State of Tennessee v. Nathaniel A. Rhodes ( 2019 )

08/28/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 15, 2019
STATE OF TENNESSEE v. NATHANIEL A. RHODES
Appeal from the Criminal Court for Wilson County
Nos. 15-CR-1060, 15-CR-1061 Brody N. Kane, Judge
___________________________________
No. M2018-00136-CCA-R3-CD
___________________________________
The Defendant-Appellant, Nathaniel A. Rhodes, entered guilty pleas to one count of
TennCare fraud in case number 15-CR-1060 and to one count of sale of Alprazolam in
case number 15-CR-1061, with the trial court to determine the range, length, and manner
of service of his sentences following a sentencing hearing. See Tenn. Code Ann. §§ 71-
5-2601(a)(5)(A), 39-17-417. Thereafter, the trial court imposed two consecutive ten-year
sentences in confinement. On appeal, Rhodes argues that the trial court imposed an
excessive sentence.1 After reviewing the record in this case, we affirm the judgment of
the trial court but remand the case for entry of corrected judgments as specified in this
opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
and Remanded
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Thomas A. Maynard, Lebanon, Tennessee, for the Defendant-Appellant, Nathaniel A.
Rhodes.
1
Although represented by counsel throughout this appeal, Rhodes filed a pro se reply brief in
response to the State’s appellate brief, wherein he raised additional issues that were not included in his
initial appellate brief. We note that “a defendant in a criminal case may not proceed pro se while
simultaneously being represented by counsel.” State v. Davis, 141 S.W.3d 600, 615 n.12 (Tenn. 2004)
(citing Wallace v. State, 121 S.W.3d 652, 655 n.2 (Tenn. 2003)). Accordingly, we will not consider the
issues raised in Rhodes’ pro se reply brief. We also recognize that “[a] reply brief is limited in scope to a
rebuttal of the argument advanced in the appellee’s brief.” Caruthers v. State, 814 S.W.2d 64, 69 (Tenn.
Crim. App. 1991). “[I]t is not a vehicle for raising new issues.” Owens v. Owens, 241 S.W.3d 478, 499
(Tenn. Ct. App. 2007); see Caruthers, 814 S.W.2d at 69.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason L.
Lawson, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On August 20, 2015, Rhodes was indicted in case number 15-CR-1060 for three
counts of TennCare fraud. The same day, Rhodes was indicted in case number 15-CR-
1061 for sale of Alprazolam in Count 1, sale of Oxycodone in Count 2, and sale of
Alprazolam in Count 3. Thereafter, Rhodes retained trial counsel to represent him.
On May 19, 2017, Rhodes entered into a plea agreement and asked the trial court
to accept his guilty pleas to TennCare fraud in Count 1 of 15-CR-1060 and to sale of
Alprazolam in Count 1 of 15-CR-1061, with the trial court to determine the range, length,
and manner of service of his sentences following a sentencing hearing. At the plea
submission hearing the same day, the State provided the following facts in support of
Rhodes’ guilty pleas:
[Mr. Rhodes] went to the doctor and . . . because of the issues . . .
described by Mr. Rhodes, the doctor did prescribe him [A]lprazolam.
Mr. Rhodes went and picked up that prescription. Tenn[C]are did
pay for the doctor office visit at which he obtained the prescription for the
[A]lprazolam. When he picked it up he did pay for that with his own funds,
however, the Tenn[C]are fraud is based upon the office visit, Tenn[C]are
having to spend monies.
Mr. Rhodes went out a very short time after obtaining that
prescription and he did sell some of those pills to a confidential informant
[who] was working with the Wilson County Sheriff’s Department. The
confidential informant told the detectives that Mr. Rhodes had
[A]lprazolam for sale and that he could purchase [A]lprazolam from him.
The informant met with the detective and was searched making sure
that there were no drugs or money on his person, then the informant was
fitted with a video recording device. The informant then left and went to a
location here in Wilson County, which was the Knight’s Inn at 941
Murfreesboro Road, I believe.
-2-
Once there he went in to Room 115 and at that time met with Mr.
