State of Tennessee v. Austin Dean ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 26, 2016 Session
STATE OF TENNESSEE v. AUSTIN DEAN
Appeal from the Criminal Court for Knox County
No. 103539A Steven W. Sword, Judge
Nos. E2015-01217-CCA-R3-CD & E2015-02366-CCA-R3-CD
Filed October 7, 2016
The Defendant, Austin Dean, pleaded guilty to eleven counts of aggravated robbery, Class B
felonies. See T.C.A. §§ 39-13-402 (2014). Pursuant to the plea agreement, the trial court
merged Counts 2 and 3 into Count 1, merged Counts 5, 6, and 7 into Count 4, and merged
Counts 9, 10, and 11 into Count 8, and the court would determine the length and manner of
service of the sentences. The trial court imposed three eight-year sentences and ordered
partial consecutive service, for an effective sixteen-year sentence. On appeal, the Defendant
contends that the trial court erred by ordering consecutive service.1 We affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.
Wesley D. Stone (on appeal and at motion to reduce sentence) and Bruce Alldredge (at guilty
plea and sentencing hearings), Knoxville, Tennessee, for the appellant, Austin Dean.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Charm P. Allen, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.
1
After the Defendant filed his notice of appeal regarding the trial court‟s sentencing determinations, the
Defendant filed a motion to reduce his sentence pursuant to Tennessee Criminal Procedure Rule 35. This court
stayed the appeal in docket number E2015-01217-CCA-R3-CD pending the outcome of the Defendant‟s
motion. The trial court ultimately denied the motion, and the Defendant filed a subsequent notice of appeal,
which was assigned docket number E2015-02366-CCA-R3-CD. The cases were consolidated under docket
number E2015-01217-CCA-R3-CD.
OPINION
At the guilty plea hearing, the State‟s recitation of the facts showed that
[t]he testimony would be that on March 17th, 2014, that Mr. Jose
Vincente was at the Super Wash House on Central. While washing his clothes,
the proof would be that Mr. Austin Dean, along with somebody else, pulled up
in a vehicle, entered the Super Wash House armed with a weapon, made a
demand for . . . Mr. Vincente‟s property. Mr. Vincente was scared and gave
his property. Mr. Dean was able to get away from the Super Wash House
without being arrested.
The neighbors observed this car pull up and observed the individuals
get out the car. They thought it was strange, and when they found out that . . .
there was [a] robbery, they reported their observations to the police.
The proof would be that two days later Ms. Helen Sullivan and Mr.
Mark Roach were at the Super Wash House on Central. They were washing
their clothes, and the proof would be that while they were washing their
clothes, a vehicle pulled up that was driven by Mr. Bradley Caswell. He stops
the vehicle. He and Mr. Dean get out of the vehicle, armed with a weapon.
The proof would be that the neighbors were at home and observed this vehicle.
In light of the previous aggravated robbery, this caught their attention, and they
actually placed a phone call to 911 before the robbery took place, telling the
officers what they were observing.
The proof would further be that Mr. Dean and Mr. Caswell entered the
Super Wash House armed with a weapon, made a demand for the property
belonging to Ms. Sullivan and Mr. Roach. They took their property. Both Ms.
Sullivan and Mr. Roach were terrified. After . . . Mr. Dean and Mr. Caswell
got their property, they ran out of the Super Wash House back to the waiting
car. They got in the[] car, put the property that was taken from Ms. Sullivan
and Mr. Roach in the car, along with . . . the BB gun.
Since the neighbors had already called the police, the police were on
their way. As the car pulls off, the neighbor gets behind the car and stays on
the phone with 911 until the police arrive. Officers were able to stop the car.
In the car they do find Mr. Caswell driving. Mr. Dean is in the passenger seat.
The stolen property is in the car. The gun is in the car.
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Mr. Dean is taken back to the police department. Mr. Dean is informed
of his Miranda rights. He waives those Miranda rights. He tells the officers
that he did commit the aggravated robbery on March 17th, 2014, and that he
committed the aggravated robbery on March 19th, 2014.
