         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 2, 2004 Session

                        STATE OF TENNESSEE v. JOHN RUFF

                      Appeal from the Criminal Court for Shelby County
                          No. 97-06150 John P. Colton, Jr., Judge



                    No. W2004-00438-CCA-R3-CD - Filed March 16, 2005


The petitioner was convicted for assault in Shelby County. During the proceedings on these
convictions, the trial court found the petitioner in contempt of court on two occasions. On appeal,
we reversed the petitioner’s convictions for assault. Upon remand, the State moved to nolle prosequi
the petitioner’s assault charges, and the trial court entered nolle prosequi on September 7, 1999,
without cost, which dismissed the assault charges against the petitioner without prejudice. These
charges were later expunged. On March 18, 2003, the petitioner filed two petitions to expunge the
contempt judgments. The trial court denied the petitioner’s petition to expunge the contempt
convictions in January of 2004. The petitioner filed a notice of appeal to this Court on February 20,
2004. The petitioner presents five issues for review: (1) whether the trial court erred under
Tennessee’s Expungement Statute by refusing to expunge the petitioner’s contempt records and the
related records in general sessions court; (2) whether the trial court clerk and the chief administrative
official of the State violated petitioner’s due process rights and the provisions of Tennessee Code
Annotated section 40-32-102 by not expunging petitioner’s contempt records within sixty days of
filing an expungement petition; (3) whether the trial court and district attorney general violated the
petitioner’s constitutional rights of due process and equal protection by causing petitioner to be held
in contempt; (4) whether the trial court improperly allowed petitioner to waive counsel on December
5, 1997, in case number 97-06150; and (5) whether the trial court had jurisdiction in case numbers
96-09407,-08 and 97-06150. We affirm the judgment of the trial court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and J. C.
MCLIN , JJ., joined.

John Ruff, Pro Se, Memphis, Tennessee.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General, and Perry Hayes, Assistant District Attorneys
General, for the appellee, State of Tennessee.
                                              OPINION

                                         Factual Background



        In 1996, some Memphis Police Department officers stopped the defendant for a traffic
violation. They arrested the defendant when he refused to sign the traffic citation the officers issued.
When they arrived at the Shelby County Jail the defendant “passively resisted” the thumb printing
procedure and then allegedly assaulted the officers. State v. John D. Ruff, No. 02C01-9801-CR-
00006, 1999 WL 281072, at *1 (Tenn. Crim. App., at Jackson, May 7, 1999). The Shelby County
Grand Jury indicted the defendant on two counts of assault. Id.

        On September 5, 1997, the trial court entered a judgment against the petitioner for contempt
in case number 97-09407. He was sentenced to ten (10) days in the workhouse for this offense.

         At proceedings on January 23, 1998 that were leading up to the petitioner’s trial for the
assault charges, case number 97-06150, he informed the court that he was unhappy with the
performance of his public defender and asked the trial court to appoint private counsel. The trial
court approved the withdrawal of the public defender. The trial court then found that the petitioner
was not indigent for purposes of appointing private counsel. The trial court offered the defendant
the opportunity to represent himself if he wanted, but otherwise ordered the petitioner to be prepared
for trial in May.

        The petitioner’s case was set for trial on May 12, 1998. When he appeared before the trial
court, the petitioner argued that he was supporting two other people and, therefore, he could not
afford private counsel. The court found the petitioner in contempt because he was not prepared for
trial and sentenced the petitioner to two days in the county jail. The petitioner then complained that
he had the right to represent himself. The petitioner then asked the trial court to reconsider and
appoint private counsel for him. The trial court denied the motion for the appointment of private
counsel.

         The petitioner went on to represent himself at trial. He was eventually convicted in a jury
trial for the two assault charges. The petitioner then appealed these convictions to our Court. John
D. Ruff, No. 02C01-9801-CR-00006, 1999 WL 281072. Our Court reversed the petitioner’s
convictions for assault because the trial court failed to scrutinize the factors necessary before
granting the petitioner’s request to represent himself at trial. Id. at *4. This Court never reached the
issue of the sufficiency of the evidence. Id. The petitioner however never appealed his contempt
convictions and they became final judgments.




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        Upon remand, the State moved to nolle prosequi the petitioner’s assault charges. The
petitioner did not object, and the trial court entered nolle prosequi on September 7, 1999, without
cost, which dismissed the assault charges against the petitioner without prejudice. State v. John
Ruff, No. W1999-01536-CCA-R3-CD, 2001 WL 58732 (Tenn. Crim. App., at Jackson, Jan. 19,
2001). The assault charges were thereafter, expunged.