Rhodes. There was a hand to hand exchange in which Mr. Rhodes gave the
informant the pills. The informant gave Mr. Rhodes the money. Once that
was completed the informant left and went and met back with the
detectives.
He turned the pills that he had purchased from Mr. Rhodes over to
the detectives. The detectives sent those pills to the Crime Lab and they
were confirmed to be [A]lprazolam, and Mr. Rhodes was identified as the
person who had made that sale.
At the conclusion of this hearing, Rhodes entered his guilty pleas to TennCare fraud and
to sale of Alprazolam. Pursuant to Rhodes’ plea agreement, the remaining counts in case
numbers 15-CR-1060 and 15-CR-1061 were dismissed.
On July 28, 2018, following a sentencing hearing, the trial court sentenced Rhodes
as a Range III, persistent offender to two consecutive ten-year sentences in confinement
for these convictions. The judgment forms for these two convictions show a “Date of
Entry of Judgment” of July 28, 2017 but also reflect that they were not filed in the clerk’s
office until August 1, 2017.
On August 22, 2017, trial counsel filed a notice of appeal on Rhodes’ behalf in the
trial court seeking relief from the sentences entered in case numbers 15-CR-1060 and 15-
CR-1061. On August 29, 2017, the trial court clerk’s office sent a letter to trial counsel
informing him that the notice of appeal must be filed in the appellate court and that the
clerk’s office was returning his original notice of appeal. The record does not show that
trial counsel ever filed the notice of appeal with this court, and it does not provide an
explanation as to why trial counsel failed to do so.
On September 5, 2017, a corrected judgment, which reflected the correct felony
classification for the TennCare fraud conviction, was entered. Although this corrected
judgment was not filed in the clerk’s office until September 5, 2017, the “Date of Entry
of Judgment” was listed on the judgment form as “08-24-17 nunc pro tunc for
07/28/2017.”
On January 19, 2018, Rhodes filed a pro se notice of appeal, stating that he was
filing “[t]his delayed notice” of appeal due to trial counsel’s “gross incompetence” in
filing the initial notice of appeal in the trial court rather than in the appellate court. In
this pro se notice of appeal, Rhodes attached a copy of the initial notice of appeal filed by
trial counsel in the trial court.
-3-
Thereafter, Rhodes filed a motion to be declared indigent and to receive the
appointment of counsel. On April 6, 2018, this court remanded this motion to the trial
court. Rhodes was subsequently declared indigent and appointed appellate counsel.
ANALYSIS
I. Untimely Filed Notice of Appeal. Before addressing the sentencing issue, we
must consider the State’s claim that Rhodes’ case should be dismissed because of his
untimely notice of appeal. The State specifically asserts that the notice of appeal was not
filed within thirty days of entry of his judgments. See Tenn. R. App. 4(a).
Here, the original judgments of conviction for TennCare fraud and sale of
Alprazolam were entered on August 1, 2017, and the corrected judgment for the
TennCare fraud conviction was entered on September 5, 2017. It is well-established that
“an amended or corrected judgment operates upon the existing judgment” and “generally
does not restart the time for filing a tolling motion such as a Rule 33 motion for a new
trial or, as the case may be, a notice of appeal.” State v. Raygan L. Presley, No. M2007-
02487-CCA-R3-CD, 2008 WL 3843849, at *3 (Tenn. Crim. App. Aug. 18, 2008).
Consequently, Rhodes’ January 24, 2018 notice of appeal was filed more than four
months late.
However, because the timely filing of a notice of appeal is not a precondition of
this court having jurisdiction of the matter, we may waive the requirement of a timely
notice of appeal filing “in the interest of justice.” Tenn. R. App. P. 4(a). The appellant
has the burden of establishing that a waiver of the timely filing requirement is
appropriate. State v. Kevin Montrell Thompson, E2016-01565-CCA-R3-CD, 2017 WL
262701, at *2 (Tenn. Crim. App. Jan. 20, 2017). “Waiver is not automatic and should
only occur when ‘the interest of justice’ mandates waiver.” State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007). We recognize that “[i]f this court were to
summarily grant a waiver whenever confronted with untimely notices, the thirty-day
requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal
fiction.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL
63950, at *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996)).