The trial court advised the Defendant that pursuant to the plea agreement, the court
would determine the length and manner of service of the sentences. The court advised the
Defendant of the possible sentences associated with the offenses to which he was pleading
guilty, and the Defendant said he understood. The court advised the Defendant of his
constitutional rights. The Defendant understood he had the rights to an attorney, to trial by
jury, to confront and cross-examine witnesses, to present witnesses in his defense, to choose
whether to testify, and to appeal any conviction. The Defendant also understood he had the
privilege against self-incrimination, and the court explained the State‟s burden of proof at a
trial. The Defendant stated he was voluntarily waiving those rights and entering his guilty
pleas.
At the sentencing hearing, a presentence report was received as an exhibit. The report
reflects that the twenty-one-year old Defendant had previous convictions for three counts of
burglary of an automobile, two counts of identity theft, vandalism, and contributing to the
delinquency of a minor. The report reflects that the Defendant previously received judicial
diversion but that diversion was revoked. Likewise, the report reflects that the Defendant
received probation but that his probation was revoked twice. At the time of the presentence
investigation, an outstanding arrest warrant for a probation violation existed in a nearby
county.
The presentence report reflects that the Defendant graduated from high school in
2012 and that he reported having good physical and mental health. He reported first drinking
alcohol at age twelve and last drinking in 2013. He reported first smoking marijuana at age
six and last smoking in 2011, before being placed on probation for a previous conviction.
The Defendant reported using various pain medications, mushrooms, and LSD at age fifteen.
The Defendant reported receiving substance abuse treatment at New Life Lodge in 2009 and
noted drug court ordered him to spend time at a halfway house. The Defendant reported
having a good relationship with his family and co-parenting his son with his former
girlfriend. The report reflects the Defendant was employed between August 1, 2011, and
August 2, 2012.
Jose Vincente provided a victim impact statement to the trial court. Mr. Vincente
stated that his life changed as a result of the robbery. He said that the previous six months
had been difficult, that he had sought psychological treatment, and that he had lost “a great
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deal of trust.” He said he no longer went to the Laundromat alone and that he went earlier in
the day to prevent being out late at night. He said that immediately after the robbery, he
suffered from shock, could not work, and eventually, his employment was terminated. He
said that sometimes he felt fine but that other times he suffered from nightmares and
nervousness.
The Defendant testified that although he did not identify his codefendant to the
investigating officers, his codefendant was involved in the aggravated robberies. The
Defendant said he simply wanted to take responsibility for his conduct. He said that he was
age twenty at the time of the robberies, that the codefendant was age twenty-five, and that the
Defendant knew the codefendant had a previous conviction for aggravated robbery. The
Defendant said that the robberies were the codefendant‟s idea, that the codefendant‟s BB gun
and car were used during the robberies, and that the gun was not loaded. The Defendant
admitted he held the gun during the robberies and said the codefendant told the Defendant to
hold it.
The Defendant testified that he knew the codefendant told the police the Defendant
coerced the codefendant into committing the robberies by pointing a gun at the codefendant.
The Defendant denied that he forced the codefendant to commit the robberies and that he
pointed a gun at the codefendant.
The Defendant testified that the presentence report correctly reflected his previous
convictions but noted that the three counts of vehicular burglary and two counts of identity
theft occurred on the same date. Relative to the contributing to the delinquency of a minor
conviction, he said that he and his former girlfriend were going to a hotel, that he had alcohol
in the backseat of his car, that he was age eighteen, and that his girlfriend was age seventeen.
On cross-examination, the Defendant testified that he was serving a sentence on
probation at the time he committed the present offenses. He agreed he told the probation
officer that he had a drug problem and said at age fourteen he used Morphine, Roxicodone,
and marijuana. He admitted he had used LSD, mushrooms, and cocaine. He said that as a
juvenile, he was placed in the custody of the Department of Children‟s Services (DCS)
because he committed domestic violence against his mother. He explained that at age
sixteen, he and his mother argued, that he yelled and cursed, and that he punched a vehicle.
He agreed he received probation for domestic abuse. He agreed his judicial diversion was
revoked for the conviction for contributing to the delinquency of a minor because he began
using drugs again and because he was arrested for identity theft and vehicular burglary. He
said that he paid the victims restitution, that he received probation for identity theft and
vehicular burglary, and that his probation was violated by committing vandalism. He said
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that he received probation for vandalism and was ordered to participate in the drug court
program. He agreed the instant offenses were committed while he attended drug court.
