State of Tennessee v. Jeffrey O. Short aka Jeffery O'Neal Short ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 28, 2012
STATE OF TENNESSEE v. JEFFREY O. SHORT
a.k.a. JEFFERY O’NEAL SHORT
a.k.a. JEFFREY ONEAL SHORT
Appeal from the Criminal Court for Hamilton County
No. 277889 Barry A. Steelman, Judge
No. E2011-01417-CCA-R3-CD - Filed July 16, 2012
The Defendant-Appellant, Jeffrey O. Short a.k.a. Jeffery O’Neal Short a.k.a. Jeffrey Oneal
Short, pleaded guilty in the Hamilton County Criminal Court to two counts of burglary of a
business, a Class D felony. The sole issue presented for our review is whether the trial court
erred in ordering Short to serve the sentences consecutively. Upon review, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.
John G. McDougal, Chattanooga, Tennessee, for the Defendant-Appellant, Jeffrey O. Short.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Bret Alexander, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background. Short pleaded guilty to these offenses on January 27, 2011. A
transcript of the plea hearing was not included in the record, and we glean the facts of Short’s
burglaries from the sentencing hearing transcript and the presentence investigation report,
admitted as an exhibit at the sentencing hearing. At approximately 5 a.m. on September 5,
2010, Short broke a restaurant’s front glass door, entered, and took the cash register. Short
then drove to a hardware store and entered a fenced area after cutting a lock off the gate. He
took four thousand dollars’ worth of merchandise.
At the sentencing hearing, held on April 11, 2011, Cindy Lindsey, a probation officer
with the Tennessee Board of Probation and Parole, testified that she prepared the presentence
investigation report in this case. Short’s prior criminal record included ten convictions for
theft, and Short served time in confinement for some of them. Additionally, Short had two
prior felony convictions. Short had also violated probation on some of his sentences.
Lindsey testified that she collected Short’s mental health records, admitted as an exhibit to
the hearing, which documented an occasion when Short threatened violence against someone
assessing his condition. According to the records, Short threatened to use a pen and broken
glass as weapons, and Short had to be restrained by force. At another time, Short expressed
an intent to kill his girlfriend’s ex-boyfriend. Short sometimes failed to keep his required
appointments with a mental health professional. Lindsey testified that Short previously
worked at Chili’s and IHOP restaurants. He worked for less than a year at Chili’s before
being fired, and he worked approximately a month at IHOP when he was fired after
threatening a manager.
On cross-examination, Lindsey testified that Short was cooperative with her during
her investigations. Although Short told her that he held a degree from a community college,
the college could not find any record of his attendance.
Short testified at the hearing that on the day he committed the burglaries, he was not
taking his medications, which caused him to “get a little bit out of hand.” He testified that
he does well when he is on his medications. Short maintained that it was out of character for
him to commit burglaries and that doing so scared and bothered him. Regarding his mental
health records, Short testified that he missed his mental health appointments because he
could not afford to pay for them. He denied threatening anyone with broken glass, and he
said that security guards pushed him into the glass, causing it to break. He testified that he
was not a violent person. Additionally, Short said that he earned a vocational certificate from
Cleveland Community College.
On cross-examination, Short testified that he “was on Xanaxes or something” at the
time of the burglaries and that the drugs “kind of clouded [his] judgment.” Short was
dependent on opiates, which he testified had been prescribed to him for pain associated with
stomach ulcers. He said that such drugs “definitely ha[d] a bearing on [his] behavior.” He
acknowledged committing ten prior thefts, and he explained that he would do so when his
prescription pain medications ran out and he needed money to buy pain medication on the
street.
The presentence investigation report indicates that Short had twenty-two prior
criminal convictions dating to 1996, when Short was twenty-one years old. These
convictions include the aforementioned ten theft offenses, two felony drug offenses, driving
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under the influence first offense and second offense, possession of drug paraphernalia,
aggravated criminal trespass, public intoxication, and three traffic-related offenses.
