State v. Timothy Jason Solomon ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
January 27, 2000
DECEMBER 1999 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. E1999-00991-CCA-R3-CD
)
) Knox County
v. )
) Honorable Richard R. Baumgartner, Judge
)
TIMOTHY JASON SOLOMON, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
Mark E. Stephens Paul G. Summers
District Public Defender Attorney General of Tennessee
and and
R. Scott Carpenter Patricia C. Kussmann
Assistant Public Defender Assistant Attorney General of Tennessee
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37902 Nashville, TN 37243
Randall E. Nichols
District Attorney General
and
Marsha L. K. Selecman
Assistant District Attorney
Post Office Box 1468
Knoxville, TN 37901-1468
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Timothy Jason Solomon, appeals as of right from the
Knox County Criminal Court’s imposition of consecutive sentences. Upon his guilty
pleas, the defendant was convicted of seven counts of burglary, a Class D felony. He
received three-year sentences on each count with three counts to be served
consecutively to the other four, constituting an effective sentence of six years in the
custody of the Department of Correction. He contends that the trial court cannot use
the present offenses to find that he has an extensive record of criminal activity as is
required for consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(2).1 We
affirm the trial court.
The record reflects that the defendant burglarized the same Spur station
four times and the same Pilot Oil station three times, stealing cash, beer, and
cigarettes. Thirty-four years old at the time of sentencing, the defendant had a long
history of drug and alcohol abuse. His criminal record began at age nineteen and
includes multiple convictions for public intoxication, driving under the influence of an
intoxicant, driving on a revoked or suspended license, disorderly conduct, and assault.
He also has been previously convicted of burglary and possession of marijuana. The
defendant essentially admitted that he committed the burglaries in order to get drunk
and to get money for drugs.
The trial court enhanced the defendant’s sentences based upon his
criminal history and his history of unsuccessful attempts at release into the community
for prior offenses. See Tenn. Code Ann. § 40-35-114(1), (8). In imposing consecutive
sentences, the trial court found that the defendant had an extensive criminal history,
which included the present burglary offenses; was a danger to the public; and needed
to be imprisoned.
The defendant contends that the trial court erred in relying on his present
offenses to impose consecutive sentences as an offender with an extensive criminal
history as that phrase is used in Tenn. Code Ann. § 40-35-115(b)(2). He argues that
-115(b)(2) only applies to an offender’s past record and does not include the offenses
for which the consecutive sentences are being considered. He states that there is a
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(b)The court may order sentences to run consecutively if the court finds
by a preponderance of the evidence that: . . . (2) The defendant is an
offender whose record of criminal activity is extensive.
Tenn. Code Ann. § 40-35-115(b)(2)
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conflict in opinions interpreting -115(b)(2) and that the proper interpretation limits
application of -115(b)(2) to an offender’s past history. We disagree.
Initially, we note that the trial court’s consecutive sentencing decision was
not based solely upon the defendant’s present offenses. It expressly found that the
defendant’s previous offenses constituted an extensive criminal record. In fact, given
the defendant’s motives for the present burglaries, we believe that the defendant’s prior
criminal history, largely related to drug and alcohol abuse, justifies consecutive
sentencing.
Furthermore, the defendant misapprehends the import of the opinions
which he claims have conflicting interpretations. In State v. Rickey Crawford, No.
02C01-9806-CR-00169, Shelby County (Tenn. Crim. App. May 12, 1999), a majority of
the court holds that -115(b)(2) applies regardless of whether the extensive criminal
record relates to conduct before the present offenses or relates to conduct that includes
the offenses for which sentencing is occurring. Accord State v. Rodney D. Palmer, No.
02C01-9804-CR-00111, Shelby County (Tenn. Crim. App. July 8, 1999), app. denied
(Tenn. Jan. 3, 2000). Judge Hayes’ separate opinion in Crawford regarding this issue
states that -115(b)(2) should be limited to conduct involving the present offenses.
Thus, the Crawford panel agreed that a defendant could receive consecutive sentences
based upon extensive criminal conduct that comprises the offenses for which the
defendant is being sentenced.
The defendant also notes that the Tennessee Supreme Court has
sustained consecutive sentencing based upon a criminal record that existed before the
commission of the offenses for which the sentences were being imposed. See State v.
Pettus, 986 S.W.2d 540, 545 (Tenn. 1999). He argues that the opinion supports his
interpretation of -115(b)(2). We disagree. The holding in Pettus in no way indicates
that consecutive sentencing cannot be based upon the present offenses. Moreover, at
the time of his sentencing, the defendant’s “record of criminal activity” included the
criminal activity for which he was being sentenced.
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In consideration of the foregoing and on the record as a whole, we affirm
the judgments of conviction.
_______________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________________
David H. Welles, Judge
_________________________________
Jerry L. Smith, Judge
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