United States Court of Appeals
For the First Circuit
No. 04-2238
UNITED STATES OF AMERICA,
Appellee,
v.
MARLIN TURNER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Timothy G. Watkins, Federal Defender Office, for appellant.
Paul G. Casey, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
February 15, 2006
CYR, Senior Circuit Judge. Marlin Turner appeals a
Sentencing Guidelines ruling relating to his criminal history
score, which took into account a prior juvenile adjudication in
Tennessee. Although he filed a notice of appeal from the
adjudication, it was neither pursued by Turner nor by the State.
We affirm.
I
BACKGROUND
While a minor living in Franklin County, Tennessee, in
1998, Turner ran away from a juvenile offender program, and was
subsequently arrested and arraigned in Franklin County Juvenile
Court for theft and possession of a firearm. While detained in a
juvenile facility in Rhea County, Tennessee, pending trial on these
charges, Turner vandalized and attempted to set fire to his
detention cell. Consequently, a second delinquency petition was
lodged against him in the Rhea County Juvenile Court. Meanwhile,
Turner had been adjudicated delinquent on the pending theft and
firearm charges in Franklin County, where he was committed to a
juvenile detention facility for an indefinite term.
On May 28, 1998, Turner appeared in Rhea County Juvenile
Court for a bench trial on the pending arson charges. An attorney
who had never handled a criminal delinquency case was appointed to
represent him. The court-appointed counsel consulted with Turner
before the bench trial commenced, and Turner executed a written
-2-
statement acknowledging his various procedural rights at trial,
including the right to remain silent, to be represented by counsel,
to review a copy of the charges against him, to present evidence in
his own behalf, to cross-examine the State’s witnesses, and to
“appeal” from any adverse judgment, viz., to receive a de novo jury
trial in the circuit court. Tenn. Code Ann. §§ 37-1-121 to 129,
159(a).1 Following the hearing, Turner was found delinquent,
beyond a reasonable doubt, then sentenced to an indeterminate
commitment to a juvenile detention program, which was to run
concurrently with the earlier Franklin County sentence.
Under the State’s two-tier trial system, a defendant may
opt for a bench trial in the juvenile court, with somewhat
curtailed procedural protections, after which he may opt to appeal
to the circuit court for a de novo jury trial. Accordingly,
Turner's counsel submitted a timely notice of appeal from the Rhea
County judgment. The district attorney informed Turner’s counsel
that the State would decide whether to proceed with the Rhea County
appeal once the circuit court had ruled upon Turner’s pending
appeal from the earlier Franklin County adjudication. When
Turner’s counsel learned that the circuit court had denied that
pending appeal, he concluded that the State would not pursue the
1
Although the state statute utilizes the label “appeal,” the
circuit court is not an appellate tribunal, but rather a de novo
trial court. Hereinafter, we employ the term “appeal” exclusively
in this specialized sense.
-3-
Rhea County appeal, inasmuch as the sentences imposed under both
judgments were to run concurrently. For some undisclosed reason,
however, the circuit court never scheduled Turner’s Rhea County
appeal for a de novo trial.
While in juvenile detention, Turner threatened to kill
President Clinton and the Clinton family. Upon reaching age 18,
Turner was tried in federal district court and found guilty of that
offense. Subsequently, while in custody for violating his
supervised release, Turner assaulted a correctional officer, and
was convicted. The presentence report recommended that the
district court include the two Tennessee juvenile adjudications in
its calculation of Turner’s criminal history category ("CHC") under
the Guidelines. Whereupon, Turner objected on the ground that the
concurrent sentence imposed on his Rhea County conviction was
neither final nor reliable, since the circuit court never acted
upon his pending notice of appeal. The district court denied the
objection and determined that both juvenile convictions should be
considered in calculating Turner’s CHC. On appeal, Turner
challenges this aspect of the sentencing determination.
II
DISCUSSION
The district court’s ruling on Turner’s CHC is subject to
de novo review. See United States v. Gonzalez-Arimont, 268 F.3d 8,
14 (1st Cir. 2001). The Guidelines require that we consider “any
-4-
sentence previously imposed upon adjudication of guilt, whether by
guilty plea, trial, or plea of nolo contendere, for conduct not
part of the [] offense [of conviction],” U.S.S.G. § 4A1.2(a),
which encompasses sentences imposed in juvenile adjudications, see
id. § 4A1.2(d); Gonzalez-Arimont, 268 F.3d at 14.