“‘In determining whether waiver is appropriate, this court will consider the nature
of the issues presented for review, the reasons for and the length of the delay in seeking
relief, and any other relevant factors presented in the particular case.’” Id. (quoting State
v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1
(Tenn. Crim. App. Dec. 27, 2005)). “Rule 4 does not relieve pro se [defendants] from the
[thirty-day] notice requirement.” Kevin Montrell Thompson, 2017 WL 262701, at *3
(alterations in original) (citing Michelle Pierre Hill, 1996 WL 63950, at *1). Instead, a
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“[d]efendant’s pro se status is but one factor in deciding whether the interest of justice
mandates waiver of the thirty-day notice requirement.” Id. (citing Michelle Pierre Hill,
1996 WL 63950, at *1).
The State, while acknowledging that Rhodes blamed trial counsel for filing a
notice of appeal in the trial court rather than the appellate court, argues that Rhodes failed
to address the untimeliness of his appeal in his brief and failed to ask this court to waive
timely filing of his notice of appeal. The State also asserts that Rhodes was appointed
new counsel for the appeal, who should have requested that this court waive the timely
filing requirement in the interest of justice. The State urges this court to weigh Rhodes’
“subsequent silence or inaction . . . against him” in determining whether to waive the
timely filing requirement.
We recognize that Rhodes filed his notice of appeal more than four months late.
We also recognize that Rhodes has not specifically asked this court to waive the
requirement of a timely notice of appeal. See Rockwell, 280 S.W.3d at 214 (“We take
this opportunity to encourage litigants that the more proper and efficient practice for a
party seeking a waiver of the timeliness of the notice of appeal is to file a motion with
this court requesting the waiver pursuant Tennessee Rule of Appellate Procedure 4(a).”).
However, Rhodes did attempt to explain his untimely notice of appeal by asserting that
he was filing “[t]his delayed notice” of appeal due to trial counsel’s “gross
incompetence” in filing the initial notice of appeal in the trial court rather than in the
appellate court. We recognize that trial counsel never filed a timely notice of appeal in
this court, though directed by the trial court clerk to do so, and that appointed appellate
counsel never requested that this court waive the timely filing requirement. Nevertheless,
given the particular circumstances in this case, we conclude that the “interest of justice”
is best served by granting a waiver. See Tenn. R. App. P. 4(a); see also State v. Hatcher,
310 S.W.3d 788, 804 (Tenn. 2010); Crittenden v. State, 978 S.W.2d 929, 932 (Tenn.
1998).
II. Sentencing. Rhodes argues that his effective twenty-year sentence is
excessive in light of the proof he presented at the sentencing hearing. He claims the trial
court did not fully consider his mitigating factors and should have given more
consideration to the mitigating factors than the applicable enhancement factors. He also
asserts that because he is “doing well,” “has received help,” and “has continued to
improve,” he should receive relief from his sentence. The State responds that Rhodes’
challenge to the court’s weighing of the enhancement and mitigating factors does not
entitle him to relief, see State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008), and that
Rhodes’ sentence is consistent with the purposes and principles of the sentencing act.
We agree with the State and conclude that the trial court properly exercised its discretion
in sentencing Rhodes to an effective twenty-year sentence in confinement.
-5-
At the sentencing hearing, Julie Raines, a court specialist for the Tennessee
Department of Correction, testified that she completed Rhodes’ presentence investigation
report, which was entered into evidence. Raines said Rhodes’ criminal history included
six prior felonies, including possession of less than a half a gram of a Schedule II drug,
possession of a Schedule II drug in a drug free zone, possession of a weapon by a
convicted felon, aggravated assault, possession of a weapon with intent to go armed, and
conspiracy to sell cocaine. She also said Rhodes had prior misdemeanor convictions for
possession of drug paraphernalia, criminal impersonation, and assault.
In addition, Raines stated that while Rhodes was out on bond for the instant
crimes, he was charged with possession of Alprazolam, driving on a suspended license,
driving under the influence (DUI), and possession of Diazepam and Clonazepam. She
noted that Rhodes had been on probation for the last five years and had violated
probation in 2013, 2014, 2015, had violated his probation twice in 2016, and had a
pending violation based an offense he committed in 2016. She also stated that Rhodes
was currently on probation for convictions in Davidson County and was currently on
supervised probation for convictions in Wilson County.
