                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                February 15, 2012 Session

          STATE OF TENNESSEE v. CHARLES E. LOWE-KELLEY

              Appeal by Permission from the Court of Criminal Appeals
                          Circuit Court for Maury County
                        No. 17948    Stella Hargrove, Judge


                 No. M2010-00500-SC-R11-CD - Filed August 28, 2012


A defendant was sentenced following his conviction on two counts of first degree murder
and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a
motion requesting a new trial and withdrew as counsel. The motion contained no specific
grounds for relief. The trial court appointed replacement counsel. Several months later,
replacement counsel amended the motion for new trial to allege specific grounds for relief.
The trial court denied the amended motion for new trial. The Court of Criminal Appeals held
that the original motion for new trial was a nullity because it contained no grounds for relief
and that the trial court therefore did not have jurisdiction to permit the amendment of the
motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s
specific grounds for relief as waived. We hold that the original motion for new trial met the
requirements of Tennessee Rule of Criminal Procedure 33 despite its failure to allege specific
grounds for relief and that the trial court retained jurisdiction to permit the amendment of the
motion. The cause is remanded to the Court of Criminal Appeals to consider the defendant’s
appeal of the denial of his amended motion for new trial.

                    Tenn. R. App. P. 11 Appeal by Permission;
       Judgment of the Court of Criminal Appeals Reversed; Case Remanded

J ANICE M. H OLDER, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK,
C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Mark K. Green (at trial) and Robert C. Richardson, Jr. (at motion for new trial and on
appeal), Columbia, Tennessee, and Patrick Timothy McNally (on appeal), Nashville,
Tennessee, for the appellant, Charles E. Lowe-Kelley
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Mark A. Fulks, Senior Counsel; and Benjamin A. Ball, Assistant Attorney General, for the
appellee, State of Tennessee

                                         OPINION

                              I. Facts and Procedural History

       On April 13, 2008, Charles E. Lowe-Kelley (“Defendant”) fired a gun at a vehicle
with eleven passengers. Two passengers in the vehicle, Patricia Garcia and Juan Castro, died
as a result of gunshot wounds. Defendant was charged with two counts of first degree
premeditated murder and two counts of felony murder in the deaths of Ms. Garcia and Mr.
Castro. Defendant was charged with nine counts of attempted first degree murder as to the
other nine passengers in the vehicle.

        A jury convicted Defendant of first degree premeditated murder of Mr. Castro, first
degree murder committed in the perpetration of attempted first degree murder of Mr. Castro,
first degree premeditated murder of Ms. Garcia, first degree murder committed in the
perpetration of attempted first degree murder of Ms. Garcia, and nine counts of attempted
first degree murder.

        On May 11, 2009, the trial court held a sentencing hearing in which it merged the first
degree murder and felony murder convictions for the murder of Ms. Garcia and merged the
first degree murder and felony murder convictions for the murder of Mr. Castro. The trial
court imposed two consecutive life sentences with the possibility of parole for the murder
convictions. For the attempted murder convictions, the trial court imposed nine fifteen-year
sentences to be served concurrently with each other and concurrently with the consecutive
life sentences.

        On Friday, May 29, 2009, eighteen days after the sentencing hearing, counsel for
Defendant, Mark K. Green, filed a pleading entitled “Motion for New Trial.” The motion
stated in its entirety:

       Comes now the defendant by and through counsel of record and hereby files
       this Motion for New Trial in accordance with the [sic] Rule 33 of the
       Tennessee Rules of Criminal Procedure and accordingly seeks this Honorable
       Court to grant this motion and grant him a new trial. This motion is filed
       concurrently with a Motion to Withdraw filed by the undersigned counsel of
       record and done so to preserve defendant’s rights to seek a new trial and
       preserve his rights on appeal. Accordingly, defendant asks this Honorable

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       Court to allow liberal time under the Rules of Criminal Procedure for the filing
       of amendments to this Motion for New Trial.

The motion contained no grounds for relief.

