Juan Cerano v. State of Tennessee - Double Jeopardy Appeal

IN THE COURT O F CRIMINAL APPEALS OF TENNES SEE AT JACKSON Assigned on Briefs F ebruary 3, 2026 JUAN CERANO v. STATE OF TENNESSEE Appeal from the Crim inal Court for Shelby Count y No. 14-01165 David L. Pool, Judge No. W2025-0037 9-CCA-R3-PC The Petitioner, Juan Cerano, appeals the trial court’s summary dismis sal of his petition for a writ of certiorari or supersedeas. Specifica lly, he contends that he is entitled to relief because he was twice punished for a single a ct in violation of double jeopardy and that merger of h is conv ictions for aggr avated sexu al battery and rape o f a child was imp roper. The Pe titioner’s notice of appeal was fi led al most two a nd one-h alf months late; an issue pointed out by the St ate on appeal. Follow ing our review, we conclud e that the interest of justice doe s not r equire waiv er of th e timely filin g requir ement because t he Pe titioner ha s given no expl ana tion for the untimely f iling, and the nature of his doubl e jeopard y issue does not wa rrant such. Accordingly, we di smiss the appeal. Tenn. R. App. P. 3 Appeal as of Right; Appe al Dismisse d K YLE A. H IXS ON, J., delivered the opinion of the court, in which M ATTHEW J. W ILSON and S TEVEN W. S WORD, JJ., joined. Juan Cerano, Ha rtsville, Tennessee, Pro Se. Jonathan Skrmetti, Atto rney General and Reporter; Benjamin A. Ball, Senior Assista nt Attorney Ge neral; and Steve Mulroy, District Attorney General, for t he appel lee, St ate of Tennessee. OPINION Following a jury trial, the Pe titioner was convicte d of aggravated sexual battery and rape of a c hild. State v. Cerano, No. W2015-0 2234-CCA- R3-CD, 2017 WL 1788737, at *1-6 (Tenn. Crim. Ap p. May 4, 2017), no p erm. app. file d. The t rial court me rged the aggravated sex ual battery conviction in to t he rape of a child convict ion and sentence d the Petitioner to t hirty years in p rison. Id. at *1. Th e P etitioner appealed to this court, arguing 03/02/2026

only “that the tria l court erred by denying his motio n to produ ce records from the Department of Children’s Services [(“ DCS”)] regarding prior alleg atio ns of abuse after an in camera in spection.” Id. T his court affirmed due to deficienc ies in the appe llate re cord, particularly t he absence of the DCS r ecords and any order or transcr ipt of the tr ial court’ s associated r uling. Id. at * 7. T hereafter, the Petitioner pursued post-conviction relief, claiming that trial counsel was ineffective due to his failure to include the r elevant materials on direct appeal. Cerano v. State, No. W2018-02037- CCA-R3- PC, 2020 WL 3482130, at *1 (Tenn. Crim. App. June 25, 2020), perm. app. denied (Tenn. O ct. 12, 2020). The post-convicti on court d enied relief. Id. On appeal, this court determi ned tha t the Petitioner had failed to establish prejudice from trial counsel’s deficie nt performance a nd affirmed. Id. at *11. On July 19, 2024, the Petit ioner filed a pe tition for a writ of certiora ri a nd supersedeas, contendin g that he was twice pun ished for the “same off ense” in violation of double je opardy a nd t hat merger of his convic tions was imp roper. H e requested reversal of his convi ctions, as well as dis missal of the indic tment. The tria l court summa rily dismissed the peti tion on December 5, 2024, finding that the writ of certio rari was not available because the Peti tioner’s d ouble jeo pardy claim s hould have been pursued on direct appe al. A ddress ing the m erits of the Pe titioner’s issue, the tria l court noted t hat the Petitioner’s double jeo pardy righ ts were prot ected b y, rathe r tha n in fringed u pon by, the exact procedure of which the Petitioner complained, i.e., “ merger of [the] Petitioner’s conviction[s]... prevent ed [the] Petiti oner f rom be ing puni shed m ore tha n onc e for th e same conduct. ” On March 18, 2025, the Appellate Co urt Clerk ’s Office f iled the Petitioner’s notice of appe al docu ment. In the notic e, the Pe titioner states t hat the doc ument was “ [r]espectfu lly submitted this 22n d, day of Februa ry[], after the Unifor m Civil Affida vit of In digency was provided from prison-records.” After providing the date of Fe bruary 22, 2025, the Pe titioner inserts a f ootnote and refers to “the annexed photocopy of [an] enve lop[e] t o establish [the] date of receipt of Judgment. ” There is no specific st atement included therein regarding to who m in the correctiona l facility the Petition er submi tted the document. I t also is not no tarized. The attach ed envelope shows t hat it was maile d from the Shelby Cou nty Cri minal Clerk’s Office to the Petitioner; reflects a post mark of January 7, 2025; and bears a received-stampe d date of January 13, 202 5. On a ppeal, the Pe tition er frames the issue as whether his “sen tence is in violation of the Doub le Jeo pardy Clause, because he was punished twice [for] a single act, althoug h the offenses he was c onvic ted of were merge d.” He affirms th at he is ap pealing from the trial court’s ruling tha t “it was requ ired to merge the rap e of a chil d conviction int o the

