State of Tennessee v. Bobby Joe Young, Jr. ( 2021 )

07/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 13, 2021
STATE OF TENNESSEE v. BOBBY JOE YOUNG, JR.
Appeal from the Circuit Court for Montgomery County
Nos. 40700635(CC07-CR-637), 41301198(CC13-CR-1173), CC14-CR-13391
William R. Goodman, III, Judge
No. M2019-01965-CCA-R3-CD
The defendant, Bobby Joe Young, Jr., appeals the revocation of the sentences of probation
imposed for his convictions of aggravated assault, robbery, and escape, arguing that the
trial court erred by ordering that he serve the balance of the total effective sentence in
confinement and that the trial court miscalculated the remaining balance of the total
effective sentence. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Manuel B. Russ, Nashville, Tennessee (on appeal), and Kenneth Merriweather, Assistant
District Public Defender (at hearing), for the appellant, Bobby Joe Young, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; John Carney, District Attorney General; and Helen Young, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
We begin by noting that the record in this case does not contain the judgments
for any of the defendant’s convictions. It also does not contain any of the plea documents
related to any of the convictions. We glean those meager procedural facts available to us
from the trial court’s order of May 12, 2016, and the probation violation reports.
1
Montgomery County changed its case numbering system, and those cases pending at the time of
the change were assigned new case numbers. Because both the old and new numbers are used
interchangeably throughout the record, we have included both to avoid any potential confusion.
On May 12, 2016, the trial court issued an order, which was prepared by the
defendant’s counsel and agreed to by the State, relative to the disposition of a probation
violation warrant that was issued on July 30, 2015, “clarifying sentence structure and
credits” for all of the defendant’s cases. In the order, the trial court explicitly stated that
“[t]o the extent the following is or appears to be inconsistent with earlier judgments and
orders of this Court, it is the express intent of the Court that the terms of this order shall
prevail.” The order provides that the defendant received a one-year sentence in case
number 40701007 and that he satisfied that sentence on July 23, 2009. The defendant
received a six-year sentence in case number 40801224, to be served consecutively to the
one-year sentence in case number 40701007, and the order indicated that the sentence in
case number 40801224 “expired on September 15, 2013.” The court stated that the 11-
month-and-29-day-sentence imposed in case number 40800952 was to be served
consecutively to the six-year sentence in case number 40801224. The court further found
that the sentence in case number 40800952 “commenced on September 16, 2013 and
expired no later than September 14, 2014,” and, as a result, dismissed the then-pending
revocation warrant “with respect to this case.”
The May 12, 2016 order indicates that the defendant received a two-year
sentence in case number 40900127 to be served concurrently with the 11-month-and-29-
day-sentence imposed in case number 40800952 and consecutively to the six-year sentence
imposed in case number 40801224. The court found that the two-year sentence in case
number 40900127 “commenced on September 16, 2013,” and would have expired on
September 15, 2015, but for the issuance of the probation revocation warrant on July 30,
2015. Notably, the probation violation reports that are at issue in this case include a
“Sentence Start Date” of September 15, 2015, which would align with the expected
expiration date for the sentence imposed in case number 40900127. The filing of the
probation violation warrant on July 30, 2015, tolled the expiration of that sentence, and no
pretrial credits were applied in that case because “all such credits earned prior to September
15, 2013 applied to Docket No. 40801224.” The order does not indicate how many such
credits were applied.
The trial court concluded that, as of May 12, 2016, the 10-year sentence of
probation imposed in case number 40700635 had “not yet commenced” because the
sentence in case number 40900127 had not yet expired. The order indicates that the
defendant received a three-year sentence in case number 41301198 to be served
consecutively to the 10-year sentence imposed in case number 40700635 and that that
sentence had also not yet commenced. The defendant received a sentence of 11 months
and 29 days in case number CC14-CR-1339, to be served consecutively to the three-year
sentences in case number 41301198. Given the consecutive alignment of this sentence, it
also had not yet commenced at the time of the May 12, 2016 order.
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The order also provided that the defendant’s sentences of probation in cases
40800952, 40900127, 40700635, 41301198, and CC14-CR-1339 were tolled by the filing
of a revocation warrant on September 8, 2014, and that the defendant was reinstated to
probation on these cases on May 14, 2015, with confinement credits from September 10,
2014, to May 14, 2015, to be applied, presumably, to case number 40800952.