        Although a motion to withdraw is referenced in the motion for new trial, the appellate
record does not include a written motion to withdraw. On July 16, 2009, the trial court
appointed Robert C. Richardson as new counsel for Defendant nunc pro tunc to Monday,
June 1, 2009. Mr. Richardson filed a motion to amend the previously filed motion for new
trial on January 20, 2010, more than eight months after the sentencing hearing.1 The
amended motion sets forth nine specific grounds for relief.

       During the hearing on the motion for new trial, Mr. Richardson recounted the history
of representation in the case and stated that Mr. Green had accepted employment with the
District Attorney General’s Office. As a result, Mr. Green was unable to further represent
Defendant because of a conflict of interest. The State did not respond to this assertion and
apparently concedes that a conflict of interest occurred.

         The State voiced no objection to the trial court’s consideration of the motion for new
trial, as amended. After a hearing, the trial court denied the amended motion for new trial
on March 1, 2010. Defendant filed a notice of appeal the same day.

       On appeal, the Court of Criminal Appeals ruled sua sponte that the original motion
for new trial filed by Mr. Green on May 29, 2009, was a “nullity” because it contained no
grounds for relief. State v. Lowe-Kelley, No. M2010-00500-CCA-R3-CD, 2011 WL
497465, at *5 (Tenn. Crim. App. Feb. 14, 2011). As a result, the Court of Criminal Appeals
considered all of Defendant’s grounds for new trial as waived except for sufficiency of the
evidence and sentencing. Lowe-Kelley, 2011 WL 497465, at *6-7.

       The intermediate appellate court also held that Defendant’s notice of appeal was
untimely because it was not filed within thirty days of the entry of judgment. Lowe-Kelley,
2011 WL 497465, at *6. Nevertheless, the court waived the requirement of timely filing of
a notice of appeal in the interest of justice. Lowe-Kelley, 2011 WL 497465, at *6; see Tenn.
R. App. P. 4(a). Ultimately, the court held that the evidence was sufficient to convict
Defendant and that the trial court did not abuse its discretion by imposing consecutive life
sentences. Lowe-Kelley, 2011 WL 497465, at *8. We granted Defendant permission to
appeal.

       1
         Mr. Richardson stated during the hearing on the motion for new trial that he filed the amended
motion as soon as he received the transcript of the trial.

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                                         II. Analysis

       We granted this appeal to determine whether a motion that requests a new trial and
contains no specific grounds for relief satisfies the requirements of Tennessee Rule of
Criminal Procedure 33(b).

       Tennessee Rule of Criminal Procedure 33(b) provides:

       A motion for a 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.

A defendant who fails to provide specific grounds for relief in a motion for new trial risks
failing to preserve those grounds for appeal. See Tenn. R. App. P. 3(e) (providing for waiver
of issues not specifically stated in a motion for new trial); State v. Hatcher, 310 S.W.3d 788,
808 (Tenn. 2010) (stating that a defendant waives those issues not raised in a motion for new
trial and those issues are subject to plain error review); cf. Waters v. Coker, 229 S.W.3d 682,
689 (Tenn. 2007) (“In all civil cases tried to a jury, any ground not cited in the motion for
new trial has been waived for the purposes of appeal.”). Failure to state grounds for relief
may result in waiver of those grounds.

        We review issues involving interpretation of our rules of criminal procedure de novo.
State v. Ferrante, 269 S.W.3d 908, 911 (Tenn. 2008). This Court previously has stated that
a motion for new trial should set forth the factual grounds on which error is alleged, the legal
grounds on which the trial court based its actions, and “‘a concise statement asserting the
legal reasons why the court’s decision was improper.’” Hatcher, 310 S.W.3d at 802 (quoting
Fahey v. Eldridge, 46 S.W.3d 138, 143 (Tenn. 2001)); see also Tenn. R. Crim. P. 47(c) (“A
motion shall state: (1) with particularity the grounds on which it is made; and (2) the relief
or order sought.”).

