State of Tennessee v. Jeremy Lynn Thornton ( 2022 )

11/14/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 8, 2022 Session
STATE OF TENNESSEE v. JEREMY LYNN THORNTON
Appeal from the Circuit Court for Benton County
No. 2019-CR-86 Charles C. McGinley, Judge
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No. W2021-01127-CCA-R3-CD
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The Defendant, Jeremy Lynn Thornton, was convicted in the Benton County Circuit Court
of possession of methamphetamine with intent to sell or deliver, possession of heroin with
intent to sell or deliver, simple possession of alprazolam, simple possession of marijuana,
possession of drug paraphernalia, and simple possession of diazepam and received an
effective ten-year sentence to be served as one year in confinement followed by nine years
on community corrections. The State appealed the Defendant’s community corrections
sentence, and this court reversed the decision of the trial court and remanded the case for a
new sentencing hearing. On remand, the trial court again imposed an effective ten-year
sentence to be served as one year in confinement followed by community corrections. The
State appeals, claiming that the Defendant is not eligible for community corrections due to
his past pattern of behavior indicating violence and pattern of committing violent offenses.
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which J. ROSS DYER and
JILL BARTEE AYERS, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Michelle Morris-
Deloach, Assistant District Attorney General, for the appellant, State of Tennessee.
Kendall Stivers Jones (on appeal), Assistant Public Defender - Appellate Division,
Franklin, Tennessee, and Paul D. Hessing (at trial), Camden, Tennessee, for the appellee,
Jeremy Lynn Thornton.
OPINION
FACTS
In June 2019, the Benton County Grand Jury returned a six-count indictment,
charging the Defendant with possession of 1.35 grams of methamphetamine with intent to
sell or deliver, a Class B felony; possession of .93 grams of heroin with intent to sell or
deliver, a Class B felony; possession of alprazolam, a Class A misdemeanor; possession of
2.6 grams of marijuana, a Class A misdemeanor; possession of drug paraphernalia, a Class
A misdemeanor; and possession of diazepam, a Class A misdemeanor. The Defendant
went to trial in September 2019, and the jury convicted him as charged in the indictment.1
The trial court held a sentencing hearing on November 19, 2019. No witnesses
testified at the hearing, but the State introduced the Defendant’s presentence report into
evidence.2 According to the report, the then forty-two-year-old Defendant was a high
school graduate and attended Jackson State Community College but dropped out before he
completed his associate’s degree. The Defendant stated in the report that he had been
married to his wife for twenty-two years and that they had three children: eighteen-year-
old twin sons and an eight-year-old son. The Defendant reported that he had health issues,
including high blood pressure and diabetes; that he received outpatient counseling “many
years ago” for depression and anxiety; and that he had been taking medications for anxiety
and depression during the past three years. The Defendant also reported prior use of
marijuana, heroin, methamphetamine, oxycontin, oxycodone, and cocaine and said he had
“a problem” with methamphetamine. He stated that he “stayed clean from meth” for seven
years but that he last used the drug just nine months prior to the presentence report. The
Defendant said he completed thirty days of court-ordered drug treatment at New Life
Lodge in 2005 and eight months of court-ordered drug treatment at Hope Ministries Center
in 2012. The Defendant said he was self-employed in the construction business.
The report showed the following prior misdemeanor convictions for the Defendant:
two 2019 convictions of violating an order of protection, a 2012 conviction of domestic
assault, a 2011 conviction of simple assault, a 2010 conviction of theft, a 2010 conviction
of marijuana possession, and a 2007 conviction of speeding. In 2012, he violated the
1
The trial transcript is not in the appellate record and was not included in the record for
the State’s previous appeal of this case. Therefore, we do not know what evidence was presented
to the jury.
2
This court may take judicial notice of its own records. State v. Lawson, 291 S.W.3d 864,
869 (Tenn. 2009). Due to the nature of this case, we have taken judicial notice of the record from
State v. Jeremy Lynn Thornton, W2020-00159-CCA-R3-CD, 2021 WL 142171 (Tenn. Crim. App.
Jan. 15, 2021).
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probation sentence he was serving for the 2011 assault conviction. The Defendant’s
Strong-R assessment classified his overall risk to reoffend as moderate and concluded that
he had high needs relevant to “Mental Health,” “Alcohol/Drug Use,” “Aggression,” and
“Education” and low needs relevant to “Friends,” “Attitudes/Behaviors,” “Residential,”
“Family,” and “Employment.”
