State of Tennessee v. Daniel J. Jamison ( 2022 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSE
AT NASHVILLE
FILED
October 11, 2022 Session NOV 2 9 2022
Clerk
STATE OF TENNESSEE v. DANIEL J. JAMISON | Recta gy” \?Pellate Courts
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Appeal from the Circuit Court for Moore County
No. 21-CR-1554 Forest A. Durard, Jr., Judge
No. M2021-01302-CCA-R3-CD
Defendant, Daniel J. Jamison, entered an open plea of guilty to aggravated burglary, theft
of property valued at less than $1,000, aggravated criminal trespass, and public
intoxication. The trial court imposed an effective six-year sentence to be served in the
Department of Correction, followed by a consecutive sentence of eleven months and
twenty-nine days in the county jail with all but ninety days to be served on supervised
probation. On appeal, Defendant argues that his sentence was excessive. Following our
review of the entire record, oral arguments, and the briefs of the parties, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ. joined.
Mitchell A. Raines, Assistant Public Defender, Tennessee District Public Defenders
Conference (on appeal) and Brian Beldin, Assistant Public Defender (at trial), for the
appellant, Daniel J. Jamison.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Robert Carter, District Attorney General; and Holly Hewgley, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
The Moore County Grand Jury returned a four-count indictment charging Defendant
with aggravated burglary, theft of property valued at less than $1,000, aggravated criminal
trespass, and public intoxication. Defendant entered an open guilty plea to the offenses as
charged in the indictment. The facts of this case, as set forth by the State at the guilty plea
submission hearing, are as follows:
[D]uring the night of October 15 and 16, 2020[,] [victim] woke up
in her house at [. . .] here in Moore County, Tennessee because her
dog was barking. It turned out the dog was doing what the dog ought
to do, however she fussed at the dog and went back to sleep. Around
4:00 a.m. Deputy Harper responded to a call about a prowler just
down the road at [.. .]. The report said the prowler was on the front
porch, appeared to be high and the homeowner did not want him
there and was calling to make him go.
When Deputy Harper arrived he found [Defendant] who had slurred
speech, restricted pupils and was unsteady on his feet, he was not
fully oriented. Deputy Harper patted him down for weapons. A hard
object stuffed in the back of his pants turned out to be a Samsung
tablet.
[Defendant] identified it as his, he also said he was on Meth, had
been with friends earlier but got separated. He was arrested for
public intoxication and the criminal trespass.
At the jail Deputy Harper saw the tablet belonged to Tori Regan. He
looked up her address, found it was [. . . ], just down the road from
where he had been, called the phone number associated with that
address and woke her up and asked her if she was missing a tablet.
She said hang on, she would go check. She reported back that she
had found the lights on in her dining room, though they had been off
when the family went to bed. She said she was missing a tablet that
had been in the living room by the television that they used to run
their television programming. The Defendant was read and waived
his Miranda Rights, he was asked if he had been anywhere else and.
he did say he had been to one other house and that he had permission
to have the tablet. The tablet was valued under $1,000, the Regan[s]
had not given anyone permission to enter their house while they were
asleep in the middle of the night nor take the tablet.
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At the sentencing hearing, the presentence report was entered into evidence.
Defendant’s criminal history in the report consisted of eight convictions for criminal
trespass, five convictions for driving on a suspended license, three convictions for public
intoxication, three convictions for disorderly conduct, several traffic violations, and single
convictions for casual exchange of methamphetamine, domestic assault, assault, theft,
violation of an order of protection, and possession of drug paraphernalia. Defendant also
acknowledged that he had used marijuana regularly since 2004 and methamphetamine from
2012 until his arrest in October, 2020. Defendant also had a conviction for petit larceny in
Florida and pending charges in Florida for possession of a designer drug, possession of
cocaine and two charges for failure to appear. The State introduced additional criminal
history not reflected in the presentence report of two convictions for disorderly conduct,
two convictions for being absent without leave (“AWOL”) from the National Guard, and
single convictions for criminal trespass and attempted auto burglary.
Libby Stejskal, Jail Administrator for the Moore County Jail, testified that she is
keeper of the records for disciplinary matters that occur at the facility. She identified copies
of Defendant’s disciplinary reports, which included many disciplinary issues since his
incarceration such as “failing to comply with jail rules, disrespect to staff, [including Jail
Administrator Stejskal], back talking, just arguing in general.” Jail Administrator Stejskal
testified that Defendant also had violations for use of profanity, being out of bed after
hours, and destruction of county property because of an incident where Defendant ripped
the pants off of another inmate. She said that “[t]here will be fragments of time he won’t
get in trouble but those are only a few weeks ata time.” Jail Administrator Stejskal testified
it was eventually discovered that Defendant had a pending misdemeanor charge in Coffee
County. Due to his disruptive behavior in the Moore County Jail, officials with Coffee
County Jail agreed to house Defendant for a period of approximately three months. Jail
Administrator Stejskal was not aware of any problems with Defendant in the Coffee
County Jail.
