State v. Burl Jarrett ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 31, 1998 SESSION August 21, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9710-CC-00418
Appellee, )
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKWOOD,
BURL JARRETT, ) JUDGE
)
Appellant. ) (Arson - Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID CRICHTON JOHN KNOX WALKUP
111 W. Market Street Attorney General and Reporter
P.O. Box 651
Bolivar, TN 38008-0651 GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
JERRY W. NORWOOD
Assistant District Attorney General
Hardeman County Courthouse
Bolivar, TN 38008-2359
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Burl Jarrett, pled guilty for judicial sentencing in the
Hardeman County Circuit Court to one (1) count of arson, a Class C felony. The
trial court sentenced him as a Range I offender to five (5) years imprisonment. The
court further ordered that defendant’s sentence run consecutively to a prior felony
drug conviction. On appeal, defendant contends the trial court erred in (1) imposing
an excessive sentence, and (2) ordering that his sentence run consecutively to the
prior drug conviction. After a thorough review of the record before this Court, we
find no reversible error. Therefore, we affirm the judgment of the trial court.
I
In January 1997, defendant was indicted on two (2) counts of arson. He
subsequently pled guilty in May 1997 to one (1) count of arson. At the sentencing
hearing in May 1997, defendant’s probation officer testified that defendant had been
placed on probation in June 1995 for a state felony drug conviction. Defendant was
subsequently indicted in federal district court on five (5) counts of distribution of
cocaine, alleged to have occurred in June 1996 while defendant was on probation
for the state drug offense. Defendant thereafter pled guilty in federal court to these
five (5) offenses in February 1997 and was awaiting sentencing. A revocation
hearing was simultaneously conducted along with defendant’s sentencing hearing
on the present offense.
In his testimony, defendant admitted participation in the arson. He testified
that he fully cooperated with the FBI and ATF in connection with this offense.
However, he acknowledged that he was scheduled to be a witness for the state in
his brother’s trial for the present offense, but failed to appear in court that day.1
The pre-sentence report indicated that defendant had a state criminal record
1
Defendant’s brother, Horace Jarrett, was indicted along with defendant on two (2)
counts of arson. Horace pled guilty to vandalism and received a sentence of six (6) days and
a $50 fine.
2
consisting of one (1) felony drug conviction, one (1) forgery conviction and seven
(7) misdemeanor convictions, one (1) of which was cocaine related. The report also
notes that defendant had not yet been sentenced for the five (5) cocaine convictions
in federal court.
The trial court found as enhancement factors that (1) defendant had a
previous history of criminal convictions, Tenn. Code Ann. § 40-35-114(1); and (2)
defendant had a previous history of unwillingness to comply with the conditions of
a sentence involving release in the community, Tenn. Code Ann. § 40-35-114(8).
As mitigating factors, the trial court found that (1) defendant’s conduct neither
caused nor threatened serious bodily injury, Tenn. Code Ann. § 40-35-113(1); and
(2) defendant admitted his guilt, Tenn. Code Ann. § 40-35-113(13). The trial court
found that the enhancement factors outweighed the mitigating factors and imposed
a Range I sentence of five (5) years, one (1) year short of the maximum sentence.
The trial court further revoked defendant’s probation on his state drug conviction
based upon his commission of the federal offenses while on state probation.
The trial court further found that defendant’s record of criminal activity was
extensive and ordered that defendant’s sentence run consecutively to the probation
revocation on the state drug conviction. Defendant now brings this appeal.
II
Defendant asserts that the trial court erred in imposing an excessive
sentence. Specifically, he alleges that the trial court placed too much emphasis on
an enhancement factor and erroneously failed to apply certain mitigating factors.
He further argues that consecutive sentencing is inappropriate.
A. Standard of Review
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
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State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
B. Excessive Sentence
Defendant contends that the court placed too much weight on his prior
criminal record as an enhancement factor. He also suggests that the trial court
erred in failing to apply as mitigating factors that he assisted the FBI and the ATF
with information concerning the present offense. See Tenn. Code Ann. § 40-35-
113(9), (10).