Turner premises this appeal upon our decision in United
States v. Florentino, 385 F.3d 60 (1st Cir. 2004) (involving
Massachusetts’ two-tier trial system). Like Tennessee, at one time
Massachusetts had a two-tier trial system, pursuant to which
criminal defendants were accorded a first-level bench trial with
more limited procedural safeguards, as well as the right to lodge
an appeal for a de novo jury trial. Unlike Tennessee, however,
Massachusetts provided that the defendant’s submission of a notice
of appeal served immediately and automatically to vacate the first-
tier conviction for most purposes. Id. at 63.2 In contrast,
Tennessee law expressly provides that the filing of a notice of
appeal does not, in any sense, vacate the first-tier conviction.
See Tenn. Code Ann. § 37-1-159(b) (“An appeal does not suspend the
order of the juvenile court.”); Anglin v. Mitchell, 596 S.W.2d 779,
789-90 (Tenn. 1980).
In affirming the district court decision to consider
Florentino’s first-tier conviction under the Guidelines, we noted
2
Nevertheless, even then we noted that the Massachusetts
courts did not treat the first-tier conviction as a “nullity for
all purposes.” Id.
-5-
that notwithstanding the labels employed by the state courts – that
the notice of appeal “vacates” the first-tier conviction (viz., as
if it had never been entered) – in actuality the appeal merely
rendered that conviction conditionally dormant (viz., subject to
reinstatement in the event the defendant, for example, withdrew or
failed to prosecute his appeal). Florentino, 385 F.3d at 63
(describing the first-tier conviction as “half asleep”). Turning
to the Guidelines’ commentary, the Florentino panel observed that
vacated convictions are to be counted unless their vacation
resulted from some legal error or newly discovered evidence,
whereas all other vacated convictions should be counted unless
“expunged,” viz., treated as if a nullity ab initio. Id. at 64.
The vacating of the Florentino first-tier conviction was neither
the result of legal error nor newly discovered evidence (but merely
the filing of a notice of appeal), and the conviction was simply
dormant, rather than expunged. Id.
Furthermore, we noted that even if the Guidelines
commentary adverted primarily to actual appellate reversals and
expungements and did not anticipate the effects of an “appeal” in
an idiosyncratic two-tier trial system, see supra note 1,
Sentencing Guidelines policy plainly suggested that the Florentino
first-tier conviction should be counted in assessing his criminal
history. Given that the two-tier system accords defendants a right
of appeal, as a counterweight to the more circumscribed procedural
-6-
protections prescribed in a first-tier bench trial, “it is hard to
see why a defendant who is convicted at the first tier and walks
away from a lodged appeal should not be treated as ‘convicted’ for
Guidelines purposes.” Florentino, 385 F.3d at 64-65 (noting that
defendant must bear the burden to show “good reason” why his
abandonment of the appeal should not be held against him). As
Florentino’s failure to appear at his de novo trial was left wholly
unexplained, the first-tier conviction was properly counted under
the Guidelines. Id. at 65.
Turner maintains that the Tennessee first-tier proceeding
is somehow less procedurally sufficient than the corresponding
proceeding in Massachusetts, hence his first-tier conviction
constituted an inherently less reliable indicium of guilt. The
sole support offered for this contention is the state statute which
prescribes that the first-tier proceeding is to be “conducted by
the court without a jury, in an informal but orderly manner.”
Tenn. Code. Ann. § 37-1-124(a) (emphasis added). However, the fact
that the proceeding is “informal” discloses little about the
adequacy vel non of the particular procedural safeguards accorded
the defendant.
The record discloses that, after consulting with counsel,
Turner voluntarily and knowingly signed an acknowledgment of his
rights, including the right to remain silent, to be represented by
counsel, to review a copy of the charges against him, to present
-7-
evidence in his own behalf and to cross-examine the State’s
witnesses, and to “appeal” from an adverse judgment, viz., to
receive a de novo jury trial in the circuit court. Tenn. Code Ann.
§§ 37-1-121 to 129, 159. Turner identifies no additional
procedural safeguard (e.g., the right to formal discovery or to
full motion practice) which was accorded Florentino under the
Massachusetts system.