The revocation warrant that was the subject of the May 12, 2016 order issued
on July 30, 2015. The court concluded that the defendant had violated his probation and
reinstated him to probation for a term of 15 years, 11 months, and 29 days to be served in
the following order: case number 40900127 (two years), case number 40700635 (10 years),
case number 41301198 (three years), case number CC14-CR-1339 (11 months and 29
days). The court awarded the defendant credit for his confinement from “August 13, 2014
to August 20, 2014”; “September 10, 2014 to May 14, 2015”; and “October 8, 2015 to
November 13, 2015,” for a total of 292 days.
At the revocation hearing associated with the May 12, 2016 order, the
defendant’s counsel indicated that the defendant’s sentence in case number 40900127 “will
expire later this year.” Upon being questioned by the trial court at that same hearing, the
defendant agreed that his cumulative sentence as of that hearing was 15 years, 11 months,
and 29 days.
A probation violation report filed on November 7, 2016, alleged that the
defendant violated the terms of his probation in case numbers 40700635, 41301198, and
CC14-CR-1339 by committing the new offenses of being a felon in possession of a firearm
and possession of drug paraphernalia. That report indicates that on July 17, 2009, the
defendant pleaded guilty in case number 40700635 to three counts of aggravated assault in
exchange for a 10-year sentence of probation to be served consecutively to the sentence
imposed in case number 40900127. The report does not indicate a sentence length for case
number 40900127 but indicates that the sentence in that case expired on September 15,
2015. An amended probation violation warrant filed on December 5, 2016, contains the
same recitation of the defendant’s case history and again alleges that he violated the terms
of his probation by possessing a firearm and drug paraphernalia. The December 5, 2016
report also adds an allegation that the defendant violated the terms of his probation by
failing to report his arrest on these new charges. This report similarly mentions that the
defendant’s three-year sentence in case number 41301198 was to be served consecutively
“to cases 40900127, 40700635, and 40800952” without naming a conviction offense or
sentence length for cases 40900127 or 40800952.
A probation violation report filed on September 14, 2018, again contains the
same recitation of the defendant’s supervision history and alleges that the defendant
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violated the terms of his probation by garnering arrests for robbery, possessing a firearm,
resisting arrest, and driving on a revoked license. The report also notes that a January 18,
2018 charge of possession of drug paraphernalia was dismissed upon the payment of costs
in June 2018. Again, cases 40900127 and 40800952 are listed as part of the defendant’s
case history, but no information is included regarding the conviction offenses or sentence
lengths. All of the probation violation reports and warrants indicate a then-pending total
effective sentence of 13 years, 11 months, and 29 days. None lists case number 40900127
as part of the revocation proceeding. Indeed, this case number is not included in any of the
probation violation documents after the May 12, 2016 order except in the history of
supervision portion of the violation reports.
At the October 15, 2019 hearing on the probation violations,2 Clarksville
Police Department Officer Holden Hudgin testified that at approximately 10:41 p.m. on
November 3, 2016, he stopped a Nissan Xterra being driven by the defendant’s son for
failing to use a turn signal when making a right turn. The defendant was a passenger in the
car. Both the defendant and his son agreed to be searched, and, during the search of the
defendant’s person, Officer Hudgin found “a plastic syringe” in his sock. After he
discovered the syringe, Officer Hudgin asked for permission to search the vehicle. Both
the defendant and his son refused, so Officer Hudgin asked “K-9 Officer Medford,” who
had arrived on the scene shortly after Officer Hudgin stopped the Xterra, to have the dog
perform “an open air search of the vehicle.” Officer Medford told Officer Hudgin “that his
dog indicated on the odor of narcotics inside the vehicle.” Based upon the dog’s indication,
Officer Hudgin searched the Xterra and found “a tan zippered bag with multiple items of
drug paraphernalia” under the passenger’s seat where the defendant had been sitting.
Inside the unlocked glove compartment in front of the seat where the defendant had been
sitting, Officer Hudgin found a loaded nine-millimeter Ruger handgun.
During cross-examination, Officer Hudgin acknowledged that the defendant
told him that the car belonged to the defendant’s father and that the gun belonged to the
defendant’s mother. He said that he had spoken with the defendant’s mother about the gun
but said that he could not remember what she had said about its ownership. Officer Hudgin
agreed that none of the items discovered on the defendant’s person or in the zippered bag
were per se illegal and that none of the items had been subjected to forensic testing.