The State argued that the trial court should enhance the Defendant’s sentences based
on his history of criminal convictions or criminal behavior and noted that while he was on
bond for the offenses in this case, he twice violated a protective order that had been
obtained by his wife. State v. Jeremy Lynn Thornton, No. W2020-00159-CCA-R3-CD,
2021 WL 142171, at *1 (Tenn. Crim. App. Jan. 15, 2021). The State also argued that the
Defendant should serve his sentences in confinement. See id. At the conclusion of the
hearing, the trial court sentenced the Defendant to concurrent sentences of ten years for
each felony conviction and eleven months, twenty-nine days for each misdemeanor
conviction and ordered that he serve the effective ten-year sentence as one year in
confinement followed by nine years on community corrections. Id. at *2. The State
asserted that the Defendant was ineligible for community corrections because his prior
convictions of assault, domestic assault, and violating the order of protection established a
past pattern of behavior indicating violence. Id. at *3. The trial court did not address the
prior assault convictions but said the violations of the order of protection were
“‘collateral’” to his case. Id. The trial court affirmed its decision to place the Defendant
on community corrections after serving one year in confinement. Id.
The State appealed to this court, arguing, in pertinent part, that the Defendant was
ineligible for community corrections due to his having “‘a present or past pattern of
behavior indicating violence’ and ‘a pattern of committing violent offenses.’” Id. (quoting
Tenn. Code Ann. § 40-36-106(a)(1)(E)-(F)). A panel of this court reversed the judgment
of the trial court and remanded the case for a new sentencing hearing, explaining,
While great deference is given to the trial court in sentencing matters,
the trial court is required to make minimal findings at best. Here, however,
our review of the record reveals the trial court simply placed the defendant
on community corrections once the State pointed out that the defendant was
not eligible for probation. Contrary to the defendant’s claim that the trial
court found his criminal history did not amount to a pattern of violence, no
such finding was made. Rather, the trial court simply stated that two
violations of a protective order were “collateral” issues. Again, we note that
the trial court made this finding without any proof presented. Additionally,
we are perplexed by the trial court’s finding that these violations, which
occurred while the defendant was released on bond after his conviction in the
instant matter, were “collateral” and not relevant to the defendant’s
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suitability for alternative sentencing, especially one involving release into the
community. Not only did the trial court fail to hear any evidence on the
nature of the defendant’s violations or make a finding as to whether these
violations were violent in nature, but it also failed to make any finding
relating to the defendant’s convictions for assault and domestic violence.
Moreover, the trial court failed to make any findings pursuant to Tennessee
Code Annotated § 40-36-106 as to how the defendant qualified for
community corrections. Based on our review of the record, the trial court
abused its discretion by imposing a sentence of community corrections
without making any findings concerning the defendant’s violations of a
protective order, whether he has a history of violence, and his overall
suitability for community corrections. Therefore, we reverse the finding of
the trial court and remand the matter for a new sentencing hearing consistent
with this opinion.
Id. at *4.
The trial court held the new sentencing hearing on July 13, 2021. The State did not
call any witnesses to testify but introduced into evidence certified judgments from the
general sessions court for the Defendant’s 2011 conviction of assault and his 2012
conviction of domestic assault. According to the affidavit of complaint attached to the
judgment for assault, the Defendant physically assaulted his wife, leaving marks on her
forehead and causing her to be in fear of further bodily harm. The judgment showed he
was charged with domestic assault but pled guilty to simple assault. According to the
affidavit of complaint attached to the judgment for domestic assault, the Defendant
intentionally hit his wife on her head several times, pushed her down, broke her cellular
telephone, and chased her as she was fleeing their residence. The State also introduced
into evidence a copy of a 2012 judgment, showing that due to the Defendant’s arrest for
domestic assault, he was found to have violated the probation sentence he received for his
2011 assault conviction.
The State then introduced into evidence the order of protection form that was filed
by the Defendant’s wife on March 6, 2019. On the part of the form that asked for the
Defendant’s wife to describe the abuse, she wrote:
Physical, verbal, emotional & financial abuse. Respondent is on drugs and
has threatened me and our children repeatedly. He has currently changed
locks on our house and has refused to let us in and threatens us if we try to
get in. He follows & stalks me at work and sends threatening text messages
& phone calls.
