State of Tennessee v. James Edward Brown ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 13, 2014
STATE OF TENNESSEE v. JAMES EDWARD BROWN
Appeal from the Circuit Court for Maury County
Nos. 21717 & 21902 Stella L. Hargrove, Judge
No. M2013-01997-CCA-R3-CD Filed 06/04/2014
Appellant, James Edward Brown, entered guilty pleas without recommended sentences to
one count of theft of property valued at more than $1,000 but less than $10,000 and two
counts of being a felon in possession of a handgun. Appellant was on probation for
kidnapping, aggravated assault, and aggravated burglary when he committed the theft offense
and was released on bond from the theft case when he committed the weapons offenses. He
subsequently agreed that his probation should be revoked. Following a sentencing hearing,
the trial court imposed a twelve-year sentence for the theft of property conviction, to be
served consecutively to the seven-year sentence for the probation revocation. The trial court
also ordered the two six-year sentences for being a felon in possession of a handgun to be
served concurrently with each other but consecutively to the other two sentences. He now
appeals the alignment of his sentences. Following our review, we affirm the judgments of
the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and J OHN E VERETT W ILLIAMS, JJ., joined.
Brian Clay Johnson, Columbia, Tennessee, for the appellant, James Edward Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
T. Michel Bottoms, District Attorney General; and Daniel J. Runde, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Appellant’s guilty plea to theft of property in case number 21902 arose from his
involvement in the theft of a paint sprayer and various tools from the victim, David Kelley.
While on bond for that theft charge, he committed new offenses of being a felon in
possession of a handgun in case number 21717 by selling pistols at a pawn shop and entered
guilty pleas to two counts. Based on his bond status, the State asserted at the sentencing
hearing that appellant’s sentences for the handgun charges should be aligned consecutively
with each other and with his theft offense.
I. Facts from Sentencing Hearing
Following appellant’s guilty-pleaded convictions, the trial court held a sentencing
hearing. The State established that appellant’s prior criminal history contained 2009
convictions for kidnapping, aggravated assault, and aggravated burglary, for which he
received an effective seven-year sentence suspended to probation. During these proceedings,
appellant agreed to the revocation of his probated seven-year sentence. His record also
revealed sixteen1 prior offenses committed on twelve separate dates, upon which the State
contended, and appellant agreed, that he was a career offender.
The State called Christie Dickey with the Tennessee Department of Probation and
Parole as its first witness. Ms. Dickey prepared appellant’s presentence report and corrected
a mistake she had made in doing so. On cross-examination, she indicated that appellant had
been gainfully employed before he was incarcerated
Appellant testified on his own behalf and confirmed that he had been employed at
Truelove Pizza and Grits before he was incarcerated. He began working six months before
the business opened, assisting with the remodeling of the building. After it opened, he also
worked two days per week with his brother at his landscaping business. Appellant stated that
he had never received government assistance. He said that Mr. Truelove would employ him
again if he were released from confinement.
In the presentence report, appellant explained his reasons for selling the guns:
I was looking out for the welfare of my mother. She’s old and sits in her chair
on this gun, and sooner or later was going to shoot someone, probably me.
I’ve been trying to get the guns for years. And when she told me I
could get rid of them, I didn’t think about being criminal and sold them. I
didn’t pawn them. I sold them, so she couldn’t get them back.
1
Christie Dickey originally noted seventeen prior felony convictions on appellant’s criminal history.
During her testimony, she corrected the report to reflect sixteen prior felonies. However, that correction has
no impact on appellant’s sentencing range.
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I didn’t receive any money for this. I only wanted the guns gone.
Appellant stated that he did not possess ammunition for the guns. He said he only sold them
because his mother almost shot him accidentally one day, and he feared that she would shoot
him or someone else.
With regard to the theft of property conviction, appellant stated that he pleaded guilty
because he did not realize the property was stolen when he assisted his neighbor in selling
it. He said that his neighbor was selling the painting equipment for rent money and that he
did not suspect the property was stolen because his neighbor was a painter.
Dorothy Wilkes, appellant’s mother, testified that her boyfriend instructed her to keep
firearms in the house for her protection when he was away. She said that appellant had tried
several times to take the guns from her because she is disabled and is “jumpy” when she is
alone. She was in the habit of placing a gun under her leg as she sat in her recliner because
“they were breaking in a lot out there.” However, some of the weapons she possessed were
not in working condition. Ms. Wilkes further agreed that she had an “itchy trigger finger”
and that she would “have no problems with” shooting if she heard someone “jingling” her
front door. She related that she had, years ago, shot a man in the foot when he approached
her with the intent to rob her as she was standing at the trunk of her car.
At the close of the proof, trial counsel again argued that appellant’s conduct neither
caused nor threatened serious bodily injury and that he only sold the firearms to protect his
mother from harming herself or others. See Tenn. Code Ann. § 40-35-113(1), (13). He also
argued that appellant’s pleading guilty to the charges should be considered in mitigation
because of the amount of money he saved the State by forgoing a trial. See id. § 40-35-
113(13). Finally, he asked the trial court to sentence appellant out of (below) his range
because several of the felonies on his criminal record were committed when appellant was
a minor.
In imposing sentences, the trial court considered the requisite statutory factors on the
record. However, because appellant was a career offender, the trial court sentenced him to
the maximum sentences within the applicable range. See id. § 40-35-108(c). As such, the
trial court imposed a twelve-year sentence for the theft conviction and two concurrent six-
year sentences for being a felon in possession of a handgun.