The Defendant testified that the first robbery occurred after the codefendant repeatedly
asked him to participate in a robbery and that he eventually “gave in” to the codefendant‟s
requests. The Defendant said that the codefendant had the BB gun inside the codefendant‟s
car and that the codefendant drove to the Laundromat. The Defendant said they did not
discuss where they were going or what they were going to do once they arrived. He said that
the codefendant put the gun in his hand while they were inside the car and that the
codefendant said, “Let‟s go.” The Defendant said that he walked inside the Laundromat
behind the codefendant, that the Defendant walked up behind Mr. Vincente and pointed the
BB gun at Mr. Vincente‟s head, and that the Defendant asked Mr. Vincente, “Where‟s the
money?” The Defendant said his codefendant grabbed Mr. Vincente‟s wallet and struck Mr.
Vincente before they left. The Defendant said he and the codefendant argued about the
codefendant‟s striking Mr. Vincente. The Defendant said he and the codefendant split $400
or $500 they took from Mr. Vincente.
The Defendant testified relative to the second robbery that the codefendant drove to
the Laundromat, that they covered their faces with bandanas, and that they “did the same
thing.” He said that the codefendant gave the BB gun to him again before entering the
Laundromat. The Defendant said that he pointed the gun at Ms. Sullivan‟s chest, that he saw
Ms. Sullivan‟s purse lying on a dryer, and that he grabbed it and ran. The Defendant said
that he did not see Mr. Roach until the Defendant turned and ran, that he did not know what
the codefendant did to Mr. Roach, and that the Defendant and the codefendant ran outside
simultaneously.
The Defendant testified that he did not recall the police taking him to the Laundromat
for a “show-up” identification but that he recalled giving a statement to the police. He
agreed he never mentioned the codefendant to the police but could not recall whether he told
the police that the gun belonged to the codefendant.
The trial court stated that it had considered the principles of sentencing, including the
imposition of a justly deserved sentence and the fair and consistent treatment of all
defendants. Regarding these sentencing principles, the court noted that the codefendant
pleaded guilty as a Range III, persistent offender to the aggravated robberies and received an
effective twenty-year sentence at 100% service. The court said that the codefendant‟s Range
III offender classification was based upon the codefendant‟s previous criminal convictions
and that the concurrent twenty-year sentences were the minimum sentences for Class B
felonies. The court stated that simply because a codefendant received a twenty-year sentence
did not mean another defendant who engaged in the same conduct deserved an identical
sentence. The trial court found that the Defendant was a Range I, standard offender.
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Relative to mitigation, the trial court found that factor (13) applied. See T.C.A. § 40-
35-113(13) (2014) (“Any other factor consistent with the purposes of this chapter.”). The
court found that the Defendant was entitled to “some mitigation” because he confessed and
admitted his role in the offenses. The trial court found, though, the Defendant‟s remorse for
his conduct was the result of being caught by the police. The court stated that had the
Defendant identified the codefendant to the police, the court would have placed more weight
upon the Defendant‟s confession.
Relative to enhancement factors, the trial court found that factor (1) applied based
upon the Defendant‟s previous convictions contained in the presentence report and the
Defendant‟s sentencing hearing testimony. See id. § 40-35-114(1) (2014) (“The defendant
has a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range[.]”). The court found that Defendant admitted
during the sentencing hearing that he engaged in a pattern of criminal behavior by obtaining
and consuming illegal substances. The court placed “a lot of weight” on the Defendant‟s
criminal history. The court also found that factor (8) applied because the Defendant had
previously received the benefit of alternative sentencing but had failed to comply with the
terms of his release on several occasions by committing new criminal offenses. See id. § 40-
35-114(8) (“The Defendant, before trial or sentencing, failed to comply with the conditions
of a sentence involving release into the community[.]”). The court found that the Defendant
previously received the benefit of judicial diversion but that diversion was revoked. The
court found that the Defendant previously received the benefit of probation but that the
probation was revoked twice. The court did not place great weight upon this factor because
of the significant weight placed upon the Defendant‟s previous convictions. The court,
likewise, found that factor (13) applied based upon the presentence report and the
Defendant‟s testimony that he was on probation at the time he committed the present
offenses. See id. § 40-35-114(13) (“At the time the felony was committed, . . . the defendant
. . . [was] [r]eleased on probation[.]”).
The trial court found that the Defendant and the codefendant were equal participants
in the aggravated robberies and that they committed the offenses to obtain money to purchase
drugs. The court found that the codefendant and the Defendant did not coerce each other.