Raines said that although Rhodes had informed her that he had participated in
multiple treatment programs while in custody, including anger management classes and
Alcoholics Anonymous, she was unable to verify his participation in these programs
because Rhodes failed to supply the proper documentation. Raines acknowledged that
Rhodes had sought mental health treatment but noted that he had been found competent
to stand trial. She stated that Rhodes had sought Social Security Disability benefits
because of his mental health issues and that his disability case was still pending. She
determined that Rhodes had a “high risk” of reoffending based upon his risk assessment.
Rhodes testified in his own behalf at the sentencing hearing. He stated that he was
fifty-five years old and had suffered hearing loss during his time in the military. He
explained that he had been in the National Guard and the Army Reserves from 1981 until
1987, when he was honorably discharged.
Rhodes said that he had a court date in August for the driving on a suspended
license charge and that since obtaining this charge, he had obtained a valid driver’s
license. He explained that at the time he was stopped for this charge, he did not know
that his license had been suspended for nonpayment of child support. He later resolved
the child support issue by showing that he had applied for disability benefits.
Rhodes stated that had been trying to obtain Social Security Disability benefits for
the last two years and had finally received a disability hearing that was scheduled for the
-6-
following month. When Rhodes learned of this hearing date, he informed the Social
Security Administration that he had a pending criminal case. Rhodes then asked the trial
court for an alternative sentence. When trial counsel asked him why the court would
believe, based on his criminal history, that he would be successful with an alternative
sentence, Rhodes replied:
I’m going to answer this question as honest as I can. Because God
can change anybody, and my pastor, if you still have that note he wrote,
they observed me for a year. It changed my life. I don’t drink no more.
Back then I was still relapsing and I wasn’t going to these places like
mental health that got me on the right medications now. And when I didn’t
have my medication I would relapse or something like that, you know. But
today I have a lot of reasons.
My mother is setting back there. I live with her. She’s got
[A]l[zheimer’s] and she also has [diabetes], and I have to be there for her
and help her. And also my wife don’t have no income and the reason why
she can’t [work is] because she’s [pregnant].
....
She’s getting ready to have [the baby] in three months, but the
doctor told her she can’t work cause she’s high risk. . . .So I have a lot of
reasons today. I pay child support too and I have a little four[-]year[-]old
daughter and she’ll be hungry, and she don’t—my [ex-]wife don’t have an
income either. But I would just say because God changed my life around.
. . . I’m not the same person I used to be. My church members can
tell you that. I wish I had that letter that I thought I gave it to you. Brother
Glenn sent a letter telling how much I had changed. For a year I have been
going to church. I hadn’t been going to church all these other years. I
didn’t know God, so I know Him now, and whatever happens, I put [it] in
God’s hands.
Rhodes stated that while his disability case was pending, he had been allowed to work
and was currently employed at a staffing company. He said that he and his wife were
living with his mother to help take care of her and that if the court granted him an
alternative sentence, they would continue to live with his mother. Rhodes acknowledged
that he had ten children with another child on the way. He also acknowledged that he
was not currently responsible for child support because he had applied for disability
benefits, which could be granted or denied.
-7-
Regarding his pending DUI case, Rhodes asserted that the test results showed that
he had no alcohol in his blood at the time of this offense. He asserted that he had not
consumed alcohol in the last year. He also stated that although he was charged with
possession of Alprazolam, he had been given a prescription for this medication and had
been charged with this offense because the pills were not in a prescription bottle at the
time he was stopped.
As for the possession of Diazepam and Clonazepam charges, Rhodes stated that he
had a prescription for Clonazepam and that he had previously had been given a
prescription for Diazepam. He said he had the Diazepam in his car at the time of the stop
because he was moving his things into a new home.
