                                                                                           11/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 2, 2018

               STATE OF TENNESSEE v. MARCUS WILLIAMS

                  Appeal from the Criminal Court for Shelby County
                     No. 14-02640       W. Mark Ward, Judge
                      ___________________________________

                           No. W2018-00498-CCA-R3-CD
                       ___________________________________


On March 2, 2018, the Defendant, Marcus Williams, was convicted of two counts of
identity theft; two counts of theft of property over $500 but less than $1000; one count of
fraudulent use of a credit/debit card over $1000 but less than $10,000; and two counts of
fraudulent use of a credit/debit card over $500 but less than $1000. He was sentenced as
a Range II, multiple offender to a total effective sentence of twenty-four years, to be
served consecutively to a prior twenty-year sentence, for a combined total of forty-four
years. On appeal, the Defendant asserts that there is insufficient evidence to sustain his
convictions and that the trial court abused its discretion in denying his motion to sever the
offenses. After thorough review, we dismiss this appeal.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.

J. Shae Atkinson (on appeal), and Juni Ganguli (at trial), Memphis, Tennessee, for the
appellant, Marcus Williams.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Holly Palmer and
Glenda Adams, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                        OPINION

                                          FACTS
        On May 20, 2014, a Shelby County grand jury indicted the Defendant for two
counts of identity theft; two counts of theft of property over $500 but less than $1000;
one count of fraudulent use of a credit/debit card over $1000 but less than $10,000; and
two counts of fraudulent use of a credit/debit card over $500 but less than $1000. At
trial, the State presented evidence that the Defendant had, with the help of a co-
defendant, stolen personal property and credit/debit cards from multiple restaurants and
department stores. Though the Defendant moved to sever the offenses, the trial court
found that the incidents were part of a common scheme or plan and denied the motion.

       Following the jury trial, the Defendant was convicted of all counts as charged and
sentenced as a Range II, multiple offender to 8 years each for counts 1 and 2; 11 months
and 29 days each for counts 3, 4, 6, and 7; and 4 years for count 5, all to served
consecutively to each other and to the Defendant’s prior twenty-year sentence, for a total
effective sentence of forty-four years, to be served in the Department of Correction.

       On May 19, 2018, the Defendant filed a notice of appeal, arguing that there is
insufficient evidence to sustain his seven convictions and that the trial court abused its
discretion in denying his motion to sever the offenses.

                                           ANALYSIS

       On August 23, 2018, three months after a notice of appeal was filed and while said
appeal was pending, the State notified this court that the Defendant was mistakenly
released from the Shelby County Jail, and a warrant had been issued for his arrest. This
court ordered the State to provide an update on the Defendant’s status on October 26,
2018. On October 31, 2018, the State relayed to this court that the Defendant remains out
of custody, and the warrant for his arrest remains outstanding.

       In Bradford v. State, 202 S.W.2d 647 (Tenn. 1947), our supreme court examined
the issue of what should happen to a fugitive defendant’s pending appeal or motion for
new trial. In that case, the court determined that the “general rule” of dismissing a
fugitive defendant’s pending appeal should also be used in determining his motion for
new trial. The court stated:

       [W]here the appellant has escaped and become a fugitive from justice . . .
       [the court’s] order and judgment may never be enforced because the
       appellant, by escaping, has placed himself beyond the control of the court,
       and therefore has waived his right to be heard either by himself or by his
       counsel.

Id. at 648 (internal citations omitted).
                                             -2-
       The court further opined that the defendant’s conduct “was in legal effect an
abandonment” of his pending matters with the court. Id. at 649. Accordingly, the court
found that a fugitive defendant’s appeal should be peremptorily dismissed on motion. Id.
at 648-49. More recently, our supreme court discussed this practice, known as the
fugitive disentitlement doctrine, in Searle v. Juvenile Court for Williamson County, 188
S.W.3d 547 (Tenn. 2006). In Searle, the court thoroughly explained the fugitive
disentitlement doctrine:

       The fugitive disentitlement doctrine bars an individual from calling upon
       the resources of the court while at the same time “thumbing his nose” at its
       orders. Because individuals who have fled or escaped have displayed a
       defiance for the judicial system, appellate courts have been reluctant to hear
       their appeals. “The fugitive disentitlement doctrine limits access to courts
       in the United States by a fugitive who has fled a criminal conviction in a
       court in the United States. The doctrine is long-established in the federal
       and state courts, trial and appellate.”

Id. at 550 (internal citations omitted).

        The Searle court further found that the standard for defining a “fugitive” for
purposes of the fugitive disentitlement doctrine is broader and less stringent than that for
other purposes, like extradition cases. Id. at 551. The Searle court specifically cited the
example of Molinaro v. New Jersey, 396 U.S. 365 (1970), in which the United States
Supreme Court dismissed the appeal of a defendant who had been released on bond but
failed to surrender himself. The United States Supreme Court has consistently reached
such a conclusion. See, e.g., Smith v. United States, 94 U.S. 97 (1876); Bonahan v.
Nebraska, 125 U.S. 692 (1887).

        While we are aware that the Defendant did not escape from the Shelby County
Jail, but was mistakenly released, we find that he is a fugitive for purposes of the fugitive
disentitlement doctrine. There is an active warrant for his arrest, but he has purposely
continued to place himself “beyond the physical reach of the court.” See Searle, 188
S.W.3d at 552. The Defendant was sentenced to a total effective sentence of forty-four
years, and as such, is aware that his decades-early release was a mistake. We find no
persuasive reason why this court should adjudicate the merits of his appeal, and we
accordingly find that, by his fugitive status, he has waived his right to appeal his
convictions through the resources of this court.

                                       CONCLUSION



                                            -3-
      Based on the foregoing authorities and reasoning, we dismiss the appeal as
waived.

                                       ____________________________________
                                       ALAN E. GLENN, JUDGE




                                      -4-
