        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JULY 1999 SESSION
                                              FILED
                                             September 20, 1999

                                             Cecil Crowson, Jr.
STATE OF TENNESSEE,              )          Appellate Court Clerk
                                 )
          Appellee,              )   C.C.A. No. 02C01-9902-CC-00075
                                 )
vs.                              )   Dyer County
                                 )
JOSEPH HART, A.K.A,              )   Hon. Lee Moore, Judge
ALBERT CROSS                     )
                                 )   (Speedy Trial and Interstate
          Appellant.             )   Compact on Detainers)



FOR THE APPELLANT:                   FOR THE APPELLEE:

JOSEPH ALBERT HART (pro se)          PAUL G. SUMMERS
P.O. Box 7001                        Attorney General & Reporter
Taft, CA 93268
                                     PATRICIA C. KUSSMAN
                                     Assistant Attorney General
                                     425 Fifth Ave. N., 2d Floor
                                     Nashville, TN 37243-0493

                                     C. PHILLIP BIVENS
                                     District Attorney General
                                     115 E. Market Street
                                     P.O. Box E
                                     Dyersburg, TN 38025-2005




OPINION FILED:________________


AFFIRMED IN PART, REVERSED IN PART AND REMANDED


JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The defendant, Joseph Hart, appeals the Dyer County Circuit Court’s

denial of his motions to dismiss the 1987 indictment against him for obtaining

money under false pretenses and grand larceny. See Tenn. Code Ann. §§ 39-3-

901, -1101 (1982) (repealed 1989). The defendant pleaded guilty to obtaining

money under false pretenses on December 5, 1990.1 The trial court has not

imposed a sentence on the defendant. In this appeal, the defendant alleges his

right to a speedy trial has been violated because a sentence has not been imposed

during the eight-year period since his guilty plea. Additionally, the defendant claims

the indictments against him should be dismissed because the state has failed to

comply with the Interstate Compact on Detainers Act.2 After a review of the record,

the briefs of the parties, and the applicable law, we reverse the trial court’s order

dismissing the defendant’s speedy trial issue and remand for further consideration

consistent with this opinion, and we affirm the trial court’s order dismissing the

defendant’s Interstate Compact on Detainers issue.




       1
         The defendant pleaded guilty to count 1, obtaining money under false
pretenses, and no mention was made in the plea agreement about the
disposition of count 2, grand larceny. Because no judgment has been entered,
no disposition of count 2 has been made. The state approved the count 1 plea
and certain sentencing recommendations, and it is likely that the parties’
agreement included the dismissal of count 2. We point out to the trial court for
its information, however, that count 2 is still pending and is not the subject of a
plea.
       2
           Article III of the Act provides a period of 180 days for a person in custody
of a party state to be tried in any other party state on “any untried indictment,
information or complaint on the basis of which a detainer has been lodged
against the prisoner.” Tenn. Code Ann. § 40-31-101, art. III(a) (1997). The 180-
day period is triggered by the prisoner “having caused to be delivered to the
prosecuting officer and the appropriate court of the prosecuting officer’s
jurisdiction written notice of the place of the person’s imprisonment and request
for a final disposition to be made of the indictment, information or complaint.” Id.
If a trial does not occur prior to the return of the prisoner to the original place of
imprisonment, the court shall dismiss with prejudice the untried indictment,
information or complaint. Id. at art. III(d).

                                          2
              The defendant pleaded guilty to obtaining money under false

pretenses on December 5, 1990. At that time, a sentencing hearing was scheduled

for February 11, 1991.      The defendant failed to appear for the rescheduled

sentencing hearing on February 28, 1991, and a capias was issued. In August

1991, the defendant was taken into federal custody where he has remained since

that time. On May 12, 1992, the defendant demanded a speedy trial in the trial

court. In 1994, 1996 and 1997, the Dyer County Sheriff’s Department was notified

of the defendant’s location in federal prison and tentative release dates. On

November 4, 1997, the Dyer County Sheriff’s Department requested a detainer be

placed on the defendant, and this request was granted on November 18, 1997 by

the institution where the defendant resided.



