        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 26, 2011

             STATE OF TENNESSEE v. PAUL FRED CHAPPELL

               Direct Appeal from the Criminal Court for Scott County
                       No. 9086    Eric Shayne Sexton, Judge




                No. E2010-02462-CCA-R3-CD - Filed January 18, 2012


A Scott County Grand Jury returned an indictment against Defendant, Paul Chappell, for sale
of a Schedule III controlled substance. Following a jury trial, Defendant was convicted of
the charge. The trial court sentenced Defendant as a Range III, persistent offender, to twelve
years in the Department of Correction to run consecutively with the sentences in seven other
cases. The trial court also imposed a $2,000 fine. On appeal, Defendant argues that the
playback at trial of the audio recording of the drug transaction was incomplete and that the
trial court improperly denied him a new trial based on allegations that witnesses discussed
their testimony during trial. After a thorough review, we conclude that the issues raised by
Defendant on appeal are waived, and we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.

Robert W. Scott, Jacksboro, Tennessee (on appeal); and Howard R. Ellis, Oneida, Tennessee
(at trial), for the appellant, Paul Fred Chappell.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William Paul Phillips, District Attorney General; Thomas E. Barclay, Assistant
District Attorney General; for the appellee, the State of Tennessee.
                                         OPINION

I. Background

        On May 30, 2008, Captain Larry Lay and Deputy Danny Phillips of the Scott County
Sheriff’s Department were involved in an investigation of Defendant Paul Fred Chappell
a.k.a. “Tiger.” On that day, Captain Lay had spoken with Casey Immons, a confidential
informant, who called Defendant about purchasing hydrocodone. Around 9:00 p.m., Captain
and Lay and Deputy Danny Phillips, a K-9 officer, met Mr. Immons and Amanda Chambers,
who was also working as a confidential informant, at the Sexton Cemetery. The officers
searched the two informants and their van, and a monitoring device was placed on Mr.
Immons. The officers also gave the two informants $60 to buy the hydrocodone and $100
for making the purchase. Captain Lay and Deputy Phillips then followed Mr. Immons and
Ms. Chambers to Kelly Buttram’s residence located on Roy Lee Phillips Road and monitored
the transaction.

        Captain Lay recognized the voice of Defendant, whom he had known for almost ten
years. Defendant said that “they needed five dollars’ worth of gas and that it would cost
forty-five dollars.” Deputy Phillips also confirmed Defendant’s voice. Ms. Chambers
testified that she and Mr. Immons discussed “Hydro tens” [sic] with Defendant and Ms.
Buttram, and they also mentioned “Hydros and Percocets.” Ms. Chambers said, “[Mr.
Immons] gave the money to Kelly and her and [Defendant] got in the car and went to Save-a-
Lot to get them.” She testified that Ms. Buttram was driving. Ms. Chambers said that she
sat in the van while Mr. Immons spoke with Mickey Watson. Defendant and Ms. Buttram
were gone for approximately forty-five minutes to one hour and then returned with some pills
that Ms. Buttram gave to Mr. Immons. Defendant was standing beside Ms. Buttram when
she handed over the pills. Ms. Chambers and Mr. Immons then left and met Captain Lay and
Deputy Phillips back at the Sexton Cemetery. They gave the officers four pills and $15 in
leftover cash from the buy. Captain Lay and Deputy Phillips again searched the two
informants and their van and found nothing else. Ms. Chambers testified that Defendant was
involved in all aspects of the transaction. David Holloway, a forensic drug chemist with the
Tennessee Bureau of Investigation, tested the drugs in this case and determined that the
tablets contained hydrocodone, a schedule III controlled substance.

       Kelly Buttram testified that she and Defendant have been friends for quite a few years,
and she was living at 137 Roy Lee Phillips Road in May of 2008, with Defendant, her three
children, and Mickey Watson. She said that Defendant had lived with her on and off for
four years. After listening to the recording of the transaction, Ms. Buttram recalled that Mr.
Immons and Ms. Chambers had come to her house in May of 2008 to buy pills from her and
Defendant. She said that the two gave them money for ten milligram hydrocodones. Ms.

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Buttram testified that everyone knew what was going on and that Mr. Immons, Ms.
Chambers, Mickey Watson, Defendant, and herself were present. She did not recall the
details of the transaction, but the tape indicated that Ms. Chambers gave her the $60.00. She
said that $5 was for gas. Ms. Chambers testified that she and Defendant then left in her
Thunderbird, but she did not remember if she drove to Save-a-Lot. She said that it was not
the first time that she and Defendant had made that type of buy, and they would get drugs
from various people. She also said that the only drugs that she and Defendant would
ordinarily buy were hydrocodone or percocet. Ms. Buttram testified that she and Defendant
returned with four hydrocodone pills, and everyone was sitting on the porch at the time. She
did not recall if she or Defendant handed the drugs to Mr. Immons and Ms. Chambers.