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Finally, the State introduced two certified judgments from the general sessions court,
showing that the Defendant pled guilty to violating the order of protection on April 25,
2019, and May 13, 2019.
Elizabeth Winston testified for the Defendant that she worked for community
corrections. The Defendant began serving his community corrections sentence on January
11, 2020, and Ms. Winston began supervising him in September 2020. When the
Defendant entered the program in January 2020, he was required to report to his community
corrections officer twice per week and was drug tested every week. The Defendant
complied with those rules for at least ninety days; therefore, the rules were eased so that he
had to report one time per week and be drug tested every fourteen to fifteen days. During
the Covid-19 pandemic, the Defendant had to report by telephone and was drug tested “as
required.” The Defendant did not have any violations or positive drug tests while he was
in the community corrections program.
Ms. Winston acknowledged that the Defendant was required to be employed. She
said she thought he was self-employed in “maintenance,” and she described him as “a jack
of all trades.” The Defendant had a stable residence and lived with his wife and minor son.
Ms. Winston acknowledged that the trial court allowed the Defendant to go to Florida on
vacation with his family. She said that he “seems happy” and that that he was “very nice.”
On cross-examination, Ms. Winston acknowledged that because the Defendant was self-
employed, she had to rely on his claims about his employment.
At the conclusion of Ms. Winston’s testimony, the trial court called a recess so that
the Defendant could be drug tested. The Defendant’s test was negative for illegal or
nonprescribed drugs.
The Defendant testified that he was forty-four years old and that he did not have any
felony convictions until 2019. He acknowledged having a problem with substance abuse
and said the problem began in his “mid-twenties.” He also acknowledged that his prior
acts of violence involved his wife and said that the incidents occurred because he was “on
drugs.” The Defendant and his wife would argue and fight because she wanted him to be
sober. In 2012, the Defendant violated probation and went to Hope Center for one year.
He stayed sober for three or four years. In 2019, he “started abusing drugs really[] bad.”
The Defendant’s wife and children left home because the Defendant’s wife did not want
their children to be around the Defendant. The Defendant ended up overdosing on drugs
on the side of the road and was “Narcan’d” to save his life. That incident resulted in his
convictions in the present case, and he spent one year in jail. He said that he weighed one
hundred sixty pounds at the time of his overdose but that he weighed two hundred forty-
five pounds at the time of the new sentencing hearing.
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The Defendant testified that in April 2019, he violated an order of protection that
his wife had obtained. The violation occurred because a neighbor saw the Defendant on
the property the Defendant shared with his wife. The Defendant unloaded some materials
from his truck, put them into a shed on the property, and left. Although the Defendant did
not see or talk to his wife during the incident, he was not supposed to be on the property.
In May 2019, the Defendant telephoned the electric company and had the electricity to his
marital home turned off. He said he did so because “I didn’t want it in my name, cause I
wasn’t being able to live there.” The police arrested the Defendant and informed him that
turning off the electricity violated the order of protection. The electricity to the home was
never actually turned off, and the Defendant’s wife never knew the incident occurred.
The Defendant testified that he went to trial in this case, was convicted, and spent
one year in jail. He was released from jail in January 2020 and reconciled with his wife.
He had been living with her since his release from confinement. The Defendant said that
he was no longer using drugs, that he had not made any threats of violence, and that he was
working as a home builder. Two people worked with him, and all three of his sons lived
with him and his wife. The Defendant stated,
I’m much better, much better. I mean I was a disaster, just waiting to happen,
you know, and it happened, and I didn’t expect -- expect all this to come of
it, but it did, and I guess it, you know, it humbled me a little bit, and made
me realize, you know, what all I was doing wrong.
He acknowledged that he did not have any anger issues or violent tendencies when he was
not using drugs.
On cross-examination, the Defendant testified that he had been using drugs “[o]n
and off” for twenty years. His drug use sometimes caused him to be violent toward his
wife. The Defendant’s children may have been present during some of those incidents, but
the Defendant never was violent toward his children. The Defendant stated that he did not
remember pleading guilty to assault in 2011 or domestic assault in 2012 and said that “I’ve
never put my hands on my wife.” The Defendant said he also did not remember violating
his probation sentence for the 2011 assault conviction. The Defendant was convicted of
theft and marijuana possession in 2010, went to drug rehabilitation in 2011, and remained
sober until 2015.
