State v. Timothy Brown ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION
February 11, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9701-CR-00032
)
) Davidson County
v. )
) Honorable J. Randall Wyatt, Jr., Judge
)
TIMOTHY LERON BROWN, ) (Sale of Cocaine)
)
Appellant. )
For the Appellant: For the Appellee:
Roger K. Smith John Knox Walkup
104 Woodmont Blvd., Suite 115 Attorney General of Tennessee
Nashville, TN 37205 and
Lisa A. Naylor
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Katie Miller
Assistant District Attorney General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Timothy Leron Brown, was convicted in 1993 upon pleas
of guilty to one count of selling more than .5 grams of cocaine and two counts of selling
more than twenty-six grams of cocaine, all Class B felonies. As a Range II, multiple
offender, he received one twenty-year sentence and two fifteen-year sentences, with
one of the fifteen-year sentences to be served consecutively to the twenty-year
sentence for an effective sentence of thirty-five years. The defendant filed a post-
conviction petition challenging his convictions, which resulted in the present delayed
appeal. See Timothy Brown v. State, 01C01-9507-CR-00216, Davidson County (Tenn.
Crim. App. July 26, 1996). In this appeal as of right, the defendant challenges the
length and consecutive nature of his sentences.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
means that if the trial court followed the statutory sentencing procedure, made findings
of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
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potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see
Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229 (Tenn.
1986).
Initially, we note that the defendant has hampered our de novo review in
this case by failing to include the presentence report and other exhibits to the
sentencing hearing in the record on appeal. At the sentencing hearing, the state
introduced the presentence report, the defendant’s Department of Correction records,
and Nashville Metropolitan Police Department records, none of which are part of the
record on appeal. The duty falls upon an appellant to prepare such a record and
transcript necessary to convey a fair, accurate and complete account of what transpired
relative to the issues on appeal. T.R.A.P. 24(b). In the absence of an appropriate
record, we must presume that the trial court’s determinations are correct. See, e.g.,
State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988); State v. Beech, 744
S.W.2d 585, 588 (Tenn. Crim. App. 1987).
At the defendant’s sentencing hearing, Mike Apuzzo, a drug task force
officer, testified about some of the underlying facts of the defendant’s previous
convictions. He said that in 1989 he searched the defendant’s residence and found
four hundred and one grams of cocaine, marijuana, drug paraphernalia, guns, and
some items that had been stolen. Officer Apuzzo said that a month later he arrested
the defendant for assault and battery and driving on a suspended license and that he
found thirteen grams of cocaine on the defendant’s person. Officer Apuzzo said that he
again found the defendant in the possession of cocaine and marijuana while the other
drug possession charges were pending against him.
The record also reflects that the defendant was arrested once while he
was released on a furlough and that the defendant committed the offenses in this case
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while he was on parole. However, without the presentence report and other exhibits to
the sentencing hearing, we cannot tell whether the defendant’s arrest while he was
released on furlough resulted in a conviction. We are also unable to discern how many
convictions the defendant has or the nature of all of his convictions.
At the conclusion of the sentencing hearing, the trial court found that the
defendant had several prior arrests and prior convictions. The court noted that the
defendant had prior convictions for possessing drugs, a conviction for carrying a
weapon, two convictions for leaving the scene of an accident, shoplifting convictions,
assorted driving convictions, and other convictions. The court found that the defendant
had been involved in “all kinds of criminal conduct for the last several years” and that
the defendant committed the present offenses while he was on parole.
The trial court enhanced the defendant’s sentences based upon his
history of criminal behavior, previous inability to comply with conditions of a sentence
involving release in the community, and the fact that the defendant committed the
offenses while he was on parole. See T.C.A. § 40-35-114(1), (8), and (13). The trial
court ordered that one of the sentences be served consecutively to the others because
it found the defendant to be a professional criminal who has devoted himself to criminal
acts as a major source of his livelihood.
I
The defendant contends that the trial court improperly enhanced his
sentence. He argues that the trial court erred when it considered his arrest record in
finding that he had a history of criminal behavior. He also contends that the trial court
should not have based its application of factor (8), regarding a previous unwillingness to
comply with conditions of a sentence involving release into the community, on his
commission of the crimes for which he was being sentenced.
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Though the trial court should not have considered evidence of mere
arrests as proof of criminal behavior, see State v. Newsome, 798 S.W.2d 542, 543
(Tenn. Crim. App. 1990), the extent of the trial court’s reliance on the defendant’s prior
arrests is unclear on the record before us. The court stated, “Beginning in 1990, as far
as the Presentence Report is concerned, and going back to 1986, you’ve had -- and I’m
not saying that all of these resulted in convictions -- but you’ve had a number of arrests
on misdemeanors and felonies.” The court then listed several of the defendant’s prior
convictions. Application of enhancement factor (1) was appropriate based on the
defendant’s prior convictions.