aggravated sex ual ba ttery” c onviction b ec ause “the offenses ste m[med] from a single criminal a ct.” T hen, in th e argument se ction o f h is br ief, he foc uses on his inability to obtain a c opy of the se ntencing hearing transcri pt, which w ould, accor ding to the Petitione r, “show th at even if the aggravated sexual ba ttery conviction was mer ged into the rape of a child, he still was sentenced for both convictions.” He requests remand for a new sentencing heari ng “b ased on a single c onvicti on.” The Petitioner m akes no me ntion in hi s principal brief of the thirty-day filing period for his notice of appeal. The State responds by asking us to dismis s this case due to t he Pe titioner’s failure to file his notice of appea l in a timely fashion o r, alterna tively, to affir m the summa ry dism issal of relief. Th e Petitioner has not respo nded to the State’s untim eliness argument. A notic e of appeal must be “filed with the clerk of the appellate court within [th irty] days after the date of entry of the judgment appealed from [.]” Tenn. R. App. P. 4(a). “An untimely notice of appea l can, and often does, result in a dismissal of the appeal.” State v. Manning, No. E20 22-01715-CC A-R3- CD, 2 023 WL 74 39203, at * 3 (Tenn. Cri m. App. Nov. 9, 2023), perm. a pp. de nied (Tenn. May 16, 2024). H owever, “in all cri mina l cases the ‘notice of appeal’ document is not j urisdict ional,” and thi s court m ay waive t he time ly filing require ment when the interest of ju stice mandates such. Te nn. R. App. P. 4(a). Waiver is not automa tic, and the appea ling p arty be ars the r esponsi bility to demonstrate that t he interest of justi ce merits w aiver of an untimely notice of a ppeal. Ma nning, 2023 WL 7 439203, at *3 (citations omit ted). “ In d etermining whe ther wa iver is approp riate, this court w ill consider the nature of the issue s presented for review, the reason s for and the length of the dela y in seeking relief, and any other r elevant fact ors pre sented in the particular case.” State v. Rockwell, 2 80 S.W.3 d 212, 214 (Tenn. Crim. App. 2007) (citat ion omitted). O ther re levant factors include an a ppellant’s fa ilure to acknowledge the la te filing and eithe r affirmative ly request a waive r of the timely f iling require ment or respond to the State’s brief raisi ng the untimely filing as an issue. Manning, 2023 WL 7439203, at *5 (citing Rockwell, 280 S.W.3d a t 214). The trial court’s order in the present case dismis sing the petition for writ of certio rari or supersede as was filed on Decembe r 5, 2024, so the deadlin e, under normal rules of ti me computatio n, for the Pe titioner to file a ti mely notice of a ppeal was on or before January 6, 2025. See Te nn. R. Ap p. P. 4(a), 21(a). The notice of appeal docume nt in this c ase, filed on March 18, 2025, was al most tw o a nd one-half months la te. Nevert heless, the incarcerated Petitioner is representing himself, which triggers Rule 20(g) of the Tennessee Rules of Appe llate Proc edure, c ommonly refe rred to as “the prison mailbox rule.” The prison mailbox rule per mits document s filed by an incarcerat ed pro se liti gant to be deem ed timely “ if the papers w ere delivered to the a pp ropriate indiv idual a t th e correctional facil ity

within the time fix ed for filing.” Tenn. R. A pp. P. 20(g). W here ti meliness o f filing is at issue, the b urden of proving time ly deliv ery is on the i nmate. Id. At the outset, we note tha t the Petitioner fa ils to a cknowledge the lat e filin g o f t he notice of appeal. He ha s not a ffirmative ly re quested a waiver of the timely fil ing requirement or r espon ded to the S tate’s brief raising the untime ly filing as a n iss ue. “[W]here a part y does not request th at partic ula r relief be grante d, w e will be relucta nt to intervene otherwi se.” Manning, 20 23 WL 7439203, a t *5 (citing Tenn. R. App. P. 13(b)). While the Petitioner do es not specifically provide any reason for the delay, we note that the Petitioner in his notic e of appea l refe rs to the a ttached e nvelope for t he date he received the “ Judgmen t” after pro viding the February 2 2, 2025 d ate of “sub mission.” Thus, he se emingly impl ies tha t the thirt y-day deadlin e to file a not ice of a ppeal w ould begin to run upon his recei pt of the “Judgment.” First, while the atta ched envelo pe bears a re ceived-stamped da te of January 13, 202 5, there is no in dicati on anywhere o n the envelope of the c ontents contained th erein. But most impor tantly, while the Petitio ner insinuates that th e date he received the “ Judgme nt” begi ns the running of the thirty- day filing period, ther e is n o legal basis for such assumption. See State v. Nanc e, No. E2 024- 01113-CCA-R3- CD, 2025 WL 3546 36, at *3 (Tenn. Crim. App. Ja n. 31, 2025) (reject ing the defendant’s argum ent for w aiver o f the timely filing of his n otice of appeal where he misunderstood t he appl icable la w and beli eved that he had thirty days from the date of his receipt of the tr ial court’s orde r de nying relief, rathe r than thirty da ys from the date of th e trial court’s entry of the order denying relief), pe rm. app. denied (Ten n. May 23, 20 25). A “presumed misun derstandin g of the law [] w eighs again st a waiver” of the timel y fil ing requirement of a notice of a ppeal. Rock well, 280 S.W.3d at 214. This court has repeate dly declined to waive the timely fi ling re quireme nt of a notice of ap peal where an appellant asserts a misun derstanding of the a pplicable law. Se e Nanc e, 2025 WL 354636, a t *3 (citing cases). Relevant to any potential application of the prison mailbox rule utilizing the correct dates for a nalysis, we note that the Petitioner states in his not ice of appeal that the documen t was subm itted on February 22, 20 25. However, there is no ind ication there in t o whom at the correctional facility the Petitioner submi tted his n otice of a pp eal, and w e have no notations by a nyone at t he c orrectional facility on the document. Also, the docu ment is not notarized. From t he informa tion p rovided, w e cannot conclude tha t th e Petitioner c omplied