        Apparently, following the entry of the nolle prosequi on the assault charges, the petitioner
orally moved the trial court to dismiss his conviction for contempt. State v. John Ruff, No. W1999-
01457-CCA-R3-CD, 2000 WL 307317, at *1 (Tenn. Crim. App., at Jackson, Mar. 24, 2000). The
trial court denied the request and the petitioner filed a motion for reconsideration on January 26,
1999. Id. The trial court also denied this written motion on May 11, 1999. Id. The petitioner filed
a notice of appeal on June 7, 1999, challenging the validity of the judgment for contempt of court.
Id. This Court denied the petitioner’s request for relief based on an untimely notice of appeal. Id.
at *2.

        On March 18, 2003, the petitioner filed two petitions to expunge the contempt judgments.
The trial court held a brief hearing on January 21, 2004, in which the trial court denied the
petitioner’s petition. That same day, the trial court entered a written order also denying the
petitioner’s petition to expunge the contempt convictions. The petitioner filed a notice of appeal to
this Court on February 20, 2004.

                                              ANALYSIS

         The petitioner presents five issues for review: (1) whether the trial court erred under
Tennessee’s Expungement Statute by refusing to expunge the petitioner’s contempt records and the
related records in general sessions court; (2) whether the trial court clerk and the chief administrative
official of the State violated petitioner’s due process rights and the provisions of Tennessee Code
Annotated section 40-32-102 by not expunging petitioner’s contempt records within sixty days of
filing an expungement petition; (3) whether the trial court and district attorney general violated the
petitioner’s constitutional rights of due process and equal protection by causing petitioner to be held
in contempt in case numbers C96-09407 and C97-06150; (4) whether the trial court improperly
allowed petitioner to waive counsel on December 5, 1997, in case number 97-06150; and (5) whether
the trial court had jurisdiction in case numbers 96-09407,-08 and 97-06150.

              Issues I & II - Denial of Petition to Expunge Contempt Convictions

        We first address the petitioner’s issues in which the petitioner argues that the trial court erred
in not expunging his convictions for contempt of court. The petitioner’s appeal stems from a final
judgment which makes petitioner’s appeal an appeal under Rule 3(b) of the Tennessee Rules of
Appellate Procedure. Rule 3(b) enumerates the judgments from which a defendant may appeal as
of right. “A final judgment in a criminal contempt” is included as a judgment from which a
defendant may appeal. Tenn. R. App. P. 3(b). However, the petitioner is not appealing from a final
judgment in a criminal contempt.


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        The petitioner is instead appealing from the trial court’s denial of his petition to expunge his
contempt convictions. Our supreme court has held that “[b]ecause of plain and unambiguous
language of Rules 3(b) and 3(c) . . . neither the State nor a criminal defendant has the authority to
appeal as of right an unfavorable ruling concerning an expungement order under Rule 3.” State v.
Adler, 92 S.W.3d 397, 401 (Tenn. 2002). Therefore, the petitioner has no appeal of right of the trial
court’s denial of his petition under Rule 3.

        Despite the fact that an appeal is unavailable under Rule 3 of the Tennessee Rule of
Appellate Procedure, we must determine whether to permit the appeal to proceed as a petition for
a writ of certiorari, as the Supreme Court did in Adler when it heard the State’s appeal that the trial
court erroneously granted an order of expungement. See id. at 401-03 (disagreeing with the State
and concluding that defendant convicted of lesser-included offense is entitled to have record
expunged of any greater offense for which jury returned not guilty verdict).

       The common law writ of certiorari has been codified in Tennessee Code Annotated section
27-8-101. That section provides:


       The writ of certiorari may be granted whenever authorized by law, and also in all
       cases where an inferior tribunal, board, or officer exercising judicial functions has
       exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of
       the court, there is no other plain, speedy, or adequate remedy. This section does not
       apply to actions governed by the Tennessee Rules of Appellate Procedure.


Tenn. Code Ann. § 27-8-101. “Generally, the writ of certiorari is limited in application and does not
normally lie to inquire into the correctness of a judgment issued by a court with jurisdiction.” Adler,
92 S.W.3d at 401. Even so, “an appellate court is within its province” to grant the writ when the trial
court’s action is without legal authority.” Id. A writ of certiorari is an order from a superior court
to an inferior tribunal to send a complete record for review, so that the court can determine whether
that tribunal has exceeded its jurisdiction, or has acted illegally, fraudulently or arbitrarily. Yokley
v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App. 1981). The writ is not available as a matter of right;
its grant or denial is within the sound discretion of the trial court and will not be reversed on appeal
unless there is an abuse of discretion. Boyce v. Williams, 389 S.W.2d 272, 277 (Tenn. 1965).

        In the case sub judice, the petitioner has not met the requirements to obtain review by a writ
of certiorari. The trial court has not “exceeded its jurisdiction, or acted illegally, fraudulently or
arbitrarily.” See Yokley, 632 S.W.2d at 126. The authority and procedure for expungement is found
at Tennessee Code Annotated section 40-32-101. That statute states:


       All public records of a person who has been charged with a misdemeanor or a felony,
       and which charge has been dismissed, or a no true bill returned by a grand jury, or a


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       verdict of not guilty returned by a jury, and all public records of a person who was
       arrested and released without being charged, shall, upon petition by that person to the
       court having jurisdiction in such previous action, be removed and destroyed without
       cost to such person . . . .


