        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                   Assigned on Briefs June 29, 2010

        STATE OF TENNESSEE v. RONNIE EDWARD SEXTON
                 Appeal from the Criminal Court for Jefferson County
                          No. 9656 O. Duane Slone, Judge


                 No. E2009-00292-CCA-R3-CD - Filed October 6, 2010




The Defendant, Ronnie Edward Sexton, pled guilty to burglary, a Class E felony, two counts
of aggravated assault, a Class C felony, and theft of property valued at less than 500 dollars,
a Class A misdemeanor, with sentencing left to the discretion of the trial court. Following
a sentencing hearing, the trial court sentenced the Defendant as a Range I, standard offender
to two years for the burglary conviction, six years for each aggravated assault conviction, and
11 months and 29 days for the misdemeanor theft conviction. The trial court also found the
Defendant qualified as a dangerous offender and ordered consecutive service of one of the
aggravated assault convictions, for a total effective sentence of 12 years. In this appeal as
of right, the Defendant contends that the trial court erred in its imposition of sentence. The
Defendant failed to file a timely notice of appeal. Because we discern no reason to waive the
timely filing of the notice of appeal, the appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Edward Cantrell Miller, District Public Defender; and Russell Veldman, Assistant Public
Defender, for the appellant, Ronnie Edward Sexton.

Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; James B. Dunn, District Attorney General; and Jeremy D. Ball, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       On August 11, 2008, the Defendant pled guilty to burglary, two counts of aggravated
assault, and theft of property valued at less than 500 dollars. Pursuant to the guilty plea,
sentencing was left to the trial court’s discretion. On October 6, 2008, following a full
sentencing hearing, the trial court imposed an effective sentence of 12 years and denied all
forms of alternative sentencing. On that day, the Defendant was also sentenced in Case
Number 9416, for which he received a total effective sentence of 11 months and 29 days for
several misdemeanor convictions. The trial court ordered the Defendant to serve his sentence
in Case Number 9416 consecutively to the sentence he received in Case Number 9656. The
Defendant did not appeal his sentence in Case Number 9416. However, the Defendant filed
a notice of appeal appealing his sentence in Case Number 9656 on February 13, 2009 –
almost four months after the entry of judgments.

        On appeal, the Defendant challenges the trial court’s sentencing determinations as to
the lengths of his sentences, manner of imposition, and denial of alternative sentencing. The
State asks that the appeal be dismissed for failure to file a timely notice of appeal.
Alternatively, the State contends that the Defendant has waived consideration of these issues
due to his failure to include a transcript of the guilty plea submission hearing and the
presentence report in the record on appeal. In the absence of waiver, the State responds that
the trial court correctly sentenced the Defendant. Following our review of the record, we
conclude that the interest of justice does not require that we waive the timely filing of the
notice of appeal in this case. Accordingly, the appeal is dismissed.

                                         ANALYSIS

        Pursuant to Tennessee Rule of Appellate Procedure 4(a), a notice of appeal “shall be
filed with and received by the clerk of the trial court within 30 days after the date of entry of
the judgment appealed from[.]” The judgments in this case were filed on October 21, 2008;
however, the notice of appeal was not filed until February 13, 2009. While we acknowledge
that there are certain motions and petitions that toll the time for filing the notice of appeal,
the record is devoid of any evidence that the Defendant filed any tolling motions in this case.
Tenn. R. App. P. 4(c). In fact, other than a vague reference in the untimely notice of appeal
that the “sentencing ruling” was “re-affirmed on January 14, 2009,” the record is devoid of
any evidence that the trial court reconsidered or re-affirmed its previously imposed
sentencing decision. Thus, the notice of appeal in this case should have been filed within
thirty days of the filing of the judgments on October 21, 2008.

        We acknowledge that the untimely filing of a notice of appeal is not always fatal to
an appeal. State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). Rule 4(a)
states that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the
filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a).
“‘In determining whether waiver is appropriate, this court will consider the nature of the

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issues presented for review, the reasons for and the length of the delay in seeking relief, and
any other relevant factors presented in the particular case.’” Rockwell, 280 S.W.3d at 214
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415,
at *1 (Tenn. Crim. App. Dec. 27, 2005)). Waiver is not automatic and should only occur
when “the interest of justice” mandates waiver. If this court were to summarily grant a
waiver whenever confronted with untimely notices, the thirty day requirement of Tennessee
Rule of Appellate Procedure 4(a) would be rendered a legal fiction. Id.

        The Defendant’s brief contains no explanation or discussion regarding the untimely
filing of the notice of appeal. We also note that a review of the procedural history of this
appeal reveals a much delayed process of both perfecting the record and filing the briefs.
Indeed, as noted by the State, the record remains insufficient for adequate review of the
sentencing issues raised by the Defendant since it contains neither the guilty plea submission
hearing nor the presentence report. The absence of the guilty plea hearing transcript is
particularly important because

              For those defendants who plead guilty, the guilty plea hearing is
              the equivalent of trial, in that it allows the State the opportunity
              to present the facts underlying the offense. For this reason, a
              transcript of the guilty plea hearing is often (if not always)
              needed in order to conduct a proper review of the sentence
              imposed.

State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999). Following the filing of the
State’s brief noting these procedural shortfalls, the Defendant did not seek either to
supplement the record or to waive the timely filing of the notice of appeal. All of these
factors weigh heavily against waiver of the timely filing of the notice of appeal in this case.
For these reasons, we conclude that the interest of justice does not require a waiver of the
timely filing of the notice of appeal. Accordingly, the Defendant’s appeal is dismissed as
untimely.

                                       CONCLUSION

        Having concluded that the interest of justice does not require a waiver of the timely
filing of the notice of appeal, the appeal is dismissed.


                                                   D. KELLY THOMAS, JR., JUDGE




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