The Defendant acknowledged that in March 2019, his wife obtained an order of
protection against him. According to the order, the Defendant was threatening her,
following her to her place of employment, and sending her threatening text messages. He
stated, “I don’t remember doing all that, but if it was said, I guess it was said.” He
acknowledged that despite the order of protection, he went onto the property he shared with
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his wife. He also telephoned the electric company to have the residential electricity turned
off. The electricity was never actually turned off, and the Defendant’s wife and children
were not living in the residence at the time.
The trial court addressed the sentencing factors listed in Tennessee Code Annotated
section 40-35-210(b). The trial court also addressed the Defendant’s violations of the order
of protection and found that turning off the electricity to the marital residence and being in
a shed on the marital property were not acts of violence. The trial court then addressed the
Defendant’s prior convictions of assault and domestic assault and stated as follows:
Alright. He’s got two Misdemeanor convictions for Simple Assault,
which occurred nearly eight (8) years prior to the situation here. Probation
and rehab in 2012; No new criminal convictions until 2019, when he began
using drugs again.
The Court finds that two Assault convictions, that occurred almost ten
(10) years ago, or eight (8) years before the instant conviction is no indication
of violent behavior or convictions at set [sic] time. There is no pattern there
that would show the Misdemeanors demonstrate a pattern of violence that
would disqualify him.
Accordingly, the trial court found that the Defendant was eligible for community
corrections.
The trial court commended the Defendant for staying “clean,” noting that he passed
his drug test and that he “looks like he’s healthy” and “looks like he’s drug free.” The trial
court again sentenced the Defendant to an effective sentence of ten years to be served as
one year in confinement followed by nine years on community corrections. The following
colloquy then occurred:
[The State]: And for clarification, Your Honor, if I may, while, Your
Honor, referenced not considering the violations of the Order of Protection
violent, the Order of Protection itself indicated violence, which was in March
of ’19. Is, Your Honor considering that in the pattern?
THE COURT: I considered that, and the Court finds that it’s not
prima facie evidence of violence.
[The State]: Thank you, Your Honor.
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[Defense counsel]: We’re looking for the pattern of violence. Not
necessarily the violence.
THE COURT: The pattern of violence, I do not find in this case.
ANALYSIS
On appeal, the State claims that the trial court abused its discretion by sentencing
the Defendant to community corrections because his prior convictions of assault, domestic
assault, and violating the order of protection “clearly demonstrate a past pattern of violent
behavior and of committing violent offenses, which made [him] statutorily ineligible for
community corrections.” The State also claims that the trial court ignored the Defendant’s
previous assault and domestic assault convictions on the basis that they were “somewhat
remote.” The Defendant argues that the trial court did not abuse its discretion because
while his prior convictions of assault and domestic assault may have been violent, the trial
court correctly determined that they did not show a pattern of violence. We agree with the
Defendant that the trial court did not abuse its discretion.
This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388
S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In
determining a defendant’s sentence, including the manner of service, the trial court
considers 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 enhancement and
mitigating 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
by the Defendant in his own behalf; and (8) the result of the validated risk and needs
assessment conducted by the department and contained in the presentence report. See
Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98. The State may
appeal a defendant’s community correction’s sentence pursuant to Tennessee Code
Annotated section 40-35-402. State v. Jeremy Mulkey, No. E2012-02337-CCA-R3CD,
2013 WL 5026912, at *2 (Tenn. Crim. App. Sept. 12, 2013). When the State appeals a
defendant’s sentence, the same standard of review applies, but the burden is on the State to
establish that the sentence is improper. Tenn. Code Ann. § 40-35-402, Sentencing Comm’n
Cmts.
A defendant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a). The Defendant’s sentences meet
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this requirement. Moreover, a defendant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable candidate
for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). Because the Defendant was convicted of two Class B felonies, he is not presumed
to be a favorable candidate for alternative sentencing. Tennessee Code Annotated section
40-35-103(1) sets forth the following sentencing considerations, which are utilized in
determining the appropriateness of alternative sentencing:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
Moreover, the sentence imposed should be (1) “no greater than that deserved for the offense
committed” and (2) “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).
The Community Corrections Act of 1985 was enacted to provide an alternative
means of punishment for “selected, nonviolent felony offenders in front-end community
based alternatives to incarceration.” Tenn. Code Ann. § 40-36-103(1). Tennessee Code
Annotated section 40-36-106(a)(1) provides that an offender who meets all of the following
minimum criteria shall be considered eligible for community corrections:
(A) Persons who, without this option, would be incarcerated in a
correctional institution;
(B) Persons who are convicted of property-related, or drug- or
alcohol-related felony offenses or other felony offenses not involving crimes
against the person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
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(E) Persons who do not demonstrate a present or past pattern of
behavior indicating violence;
(F) Persons who do not demonstrate a pattern of committing violent
offenses.