              The defendant filed a pro se Motion to Dismiss Indictments on July 20,

1998 and alleged a violation of his right to a speedy trial. On September 22, 1998,

the defendant filed a pro se Motion for Speedy Trial or Speedy Disposition of

Warrants, Information, Detainer, Indictment. The trial court denied the defendant’s

motion to dismiss the indictment of obtaining money by false pretenses by finding

the defendant’s right to a speedy trial had not been violated because the defendant

pleaded guilty. Subsequently, the defendant filed a motion to reconsider which was

denied by the trial court on February 5, 1999. The defendant filed a notice of

appeal on February 19, 1999.



              The first determination which must be made is whether the

defendant’s appeal is properly before this court at this time. Because there has

been no sentence imposed, there is no judgment of conviction to appeal. See

Tenn. R. App. P. 3(b); Tenn. R. Crim. P. 37(b); Tenn. R. Crim. P. 32(e) (“A judgment

of conviction shall set forth the plea, . . ., and the adjudication and sentence”). This

case is still pending in the trial court until a sentence is imposed upon the

                                           3
defendant. Accordingly, the defendant’s appeal can only be before this court as a

Rule 10 extraordinary appeal.



              This court may treat an improperly filed Rule 3 appeal as a Rule 10

extraordinary appeal. See State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App.

1998); State v. James Doe, No. 01C01-9102-CR-00046, slip op. at 5-6 (Tenn. Crim.

App., Nashville, June 29, 1992). Tennessee Rule of Appellate Procedure 10(a)

provides that an extraordinary appeal may be sought “if the lower court has so far

departed from the accepted and usual course of judicial proceedings as to require

immediate review . . . .” In State v. Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980),

our supreme court held that an extraordinary appeal should only be granted when

it is established that: (a) the ruling of the court below represents a fundamental

illegality, (b) the ruling constitutes a failure to proceed according to the essential

requirements of the law, (c) the ruling is tantamount to the denial of either party of

a day in court, (d) the action of the trial judge was without legal authority, (e) the

action of the trial judge constituted a plain and palpable abuse of discretion, or (f)

either party has lost a right or interest that may never be recaptured.



              We find the defendant’s appeal is an appropriate case to grant a Rule

10 extraordinary appeal because the defendant has lost a right or interest that may

never be recaptured. While this court and our supreme court have consistently held

that there is no legal right to parole, see, e.g., State v. Bush, 942 S.W.2d 489, 503

(Tenn. 1997); Kaylor v. Bradley, 912 S.W.2d 728, 733 (Tenn. Crim. App. 1995)

(citing Tenn. Code Ann. § 40-28-117(a) which states parole is "a privilege and not

a right"), we find that the defendant, while not having a right, has an interest in being

paroled from the federal charges, which he is losing with the passage of time while

he remains unsentenced. Accordingly, via Rule 10, we will review the merits of his

claims.

                                           4
                                   I. Speedy Trial

              First, the defendant alleges his right to a speedy trial has been

violated because a sentence has not been imposed during the eight-year period

since his guilty plea. The defendant contends that the sentencing phase is included

in the right to a speedy trial. The state contends that the defendant’s right to a

speedy trial ceased once he pleaded guilty. Alternatively, the state further contends

that if the right to a speedy trial extends to sentencing, the defendant’s right to a

speedy trial was not violated.



              The United States and Tennessee Constitutions guarantee the

criminally accused the right to a speedy trial in all criminal prosecutions. U.S. Const.

amends. XI & XIV; Tenn. Const. art. I, § 9. The right to a speedy trial is also

statutory in Tennessee. Tenn. Code Ann. § 40-14-101 (1997). Whether the right

to a speedy trial includes the sentencing phase has not been directly addressed by

the United States Supreme Court. However, Supreme Court decisions provide

some limited guidance.