Following the evidence at the hearing, the trial court imposed a sentence of three and
a half years as a Range I offender on each count. The court found that Short had an extensive
record of criminal activity and ordered the sentences to be served consecutively, for a total
effective sentence of seven years. After Short was sentenced on April 11, 2011, he filed a
“Motion for Sentencing Hearing” on April 27, 2011, in which he argued that a consecutive
sentence was improper. The trial court treated the motion as a Rule 35 motion for sentencing
modification and denied it on June 6, 2011. Short filed notice of appeal on June 28, 2011.
ANALYSIS
On appeal, Short argues that consecutive sentences are improper. He asserts that
“there was not enough evidence to show that the sentences should have been run consecutive
to each other.” He additionally asserts that the consecutive sentences violate his rights under
article I, sections 8 and 16 of the Tennessee Constitution. The State responds that Short’s
appeal should be dismissed for failure to file a timely notice of appeal and for failure to
include the plea hearing transcript in the record. Alternatively, the State argues that the trial
court properly imposed consecutive sentences. The State does not address Short’s
constitutional argument. Upon review, we agree with the State that the trial court did not err
in ordering Short to serve the sentences consecutively.
We must initially consider whether, as the State argues, Short’s appeal should be
dismissed. The State argues first that the appeal should be dismissed because Short’s notice
of appeal was untimely. Tennessee Rule of Appellate Procedure 4(a) states that “the notice
of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court
within 30 days after the date of entry of the judgment appealed from . . . .” Tenn. R. App.
P. 4(a). Importantly, a judgment’s “date of entry” is the date the judgment was filed with the
court clerk, which is evidenced by the clerk’s file stamp. See State v. Stephens, 264 S.W.3d
719, 729 (Tenn. Crim. App. 2007) (holding, for purposes of determining whether a motion
for new trial was timely, that a judgment is entered when filed with the court clerk rather than
when orally pronounced). However, Rule 4(a) also states that “in all criminal cases the
‘notice of appeal’ document is not jurisdictional and the filing of such document may be
waived in the interest of justice.” Tenn. R. App. P. 4(a). This court, in deciding whether to
grant a waiver regarding an untimely notice of appeal, “shall consider the nature of the issues
for review, the reasons for the delay in seeking relief, and other relevant factors presented
in each case.” Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL 63950,
at *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996), perm. app. denied (Tenn. May 28,
1996). “Waiver is not automatic and should only occur when ‘the interest of justice’
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mandates waiver. If 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.” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim.
App. 2007) (citing Michelle Pierre Hill, 1996 WL 63950, at *1).
Here, the judgment forms indicate that the trial court signed them on April 11, 2011.
However, no file stamp appears on either judgment form, and we are unable to determine
from the record the judgments’ date of entry. As a result, we cannot conclude that Short’s
June 28, 2011 notice of appeal was filed untimely such that dismissal is appropriate.
Furthermore, even assuming that the judgments were entered on April 11, 2011, waiver of
the thirty-day time limit is appropriate in this case due to the intervening Rule 35 motion to
modify the sentence. See State v. Bilbrey, 816 S.W.2d 71, 74-75 (Tenn. Crim. App. 1991)
(holding that although time for filing notice of appeal was not tolled by a Rule 35 motion,
the interests of justice were served by waiving the timely filing of notice of appeal).
The State next argues that the appeal should be dismissed because Short failed to
include a transcript of the guilty plea hearing. An appellant has a duty to prepare a record
that conveys “a fair, accurate and complete account of what transpired with respect to those
issues that are the bases of appeal.” Tenn. R. App. P. 24(b). “In the absence of an adequate
record on appeal, we must presume that the trial court’s ruling was supported by the
evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v.
State, 584 S.W.2d 811 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226 (Tenn.