As noted by the State, Black’s Law Dictionary defines “pattern” as “[a] mode of behavior
or series of acts that are recognizably consistent.” Black’s Law Dictionary (11th Ed. 2019
Westlaw). An offender is not automatically entitled to community corrections upon
meeting the minimum requirements for eligibility. State v. Ball, 973 S.W.2d 288, 294
(Tenn. Crim. App. 1998).
The State claims that the Defendant was statutorily ineligible for community
corrections under Tennessee Code Annotated section 40-36-106(a)(1)(E) and (F). In
support of its argument, the State relies on several cases in which this court has determined
that a defendant was ineligible for community corrections due to prior convictions. For
example, in State v. Jeffery Russell Utley, No. 02C01-9812-CC-00385, 1999 WL 685672,
at *3 (Tenn. Crim. App. Sept. 3, 1999), this court found that the defendant was ineligible
for community corrections because his two prior convictions of assault and aggravated
assault indicated a past pattern of violent behavior. In State v. Demetria J. Kemp, No.
E2007-02603-CCA-R3-CD, 2008 WL 4790607, at *3 (Tenn. Crim. App. Oct. 31, 2008),
this court agreed with the trial court that the defendant’s two previous convictions of simple
assault demonstrated a present or past pattern of behavior indicating violence and
demonstrated a pattern of committing violent offenses. Finally, in State v. Richard W.
Shelton, No. M2017-00240-CCA-R3-CD, 2017 WL 4004257, at *9 (Tenn. Crim. App.
Sept. 11, 2017), this court stated that the defendant had a past pattern of behavior indicating
violence and that he had demonstrated a pattern of committing violent offenses due to his
two assault convictions and six domestic violence convictions.
All of those cases, though, are distinguishable from the instant case. This court’s
opinions in Jeffery Russell Utley and Demetria J. Kemp do not indicate how recently or
remotely the prior assault and aggravated assault convictions occurred, whereas the prior
assault and domestic assault convictions in this case occurred about eight years prior to the
new convictions. Additionally, the defendant in Richard W. Shelton had two prior assault
convictions and six prior domestic assault convictions. We note that he also had violated
orders of protection nine times. See Richard W. Shelton, 2017 WL 4004257, at *9. The
Defendant in this case had one assault conviction and one domestic assault conviction and
had violated an order of protection two times, both of which were not violent.
The Defendant argues that his case is more akin to State v. Artez L. Moreis, No.
W2002-00474-CCA-R3-CD, 2003 WL 1860537 (Tenn. Crim. App. Apr. 2, 2003), and
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State v. David G. White, No. 01-C-019008CC00189, 1991 WL 8521 (Tenn. Crim. App.
Jan. 31, 1991). In Artez L. Moreis, 2003 WL 1860537, at *15, this court stated that the
defendant’s three convictions of simple assault, which occurred seven years prior to the
drug offenses at issue, did not “represent a pattern of violence that would make him
ineligible for community corrections.” In David G. White, 1991 WL 8521, at *2, this court
found that the defendant’s two acts of violence, which occurred “over a period of several
years” prior to his arson conviction, did not establish a present or past pattern of behavior
indicating violence or a pattern of committing violent offenses.
Here, the record reflects that the trial court considered the principles and purposes
of sentencing. Furthermore, in determining whether the Defendant was eligible for
community corrections, the trial court considered his prior convictions of assault, domestic
assault, and violating the order of protection. The trial court found that the 2011 assault
and 2012 domestic assault convictions, both of which occurred eight years prior to the drug
offenses at issue, were too remote to establish a past pattern of violence and that the
violations of the order of protection were nonviolent. Accordingly, the trial court
determined that the Defendant was eligible for community corrections. The trial court
commended the Defendant for not using drugs, noting that he tested negative for drugs and
appeared to be healthy, and ordered that he serve nine years of his effective ten-year
sentence in the community corrections program. Under the circumstances, we cannot say
that the trial court abused its discretion by sentencing the Defendant to community
corrections.
CONCLUSION
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
sentencing decision of the trial court.
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JOHN W. CAMPBELL, SR., JUDGE
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