Tenn. Code Ann. § 40-32-101(a)(1).

         The petitioner’s convictions for assault were dismissed under a nolle prosequi and
subsequently expunged. The petitioner argues that because these assault convictions were expunged,
the trial court’s judgments for contempt of court should also be expunged. However, the contempt
of court judgments are judgments separate and apart from that of the assault judgments. When this
Court reversed the petitioner’s convictions for assault on direct appeal, we did not address the trial
court’s judgments for contempt of court. State v. John D. Ruff, No. 02C01-9801-CR-00006, 1999
WL 281072, at *1 (Tenn. Crim. App., at Jackson, May 7, 1999). Therefore, our reversal, and the
subsequent nolle prosequi, only addressed the assault convictions.

       The petitioner has also not timely appealed his contempt convictions under Rule 3 of the
Tennessee Rules of Appellate Procedure. The petitioner never filed a notice of appeal from his C97-
09407 contempt of court conviction. The petitioner did file a notice of appeal from C97-06150
contempt conviction, but this Court dismissed the appeal because the notice to appeal was not timely
filed.

       Therefore, the contempt of court convictions have not “been dismissed, or a no true bill
returned by a grand jury, or a verdict of not guilty returned by a jury” as required by Tennessee Code
Annotated section 40-32-101(a)(1) for the records to be expunged. The trial court has ruled
according to both the statutory law, as provided under Tennessee Code Annotated section 40-32-
101(a)(1), and the current case law, under State v. Adler, 92 S.W.3d 397 (Tenn. 2002).

       These issues are, therefore, without merit.



                    Issue III - Violation of Petitioner’s Due Process Rights

         The petitioner also argues that his due process rights were violated by the trial court and
district attorney when he was held in contempt. The petitioner’s argument in his brief begins with
a statement of his issue. The petitioner’s argument in its entirety, is as follows:


       The above Statement of the Facts show that petitioner was held in contempt of court
       under C96-09407 for exercising his constitutional right to request recusal of the trial
       court. Such Statement of the Facts further shows that petitioner was held in contempt


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        of court under C97-06150 on the misstatement of an assistant attorney general that
        petitioner allegedly failed to comply with a trial court order requiring counsel at a
        May 12, 1998, proceeding when no such order existed. In Veach v. State, [sic] 491
        S.W.2d 81, 83 (Tenn. 1973) the Tennessee Supreme Court stated that “a
        constitutional question may be raised at any time.”


This argument is followed by a restatement of the petitioner’s issue.

         In his argument, the petitioner makes no citation to the record, nor does he cite any cases that
support his argument. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure provides that
a brief shall contain “[an] argument . . . setting forth the contentions of the appellant with respect to
the issues presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record . . . relied
on.” Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated as waived
in this court.” See also State v. Sanders, 842 S.W.2d 257 (Tenn. Crim. App. 1992) (determining that
issue was waived where defendant cited no authority to support his complaint). The appellant fails
to cite any authority for his claim and fails to cite to the record. For these reasons the petitioner’s
issue is waived. Moreover, the contempt convictions were not appealed, have become final, and any
issues with respect to them cannot be raised at this time.

     Issues IV & V - Waiver of Right to Counsel and Trial Court’s Lack of Jurisdiction

         The petitioner also argues that the trial court forced the petitioner to waive his constitutional
right to counsel in proceedings concerning his assault convictions and that the trial court did not have
jurisdiction to hear the cases for simple assault, evading arrest, obstruction of process of service and
the contempt charges.

        Initially we point out that the notice of appeal refers only to the judgments from the trial court
that deny his petition to have the contempt convictions expunged. Therefore, the trial court’s
judgments denying the petitioner’s petition to expunge the contempt convictions are the only basis
for appeal in the case sub judice. Any issues dealing with the petitioner’s previous charges should
have been brought in that direct appeal. Furthermore, the assault charges have now been expunged,
so there is no adverse order from which he could launch any action, such as a direct appeal or a
petition for post-conviction relief.

        We are precluded from granting the petitioner relief with respect to this issue.

                                           Potential Pardon

       While it is highly unlikely that given the finality of the contempt convictions, the petitioner
can receive relief from the courts, he is not entirely without a means to seek redress. He may file an


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application for executive clemency. Art. III, Sec. 6 of the Constitution of Tennessee gives the
governor of this State the power to pardon the petitioner for the contempt convictions. Of course,
the decision of whether to grant the request for a pardon rests wholly with the governor and neither
the courts nor the legislature have any power to regulate that decision. See Ricks v. State, 882
S.W.2d 387 (Tenn. Crim. App. 1994).


                                         CONCLUSION

       In light of the foregoing, the judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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