with Ru le 20(g) in any meaningful way. 1 Se e, e.g., State v. Kroes e, No. M2024- 01166- CCA-R3-CD, 2025 WL 1091841, at *2 (Tenn. Crim. App. Apr. 9, 2025) (determining that the defendant ha d not met her burden of p roving timely de livery pursuant to Ru le 20(g) because the on ly p roof in the record was the defendant’s own declara tion of comp liance), no perm. app. file d. As for the na ture of the double jeopardy issue presented for re view, we observe tha t the Petitioner’s request ed relief on appeal, rema nd for a new sentencing hearing “based on a single convi ction,” i s inconsistent with the relief requested in the tr ial court, reversal of his c onvictions and d ismissa l of the indictm ent. The argu ment also had a dditional facets not p resented to the tri al court. Regardle ss, the doctrine of m erger pr ovides tha t “ under certain circ umstanc es, two c onvictions or d ual guilty verd icts must merge into a single conviction to avoid double jeopardy implicat io ns.” State v. Be rry, 5 03 S.W.3d 360, 362 (Tenn. 2 015). For example, whereas here, a ju ry returns v erdicts of guilt on two offense s and one of the verdict s is a le sser include d offense, me rger req uires the lesser include d offense to be merged i nto the greater offen se. Se e id. (citing State v. Davis, 466 S.W.3d 49, 77 (Te nn. 20 15)). Such merger was effectua ted here. The t rial court aptly noted that the Petitio ner’s d ouble jeopardy rights were protec ted by, rath er th an infringed upon by, the exact pro cedure of which he co mplains. 2 “If this court were to summarily grant a waiver whenever confronted with untimely notices, the thirty-day requirement of T ennesse e Rule of Appellate Procedure 4(a) w ould be r endered a legal fict ion.” Rockwell, 280 S.W. 3d at 214. In summa ry, we h old tha t the “interest of justic e” d oes not weigh in favor of waiving the requirem ent of a timel y-filed notice of appeal. See, e.g., Nance, 2025 WL 354636, at *2-4 (declin ing to waive an untimely notice of a ppeal w hen the defen dant misunder stood t he pris on mailbo x rule a nd the nature of the issues presented did not raise colorable claims for relief under Rule 36.1); 1 We note that, even affording the Petition er the benefit of using the dates of when he received th e “Judgment” (January 13, 20 25) as the s tarting d ate f or the thirty-day filing p eriod and when h e “ submitted” the notice of appe al document (Fe bruary 22, 2025) as t he day of filing, his notice of a ppeal was s till ten days late. 2 We note that this court has specifically concluded that the denial of a petiti on for a writ of certiorari does no t provide a basis f or an appe al as of r ight. See State v. Rickard, No. M2025-00159-CCA- R3-CD, 2025 WL 2356197, at *2 (Tenn. Crim. App. Aug. 14, 2025) (concluding “tha t this court la cks jurisdiction to adjudicate the [p]etitione r’s appeal” because the de nial of a petition f or writ of certiorari “falls outside the ap pellate authority conferred by Tennessee Rule o f Appellate Procedu re 3(b)”), no perm. app. filed. However, the issue was not briefed by the parties, see Stat e v. Bristol, 654 S.W.3d 917, 928 (Tenn. 2022), a nd r esolution of this issue is unnecessary f or the purposes of our dismissal based upon t he Petitioner’s untimely filing of th e notice of appeal.

State v. Cook e, N o. M2019- 01164-CCA -R3-CD, 2020 WL 3606451, at *2 (Tenn. Cr im. App. Jul y 2, 2020) (decl ining t o wa ive an u ntimely notice of ap peal, in pa rt, w hen the defendant failed to r espond to the S tate’s argument that the motion for new tr ial and n otice of appeal wer e untimely). For the se reasons, t he appeal is dismi ssed. s/Kyle A. H ixson. KYLE A. HIXSO N, JUDGE