              In one decision, the Supreme Court assumed that the sentencing

phase was included. In Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481

(1957), the defendant pleaded guilty to a charge of embezzlement. Id. at 355, 77

S. Ct. at 482. The trial court failed to sentence Pollard while he was in the

courtroom, but after Pollard left the courtroom and the prosecutor asked the trial

court about Pollard's sentence, the trial court sentenced Pollard to probation

commencing after his release from an unrelated charge. Id. at 356, 77 S. Ct. at

483.   Because the sentence was imposed after the defendant had left the

courtroom, it was void. Id., 77 S. Ct. at 483. Nearly two years later, Pollard violated

the terms of his probation and was brought before the trial court. Id. at 356-57, 77

S. Ct. at 483. The trial court set aside the original judgment and sentenced Pollard

                                           5
to two years imprisonment. Id. at 357, 77 S. Ct. at 483. Pollard appealed the

conviction, and the Supreme Court considered whether his Sixth Amendment right

to a speedy trial was violated. Id. at 359, 77 S. Ct. at 484. In addressing this issue,

the Supreme Court assumed "arguendo that sentenc[ing] is part of the trial for

purposes of the Sixth Amendment." Id. at 361, 77 S. Ct. at 486. The Supreme

Court affirmed the sentence and held that the trial court promptly corrected its error

and that any delay was not purposeful or oppressive. Id. at 361-62, 77 S. Ct. at

486.



              Many state and federal courts have concluded that sentencing

proceedings are part of the Sixth Amendment speedy trial provision. The courts

that found sentencing to be included in the speedy trial protection have relied on

Pollard. See, e.g., Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987);

Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir. 1986); United States v. Reese, 568

F.2d 1246, 1252-53 (6th Cir. 1977) (court analyzed sentencing delay as speedy trial

violation without explicitly finding that the sentencing phase was included in speedy

trial protection); Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974);

United States v. Tortorello, 391 F.2d 587, 589 (2d Cir. 1968) (per curiam); Gonzales

v. State, 582 P.2d 630, 632-33 (Alaska 1978). But see State v. Johnson, 363 So.2d

458 (La. 1978).



              Our supreme court has considered the scope of proceedings

encompassing the right to a speedy trial. See Allen v. State, 505 S.W.2d 715

(Tenn. 1974).     In Allen, the defendant, incarcerated on another conviction,

experienced a two-and-one-half year delay before his probation revocation hearing.

Id. at 716-17. In deciding that the defendant's right to a speedy trial included the

probation revocation hearing, our supreme court held that the probation revocation

proceeding is a continuation of the original criminal prosecution. Id. at 719.

                                          6
              Because sentencing must occur before a probation revocation

hearing, the constitutional right to a speedy trial necessarily includes the sentencing

phase. Accordingly, we apply the constitutional speedy trial provision to the pending

sentencing procedure in the present case.



              In determining whether a criminal defendant’s right to a speedy trial

has been violated, the Tennessee Supreme Court has adopted the approach

announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514,

92 S. Ct. 2182 (1972). Under the Barker analysis, four factors determine whether

a defendant’s right to a speedy trial has been violated. The factors are (1) the

length of the delay, (2) the reason for the delay, (3) whether the defendant asserted

his right to a speedy trial, and (4) whether the defendant has suffered prejudice from

any delay. State v. Bishop, 493 S.W.2d 81, 84 (Tenn. 1973). On appellate review,

the trial court’s determination in this regard is subject to review for abuse of

discretion. See State v. Jefferson, 938 S.W.2d 1, 9 (Tenn. Crim. App. 1996).



              Delays of more than a year automatically trigger further inquiry under

the other Barker factors. State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997), State

v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. (1997). Tennessee Code Annotated

section 40-35-209 requires the trial court to conduct a sentencing hearing “without

unreasonable delay, but in no event more than forty-five (45) days” after acceptance

of a guilty plea. Tenn. Code Ann. § 40-35-209(a) (1997).