By their very nature, these first-tier proceedings are
administratively streamlined, see Colten v. Kentucky, 407 U.S. 104,
114 (1972), and if the defendant thus has somewhat less than the
usual incentive to present his full case at this preliminary stage,
any such procedural limitations are fully mitigated by the right to
a de novo trial at the second tier. See Justices of Boston Mun.
Court v. Lydon, 466 U.S. 294, 310 (1984); Florentino, 385 F.3d at
62-63. Absent evidence of any particular and palpable procedural
deficiencies in the juvenile hearing, Turner has not distinguished
his case from Florentino in this respect. Finally, inasmuch as
Turner was represented by counsel, his argument constitutes an
impermissible collateral attack on a state court conviction based
upon alleged procedural deficiencies. See United States v. Fraser,
388 F.3d 371, 375 (1st Cir. 2004) (“Even if the procedures used by
the state court were somehow deficient, that would not warrant
discounting the disposition . . . absent a claim, not made here,
that the defendant was entirely without counsel.”).
-8-
Turner next contends that while Florentino willfully
failed to appear at his de novo trial, Turner’s first-tier
conviction remained extant through no fault of his own, and
accordingly it was the State which failed to follow up on his
timely appeal from the first-tier conviction. This contention is
flawed as well.
First, this claim is entirely based upon Turner's
counsel's alleged “understanding” that the State had affirmatively
abandoned its efforts to impose the Rhea County sentence because,
in the interim, the circuit court had affirmed the concurrent
sentence on the Franklin County conviction, and thus the State
would obtain no practical benefit by pursuing the Rhea County
appeal. The record contains no support for counsel’s subjective
understanding, however.
The State district attorney advised Turner’s counsel that
he would not decide whether to respond to the Rhea County appeal
until after the Franklin County appeal had been concluded, but
Turner's counsel never received notification that the district
attorney had chosen not to respond. Instead, when the circuit
court failed to docket or schedule a de novo trial, Turner’s
counsel simply assumed that the State had abandoned its efforts to
maintain the first-tier conviction. As the appellee, however, the
State could not withdraw the appeal; rather, as the appellant, only
Turner could do so. Thus, all Turner reasonably could assume,
-9-
without further consultation with the circuit court clerk, would be
that, for some unidentified reason, the clerk had failed to docket
a de novo trial date. Conceivably, such failure was due entirely
to administrative oversight,3 yet though fully aware of the
omission, Turner presumably failed to contact the clerk to
determine the status of his notice of appeal. See, e.g.,
Christopher v. Spooner, 640 S.W.2d 833, 836 (Tenn. App. 1982)
(noting that parties should not be allowed to take advantage of a
clerical oversight of which parties were fully aware). Thus, it is
simply inaccurate to suggest that Turner was faultless; as the
appellant, he bore the burden to utilize all reasonable measures to
prosecute his appeal.
The Turner default is more consequential than the
Florentino default under the Massachusetts two-tier system, since
Turner's first-tier conviction did not become dormant after the
filing of his notice of appeal, but remained in full effect. See
Tenn. Code Ann. § 37-1-159(b) (“An appeal does not suspend the
order of the juvenile court.”). Consequently, Turner knew that
mere filing of a notice of appeal did not undo his first-tier
conviction, and that unless he could successfully prosecute an
3
Once again, insofar as the Turner contention would require us
to speculate about the reason the appeal was not docketed, it
represents an impermissible collateral attack upon the validity of
a state court conviction. See Fraser, 388 F.3d at 375; United
States v. Burke, 67 F.3d 1, 3 (1st Cir. 1995) (noting that such
collateral challenges “would hopelessly complicate sentencing under
the federal Guideline[s]”).
-10-
appeal and win a de novo trial and acquittal, his first-tier
conviction would remain fully intact and in effect.
Turner would have the court disregard this essential
difference between the Tennessee and Massachusetts systems, on the
ground that the countability of a prior state sentence for
Guidelines purposes constitutes a question of federal law. See
United States v. Mateo, 271 F.3d 11, 15 (1st Cir. 2001). However,
that may be, the manner in which "state law treats an event in its
own court system is relevant to deciding how to classify the event
for federal purposes.” Florentino, 385 F.3d at 62. Thus, the
Turner decision to allow the first-tier conviction to remain intact
brings his case squarely within the failure-to-prosecute rule cited
in Florentino.
Affirmed.
-11-