Rhodes stated that he was admitted to Middle Tennessee Mental Health in 2015
because he tried to commit suicide because of his alcohol use. He also went to the
University Medical Center in Lebanon in March 2015, shortly after being released in this
case, because he was depressed and suicidal. In December 2015, Rhodes was admitted to
the Skyline Madison Campus for two weeks for detoxification from alcohol and then he
completed three weeks of intensive outpatient treatment. In October 2015, he was
admitted to the Rolling Hills Hospital for two weeks of rehabilitation for his addiction
problems. He also received treatment from Centerstone for the last four years. Rhodes
said he had received treatment for his addiction problems at Elam Mental Health in 2001
and had lived in a halfway house for several years starting in 2003.
Rhodes asserted that he joined a church one year earlier when he married his wife.
He stated that his church “changed his life.” He added, “It took God to turn me around
but . . . I know I made bad choices back then when I was drinking and doing all of that
stuff, but last year my church has been behind me. I mean, you know, [I] just ain’t the
same person no more.”
Rhodes acknowledged that he had been charged with violating his probation in
Davidson County, which was waiting for his charges in this case to be resolved before
holding a hearing to determine whether he violated his probation there. He maintained
that he had been reporting to his probation officer every month and that he had never
failed a drug test while on probation.
Rhodes said that he had paid for the four Alprazolam pills that he sold, which were
the basis for the TennCare fraud conviction in this case. However, he admitted that he
used his TennCare benefits when he went to the doctor and obtained the Alprazolam
prescription.
-8-
At the end of this hearing, the trial court said that when determining the
appropriate sentence in this case, it had considered the proof at the sentencing hearing,
the presentence report, the principles of sentencing, the arguments as to sentencing
alternatives, the nature and characteristics of the conduct involved, the evidence and
argument regarding the enhancement and mitigating factors, and the statistical
information provided by the Administrative Office of the Courts for those similarly
situated to Rhodes. The court then determined that Rhodes was a Range III, persistent
offender and that the sentencing range for each of his two Class D felony convictions was
eight to twelve years. See Tenn. Code Ann. §§ 40-35-107(a), -112(c)(4).
The court reviewed the enumerated mitigating factors and found that none of these
factors applied in this case. See id. § 40-35-113. However, it applied several
enhancement factors. First, the court found that Rhodes had a “previous history of
criminal convictions or criminal behavior in addition to that which is required for the
appropriate range.” See id. § 40-35-114(1). It recognized that Rhodes’ criminal history
included six felony convictions as well as misdemeanor convictions for criminal
impersonation and assault. It also noted that Rhodes had pending charges in two
different counties for driving on a suspended license, DUI, and two charges for casual
exchange of a Schedule IV drug, which had all occurred while Rhodes was out on bond
in this case. In addition, the court observed that Rhodes had a pending violation of
probation case in Davidson County. Consequently, the court “place[d] a heavy amount
of weight” on enhancement factor (1). The trial court also found that Rhodes, before trial
or sentencing, had “failed to comply with the conditions of a sentence involving release.”
See id. § 40-35-114(8). It asserted that Rhodes had seven violations of probation or
parole and at least one violation in each of the last five years, which was a “phenomenal
record of nonconformance.” It then held that this enhancement factor “certainly applied”
and that it “applied weight” to that factor. The court also found that at the time Rhodes
committed the offenses in this case, he was “released on probation.” See id. § 40-35-
114(13)(C). The court stated that it was putting “particular weight” on these three
factors. Lastly, the court found that Rhodes “had no hesitation about committing a crime
when the risk to human life was high” but only gave this enhancement factor “some
weight.” See id. § 40-35-114(10).
The trial court noted that the only thing Rhodes had “been consistent about [wa]s
[his] inability to follow the conditions of probation.” It stated that it was “not impressed
with Mr. Rhodes demeanor” and did not “believe him to be a dependable person” who
could “follow any terms of probation[.]” Regarding Rhodes’ depression and suicide
attempts, the court said, “I can certainly sympathize with Mr. Rhodes if he’s having these
problems. I do believe some of this was intentionally brought on by himself based on the
substance [abuse].”