During redirect examination, Officer Hudgin said that one of the items found
inside the zippered bag was the bottom of a “tin can.” He explained that “[t]he bottom of
that can is removed” and that “the bowl shape of that bottom of that can is used to put drugs
in there to be heated up and broken down, to be ingested through a syringe.”
2
The hearing also addressed the defendant’s motion to suppress evidence that arose from the arrests
that led to the filing of the probation violation reports.
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Jennifer Jones, manager of the Cash Express at 989 South Riverside Drive,
testified that at approximately 5:15 p.m. on September 12, 2018, she “was at the counter
waiting on my customer” when a man walked in front of the store window from the
direction of Kent Glass and then walked into the Cash Express with a shotgun. The man
was dressed in dark clothing and wore sunglasses and a black ball cap. The man ordered
the customer, Lillian Porter, to lie on the ground and then told Ms. Jones to give him the
money from the cash register, which he then placed into a white plastic bag. The man
asked how much money was in the register, and, when Ms. Jones replied “that I thought it
was $500 or $600,” the man said, “‘I know you got more money than that.’” She told him
that the rest of the money was “in a safe, but it was under the counter and I had to get the
key.” The man warned Ms. Jones that she “better not be hitting an alarm” as she opened
the safe. She “pulled the whole money bag out and I handed it to him.” The man told Ms.
Jones to lie on the floor and “said, ‘Give me 15 seconds before you call the law or I’ll shoot
you.’” After the man left the Cash Express, Ms. Jones looked up and saw the man walk
back in the direction of Kent Glass and the empty car lot beyond. She then locked the door
and telephoned 9-1-1. Ms. Jones said that $2,741.05 was taken during the robbery.
Clarksville Police Department Detective Andrew Henry testified that on
September 12, 2018, another officer made a radio call “that he had seen a white male
running through a parking lot over on Riverside Drive, carrying what appeared to be a rifle
or a shotgun.” That same officer said that he had checked with businesses in the area and
had learned that the Cash Express had been robbed and that “the vehicle that had left the
scene had been rounded” and “could have been beige or maroon” in color. Detective Henry
“continued traveling up the bypass looking for the suspect vehicle.” As he approached
Baltimore Drive, Detective Henry “saw a maroon S.U.V. that appeared to be rounded” in
the manner as described by the other officer. Detective Henry observed “two white males
in the vehicle. And the driver saw me, and started to try to put his seatbelt on.” Detective
Henry fell in behind the vehicle and then initiated a traffic stop “at the intersection of Vista
and Paradise.”
Detective Henry said that the vehicle, a Chevy Equinox, pulled into the
parking lot of a church and stopped. Detective Henry recognized the defendant as the
driver of the vehicle. Detective Henry said that the defendant “was extremely sweaty” and
“did appear to be kind of nervous.” The defendant told Detective Henry that he did not
have a driver’s license. After other officers, including Officer Hudgin and Officer
Medford, arrived, the defendant gave Detective Henry permission to search his person and
the vehicle. Detective Henry said that his search of the defendant was not thorough, so he
told Officer Hudgin to “feel free to search him again.” As Officer Hudgin attempted to
search the defendant, the defendant pulled away from Officer Hudgin and “[i]t seemed like
he was attempting to run.” Detective Henry said that the defendant had one arm “kind of
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going down towards his waistline,” so Detective Henry struck him “several times until he
released that.” At that point, Detective Henry observed a large amount of cash coming
from the defendant’s pant leg. Officers found even more cash stuffed inside the
defendant’s pants. Inside the car, Detective Henry found a plastic bag inside “an open
wooden box full of what appears to be silver spoons and some other, like, trinkets.”
Detective Henry said that the box did not “appear to be something that [the defendant]
would normally have in his possession.”
Officer Hudgin returned to the stand to testify about his involvement in the
September 12, 2018 traffic stop. He said that after Detective Henry finished searching the
defendant’s vehicle, the detective began to write a citation. Officer Hudgin observed the
defendant’s behavior as Detective Henry filled out the citation. He described the defendant
as “visibly kind of shaky, nervous looking, sweaty.” Officer Hudgin “noticed that [the
defendant] kind of had his hands around his groin area” and that “one of his pants leg[s] is
tucked inside of his sock.” Based on these observations and his conversation with
Detective Henry about whether the defendant had been searched, Officer Hudgin
approached the defendant, who “was having a conversation with Officer Medford, and I
told him that he could keep talking, I was just going to lift his pants leg up.” Officer Hudgin
said that “once I pulled his pant leg up, I noticed . . . a five-dollar-bill was hanging loose,
and once I went to pull it out [to] . . . see . . . if there was something wrapped up in it, he
began to try to pull away from us and take off running.” The officers “tackled him to the
ground and placed him in custody.”