              A review of the existing record shows that the defendant has

presented a claim upon which relief might be granted if the claim is established by

proof upon a hearing.



              The defendant entered a guilty plea on December 5, 1990, with

                                          7
sentencing set for February 1991. The defendant had not yet been sentenced at

the time the trial court denied his motion to dismiss for lack of a speedy trial in

January, 1999. Therefore, the delay in sentencing is about eight years. This factor

would weigh against the state.



              The reason for the delay can be partially attributed to the defendant.

He failed to appear for sentencing in February 1991. He was taken into federal

custody in August 1991 on an unrelated charge. He filed his first demand for a

speedy trial in May 1992. The reason for the delay in sentencing for the time in

which the defendant failed to appear for sentencing until he requested a speedy trial

must be attributed to the defendant. He cannot now complain of not receiving a

speedy trial for the time in which he was at fault for avoiding the court. See e.g.,

State v. Taylor, 771 S.W.2d 387, 399 (Tenn. 1989) (no speedy trial violation

because the delay was the result of defendant’s action).



              The reason for the delay after the defendant was incarcerated and first

requested a speedy trial in 1992 is not clear from the record. The state was aware

of the defendant’s federal incarceration because it was in contact with federal

officials regarding the defendant’s tentative release date from as early as 1994. At

this juncture, the state offers no explanation for failing to transport the defendant to

Tennessee in order for a sentencing hearing to be conducted; however, at a

hearing, the state would have the opportunity to prove justification or excuse for the

delay.



              The defendant asserted his right to a speedy trial in 1992 and again

in 1998. As the Barker court noted, the “defendant’s assertion of his speedy trial

right . . . is entitled to strong evidentiary weight in determining whether the

defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S. Ct. at

                                           8
2192-93. The state was aware that the defendant wanted to have a sentencing

hearing and finish these proceedings in 1992. The Supreme Court has declared

that the state has “a constitutional duty to make a diligent, good-faith effort to bring

him [to] trial.” Smith v. Hooey, 303 U.S. 374, 383, 89 S. Ct. 575, 579 (1969).



              The defendant asserts that he has been prejudiced by this delay in

sentencing. However, because the trial court decided the defendant’s motions

without a hearing, the defendant was not afforded the opportunity to present

evidence of prejudice. Our supreme court has held that showing prejudice is the

most important part of the Barker weighing process. See State v. Wood, 924

S.W.2d 342, 348 (Tenn. 1996).



              The defendant is currently serving a sentence in a federal prison. He

claims that he has been prejudiced because he is subject to an increased security

classification; he has been incarcerated with violent offenders, even though he has

not committed any violent crime; he has been denied access to rehabilitative

programs; and he has been denied federal parole. Additionally, he correctly states

that the possibility of concurrent state and federal sentences is being lost as he

nears completion of his current federal incarceration.



              The defendant also asserts that until he is sentenced, he can, upon

a showing of any fair and just reason, withdraw his guilty plea. Tenn. R. Crim. P.

32(f). If he were to withdraw his plea, he would be subject to a trial on the charge.3

Considering that the defendant has not been afforded an opportunity to present

evidence supporting his claims, the weight of the factor of prejudice cannot be

determined.


       3
       See n.1. A withdrawal of the guilty plea on count 1 apparently would
leave both counts of the indictment unresolved.

                                           9
              After considering these factors, we conclude that the defendant has

stated a presentable claim for consideration of a deprivation of speedy trial rights.

We reverse the trial court’s order dismissing the defendant’s speedy trial claim

without a hearing and remand this case to the trial court so that either party may

offer evidence on this issue.



              The defendant raised, but did not provide appellate argument on, the

issue of a due process violation because of the delay in sentencing. For purposes

of this appeal, that issue has been waived. We leave it to the defendant to develop

any due process violation claim on remand.



