO. 03C01-9607-CC-00255
            Appellant,                )
                                      )    HAMBLEN COUNTY
VS.                                   )
                                      )    HON. WILLIAM H. INMAN,
STATE OF TENNESSEE,                   )    JUDGE
                                      )
            Appellee.                 )    (Post-conviction)



FOR THE APPELLANT:                         FOR THE APPELLEE:


GREG EICHELMAN                             JOHN KNOX WALKUP
Public Defender                            Attorney General & Reporter

D. CLIFTON BARNES                          MICHAEL J. FAHEY, II
Asst. Public Defender                      Asst. Attorney General
1609 College Park Dr., Box 11              450 James Robertson Pkwy.
Morristown, TN 37813-1618                  Nashville, TN 37243-0493

                                           C. BERKELEY BELL
                                           District Attorney General

                                           VICTOR J. VAUGHN
                                           Asst. District Attorney General
                                           510 Allison St.
                                           Morristown, TN 37814




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                              OPINION



                  The petitioner filed for post-conviction relief which was denied by the trial

court. This Court affirmed. The Tennessee Supreme Court subsequently reversed and

remanded for a hearing. Following the ordered hearing, the court below denied relief,

from which the petitioner now appeals. Upon our review of the record, we affirm the

judgment below.



                   In 1976, when he was seventeen years and seven months old, the

petitioner murdered Elmer Trent in the course of robbing him with a firearm. He was not

indicted until 1978; he pled guilty to the murder “a few weeks shy of his 19th birthday.”1

At the time he pled guilty, the petitioner apparently thought that he had been over the age

of eighteen at the time he murdered Trent. He did not discover his real age until 1986.

He subsequently filed for post-conviction relief alleging that the criminal court in which he

pled guilty had not had subject-matter jurisdiction over him because he had been a

juvenile at the time he committed Trent’s murder.



                  When the petitioner’s claim for relief reached our Supreme Court, it ordered

the case “returned to the trial court for a de novo hearing to determine whether or not [the

petitioner] would have been transferred from juvenile to criminal court, based on the facts

existing at the time of his indictment and trial.” Sawyers v. State, 814 S.W.2d 725, 729

(Tenn. 1991). This hearing was held in 1996 and the court below found that the

petitioner would have been transferred and therefore denied post-conviction relief a

second time. It is from this ruling that the petitioner now appeals.



                  In ordering this matter remanded, our Supreme Court specifically referred



       1
           Sawyers v. State , 814 S.W .2d 725, 727 (T enn. 1991).

                                                     2
to T.C.A. § 37-1-134(a) and stated that an order of transfer from juvenile to criminal court

“must be predicated on a determination . . . that there are <reasonable grounds’ to believe

that the child (a) committed the delinquent act alleged, (b) is not committable to an

institution for the mentally ill or retarded, and (c) needs to be placed under <legal restraint

or discipline’ for the good of the community.”2 Sawyers, 814 S.W.2d at 728. In making

this determination after the required hearing, the court below ruled:

                  It seems obvious beyond peradventure that the juvenile
                  court, if proceedings in that court had been instituted, would
                  have determined that there was [sic] reasonable grounds to
                  believe that Sawyers committed the murder alleged, was not
                  committable to an institution for the mentally ill or retarded,
                  and needed to be placed under <legal restraint or discipline’
                  for the good of the community. This being so, it would have
                  been the duty of the juvenile court to transfer Sawyers to the
                  criminal court. Thus it is, for the second time, that it should
                  be held that common sense, superimposed upon the sim-
                  plest definitions of justice and statutory construction, dictates
                  that Sawyers was properly tried as an adult. The transfer
                  was <unassailably appropriate,’ and the petition is dismissed.3

In making its findings, the court below relied on a 1978 report from the Forensic Services

Division of Middle Tennessee Mental Health Institute that the petitioner was competent

to stand trial and that a defense of insanity could not be supported, and that the petitioner

had committed a “comparable murder” in another county after he had reached the age

of majority but before he had been arrested for the instant murder. The court also had

before it a statement the petitioner had given to the police in which he admitted to having

shot and killed Trent in the course of robbing him.



                  The petitioner complains that the court below should not have considered

that he had committed another murder because he had not been convicted of that

offense at the time the transfer decision would have been made. We agree, but find that

the court below could properly have considered that the petitioner had been indicted for




       2
           In 1978, this statute was codified at T.C.A. § 37-234 (1976).

       3
           W e have om itted the citations and footnotes included in this portion of the lower cou rt’s order.

                                                       3
this second murder at the relevant time.4 We also note that the petitioner had been

convicted of two counts of larceny from the person in 1977, receiving a three year

sentence for each count. This information would also have been available to the court

in 1978 at the time of the transfer hearing.



                  Although not mentioned by our Supreme Court, we note that the relevant

statute in effect in 1978 provided that, in making the determination to transfer, the court

could5 consider the extent and nature of the child’s prior delinquency records; the nature

of past treatment efforts and the child’s response thereto; whether the offense had been

against property or person with greater weight in favor of transfer given to offenses

against the person; whether the offense had been committed in an aggressive and

premeditated manner; and the possible rehabilitation of the child by use of procedures,

services and facilities currently available. T.C.A. § 37-234(b) (1976). In the instant case,

the petitioner’s prior delinquency record consisted of a 1973 order by the Hamblen

County juvenile court finding him to be a “dependent and neglected child” and ordering

him “committed to the Tennessee Preparatory School for an indefinite period of time.”

This past treatment effort was obviously unsuccessful, given the numerous crimes the

petitioner had committed or been charged with by the time he was arrested for Trent’s

murder. The offense under consideration was a murder: the most serious of the

offenses against the person and therefore entitled to substantial weight in favor of

transfer.



                  Moreover, it had been committed in an aggressive and at least somewhat

premeditated manner. According to the petitioner’s statement to the police, he and two



       4
         See Sawyers, 814 S.W .2d at 727 (“[a}t the same time this case was being prosecuted,
Sawyers was also u nde r indictm ent and s ubje ct to the dea th penalty for” this other m urde r.)

         5
          Th e cu rrent statute m akes c ons ideration of these fac tors m and atory. See T.C.A. § 37-1-
134(b). How ever, the sta tute in effe ct in 1978 utilize d the word “m ay” in conjun ctio n with th e court’s
con sideration of the se fa ctors . See T.C.A. § 37-23 4(b) (1976).

                                                         4
cohorts had driven to a market with a shotgun which the petitioner loaded with four shells,

chambering one of them. When the victim drove up and walked toward the door of his

market, the petitioner called out to him “and told him to stick up his hands and drop those

money bags.” As the victim stopped and began to turn around, according to the

statement, the petitioner thought he was reaching for his front pocket. At that point, the

petitioner “pulled the trigger and blasted him four times.” Thus, at least three of the five

statutory considerations mitigated heavily in favor of transfer. There is no proof in the

record as to the possible rehabilitation of the petitioner by services and facilities which

would have been available in 1978. However, because the petitioner was no longer a

child in 1978, we find this factor to be inapposite.



              The proof adduced at the hearing was more than sufficient for the court to

have “reasonable grounds to believe” that the petitioner had committed the murder, that

he was not committable, and that the community’s interests required him to be put under

legal restraint or discipline. Accordingly, we affirm the judgment below.




                                                  _________________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
J. CURWOOD WITT, JR., Judge




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