Defendant gave an allocution during which he admitted to having a “severe
addiction to meth for the better part of 10 years.” He said that before being incarcerated
for the present offenses, his “longest span of sobriety was no longer than 8 months[,]”
which was due to his incarceration during that time for other offenses. Defendant further
told the trial court that he had “obtained many public intox[ication]s during [his] times of
addiction.” He said that his perspective on life had now changed due to being “introduced
to [Narcotics Anonymous] while being incarcerated, and that has made it very obvious that
I’m to continue my path of sobriety once released.” Defendant told the court that he
planned to obtain and keep a job and that he had a “new and improved relationship” with
his parents. He was confident that he could attend all meetings and abide by the
“stipulations” of probation once released. He also expressed a desire to “further [his]
knowledge by attending a school and obtaining a license or degree of some sort.”
Defendant indicated that sobriety was his “number one priority.”
= 3
The trial court found Defendant to be a Range I, standard offender and applied three
enhancement factors: that Defendant had a previous history of criminal convictions or
criminal behavior, in addition to that necessary to establish the appropriate range; that
Defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community; and that Defendant was on probation when he
committed the offenses in this case. T.C.A. § 40-35-114 (1), (8) and (13). The trial court
found that no mitigating factors applied, disagreeing with Defendant that his conduct
neither threatened nor caused serious bodily injury and refusing to consider Defendant’s
voluntary intoxication and military service. T.C.A. § 40-35-113 (1) and (13). The trial
court imposed an effective six-year sentence to be served in the Department of Correction,
followed by a consecutive sentence of eleven months and twenty-nine days in the county
jail with all but ninety days to be served on supervised probation.
ANALYSIS
Defendant argues that the sentence imposed by the trial court in this case was
excessive because the trial court found no mitigating factors and ordered Defendant to
serve partial consecutive sentences. The State responds that the trial court acted within its
discretion in sentencing Defendant.
The trial court has broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.” State
v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Jd. at 707. In State v. Caudle, our
Supreme Court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012). Under
the Sentencing Act, trial courts are to consider the following factors when determining a
defendant’s sentence and the appropriate combination of sentencing alternatives:
(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 the mitigating
and enhancement factors set out in §§ 40-35-113 and 40-35-114;
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(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 wishes to make in the defendant’s
own behalf about sentencing; and
(8) The result of the validated risk and needs assessment conducted
by the department [of correction] and contained in the presentence
report.
T.C.A. § 40-35-210(b).
In misdemeanor sentencing, “while the better practice is to make findings on the
record when fixing a percentage of a defendant’s sentence to be served in incarceration, a
trial court need only consider the principles of sentencing and enhancement and mitigating
factors in order to comply with the legislative mandates of the misdemeanor sentencing
statute.” State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). Thus, the trial court is
afforded considerable latitude in misdemeanor sentencing. See State v. Johnson, 15
S.W.3d 515, 518 (Tenn. Crim. App. 1999). The “Bise standard is the appropriate standard
of review in misdemeanor sentencing cases.” State v. Gregory Gill, No. W2018-00331-
CCA-R3-CD, 2019 WL 549651, at *16 (Tenn. Crim. App. Feb. 11, 2019).
Trial courts are “required ... to ‘place on the record, either orally or in writing, what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 698-99
(quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld
so long as it is within the appropriate range and the record demonstrates that the sentence
is otherwise in compliance with the purposes and principles listed by statute.” Jd. at 709-
10. Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See T.C.A. § 40-35-114; see also Bise,
380 S.W.3d at 701. Moreover, a trial court is “guided by — but not bound by — any
applicable enhancement or mitigating factors when adjusting the length of a sentence[,]”
and its “misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Bise, 380 S.W.3d at 706.
In this case, the record reflects that the trial court in sentencing Defendant,
considered all appropriate principles set forth in Tennessee Code Annotated section 40-35-
210(b). The trial court applied three enhancement factors, including Defendant’s history
of criminal convictions in addition to those necessary to establish the range; that Defendant,
before trial or sentencing failed to comply with the conditions of a sentence involving
release into the community; and that Defendant was on probation when he committed the
offenses in this case. T.C.A. § 40-35-114 (1), (8) and (13). Defendant does not contest the
application of those factors, and the record reflects that they were appropriately applied.
e5z
As set forth above, the presentence report and additional criminal history presented by the
State reflects that Defendant had an extensive misdemeanor criminal history in Tennessee
and conviction and pending charges in Florida. Defendant acknowledged that he had used
marijuana regularly since 2004 and methamphetamine from 2012 until his arrest in October
2020. The trial court also pointed out that Defendant had “8 or 9, depending on how you
slice it, violations of probation, that weighs very heavily on the Court.”