With regard to sentence alignment, the trial court stated that appellant’s “bail bond
renders it consecutive sentencing. He was on bond for the theft when the handguns were
sold . . . [,] [and] [h]e was clearly on probation.” See Tenn. R. Crim. P. 32(c)(3)(D)
(requiring mandatory consecutive sentences for a felony committed while defendant is
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released on bail if convicted of both offenses); Tenn. Code Ann. § 40-35-115(b)(6) (allowing
consecutive sentences for an offense committed while on probation). Referring specifically
to appellant’s prior convictions for kidnapping (indicted as especially aggravated
kidnapping), aggravated assault, and aggravated burglary, the trial court noted that “[i]n the
past, he was a dangerous offender whose behavior indicate[d] little or no regard for human
life” and that “consecutive sentencing is necessary to protect society from further criminal
conduct.” See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Therefore, the court
ordered appellant’s two concurrent six-year sentences to be served consecutively to the
twelve-year sentence and consecutively to the seven-year sentence for which appellant’s
probation had been revoked.
II. Analysis
Appellant acknowledges that as a career offender, the trial court properly sentenced
him within the appropriate range for his convictions and that addressing the lengths of the
sentences would be “a superfluous issue.”2 He, instead, challenges the consecutive alignment
of his six-year sentences with his twelve-year sentence, arguing that his sentencing in that
regard “is not supported by any findings of fact.”
A. Standard of Review
In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (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 mitigating and enhancement factors; (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 makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Id.
§ 40-35-103(4).
Prior to 2013, on appellate review of sentence alignment issues, courts employed the
abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn.
2
The State maintains that the trial court’s finding of enhancing and mitigating factors would still
be relevant to disposition of appellant’s probation revocation for kidnapping, aggravated assault, and
aggravated burglary. However, appellant does not challenge his probation revocation, and that case number
is not included in the notice of appeal or appellate record.
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Crim. App. 1999). Our supreme court has since extended the standard of review enunciated
in State v. Bise, abuse of discretion with a presumption of reasonableness, to consecutive
sentencing determinations. State v. Pollard, ___ S.W.3d ___, ___, No. M2011-00332-SC-
R11-CD, 2013 WL 6732667, at *9 (Tenn. Dec. 20, 2013); State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012) (modifying standard of review of within-range sentences to abuse of discretion
with a presumption of reasonableness); see also State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012) (applying abuse of discretion with a presumption of reasonableness to review
of alternative sentencing determinations by the trial court). Thus, the presumption of
reasonableness gives “deference to the trial court’s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).”
Pollard, 2013 WL 6732667, at *9.
The procedure used by the trial courts in deciding sentence alignment is governed by
Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to a
trial court’s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved for
the offense committed.” Id. § 40-35-103(2). The court may order consecutive sentences if
it finds by a preponderance of the evidence that one or more of the following seven statutory
criteria exists:
(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) Te defendant is a dangerous offender whose behavior indicates little or
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
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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.
The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis for
the imposition of consecutive sentences.” Pollard, 2013 WL 6732667, at *9 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.” Id.
In this case, appellant was on probation when he committed the new offenses. Thus,
pursuant to Tennessee Code Annotated section 40-35-115(b)(6), the trial court was well
within its discretion in ordering the sentences in the instant case to be served consecutively
to the previous seven-year sentence and consecutively to each other in part.
In addition to aligning appellant’s twelve-year sentence for theft consecutively to his
seven-year sentence for his probation revocation, the trial court also aligned his sentences for
being a felon in possession of a handgun consecutively to the theft sentence. The trial court
summarily stated that the “bail bond renders it consecutive sentencing.” Appellant takes
issue with this finding of fact, characterizing it as “small” in consideration of his aggregate
twenty-five year sentence. However, Tennessee Rule of Criminal Procedure 32(c)(3)(D)
mandates consecutive sentences when a felony is committed while a defendant is released
on bail and is convicted of both offenses, which he was in this case. Appellant did not
dispute his bond status. Further findings of fact by the trial court were unnecessary in this
regard.
The trial court also noted appellant’s extensive criminal history of sixteen felony
convictions in determining that partial consecutive sentencing was proper in this case. See
Tenn. Code Ann. § 40-35-115(2). Although the appellant’s offenses in the instant case were
non-violent, he has a history of violent offenses, including kidnapping, aggravated assault,
aggravated burglary, reckless aggravated assault, sexual battery, and armed robbery. The
length and seriousness of appellant’s criminal history, as well as his propensity to commit
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offenses while on probation, bond, or other reprieve from incarceration, supports the
necessity to protect the public from further criminal acts by this appellant.
The trial court also relied upon Tennessee Code Annotated section 40-35-115(b)(4),
concluding that in the past, appellant had been a dangerous offender whose behavior
indicated little or no regard for human life and who had no hesitation about committing a
crime in which the risk to human life is high. Appellant claims that the trial court failed to
engage in a discussion of the Wilkerson factors that must accompany application of
Tennessee Code Annotated section 40-35-115(b)(4). Pollard, 2013 WL 6732667, at *9
(quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)) (stating that pursuant to
Wilkerson, before imposing consecutive sentences based upon the defendant’s status as a
dangerous offender, the trial court “must conclude that the evidence has established that the
aggregate sentence is ‘reasonably related to the severity of the offenses’ and ‘necessary in
order to protect the public from further criminal acts’”). Any error with regard to the trial
court’s reliance on the “dangerous offender” criteria was harmless in light of the other bases
for ordering consecutive sentencing alignment.
We conclude that the trial court’s sentencing alignment was reasonable and did not
amount to an abuse of discretion. Moreover, error with regard to the Wilkerson factors, if
any, is harmless, as the trial court needed only to have found that one consecutive sentencing
criteria applied. Dickson, 413 S.W.3d at 748 (citing State v. Mickens, 123 S.W.3d 355, 394
(Tenn. Crim. App. 2003)).
CONCLUSION
Based upon our review of the record, the briefs of the parties, and the applicable legal
authority, we affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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