After placing the defendant in custody, officers found more cash inside the
defendant’s pants. Officers then went to the address where the defendant claimed to have
been living at the time and were granted entry by the defendant’s girlfriend, who was the
tenant. Officer Hudgin and Detective Brittany Matos searched the apartment. “Detective
Matos lifted up the couch cushion and” observed “a double-barreled shotgun. I believe
there was some ammunition with it and . . . some gloves nearby.”
Clarksville Police Department Detective Brittany Matos testified that
officers collected $1,215 dollars from the defendant’s person during the September 12,
2018 traffic stop following the robbery of the Cash Express. Detective Matos confirmed
that, after the defendant’s girlfriend gave them permission to search her apartment, they
discovered a double-barreled shotgun and latex gloves under a cushion on the couch.
Detective Matos testified that the discovery of the gloves with the shotgun was significant
because the perpetrator of the robbery could be seen wearing similar gloves in the
surveillance video.
Detective Matos testified that, following the defendant’s arrest, he placed
several calls to his girlfriend. Audio recordings of the calls were played for the trial court.
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The defendant was eventually charged with aggravated robbery, unlawful possession of a
firearm by a convicted felon, driving on a revoked license, and evading arrest.
Clarksville Police Department Sergeant Nick Newman testified that he had
known the defendant’s girlfriend, Cheyenne Halberd, for several years and that he
contacted Ms. Halberd after he learned that the defendant might have been involved in the
Cash Express robbery. When Ms. Halberd told him that the defendant had not arrived as
scheduled to pick her up from work, Sergeant Newman responded that the defendant had
been arrested. Ms. Halberd arranged to come to the scene of the defendant’s arrest so that
she could get her children’s car seats out of the vehicle. Ms. Halbert told the officers “that
she needed to go pick up the kids and she would be right back and she would let us in the
apartment. And that’s what she did.”
At the conclusion of the hearing, the trial court found by a preponderance of
the evidence that the defendant violated the terms of his probation on November 3, 2016,
by possessing a gun and drug paraphernalia. The court also concluded “that the State has
established by a preponderance of the evidence that [the defendant] was the one engaged
in the robbery or the one holding that shotgun pointed directly at the operator, Ms. Jones, .
. . at the Cash Advance” and that the defendant’s involvement in the robbery “established
a violation of probation.” The court found that the defendant had a “three-year sentence
then running consecutive to the ten-year sentence and an 11-29 consecutive to those.” The
court determined that “[p]robation has not been a successful alternative” for the defendant
and ordered that he serve the balance of his sentence in confinement.
The defendant filed a timely notice of appeal to this court, and then his
counsel moved to withdraw based upon counsel’s impending move out of state. This court
remanded the case to the trial court for the appointment of counsel on appeal. At the
December 5, 2019 proceeding to appoint new counsel, the defendant questioned the
balance remaining on his sentences. He argued that the May 12, 2016 order conflicted with
the plea paperwork for case number 40900127 in that the paperwork did not “indicate that
it runs consecutive to Case 40801224.” He also claimed that the 10-year sentence imposed
in case number 40700635 should have been the first sentence served and that, based upon
a sentence-imposed date of July 2009, that sentence had expired. The prosecutor explained
that the defendant was convicted by a jury in case number 40801224 and that, at the time
of that conviction, the other cases were pending. In anticipation of the sentencing hearing
in case number 40801224, “we entered settlements . . . on the ten-year and the two-year.”
The State also pointed out that, because the defendant was “on bond for each of them when
the other offense was committed,” consecutive sentences were mandatory regardless of
what either the judgment or the plea paperwork said. The prosecutor said that the purpose
of the May 12, 2016 order was to clear up any remaining confusion and that the parties
agreed that, “going forward from May 12th of 2016, . . . this is what was remaining on
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these sentences.” The State noted that the defendant was present and represented by
counsel when the parties agreed to the order. Observing that the defendant’s “criminal
history is such that it almost takes somebody with a C.P.A. certification to be able to totally
clarify,” the trial court stated that “that’s what led then to the order of May 12th, 2016.”