The court found that the Defendant was responsible for the injuries inflicted by the
codefendant and that the Defendant‟s conduct toward Mr. Vincente caused physical harm.
The trial court noted the principles and purposes of sentencing, specifically discussing
the imposition of a justly deserved sentence in relation to the seriousness of the offense and
ensuring fair and consistent treatment of all defendants by eliminating unjustified disparity in
sentencing. The court found that sufficient enhancement factors applied to sentence the
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Defendant to twelve years for each conviction and that consecutive sentencing was justified
based upon the Defendant‟s committing the present offenses while on probation. See id. §
40-35-115(b)(6) (2014) (“The court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that . . . [t]he defendant is sentenced for an offense
committed while on probation[.]”). The court stated that if the court were to sentence the
Defendant to twelve years and to order each count to be served consecutively, the Defendant
would receive a thirty-six-year sentence. The court found, though, thirty-six years was not
appropriate because the codefendant, whom the court found was equally responsible for the
offenses, received twenty years as a persistent offender.
The trial court, though, believed the circumstances of the offenses and the
Defendant‟s being on probation at the time of the offenses required consecutive service and
determined an effective twelve-year sentence was insufficient. The court imposed eight-year
sentences for each conviction and ordered consecutive service of two counts, for an effective
sixteen-year sentence at 85% service. The Defendant ultimately filed a motion to reduce his
sentence, which the court denied. See Tenn. R. Crim P. 35. This appeal followed.
The Defendant contends that he received an excessive sentence. He argues that the
trial court erred by ordering partial consecutive sentencing and that his sixteen-year sentence
is disproportionate to his codefendant‟s sentence. The Defendant requests that this court
impose concurrent sentences, for an effective eight-year sentence. The State responds that
the trial court did not abuse its discretion. We agree with the State.
This court reviews challenges to the manner of service of a sentence within the
appropriate sentence range “under an abuse of discretion standard with a „presumption of
reasonableness.‟” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report, the
principles of sentencing, counsel‟s arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct, any mitigating or statutory enhancement factors,
statistical information provided by the Administrative Office of the Courts to sentencing
practices for similar offenses in Tennessee, any statement that the defendant made on his own
behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d
229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see
T.C.A. § 40-35-102 (2014).
The abuse of discretion with a presumption of reasonableness standard also applies to
the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.
2013). A trial court has broad discretion in determining whether to impose consecutive
service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance
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of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-
115(b)(1)-(7) (2014). In determining whether to impose consecutive sentences, though, a
trial court must ensure the sentence is “no greater than that deserved for the offense
committed,” and is “the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” T.C.A. § 40-35-103(2), (4); see State v. Desirey, 909 S.W.2d 20, 33
(Tenn. Crim. App. 1995).
The Defendant does not argue that the trial court was not permitted to impose
consecutive service based upon the Defendant‟s being on probation at the time of the present
offenses. See T.C.A. § 40-35-115(b)(6). Rather, he argues that the trial court erred by
imposing partial consecutive service because his effective sentence is not justly deserved
based upon the seriousness of the offenses and is not the least severe measure necessary to
achieve the purposes for which the sentences were imposed. See id. §§ 40-35-102(1) (2014),
40-35-103(2) (2014). In support, the Defendant relies upon State v. Biggs, 482 S.W.3d 923
(Tenn. Crim. App. 2015).
In Biggs, the defendant pleaded guilty to four counts of aggravated robbery, during
which the defendant displayed a gun and demanded money from employees at various
businesses. The defendant also pleaded guilty to two counts of misdemeanor theft, during
which the defendant took bags of potting soil from Walmart and took money from a
convenience store‟s cash register. The Defendant pleaded guilty to attempted aggravated
robbery, during which he attempted to take money from another cash register. The cashier
closed the register drawer on the defendant‟s hand, the defendant pulled out a gun, and a
struggle ensued. The defendant left the scene without the gun, which was later determined to
be a toy. The toy gun was also used in the four aggravated robberies to which the defendant
pleaded guilty. Biggs, 482 S.W.3d at 925.