       Casey Immons testified that he gave the $60 to Defendant to purchase the drugs and
that Defendant was driving the car when he and Ms. Buttram left. He also said that he drove
to a nearby store for a soda while waiting for Defendant and Ms. Buttram to return. Mr.
Immons testified that Ms. Buttram handed the drugs to him when she and Defendant
returned. He agreed that the tape of the transaction indicated that the money was given to
Ms. Buttram.

II. Standard of Review

       Failure to File a Motion for New Trial

       Initially, we address the State’s argument that Defendant’s appeal should be dismissed
because he failed to file a timely motion for new trial. Tennessee Rule of Criminal Procedure
33(b) mandates that a defendant’s motion for new trial must be filed within thirty days of the
date the order of sentence is entered:

       A motion for new trial shall be in writing or, if made orally in open court, be
       reduced to writing, within thirty days of the date the order of sentence is
       entered. The court shall liberally grant motions to amend the motion for new
       trial until the day of the hearing on the motion for new trial.

Tenn. R. Crim. P. 33(b). A trial court does not have jurisdiction to rule on a motion filed
outside the thirty-day period. State v. Bough, 152 S.W.3d 453, 460 (Tenn. 2004).
Consequently, “[i]f a motion for new trial is not timely filed, all issues are deemed waived
except for sufficiency of the evidence and sentencing.” Id. (citing State v. Martin, 940
S.W.2d 567, 569 (Tenn. 1997); see also Tenn. R. App. P. 3(e). Further, this Court does not
have the authority to waive the untimely filing of a motion for a new trial. State v. Givhan,
616 S.W.2d 612, 613 (Tenn. Crim. App. 1980); see also Tenn. R. App. P. 4(a).



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        The record shows that while represented by counsel, Defendant filed, on July 30,
2009, a pro se motion titled: “APPEAL OF SENTENCING IN T.D.O.C. COMMUNITY
CORRECTIONS VIOLATION.” The motion listed several case numbers including the
present case, and Defendant requested that the cases be appealed, and he listed reasons for
the appeal. The motion was filed ten days after the judgment order of sentence was entered,
and trial counsel filed an “AMENDED MOTION FOR NEW TRIAL” on January 22, 2010.
At the status hearing on the motion for new trial, the State argued that a timely motion for
new trial had not been filed. The State further argued that what Defendant had filed was a
Tennessee Rule of Criminal Procedure Rule 35 motion for a reduction of sentence. Defense
counsel asserted that while the pro se motion was incorrectly labeled, it was correct in
substance. The trial court then heard proof concerning issues raised in the motion and held:

       I - - based on what I have heard, there is no reason to disturb the ruling of this
       Jury - the verdict. There has been no direct challenge to the Court’s sentence.
       The motion, as such, whether it’s falling under a motion for a new trial or a
       motion to resentence, has been - - is not supported, and I’m going to overrule
       all the pleadings in this Court currently standing in this case and allow this to
       go up in whatever forum the defendant chooses to take it up in. I think it’s
       now ripe for appeal, but it may - - there may be some tangential things that
       must be taken up. All that being said, I am dismissing the petition as it is
       under 33, 35, or whatever else might be raised in this Court.

      Pro se proceedings should be liberally construed. Jimmie Smith v. State , No. M2005-
00623-CCA-R3-PC, 2006 WL 236950 at *1 (Tenn. Crim. App., Jan. 5, 2006). In State v.
Barrow 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003), the Court of Appeals held:

       Even though the courts cannot create claims or defenses for pro se litigants
       where none exists, Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn.
       Ct. App. 1994), they should give effect to the substance, rather than the form
       or terminology, of a pro se litigant’s papers. Brown v. City of Manchester, 722
       S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usery v. Lewis, 553 S.W.2d 612, 614
       (Tenn. Ct. App. 1977).

In this case, although Defendant’s motion contains incorrect language, we find that it could
be construed as a motion for new trial due to the substance of the motion. We note that
“Reason #2" of the motion contained the following language:

       Officer Barkley was working the day of my trial. All witnesses in my trial
       were supposed to be separated after being sworn in. Witnesses Kelly Buttram
       and Amanda Chambers were placed in the same cell after court broke for lunch

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       and we were returned to jail. Also another witness against me, Casey Emmons
       [sic], left with D.E.A. Agent Larry Lay, who was also a witness against me.
       The presiding Judge, Shayne Sexton ordered that there be no contact between
       witnesses.

        Even though we find that Defendant’s motion could be construed as a motion for new
trial, we note that he was represented by counsel at the time the motion was filed. At a
“Status Call” hearing on January 5, 2010, there was a discussion concerning Defendant’s pro
se motion. The following exchange took place:

       THE COURT:                  But it was filed pro se. [Trial Counsel], have you
                                   discussed with Mr. Chappell post-sentencing
                                   proceedings in this case?

       [TRIAL COUNSEL]:            No, your Honor. I understood that that was filed,
                                   and I got a copy of it saying that I was conflicted
                                   out. I’m assuming we’re looking at the same
                                   document that I’ve seen saying that yeah, I used
                                   to work for the DA’s office and that part of the
                                   problem with the trial was me, so I didn’t feel like
                                   I should step forward and help him with post-trial
                                   stuff since I am the basis for his relief or part of it.

