        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 19, 2015

                    STATE OF TENNESSEE v. RANDY LANE

             Direct Appeal from the Criminal Court for Knox County
     Nos. 90647, 90648, 90649, 90650, 90651, 90652  Bobby R. McGee, Judge



               No. E2014-01117-CCA-R3-CD – Filed December 7, 2015



After a bench trial, the Knox County Criminal Court convicted the appellant, Randy
Lane, of five counts of aggravated burglary and six counts of felony theft of property and
sentenced him to a total effective sentence of eight years. On appeal, the appellant
challenges the trial court‟s denial of his motion to suppress his statement, arguing that he
made the statement as part of a plea agreement that turned out to be unenforceable. The
State responds that the appellant is not entitled to relief because the State and the
appellant entered into a subsequent agreement, which he materially breached. Based
upon the record and the parties‟ briefs, we agree with the appellant that the trial court
should have granted his motion to suppress. Therefore, his convictions are reversed, and
the case is remanded to the trial court for further proceedings consistent with this opinion.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                       Reversed, and the Case is Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Alexander Brown (on appeal) and Steve Sams (at trial), Knoxville, Tennessee, for the
appellant, Randy Lane.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Claude Leon Franks
and Patricia Cristil, Assistant District Attorneys General, for the appellee, State of
Tennessee.


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                                       OPINION

                                I. Factual Background

       On December 5, 2006, the appellant pled guilty in the Knox County Criminal
Court to one count of aggravated burglary and two counts of burglary of a vehicle. The
plea agreement provided that the appellant would receive a total effective sentence of five
years, which he would serve consecutively to a previously imposed four-year sentence.
The plea agreement further provided that the appellant would apply for probation. While
the appellant‟s probation application was pending, he was released on bond.

       In December 2008, the Knox County Grand Jury returned indictments, charging
the appellant with a total of five counts of aggravated burglary, a Class C felony; one
count of theft of property valued $60,000 or more, a Class B felony; three counts of theft
of property valued $10,000 or more but less than $60,000, a Class C felony; and two
counts of theft of property valued $1,000 or more but less than $10,000, a Cass D felony.
On September 15, 2009, defense counsel filed a motion to suppress the appellant‟s
confession to the eleven crimes, contending that it was not knowingly or voluntarily
made due to “unfair and deceptive tactics” by police officers. Specifically, the appellant
alleged that he was led to believe that the officers interrogating him had the authority to
“plea-bargain,” which resulted in the confession.

       At the September 16, 2009 suppression hearing, Detective Steve Webb of the
Knox County Sheriff‟s Department testified that one or two days before November 19,
2008, he was notified that the appellant had been taken into custody by the Bradley
County Sheriff‟s Department. At the time of the appellant‟s arrest, he allegedly was in
possession of property that had been stolen from Knox County residents. Detective
Webb drove to Bradley County to speak with the appellant. The appellant asked
Detective Webb to “solicit a plea deal” from the district attorney‟s office in which he
would plead guilty to “[s]ix felony burglaries” in exchange for serving the new sentences
concurrently with the previously imposed nine-year sentence.

       Detective Webb testified that he telephoned Knox County Assistant District
Attorney General Jennifer Welch. General Welch told Detective Webb that based on
what he was telling her, “that we could offer that to him.” Detective Webb
acknowledged that he “passed that along to” the appellant and that everyone intended for
the appellant to plead guilty to six new burglaries and receive sentencing concurrent with
the nine-year sentence. Subsequently, Detective Webb arranged for the appellant to be
released into his custody on the morning of November 19 so that the appellant could ride
with him, point out the locations of the burglaries, and disclose where the stolen property
was sold.
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        Detective Webb testified that about 6:30 a.m. on November 19, he and Detective
Ashley Coulter went to the Bradley County Jail to retrieve the appellant. Detective Webb
said that before they left the jail with the appellant, he advised the appellant of his rights.
The officers then drove the appellant to Knox County, and the appellant identified the
locations of his crimes. As they drove, Detective Coulter made a list of the addresses on
a statement form, which became the appellant‟s confession. Detective Webb said that
after they returned the appellant to the Bradley County Jail, General Welch informed him
that “she had found out that all the facts were not correct in this” and that he needed to
speak with Knox County Assistant District Attorney General Patricia Cristil, who was
handling the appellant‟s case.