       Moreover, we have repeatedly held that a trial court loses jurisdiction if a motion for
new trial is not filed within thirty days of the entry of judgment. Hatcher, 310 S.W.3d at
799-800 (collecting cases); see also Tenn. R. Crim. P. 45(b)(3) (“The court may not extend
the time for taking any action under Rules of Criminal Procedure 29, 33 and 34, except to the
extent and under the conditions stated in those rules.”). A trial court cannot rule on the
merits of a late-filed motion for new trial because the judgment has become final and the trial
court no longer has jurisdiction over the case. State v. Bough, 152 S.W.3d 453, 460 (Tenn.
2004); see also Hatcher, 310 S.W.3d at 799-800.



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         We construe a party’s pleadings according to the relief sought. Carter v. Bell, 279
S.W.3d 560, 563 (Tenn. 2009). The motion filed by Mr. Green on May 29, 2009, was timely
filed within thirty days after the trial court entered its judgment, referenced a motion for new
trial, and specifically requested relief in the form of a new trial. See Tenn. R. Crim. P. 33(b).
We conclude that the pleading, which complied with the technical requirements of Rule 33,
was a valid motion for new trial and conferred jurisdiction on the trial court to consider the
motion to amend. Although attorneys are not advised to “make a regular practice of filing
only a skeletal motion with the intention of bringing all of their substantive grounds in an
amendment” to the motion for new trial, the Advisory Commission’s comments anticipate
the possibility that the circumstances of a case may require a “skeletal motion.” See Tenn.
R. Crim. P. 33, adv. comm. cmt.

        Defendant’s motion for new trial is distinguishable from cases in which Tennessee
courts have found that motions that fail to request a new trial are not motions for new trial
pursuant to Tennessee Rule of Criminal Procedure 33(b). See, e.g., State v. Blunkall, 731
S.W.2d 72, 74 (Tenn. Crim. App. 1987) (finding a motion requesting an extension of time
to file a motion for new trial is not a motion for new trial); cf. Hatcher, 310 S.W.3d at 803
(finding that a motion requesting permission to file an amended motion for new trial, filed
after entry of an order overruling the original motion for new trial, is not a valid motion for
new trial). Defendant’s timely motion unequivocally stated the purpose of the motion and
the relief requested.

        When a motion for new trial is timely filed, trial courts should liberally grant motions
to amend the motion for new trial until the day of the hearing on the motion. Tenn. R. Crim.
P. 33; Hatcher, 310 S.W.3d at 800. It is, however, within the discretion of the trial court to
deny such amendments. See Hatcher, 310 S.W.3d at 801; Bough, 152 S.W.3d at 461; see
also Tenn. R. Crim. P. 33, adv. comm. cmt. (“The trial judge retains the power to deny
amendments . . . .”). In considering a motion to amend a skeletal motion for new trial, a trial
court may consider whether the defendant had a valid reason for failing to include grounds
for relief in the original motion for new trial.

       A trial court abuses its discretion only when it applies an incorrect legal standard or
reaches a decision that is against logic or reasoning and causes an injustice to the party
complaining. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). After the timely filing of
a motion for new trial by Mr. Green, and prior to a hearing on the motion, Mr. Richardson
requested permission to amend the motion for new trial to include specific grounds for relief.
The trial court granted the motion. The State does not dispute that Mr. Green was unable to
continue representation due to a conflict of interest that existed at the time he filed the motion
for new trial. The parties appear to agree that the basis for the conflict of interest was Mr.
Green’s acceptance of employment with the District Attorney General’s office, which would

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have opposed the motion for new trial and any specific grounds contained in the motion.
Following the appointment of new counsel, it was well within the trial court’s discretion to
permit the amendment of the motion for new trial to include Defendant’s specific grounds
for relief.

                                       III. Conclusion

       We conclude that a defendant’s timely motion requesting a new trial meets the
requirements of Rule 33 of the Tennessee Rules of Criminal Procedure despite its failure to
allege specific grounds for relief. Moreover, it is within the discretion of the trial court to
permit an amendment to the motion to allege specific grounds for relief, and the trial court
did not abuse its discretion. The judgment of the Court of Criminal Appeals is reversed, and
we remand this case to the Court of Criminal Appeals to consider Charles E. Lowe-Kelley’s
appeal of the denial of his amended motion for new trial. Costs of this appeal are taxed to
the State of Tennessee.




                                                    _________________________________
                                                    JANICE M. HOLDER, JUSTICE




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