       THE COURT:                  Mr. Chappell, are you asking this Court to relieve
                                   [trial counsel] of his representation of you?

       DEFENDANT:                  Yes, sir. I’d like to get another lawyer.

       THE COURT:                  Did you discuss with [trial counsel] these
                                   problems before you filed this?

       DEFENDANT:                  I--

       THE COURT:                  Do you realize that - - that first of all, this doesn’t
                                   create a vehicle for relief, not really. Motions - -
                                   particularly post-sentencing motions are
                                   scheduled by statute, and I mean, [the prosecutor]
                                   has gratuitously taken this as a motion for new
                                   trial. I - -



                                             -5-
[PROSECUTOR]:   Well, your Honor, we’re bringing him before the
                Court basically because he continues to complain
                to the Clerk that no action has been taken on it, I
                did not regard this as a motion for new trial which
                is the reason we didn’t even file a response.

                He also references several of the case numbers
                there which - - and he’s already convicted on
                those matters; they’re certainly not ripe for
                appeal. Matters stated in this pleading, even if
                they were valid, they were waived because they
                were not raised at issue at trial. There are no
                grounds for relief stated here.

THE COURT:      I agree, and that - - but the problem begins when
                you want to remove [trial counsel]. You’re not
                simply entitled to another lawyer because of your
                - - a result that you didn’t like. You are persisting
                in having him removed as your lawyer?

DEFENDANT:      Well, I have not got to talk to him, your Honor.
                They sent me to Claiborne County. I wasn’t able
                to talk to him after the trial or nothing.

THE COURT:      [Trial Counsel], I’d like you to sit down - - I don’t
                think it’s gonna hurt anything - - and have you
                and Mr. Chappell talk today and figure out what -
                where you stand, whether or not you’re gonna be
                able to represent him in a - - you know, the way
                that you want to do it. And if he persists in
                having you removed, then I’ll decide if there is a
                basis for that, but I - - frankly, by doing this - by
                creating a conflict situation with [trial counsel],
                you may have jeopardized an appeal. A motion
                for new trial must be filed 30 days after the
                judgment, and if there is no motion for new trial -
                - and my quick take on this is the allegation made
                that you should be removed puts you in an ethical
                quandary as to how you’re to approach the client.



                         -6-
       [TRIAL COUNSEL]:             Right. It was hard for me to jump in and say,
                                    yeah, Mr. Chappell, I represent you, your attorney
                                    used to work for the DA’s office, he’s conflicted
                                    out. By the way, that was me, and it was never
                                    brought to my attention during the - -

       THE COURT:                   Well, what I would love to see and I’m maybe
                                    wafting this out there - - I’d love to see this
                                    relationship restored and a proper motion for new
                                    trial filed and there would be some way to explain
                                    that this would - - this filing pro se would toll that
                                    30 days that would allow a proper motion for new
                                    trial.

                                    I mean, I - - you may have - - Mr. Chappell, you
                                    might be the author of your own predicament
                                    here, and I don’t - - I’m trying to find a way to get
                                    you back in Court and get these issues litigated
                                    properly, but the approach that you’ve taken so far
                                    is very dangerous. So I’m gonna allow you all to
                                    talk a few moments.

        It is obvious from the transcript that Defendant was still represented by counsel when
he filed his pro se motion. It as long been the rule that a defendant may not be represented
by counsel and simultaneously proceed pro se. State v. Davis, 141 S.W.3d 600, 615-16 n.
12 (Tenn. 2004)(citing Wallace v. State, 121 S.W.3d 652, 655 n. 2 (Tenn. 2003)); State v.
Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). Since Defendant could not proceed pro se, his
motion, even if it could be a motion for new trial, was a nullity. Davis, 141 S.W.3d at 615
n. 12. Therefore, a timely motion for new trial was not filed. See State v. Martin, 940
S.W.2d 567, 569 (Tenn. Crim. App. 1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989). Since a timely motion for new trial was not filed, the Notice of Appeal
filed on November 18, 2010, was not timely filed. See T.C.A. § 27-1-123; Tenn. R. App. P.
4 (The notice of appeal is not jurisdictional in criminal cases, and the timely filing of it may
be waived in the interest of justice). However, under such circumstances, any issue which
has the remedy of granting a new trial can not be considered on appeal unless the issue is
reviewed pursuant to being “plain error.” See State v. Smith, 24 S.W.3d 274, 282 (Tenn.
2000); State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). We find no
plain error in the record.




                                              -7-
       A challenge to the sufficiency and issues regarding sentencing can be reviewed on
appeal absent the filing of a motion for new trial, but Defendant has not presented these
issues on appeal, and we find no error. Martin, 940 S.W.2d at 569. The issues raised on
appeal by Defendant are waived.

                                    CONCLUSION

      For the foregoing reasons, the judgment of the trial court is affirmed.

                                                 ___________________________________
                                                 THOMAS T. WOODALL, JUDGE




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