The trial court reviewed mitigating factors proposed by Defendant and found that
none applied in Defendant’s case, concluding:
I’ll have to respectfully disagree with the defense on the application
of any mitigating factors. Number one, that factor says the conduct
neither threatened or caused serious bodily injury. As I noted a
moment ago the legislature has determined that aggravated burglary
needed to be removed from property crimes and placed in the
situation where it was a crime against a person. And even if that had
not happened I still would not apply it here. This was a bad situation
and the facts that came out at the plea acceptance hearing were that
[Defendant] appeared to be stoned out of his mind and he was
wandering around, I doubt he knew what he was doing, but he made
his way in to these people’s house and stole some things and they
were I believe in bed asleep if memory serves me correctly. This
could have been bad for everybody involved.
There is a gun in every house just about in Moore County and you
were very lucky, [Defendant], that you did not wind up on the
receiving end of that gun.
Let’s see, the argument that this was done perhaps maybe not with a
sustained intent to violate the law because of voluntary intoxication
of the defendant, I submit does not apply in this particular situation.
The intoxication is voluntary, so I don’t find any mitigating factors
apply in this situation. What weighs heavy on the Court’s mind, and
granted both sides recognize this, is that he does not have any felony
convictions, but by my count he has about 34 different misdemeanor
convictions. [Defendant] was born in 1990 and is just now 31 years
of age, these offenses occurred at age 30. In the 12 years span he
has gotten a lot of contact with the criminal justice system. He has
been given multiple opportunities to avail himself to probation and
the services they give.
The record supports the trial court’s findings with respect to the mitigating factors. See
T.C.A. § 40-35-113 (1), (13).! Although the trial court did not address Defendant’s military
service, which Defendant argues also supports the application of mitigating factor (13),
this court has found that a trial court’s refusal to mitigate a defendant’s sentence based on
prior honorable military service was not error. State v. Chad Michael Knight, No. M2005-
00779-CCA-R3-CD, 2006 WL 1491573, at *3 (Tenn. Crim. App. May 31, 2006). We also
note that although Defendant was honorably discharged from the military, he has two
misdemeanor convictions from the National Guard for being AWOL.
Defendant’s conviction for aggravated burglary is a Class C felony. As a Range I
standard offender, Defendant was subject to a sentencing range of three to six years. T.C.A.
§ 40-35-112(a)(3). He was subject to a potential sentence of eleven months, twenty-nine
days for theft and aggravated criminal trespass, Class A misdemeanors, and thirty days for
public intoxication, a Class C misdemeanor.
We conclude that the trial court properly sentenced Defendant. The trial court
clearly stated on the record its reasons for the sentence imposed, and Defendant’s sentence
is within the appropriate range and “justly deserved in relation to the seriousness of the
offense” and considering Defendant’s “lengthy history of criminal conduct.” T.C.A. § 40-
35-102(1) and 3(B). The record reflects that the trial court considered the purposes and
principles of the Sentencing Act, the evidence adduced at the sentencing hearing which
included the presentence report, the parties’ arguments, and the nature and characteristics
of the crimes. We cannot conclude that the trial court abused its discretion by sentencing
Defendant to six years for aggravated burglary, eleven months and twenty-nine days each
for theft of property less than $1,000 and aggravated criminal trespass, and thirty days for
public intoxication.
With respect to consecutive sentencing, our supreme court has held that the standard
of review adopted in Bise “applies similarly” to the imposition of consecutive sentences,
“giving 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)[.]” State v.
Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). Tennessee Code Annotated section 40-35-
115(b) provides that a trial court may order sentences to run consecutively if it finds any
one of the following criteria by a preponderance of the evidence:
' In his brief, Defendant argues for the first time on appeal that the trial court should have
considered his voluntary intoxication under mitigating factor (11), that the acts were “committed under
such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated [his]
criminal conduct.” T.C.A. § 40-35-113(11). However, issues raised for the first time on appeal are waived.
See Tenn. R. App. P. 36(a).
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(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) The 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 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; or
(8) The defendant is convicted of two (2) or more offenses involving
sexual exploitation of an elderly or vulnerable adult with
consideration of the aggravating circumstances arising from the
relationship between the defendant and victim, the nature and scope
of the sexual acts, and the extent of the physical and mental damage
to the victim.
T.C.A. § 40-35-115(b). In Pollard, the court reiterated that “[a]ny one of these grounds is
a sufficient basis for the imposition of consecutive sentences.” 432 S.W.3d at 862. “So
long as a trial court properly articulates its 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.” Jd.; Bise, 380 S.W.3d at
705. “Trial courts can consider prior misdemeanors in determining whether a defendant
has an extensive record of criminal activity” for consecutive sentencing purposes. State v.
Dickson, 413 $.W.3d 735, 748 (Tenn. 2013).
Here the record reflects that the trial court in sentencing Defendant found that
Defendant is an offender whose record of criminal activity is extensive. T.C.A. § 40-35-
115(b)(2). The record supports this finding as evidenced by Defendant’s criminal history
wa Rees
as set forth above. We cannot conclude that the trial court abused its discretion by ordering
partial consecutive sentences in this case.
Accordingly, the trial court properly sentenced Defendant, and he is not entitled to
relief on his claim that his sentence is excessive.
CONCLUSION
After a thorough review of the record, we affirm the judgments of the trial court.
JILL BARTEE AYERS, JUDGE