The court agreed that “[t]here is obviously an error in these two judgments that are
inconsistent” and explained “[t]hat’s why we need[ed] orders at the time to clarify what
the Court is saying.”3 The court said that it would calculate the remaining balance on the
sentence in accordance with the May 12, 2016 order.
The probation revocation order for case number 40700635, which was filed
on January 2, 2020, indicates that the defendant’s probation was revoked on October 15,
2019, and that the trial court awarded him a total of 408 days credit. The revocation orders
for case numbers 41301198 and CC14-CR-1339, also filed on January 2, 2020, indicated
that the defendant’s probation was revoked on October 15, 2019, and that “all credits” were
applied to case number 40700635. At the December 5, 2019 proceeding, the State objected
to the calculation of credits on the revocation order that had been submitted to the State for
review, but it is not clear from this record whether the objectionable orders were the ones
that were ultimately entered.
In this timely appeal, the defendant challenges the trial court’s order that he
serve the balance of his sentences in confinement and the trial court’s calculation of the
sentence balance.
The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion,
bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that
causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn.
2010). The 1989 Sentencing Act expresses a burden of proof for revocation cases: “If the
trial judge finds that the defendant has violated the conditions of probation and suspension
by a preponderance of the evidence, the trial judge shall have the right by order duly entered
upon the minutes of the court to revoke the probation and suspension of sentence . . . .”
T.C.A. § 40-35-311(e)(1).
Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
3
The record indicates that the trial court examined judgment forms provided by the defendant, but
the defendant made no effort to exhibit the documents to the proceeding.
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entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” T.C.A. § 40-35-310(a).
In other words, “[t]he trial judge retains the discretionary authority to order the defendant
to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v. Duke, 902
S.W.2d 424, 427 (Tenn. Crim. App. 1995)).
As to the defendant’s claim that the trial court erred by ordering that he serve
the balance of his sentence in confinement, we conclude that the trial court does not abuse
its discretion by choosing incarceration from among the alternatives available following
the revocation of his probation.
We next consider the defendant’s claim that the trial court erroneously
calculated the balance of the total effective sentence left to be served. In our view, the
State’s characterization of the defendant’s challenge to the calculation memorialized in the
trial court’s May 12, 2016 order as time barred misses the gravamen of the defendant’s
actual claim. What the defendant has deemed a challenge to the trial court’s calculation of
his sentence is actually a claim that the first of the series of sentences included in the total
effective sentence expired before the trial court’s May 12, 2016 order. This is essentially
a challenge to the subject matter jurisdiction of the trial court. Because the defendant
cannot waive subject matter jurisdiction, the timeliness of his challenge is not an issue. See
State v. Demetrius D. Blakemore, No. W2019-00555-CCA-R3-CD, 2020 WL 864170, at
*2 (Tenn. Crim. App., Jackson, Feb. 19, 2020) (citing State v. Almeko Chiffon Woods, No.
W2007-02025-CCA-R3-CD, 2008 WL 3983107, at *3 (Tenn. Crim. App., Jackson, Aug.
28, 2008) (noting that a defendant has no power to waive subject matter jurisdiction); see
also State v. Nick Defillipis, No. M2007-01647-CCA-R3-CD, 2008 WL 2388632, at *3
(Tenn. Crim. App., Nashville, June 12, 2008)). Thus, if the sentence at issue had expired,
the trial court’s inclusion of that sentence in the May 12, 2016 order was void.
That being said, the record before us is insufficient to determine whether the
challenged sentence had, in fact, expired before the entry of the May 12, 2016 order.
Importantly, the record does not contain the judgment forms for any of the defendant’s
convictions. Instead, the defendant relies on assertions made in the probation violation
reports regarding the length of the total effective sentence. The appellant bears the burden
of preparing an adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560
(Tenn. 1993), which record “shall consist of . . . the original of any exhibits filed in the trial
court,” Tenn. R. App. P. 24(a). If the appellant fails to file an adequate record, this court
must presume the trial court’s ruling was correct. See State v. Richardson, 875 S.W.2d
671, 674 (Tenn. Crim. App. 1993). The trial court’s May 12, 2016 order attempted to make
sense of the various sentences and the credits to be applied to each. In the absence of
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evidence to the contrary, we must presume that the trial court’s calculation, which was
based on the May 12, 2016 order, was correct.
Accordingly, we affirm the judgment of the trial court revoking the
defendant’s probation and ordering him to serve the balance of his sentence in confinement.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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