The trial court in Biggs determined the defendant was a Range III, persistent offender
based upon his previous convictions. The court imposed partial consecutive service and
ordered two of the defendant‟s twenty-two-year sentences for aggravated robbery be served
consecutively, for an effective forty-four-year sentence to be served at 85%. The trial court
imposed consecutive sentences based upon the defendant‟s having an extensive criminal
history and the defendant‟s serving a sentence on probation at the time he committed the
offenses. The defendant had been previously convicted of forgery, evading arrest, theft,
casual exchange, possession of cocaine, possession of marijuana, and speeding, and he
admitted he was on probation at the time he committed the offenses. Relative to imposing a
just and deserved sentence based upon the offense, the trial court noted that full consecutive
service was not warranted but that partial consecutive service produced a fair and just
sentence. Id. at 926.
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On appeal, the Biggs majority concluded that the trial court erred by ordering partial
consecutive service. The majority focused, in part, on the circumstances of the offenses,
noting that the robberies were committed with a plastic gun, that none of the victims were
injured, and that two victims knew the gun was plastic. The majority also focused on the
Defendant‟s age of forty-nine and lack of previous convictions for violent offenses. This
court concluded that the sentence was tantamount to a life sentence and that forty-four years
was not deserved in relation to the offenses involved and was not the least severe measure
necessary to achieve the purposes of sentencing. Id. at 927.
In the present case, the Defendant agreed to plead guilty to three counts of aggravated
robbery with the length and manner of service to be determined by the trial court. We note
that the codefendant agreed to plead guilty as a Range III, persistent offender to concurrent
sentences to one count of aggravated robbery in exchange for a twenty-year sentence at 100%
service and to felony theft in exchange for a two-year sentence. The trial court approved the
codefendant‟s plea agreement without holding a sentencing hearing. Relative to the
Defendant, the trial court imposed the minimum within-range sentence of eight years for each
aggravated robbery and imposed partial consecutive sentencing based upon the Defendant‟s
being on probation at the time of the present offenses and the circumstances of the offenses.
We conclude that the record does not reflect the trial court abused its discretion by
ordering partial consecutive service. Although the Defendant did not use a real firearm
during the robberies, the victims did not know it was a BB gun, and the Defendant admitted
he pointed the gun at the victims‟ head and chest. Mr. Vincente told the court that after the
robbery, he sought psychological treatment, suffered from shock, could not work, and
ultimately, was terminated from his employment. Furthermore, the codefendant struck Mr.
Vincente during the robbery. The Defendant had previous convictions for burglary of an
automobile, identity theft, vandalism, and contributing to the delinquency of a minor.
Although these are not violent offenses, the Defendant‟ previous criminal activity was
extensive, and his participation in three aggravated robberies reflect an escalation into violent
crime. The Defendant admitted he had committed domestic assault against his mother as a
juvenile. The Defendant admitted to significant drug use during his short life, and the court
believed the present offenses were committed for the purpose of obtaining drugs. We note
that the Defendant was on probation and participating in drug court at the time he committed
the present offenses. The Defendant also admitted to violating the conditions of probation
multiple times.
Although the Defendant complains that he did not receive the benefit of concurrent
sentencing like his codefendant, we note that the codefendant‟s concurrent sentencing was a
term of the negotiated plea agreement. The Defendant‟s plea agreement contained no such
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provision and left the matter to the trial court‟s determination. The Defendant was not
required to accept the State‟s plea offer and could have proceeded to a trial. Regardless of
his reasoning for accepting the plea agreement, the record reflects the Defendant voluntarily
and knowingly pleaded guilty and understood that the trial court would determine the length
and the manner of service of the sentences. The Defendant‟s dissatisfaction that his
codefendant received concurrent sentencing does not translate to a conclusion that the trial
court abused its discretion by imposing partial consecutive service in the Defendant‟s case.
We note that the codefendant is required to serve 100% of his twenty-year sentence but that
the Defendant is release eligible after serving 85% of sixteen years. The Defendant received
a shorter sentence than his codefendant. In any event, the circumstances of the offenses, the
Defendant‟s background, and the Defendant‟s serving a sentence on probation at the time of
the present offenses are the relevant factors in determining the Defendant‟s sentence. A trial
court‟s sentencing determinations are fashioned to the individual offender. The Defendant‟s
effective sixteen-year sentence is supported by the record, and Biggs affords him no relief.
The Defendant is not entitled to relief.
In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.
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ROBERT H. MONTGOMERY, JR., JUDGE
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