1.
At the time of sentencing, defendant had a prior criminal record consisting
of two (2) state felony convictions and seven (7) misdemeanors. Furthermore,
defendant had pled guilty in February 1997 to five (5) federal drug charges and was
awaiting sentencing. Although the arson was committed prior to the commission of
some of the other offenses, a sentencing court can consider criminal behavior which
occurred prior to the sentencing hearing as evidence of a previous history of
criminal convictions under Tenn. Code Ann. § 40-35-114(1), regardless of whether
the criminal behavior occurred before or after the commission of the offense under
consideration. State v. John Allen Chapman, C.C.A. No. 01C01-9604-CC-00137,
Grundy County (Tenn. Crim. App. filed September 30, 1997, at Nashville). Although
defendant claims that the trial court placed too much weight upon this factor, the
weight to be given enhancement and mitigating factors is discretionary with the trial
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court. State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The trial
court did not err in placing great weight upon this enhancement factor.
2.
Defendant also claims that he assisted the FBI and the ATF by giving
information concerning the present offense, and this should have been considered
to mitigate defendant’s sentence. See Tenn. Code Ann. § 40-35-113(9), (10).
Defendant testified that he cooperated fully with the federal authorities, including
giving details about the offense. However, there is no other evidence in the record
that defendant did, in fact, cooperate fully with the federal authorities. Nor does
defendant point to any evidence which would support the application of these
mitigating factors other than defendant’s assertions. We further note that defendant
did not appear in state court to testify at his brother’s trial for the subject offense.
We, therefore, cannot conclude that the trial court erred in failing to apply Tenn.
Code Ann. § 40-35-113(9) and (10) as mitigating factors. Even if the trial court
should have accorded some weight to the alleged cooperation, we still conclude that
the five (5) year sentence was appropriate.
3.
We find no error in the trial court’s application of enhancement and mitigating
factors in imposing defendant’s sentence. Therefore, we conclude that defendant’s
Range I sentence of five (5) years for a Class C felony was appropriate. This issue
is without merit.
C. Consecutive Sentencing
Defendant further argues that consecutive sentencing was inappropriate in
this case. Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115.
The trial court may order sentences to run consecutively if it finds by a
preponderance of the evidence that one or more of the required statutory criteria
exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore,
the court is required to determine whether the consecutive sentences (1) are
reasonably related to the severity of the offenses committed; (2) serve to protect the
public from further criminal conduct by the offender; and (3) are congruent with
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general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.
1995).
The trial court found that defendant had an extensive criminal history and
imposed consecutive sentences on that basis. Tenn. Code Ann. § 40-35-115(b)(2).
Defendant had fourteen (14) prior convictions, consisting of six (6) felony drug
convictions, a conviction for forgery and numerous misdemeanors. Defendant’s
record of criminal activity is extensive within the meaning of Tenn. Code Ann. § 40-
35-115(b)(2). See State v. Baker, 956 S.W.2d 8, 18 (Tenn. Crim. App. 1997).
Furthermore, upon our de novo review, this Court finds that consecutive
sentences are reasonably related to the severity of the offenses committed, serve
to protect the public from defendant’s further criminal conduct, and are congruent
with the general principles of sentencing. State v. Wilkerson, 905 S.W.2d at 939.
In the interim between the commission of the present offense and his conviction,
defendant was convicted of six (6) felony drug offenses. The five (5) federal
offenses were committed while defendant was on probation for the state felony drug
offense. Furthermore, although the defendant testified that “it won’t never happen
no more,” defendant has developed a pattern of repeatedly violating and ignoring
the law. Consecutive sentencing was appropriate.
This issue has no merit.
III
We conclude that the trial court properly sentenced the defendant; therefore,
the judgment of the trial court is affirmed.
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JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID G. HAYES, JUDGE
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