State v. Sluder ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
December 23, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
APPELLEE, )
) No. 03-C-01-9509-CC-00272
)
) Morgan County
v. )
) E. Eugene Eblen, Judge
)
) (Sentencing)
BENNY SLUDER, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Walter B. Johnson, II John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 334 500 Charlotte Avenue
Harriman, TN 37748-0334 Nashville, TN 37243-0497
OF COUNSEL: Eugene J. Honea
Assistant Attorney General
Joe H. Walker 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P.O. Box 334
Harriman, TN 37748-0334 Charles E. Hawk
District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
Frank A. Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
OPINION FILED:____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
This court previously rendered an opinion in this case. The opinion was filed in
Knoxville on February 12, 1997. The appellant, Benny Sluder (defendant), filed a Rule 11,
Tennessee Rules of Appellate Procedure, application for permission to appeal in the
supreme court. The application was granted and the cause remanded to this court with
instructions to consider whether the trial court properly ordered the defendant to serve his
sentence consecutively to the sentence he was serving when he committed the offense.
After a thorough examination of the record, the briefs of the parties, and the law governing
the issue presented for review, it is the opinion of this court that the judgment of the trial
court should be affirmed.
The defendant entered a plea of guilty to possessing marijuana while an inmate in
a correctional institution. Tenn. Code Ann. § 39-16-201. When the offense occurred, the
defendant was incarcerated in the Morgan County Regional Correctional Facility. On
January 18, 1992, correctional officers found 27.5 grams of marijuana in the defendant’s
possession. The trial court sentenced the defendant pursuant to a plea agreement. The
parties agreed the defendant was a Range III persistent offender, the sentence to be
imposed was confinement for ten (10) years in the Department of Correction, and the
question of whether the sentence should be served consecutively to the sentence he was
serving when he committed the offense would be submitted to the trial court for
determination. The court ordered the sentence imposed to be served consecutively to the
sentence he was serving.
After a de novo review of this issue pursuant to the mandate of Tenn. Code Ann.
§ 40-35-401(d), this court is of the opinion the trial court did not abuse its discretion by
requiring the two sentences to be served consecutively. The defendant was trafficking in
marijuana inside the prison. Given these circumstances, this court believes the defendant
committed an extremely serious offense. In addition, the defendant had been convicted
of seven prior felonies.
Unfortunately, the defendant is beyond the rehabilitative stage in view of his prior
history of criminal convictions. Confinement in a prison did not deter the defendant from
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continuing to engage in criminal activity.
This court is of the opinion the defendant qualifies for consecutive sentencing
because he has an extensive record of criminal activity. Tenn. Code Ann. § 40-35-
115(b)(2). Furthermore, the facts in this case meet the criteria set forth in State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995).
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
DAVID G. HAYES, JUDGE
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