       The appellant‟s statement form was introduced into evidence. At the top of the
form, the detectives wrote: “Per Knox County DA‟s office - Randy Lane will be charged
with no more than six felony charges - any sentence he may receive will run concurrent
with the nine year sentence. Mr. Lane advised he has already been sentenced to nine
years in Knox County TN.” A list of twenty-eight addresses is in the middle of the
statement form, and the appellant initialed each address. At the bottom of the statement
form, the detectives wrote: “Randy Lane - pointed out the above listed locations inside
Knox Co. and advised he had either stole property/broke into the residence and stole
property.” The appellant initialed that provision and signed the statement form. An
advice of rights form is on the back of the statement form. The appellant initialed each of
his rights and signed the form.

        On cross-examination, Detective Webb testified that he was the lead investigator
in this case and that he was just the “messenger” for the appellant‟s “deal” with the
district attorney‟s office. On the morning of November 19, the appellant would not leave
the jail with the detectives until they wrote the agreement on the appellant‟s statement
form. Detective Webb said that “that was verbatim what [the appellant] wanted written
down.” Detective Webb later learned that the appellant had pled guilty in a previous case
but that he had not yet been sentenced. He acknowledged that he did not “deliberately try
to mislead Mr. Lane about the statement or [his] intentions in those cases.”

       General Cristil testified that she discovered after the agreement that the appellant
had pled guilty but had not yet been sentenced for the previous Knox County offenses
and that he was still on bond when he committed the felony offenses in the instant case.
The appellant could not serve the new felony sentences concurrently with the previous
felony sentences, and she informed Detective Webb of that fact.1 Nevertheless, she tried

       1
        See Tenn. Code Ann. § 40-20-111(b) (mandating consecutive sentencing when a defendant
commits a felony while one bond for a felony and is convicted of both offenses); Tenn. R. Crim. P.
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to honor the agreement by offering to charge the appellant with misdemeanors he could
serve concurrently. She conveyed the offer to the attorney representing the appellant at
the time but was unable to recall which of the appellant‟s attorneys was given the offer.2
The trial court asked if the attorney communicated the offer to the appellant, and General
Cristil said she did not know. The trial court then asked if the appellant accepted the
offer, and she stated, “Nobody ever accepted it[.]”

       General Cristil testified that the appellant had a sentence in Bradley County for
which judgment had not yet been entered. Defense counsel requested that the appellant
be allowed to return to Bradley County to resolve the charges, and the State agreed.
General Cristil stated that the State intended to put “a hold on him, and then when they
had finished with whatever they were doing in Bradley County, he would come back to
Knox County and that was the basis upon which we all agreed that he could go to
Bradley County.” However, Knox County did not issue the capias before the Bradley
County matter was concluded, and the Bradley County Jail released the appellant.
General Cristil said she withdrew the offer because the appellant absconded and failed to
return to Knox County.

        At the conclusion of the hearing, the trial court found that the appellant mistakenly
thought he had already been sentenced in the previous Knox County case and that his
telling Detective Webb about the nine-year sentence was due to honest confusion, not
deception. The court further found that the State evidenced no misconduct in taking the
confession and that the State acted in good faith. Accordingly, the court denied the
motion to suppress.

        Subsequently, defense counsel filed a motion to enforce the initial agreement in
which he argued that pursuant to State v. Howington, 907 S.W.2d 403 (Tenn. 1995), the
appellant was entitled to the benefit of the agreement or to the suppression of his
statement because he performed his part of the agreement but the State failed to perform
its part. At a hearing on October 20, 2009, defense counsel argued that the appellant had
fulfilled his part of the agreement. The State countered that the appellant materially and
substantially breached the agreement when he absconded and committed other crimes
after being released from the Bradley County Jail. Defense counsel advised the court that
the Bradley County Jail “kick[ed the appellant] out” and that “then he showed up here
and they said, no, we can‟t take you” because no capias had been issued.

        The trial court observed that the initial agreement, which provided that the new

32(c)(3)(C) (also mandating consecutive sentencing when a defendant commits a felony while on bond
for a felony and is convicted of both offenses).
         2
           The record does not reflect when counsel began to represent the appellant, but it is undisputed
that counsel was not present during the appellant‟s interactions with Detective Webb.
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felony sentences would be served concurrently with the previous felony sentences, was
illegal and, therefore, unenforceable. As to the subsequent agreement for a plea to
misdemeanors, the court noted that the appellant knew “the name of the detective that he
gave his confession to who was supposed to be brokering this deal, and [had he] really
been sincere about wanting to come back here and get these matters resolved that‟s all he
had to do is call the detective.” The court found that it was the appellant‟s “own
misconduct that resulted in that agreement not coming to fruition or not being
consummated.” Therefore, the court denied the motion to enforce. The court then stated
that it may have been “too narrow” by considering only the effect of the agreement on the
voluntariness of the statement. Accordingly, the court urged the parties to file another
motion to suppress regarding the Miranda warnings and waiver, noting that “if he was
flat out told that he was going to get concurrent sentencing then maybe, I‟m not sure, but
maybe that does affect the knowing quality of his waiver.”