Crim. App. 1979)); see State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999)
(holding that the defendant’s failure to include the transcript of the guilty plea hearing and
a copy of the indictment required a presumption that “had all of the evidence considered by
the trial court been included in the record on appeal, it would have supported the imposition
of a six[-]year sentence”). Here, however, we conclude that the record is sufficient for our
review. See State v. Anna M. Steward, No. E2010-01918-CCA-R3-CD, 2011 WL 4346659,
at *2 (Tenn. Crim. App., at Knoxville, Sept. 19, 2011) (“Despite the absence in the appellate
record of a transcript of the plea submission hearing, we hold that the record is adequate for
this court’s de novo review . . . .”). Although the State is correct that the record does not
include a transcript of the plea hearing, many of the facts of Short’s offenses are included in
the record. Additionally, the trial court’s order of consecutive sentencing, the subject of
Short’s appeal, relied primarily on Short’s prior criminal record rather than the facts of the
offenses. As a result, dismissal of the appeal is inappropriate.
Turning to Short’s arguments, we note first that he has waived the claim regarding the
constitutionality of his consecutive sentences. His entire argument in this regard constitutes
one sentence:
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While the State has not adopted the Federal standard that crimes that happen
in the same instance and with the same scheme or plan should be run
concurrently. [sic] In the instant case, the Defendant would aver that his rights
under the Tennessee Constitution, Article 1 Section 8 and Article 1 Section 16,
have been violated by the fact that the sentences have been run consecutively
instead of concurrently.
A brief shall contain “[an] argument . . . setting forth the contentions of the appellant with
respect to the issues presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on.” Tenn. R. App. P. 27(a)(7). Failure to comply with
this basic rule will ordinarily constitute a waiver of the issue. Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”); see State v. Thompson, 36
S.W.3d 102, 108 (Tenn. Crim. App. 2000) (determining that issue was waived when
defendant cited no authority to support his argument on appeal). Consequently, Short has
waived this argument.
Short next challenges his sentences based on the evidence supporting the trial court’s
consecutive sentencing order. When a defendant is convicted of one or more offenses, the
trial court generally has discretion to decide whether the sentences shall be served
concurrently or consecutively. T.C.A. § 40-35-115(a), (b); Sentencing Comm’n Comments,
T.C.A. § 40-35-115(d) (“[W]hile consecutive sentences are discretionary, in a few instances,
consecutive sentences are mandated either by statute or by Tenn. R. Crim. P. 32.”). A trial
court may order multiple offenses to be served consecutively if it finds by a preponderance
of the evidence that a defendant fits into at least one of seven categories enumerated in
section 40-35-115(b):
(1) The defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
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no regard for human life and no hesitation about committing a crime in which
the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
(6) The defendant is sentenced for an offense committed while on probation;
or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b). Furthermore, an order of consecutive sentencing must be “justly
deserved in relation to the seriousness of the offense,” T.C.A. § 40-35-102(1), and the length
of a consecutive sentence must be “no greater than that deserved for the offense committed,”
T.C.A. § 40-35-103(2).
Here, the trial court imposed consecutive sentencing because it found that Short had
an extensive record of criminal activity. T.C.A. § 40-35-115(b)(2). It addressed Short’s
criminal record throughout its discussion of the relevant considerations under the sentencing
act. For example, the court stated that it found “from looking at the presentence investigation
that Mr. Short has nineteen prior criminal convictions [and] ten of those involved theft or
burglary.”1 It also stated, “[Short]’s a thief. He’s been a thief since he was 23 years old, and
he’s now 36 years old . . . .” The court relied on these findings in ordering Short’s sentences
to be served consecutively.
We conclude that the trial court did not err in requiring Short to serve the sentences
consecutively. This court has held that “[e]xtensive criminal history alone will support
consecutive sentencing.” State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997)
(citing State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994)). The record
demonstrates that the trial court reviewed Short’s numerous prior convictions, none of which
Short disputed, and properly found by a preponderance of the evidence that Short was an
1
Our review of the record reveals twenty-two prior criminal convictions. Perhaps the trial court did
not count Short’s three misdemeanor traffic-related convictions in determining that he had only nineteen
prior convictions.
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offender “whose record of criminal activity [wa]s extensive.” T.C.A. § 40-35-115(b)(2).
Accordingly, the trial court’s judgments are affirmed.
CONCLUSION
Upon review, we affirm the judgments of the trial court.
______________________________
CAMILLE R. McMULLEN, JUDGE
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