Next, the defendant contends that the trial court erred by applying factor
(8) based solely upon his commission of the offenses for which he was being
sentenced. For factor (8) to apply, a defendant must have “a previous history of
unwillingness to comply with the conditions of a sentence involving release in the
community.” T.C.A. § 40-35-114(8). In State v. Hayes, 899 S.W. 2d 175, 186 (Tenn.
Crim. App. 1995), this court recognized that the commission of an offense for which a
defendant is being sentenced will not make factor (8) applicable. However, the court
also noted that when a defendant is being sentenced for a series of offenses that were
committed over time, the requisite previous history of noncompliance may be shown for
the most recent offenses. Id.In this vein, the trial court was justified in applying factor (8) to enhance
the defendant’s sentences for his most recent convictions based on his commission of
the first offense. The defendant committed all three of the offenses in this case during
a three-week period the first month that he was on parole.
Although we recognize that application of factor (8) to the defendant’s
sentence for the first offense based solely on his commission of that offense would be
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improper, see Hayes, 899 S.W.2d at 186, the defendant is not entitled to relief on this
ground. W ithout the presentence report and other sentencing hearing exhibits, we
cannot determine whether the evidence presented at the sentencing hearing otherwise
supports application of factor (8) to the defendant’s sentence for the first offense. The
presentence report and the evidence received at the sentencing hearing are essential
parts of our de novo review. T.C.A. § 40-35-210; Ashby, 823 S.W.2d at 169. In the
absence of an appropriate record, we must presume that the trial court’s determinations
are correct. See, e.g., Meeks, 779 S.W.2d at 397; Beech, 744 S.W.2d at 588.
In any event, whether factor (8) was or was not properly applied does not
necessarily change the amount of sentencing enhancement that is appropriate. As this
court noted in Hayes,
it is important to note that whether both factor (8) and factor
13[(b)] apply or only one applies, the amount of sentencing
enhancement involved does not necessarily change. The
mere number of existing enhancement factors is not relevant --
the important consideration being the weight to be given each
factor in light of its relevance to the defendant’s personal
circumstances and background and the circumstances
surrounding his criminal conduct. See State v. Moss, 727
S.W.2d at 238. In this respect, the more negatives shown to
exist in the defendant’s background and the greater degree of
his proven culpability in the offense may translate into the
application of multiple enhancement factors, but the extent of
sentencing enhancement flows from the increased personal
negatives and degree of culpability, not the number of
applicable factors.
899 S.W.2d at 186. The record before us supports the length of the sentences imposed
by the trial court.
II
Finally, the defendant contends that the trial court erred by ordering that
two of his sentences be served consecutively to each other based, in part, on the fact
that he was on parole when he committed the offenses. In ordering the consecutive
sentences, the trial court stated:
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And as I’ve said, you’ve been absolutely and continually
involved with the violations of the law for the last seven or eight
years. I think [the General’s] Motion that you are a
professional criminal who has devoted yourself to criminal acts
as a major source of your livelihood, that can’t be denied. I
don’t know what else you would have had time to do the
number of times you’ve been arrested. And I think No. 2 also
applies, that you are an offender who has a record of criminal
activity that’s extensive. There can’t be any doubt about that.
And then there’s another thing having to do in your case with
your being on parole.
The court is of the opinion -- I’m not going to run each
and everyone of these cases consecutively, but I do think
under Section 40-35-115 that -- that at least one of these
sentences are to run consecutive to the other. . . .
Although the trial court noted the defendant’s parole status when it imposed the
consecutive sentence, it also found that the defendant was a professional criminal with
an extensive record of criminal activity. See T.C.A. § 40-35-115(b)(1) and (2).
The defendant does not challenge the trial court’s findings that he is a
professional criminal and has an extensive record of criminal activity. Either of these
findings are sufficient to warrant consecutive sentencing if the imposition of consecutive
sentences are consistent with the purposes and principles of the sentencing act. See
Id.; State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Our review of the record in
this case uncovers nothing that would overcome the presumption that the trial court’s
sentencing determinations were correct in this regard. Accordingly, the sentence
imposed by the trial court is affirmed.
Joseph M. Tipton, Judge
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CONCUR:
John H. Peay, Judge
David H. Welles, Judge
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