       On November 10, 2009, defense counsel filed a second motion to suppress,
contending that the trial court should grant the motion because the State could not fulfill
the terms of the agreement. In a memorandum of law attached to the motion, defense
counsel argued as follows:

                    In the present case, though the plea offer was made by
             the State and accepted by [the appellant], and [the appellant]
             acted to his serious detriment in waiving his rights against
             self-incrimination and then providing incriminating
             information in reliance upon the agreement and promises
             made by the State, and its authorized agents. This was not a
             plea agreement actually accepted by a court, but its very
             existence was found and ratified by this Honorable Court
             during two distinct in-Court motions hearings. The State now
             contends it is an unenforceable agreement because specific
             performance of the agreement would result in an illegal
             sentence, and / or a void judgment. This Honorable Court
             agreed it was unenforceable.

                    However, it was a State prosecutor who defined the
             terms of the agreement and the offer to [the appellant]. This
             unrepresented [appellant] was in no better position than the
             State to evaluate the legality of the offer the State had
             proposed to him while he was within the State‟s custody. It is
             not reasonable to conclude [the appellant] would still have
             knowingly waived his rights against self-incrimination and
             provided incriminating information voluntarily had he
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              suspected the agreement with the State was illegal,
              unenforceable, and of no value to him. To the contrary, [the
              appellant] specifically sought an enforceable and reliable
              agreement with a State prosecutor in exchange for waiving
              his rights. This unrepresented [appellant‟s] (in-custody)
              waiver and subsequent statements were provided in
              reasonable reliance upon this agreement and in exchange for
              this agreement and for promised performances on the part of
              the State.

Defense counsel argued that suppressing the statement would restore the parties to the
position they were in before the agreement.

       In a written response, the State maintained that on March 28, 2008, the appellant
asked to return to Bradley County to resolve issues there. The appellant was released by
Bradley County before the capias was issued on March 31, 2008. The State said that
“immediately following his release from Bradley County, [the appellant] called the Knox
County Criminal Court Clerk and said that he would turn himself in. He did not do that
and was not brought into custody until April 18, 2008.” The State argued as follows:

                     There was no ambiguity in the State‟s offer to charge
              the [appellant] with misdemeanor thefts instead of felonies.
              There should be no question that the offer was based on the
              [appellant‟s] not committing additional crimes and the
              [appellant‟s] following the rules of good behavior and
              citizenship. The [appellant] breached those standards, as well
              as the favorable agreement with the State, when he left the
              county and failed to turn himself in knowing full well that a
              capias was outstanding for his arrest. The [appellant] has no
              one to blame but himself for the State‟s withdrawal of the
              misdemeanor offer.

       In a written order, the trial court found that the appellant “was not a stranger to the
criminal justice system” and that he “certainly understood that he would not receive
concurrent sentencing unless he pled guilty. Yet when he was released he absconded and
is back in custody only because he was arrested on new charges.” The court found that
the appellant understood that the consequence of the confession “would be that it would
be used against him to prove his guilt.” The court stated that the agreement regarding
“concurrent sentencing was in return for the [appellant‟s] promise to enter guilty pleas
and the [appellant] failed and refused to do so.” The court found that based upon the
appellant‟s breach of the agreement, the State was relieved of its promise to seek
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concurrent sentencing. Therefore, the court denied the second motion to suppress.

        On April 5, 2011, a bench trial was held, and the trial court convicted the appellant
of five counts of aggravated burglary and six counts of felony theft of property.3 The
trial court merged five theft convictions into their corresponding aggravated burglary
convictions and sentenced the appellant as a Range I, standard offender to four years for
each conviction. The court ordered that two of the sentences be served consecutively and
the remainder concurrently, for a total effective sentence of eight years.

                                               II. Analysis

       The appellant contends that the trial court should have suppressed his statement
because it was given as part of an agreement that was unenforceable. The State argues
that the appellant is not entitled to relief. We conclude that the trial court should have
suppressed the statement.