-9-
When determining the length of Rhodes’ sentence, the court stated that it was
“going to have to lean toward the high side” based on the evidence presented at the
sentencing hearing. It recognized that Rhodes had already served four-and-a-half years
for two felony convictions and a year-and-a-half for another felony conviction. After
determining that “the middle of the range [wa]s more than fair,” the court sentenced
Rhodes to ten years on each conviction. The court concluded that the ten-year sentences
were “the le[ast] severe measure necessary” to achieve the purposes and principles of the
sentencing act.
The court next considered whether Rhodes should receive an alternative sentence.
First, the court found that confinement was necessary because Rhodes “ha[d] a long
history of criminal conduct,” which consisted of six felony convictions and three
misdemeanor convictions. See id. § 40-35-103(1)(A). It also found that “[c]onfinement
[wa]s necessary to avoid depreciating the seriousness of the offense” and “[wa]s
particularly suited to provide an effective deterrence to others.” See id. § 40-35-
103(1)(B). The court said that “to see someone take . . . Tenn[C]are coverage provided
by the State and use it to your own personal benefit is disappointing to the Court” and
noted that such “behavior should be deterred to prevent others from doing this in the
future.” In addition, the court found that “measures less restrictive than confinement
ha[d] frequently or recently been applied unsuccessfully” to Rhodes in light of his
“remarkable seven prior violations of probation . . . within the last five years.” See id. §
40-35-103(1)(C). The court concluded that “incarceration [wa]s necessary in light of
Rhodes’ “extensive, extensive behavior.”
As to whether Rhodes’ sentences would be served concurrently or consecutively,
the court recognized that Rhodes had “twenty-seven years of criminal conduct.” As a
result, the court found that Rhodes was a “professional criminal” who had knowingly
devoted his life to criminal acts as a major source of livelihood and that his “criminal
activity was extensive.” See id. § 40-35-115(b)(1), (2). The court also found that Rhodes
committed the offenses in this case “while on probation.” See id. § 40-35-115(b)(6). In
determining whether these sentences should be served consecutively rather than
concurrently, the court also addressed Rhodes’ recent progress:
I’m glad to hear that you say you’ve turned a corner and found the
Lord. That’s good for anybody. I’ve certainly not passed any judgment on
that, but the problem is, when you do this behavior, these convictions stack
up and they stack up and they stack up and you get to the point where you
have six prior felonies, three of which are drug sales, one of which is an
aggravated assault, and two weapons charges, Mr. Rhodes.
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There’s got to be a day when you’ve got to pay the piper, and it’s not
through the inability of your lawyer. I think your lawyer argued very
effectively for you. He put forth the best case he had, but I think based on
the law I should, and will, order these sentences to run consecutive[ly], sir.
Ultimately, the court sentenced Rhodes as a Range III, persistent offender to two
consecutive ten-year sentences in confinement. The court also recommended that Rhodes
be placed in the DeBerry Special Needs facility at the penitentiary in light of his history
of suicide attempts.
We reiterate that this court reviews a trial court’s sentencing determinations under
“an abuse of discretion standard of review, granting a presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A
trial court abuses its discretion only when it applies an incorrect legal standard, reaches
an illogical conclusion, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the party complaining. State v.
Herron, 461 S.W.3d 890, 904 (Tenn. 2015). The 2005 amendments to the sentencing act
“served to increase the discretionary authority of trial courts in sentencing.” Bise, 380
S.W.3d at 708. In particular, these amendments “rendered advisory the manner in which
the trial court selects a sentence within the appropriate range, allowing the trial court to
be guided by—but not bound by—any applicable enhancement or mitigating factors
when adjusting the length of a sentence.” Id. at 706. In light of this broader discretion,
a trial court’s misapplication of an enhancement or mitigating factor does
not invalidate the sentence imposed unless the trial court wholly departed
from the 1989 Act, as amended in 2005. So long as there are other reasons
consistent with the purposes and principles of sentencing, as provided by
statute, a sentence imposed by the trial court within the appropriate range
should be upheld.
Id. Significantly, “the 2005 amendments deleted as grounds for appeal a claim that the
trial court did not weigh properly the enhancement and mitigating factors.” Carter, 254
S.W.3d at 344.