                      II. Interstate Compact on Detainers

              The defendant contends the indictments against him should be

dismissed because the state failed to comply with the Interstate Compact on

Detainers Act (the "Act"). The Act is an agreement between the United States and

the states which have adopted the Act and among the individual states which have

adopted it. The purpose of the Act is “to encourage the expeditious and orderly

disposition of [outstanding] charges and determination of the proper status of any

and all detainers based on untried indictments, informations or complaints.” Tenn.

Code Ann. § 40-31-101, art. I (1997) (emphasis added). Article III of the Act

requires that if a person has any "pending . . . untried indictment, information or

complaint . . ., the person shall be brought to trial within one hundred eighty (180)

days after" requesting a final disposition. Tenn. Code Ann. § 40-31-101, art. III

(1997).



              The Supreme Court has held that Article III of the Act does not apply

to detainers based on probation violation charges. Carchman v. Nash, 473 U.S.

716, 734, 105 S. Ct. 3401, 3410-11 (1985). The Court relied on the plain language

                                         10
of the Act in reaching its conclusion. Id., 105 S. Ct. at 3410-11. Article III applies

to any pending "untried indictment, information or complaint." Id. at 718-19, 105 S.

Ct. at 3402-03. The natural interpretation of this language is that Article III applies

only to matters that can be brought to a full criminal trial, that is, pending criminal

charges or charges being prosecuted. Id. at 724-25, 105 S. Ct. at 3405-06. The

Carchman majority held that a probation violation fell outside Article III because the

Article III language applied to the guilt phase of criminal trials. Id. at 725-26, 105

S. Ct. at 3406. The Court found that a probation violation hearing would determine

whether the probation conditions should be modified or the probationer should be

resentenced. Id., 105 S. Ct. at 3406. In either case, the probationer would not be

entitled to "the panoply of due process rights accorded a defendant at a criminal

trial.” Id., 105 S. Ct. at 3406.



              The dissent in Carchman felt that Article III's reference to "trial"

embodied the broad concept of "final disposition," Id. at 744, 105 S. Ct. at 3416

(Brennan, J., dissenting), but we agree with the Carchman majority that Article III

applies only to untried criminal charges. Although Carchman did not specifically

address at which point a criminal charge becomes untried, we hold that after the

guilt phase is completed, the charges are no longer untried for purposes of Article

III. This position is consistent with the finding in Carchman that the resentencing

function of probation revocation is outside the ambit of Article III. Id. at 725-26, 105

S. Ct. at 3406.



              The above position is consistent with State v. Evitts, 915 S.W.2d 468

(Tenn. Crim. App. 1995), where this court held the Act did not apply to a defendant

who had pleaded guilty, received judicial diversion, violated the terms of his

diversion, and was awaiting sentencing. The defendant in Evitts was in jail in

another jurisdiction when he sought to invoke Article III of the Act and be sentenced

                                          11
within 180 days of his request for final disposition. Id. at 469-70. This court held

that the remaining proceeding against the defendant was not an "untried indictment,

information, or complaint." Id. at 470 (quoting Tenn. Code Ann. § 40-31-101, art.

III(a)). See also State v. Hill, 875 S.W.2d 278 (Tenn. Crim. App. 1993).



              We also note that the proceedings which constitute a trial for the

constitutional right to a speedy trial are not necessarily the same proceedings to

which Article III applies. While there is some similarity in purposes and policy

behind the constitutional and statutory rights, there is not enough to warrant the

broad definition of trial as required for the constitutional right.



              In this case, the defendant pleaded guilty in 1990 to the indictment for

obtaining money by false pretenses. Accordingly, this indictment was no longer

“untried.” The state lodged a detainer on the defendant in 1997 for the purpose of

sentencing. The Interstate Compact on Detainers does not apply to the defendant’s

sentencing detainer.



              The judgment of the trial court dismissing the speedy trial claim is

reversed. Otherwise, the judgment of the trial court is affirmed. The case is

remanded to the trial court for further proceedings.



                                            ________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
JOSEPH M. TIPTON, JUDGE




                                           12
_______________________________
JOHN EVERETT WILLIAMS, JUDGE




                                  13