       Initially, we note that both the appellant and the State refer to the initial agreement
as a “plea agreement”; however, as the Fourth Circuit Court of Appeals has explained:

                [A] grant of immunity differs from a plea agreement in that it
                in no way involves court approval. In the case of a plea
                agreement, the court in essence executes the agreement by
                accepting the plea of guilty. In the case of a grant of
                immunity, however, only two parties are involved. The
                government alone makes a decision not to prosecute in
                exchange for testimony which will, hopefully, lead to a
                greater number of indictments or convictions. The most that
                one granted immunity can do is to agree to testify and then
                await the call of the government.

Plaster v. United States, 789 F.2d 289, 293 (4th Cir. 1986).

        At the time the appellant and the State entered into the initial agreement, the State
        3
          According to the trial court‟s written sentencing order, the appellant was convicted of six counts
of theft of property valued $10,000 or more, a Class C felony. However, for two of the theft counts, the
appellant was indicted for theft of property valued $1,000 or more, a Class D felony. At trial, one of the
two victims testified that the value of his stolen property was “right around ten thousand dollars,” and the
other victim testified that the value of his stolen property was $4,000. In finding the appellant guilty, the
court did not address the grading of the thefts. The judgments of conviction reflect that the appellant was
convicted of four counts of theft of property valued $10,000 or more and two counts of theft of property
valued $1,000 or more.

                                                    -7-
had not charged the appellant with a crime related to the burglaries. Therefore, the
agreement in this case, in which the prosecutor promised not to prosecute the appellant
fully in exchange for his truthful information, was a cooperation-immunity agreement.
See State v. Howington, 907 S.W.2d 403, 404-05 & n.1 (Tenn. 1995); David G. Housler,
Jr. v. State, No. M2010-02183-CCA-R3-PC, 2013 WL 5232344, at *32 (Tenn. Crim.
App. at Nashville, Sept. 17, 2013).

       Cooperation-immunity agreements, like plea agreements, are enforceable as
contracts. Howington, 907 S.W.2d at 408; State v. Spradlin, 12 S.W.3d 432, 435 (Tenn.
2000). However, a cooperation-immunity agreement “is different from the average
commercial contract as it involves a criminal prosecution where due process rights must
be fiercely protected.” Howington, 907 S.W.2d at 410. Initially, the defendant must
show the existence of an agreement by a preponderance of the evidence; thereafter, the
State bears the burden of showing “„beyond a reasonable doubt why the agreement is
invalid or why prosecution should be allowed despite the agreement.‟” State v. Jacobs,
919 S.W.2d 639, 643 (Tenn. Crim. App. 1995) (quoting Zani v. State, 701 S.W.2d 249,
254 (Tex. Crim. App. 1985)); see State v. Sudderth, 152 S.W.3d 24, 32 (Tenn. Crim.
App. 2004).

        Here, the trial court found, and the parties do not dispute, that the appellant and the
State entered into an agreement. The terms of the agreement were reduced to writing and
specified that the State would charge the appellant with no more than six felonies and that
he would receive sentencing concurrent with his previous nine-year sentence. Based on
the agreement, the appellant confessed to twenty-eight burglaries. However, the
agreement turned out to include an illegal sentence. At that point, the State decided to
offer to allow the appellant to plead guilty to misdemeanors so that he could receive
concurrent sentencing. The State conveyed the offer to defense counsel, but nothing
indicates that defense counsel conveyed the offer to the appellant. Moreover, nothing
indicates that the appellant ever accepted the offer. In fact, General Cristil testified at the
suppression hearing that the appellant did not accept it. Therefore, we disagree with the
trial court‟s conclusion that the appellant breached the second agreement.

       We must now determine the appropriate remedy. The initial agreement provided
for an illegal sentence and, therefore, was unenforceable. See McConnell v. State, 12
S.W.3d 795, 799 (Tenn. 2000). Thus, we cannot order specific performance of the
contract and must return the parties to the position they were in prior to the agreement,
which would not allow use of the appellant‟s statement. As a result, the trial court should
have granted the appellant‟s motion to suppress.




                                             -8-
                                     III. Conclusion

       Based upon the record and the parties‟ briefs, we conclude that the trial court erred
by failing to grant the appellant‟s motion to suppress his statement. Because the State‟s
evidence against the appellant consisted primarily of his confession, the appellant‟s
convictions must be reversed and the case remanded to the trial court for further
proceedings consistent with this opinion.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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