A trial court must consider the following when determining a defendant’s specific
sentence and the appropriate combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
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(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating
and enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee;
(7) Any statement the defendant wishes to make on the defendant's own
behalf about sentencing; and
(8) The result of the validated risk and needs assessment conducted by
the department and contained in the presentence report.
Tenn. Code Ann. § 40-35-210(b). In addition, the trial court must consider “the record of
prior felony convictions filed by the district attorney general with the court, as required
by § 40-35-202(a).” Id. § 40-35-210(f).
The trial court shall impose “a sentence justly deserved in relation to the
seriousness of the offense[.]” Id. § 40-35-102(1). The court must consider the
defendant’s potential for rehabilitation or treatment. Id. §§ 40-35-102(5),-103(b)(9). In
addition, the court must impose a sentence “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which
the sentence is imposed[.]” Id. §§ 40-35-103(2), (4). The defendant bears the burden of
showing the impropriety of the sentence on appeal. Id. § 40-35-401(d), Sentencing
Comm’n Cmts.
In challenging his sentences, Rhodes essentially argues that the trial court gave
insufficient weight to his mitigating factors and too much weight to the enhancement
factors. He also asserts that the trial court should have given him a more lenient sentence
because he is doing well and has continued to improve. We reiterate that a trial court’s
improper weighing of enhancement and mitigating factors is no longer a ground for
appeal. See Carter, 254 S.W.3d at 344. As we noted, the trial court is guided by, but not
bound by, any applicable enhancement or mitigating factors when imposing a sentence,
and we will not disturb a trial court’s sentence unless the court wholly departed from the
purposes and principles of the Sentencing Act. See Bise, 380 S.W.3d at 706. The
transcript from the sentencing hearing shows that the trial court considered Rhodes’
progress but ultimately concluded that his extensive criminal history, including six prior
felonies, outweighed any recent progress he had made.
After reviewing the record, we conclude that the trial court did not abuse its
discretion in sentencing Rhodes to two consecutive ten-year sentences in confinement.
The record fully supports the trial court’s imposition of within-range, ten-year sentences
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for each conviction. The court properly found that confinement was proper in light of
Rhodes’ criminal history, the need to provide deterrence to others, and Rhodes’ repeated
failed attempts at alternative sentencing. It also properly found that consecutive
sentencing was appropriate because Rhodes was a professional criminal with an
extensive criminal record who had committed the instant offenses while on probation.
The record clearly establishes that the trial court properly considered the purposes and
principles of sentencing. Therefore, we conclude that the trial court properly exercised
its discretion in sentencing Rhodes to an effective twenty-year sentence in confinement.
As a final note, we recognize some clerical errors in the judgment forms in this
case that need to be corrected. The judgment form for Count 1 of case number 15-CR-
1060 shows that Count 2 of case number 15-CR-1060 was dismissed pursuant to Rhodes’
guilty plea. However, both the plea agreement and the transcript from the plea
submission hearing reflect that Count 2 and Count 3 of case number 15-CR-1060 were to
be dismissed as a condition of Rhodes’ plea to Count 1 of case number 15-CR-1060.
Accordingly, we affirm the judgment of the trial court but remand the case to the trial
court for entry of a corrected judgment in Count 1 of case number 15-CR-1060 reflecting
that Counts 2 and 3 are dismissed. Moreover, because the record indicates that separate
judgment forms were not entered for any of the dismissed counts, we also remand the
case for entry of separate judgment forms in Counts 2 and 3 of case number 15-CR-1060
and in Counts 2 and 3 of 15-CR-1061, reflecting that all of these counts have been
dismissed. See Tenn. R. Crim. P. 32(e)(3) (“If the defendant is found not guilty or for
any other reason is entitled to be discharged, the court shall enter judgment
accordingly.”); State v. Berry, 503 S.W.3d 360, 364 (Tenn. 2015) (order) (“For charges
resulting in a not guilty verdict or a dismissal, the trial court should “enter judgment
accordingly” as to the respective count.”).
CONCLUSION
Based on the aforementioned authorities and reasoning, the judgment of the trial
court is affirmed but the case is remanded for entry of corrected judgment forms as
specified in this opinion.
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CAMILLE R. MCMULLEN, JUDGE
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