State of Tennessee v. Jerry Reginald Burkes ( 2018 )

05/14/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 10, 2017
STATE OF TENNESSEE v. JERRY REGINALD BURKES
Appeal from the Criminal Court for Greene County
No. 14CR180 Alex Pearson, Judge
No. E2017-00079-CCA-R3-CD
The defendant, Jerry Reginald Burkes, appeals his convictions of money laundering,
theft, and sales tax evasion and the accompanying 18-year effective sentence that
included five years of confinement. The defendant argues that (1) the trial court erred by
permitting the State to introduce certain evidence in violation of Tennessee Rule of
Evidence 404(b); (2) the trial court erred by concluding that certain of the defendant’s
convictions would be admissible for purposes of Tennessee Rule of Evidence 609; (3) the
trial court violated his constitutional privilege against self-incrimination; (4) the State
failed to discover and disclose exculpatory evidence; (5) the evidence was insufficient to
support a conviction of money laundering; (6) the trial court erred by imposing a Range
II sentence; and (7) the sentence imposed by the trial court is illegal. Because the five-
year term of confinement imposed by the trial court is not authorized, we vacate the
sentencing decision of the trial court and remand the case for resentencing. Additionally,
because the amount of restitution ordered by the trial court cannot be satisfied under the
terms ordered by the trial court, we vacate the restitution order and remand the case for
the trial court to impose restitution in a manner that complies with Code section 40-35-
304. We affirm the judgments of the trial court in all other respects.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Vacated in
Part; Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Greg W. Eichelman, District Public Defender, for the appellant, Jerry Reginald Burkes.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Ritchie Collins,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In March 2014, the Greene County Grand Jury issued a presentment
charging the defendant with 11 counts of money laundering, one count of forgery, one
count of theft of property valued at more than $60,000, and 12 counts of sales tax
evasion. After the trial court expressed doubt about the validity of the presentment, the
State obtained a superseding presentment charging the defendant with one count of
money laundering, one count of forgery, one count of theft of property valued at more
than $60,000, and 12 counts of sales tax evasion.1 The evidence adduced at the
defendant’s April 2016 trial established that the defendant intentionally failed to remit the
required amount of sales tax due in relation to the sales of cigarettes and other tobacco
products at his store, Preeminent Skate Specialty, during 2011. The defendant used the
retained sales tax money to purchase more cigarettes and tobacco products, which he then
sold in the store.
Tennessee Department of Revenue Special Agent Brian McGhee testified
that he began investigating Preeminent Skate Specialty in April 2012 after a Department
of Revenue audit uncovered a discrepancy between the amount of tobacco products being
purchased by the defendant, as reported by those tobacco wholesalers who sold inventory
to the defendant, and the amount of sales tax remitted to the department in the monthly
sales tax returns during 2011. Agent McGhee began his investigation by obtaining the
purchase histories for Preeminent Skate Specialty from S&M Brands, Smith Wholesale,
Wholesale Outlet, and Sam’s Club, which histories Agent McGhee then “compared . . . to
what [the defendant] reported for his taxable sales on his sales tax returns,” explaining
that it was the department’s “theory” that when a business is “continually purchasing
inventory on a monthly basis, . . . they are staying in business and . . . continually making
sales and . . . generating revenue to be able to continue to purchase inventory and stock
their store.” Agent McGhee calculated the total inventory purchased for each month and,
1
The trial court apparently believed that the original presentment was invalid because none of the
counts had been marked as a true bill. Because a presentment bears the signature of all the grand jurors,
however, it is not necessary that it be marked as a true bill in order to be valid. See Martin v. State, 155
S.W. 129, 130 (Tenn. 1913); State v. Muzingo, 19 Tenn. 112, 113 (1838) (“An indictment is only signed
by the foreman of the grand jury, and therefore, unless it appears from the record that the bill was
returned by the jury into open court ‘a true bill,’ it cannot appear that it has been before them, and found
by them. Not so in the case of a presentment. That is signed by all the jurors, and we have thus an
assurance that they have acted on it and found the facts it presents.”); see also State v. Lawrence Shelton,
No. 03C01-9505-CR-00138 (Tenn. Crim. App., Knoxville, Mar. 13, 1996) (“The requirements for a valid
presentment are different from those necessary for a valid indictment. In order to be considered valid, a
presentment must, at a minimum, contain the signatures of all twelve grand jurors.”); James Michael
Robbins v. State, No. 03C01-9106-CR-00172 (Tenn. Crim. App., Knoxville, Oct. 29, 1991) (holding that
“it is not necessary that a presentment be endorsed as a true bill and that the signatures of 12 Grand Jurors
are a sufficient validation”).
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assuming that the defendant sold as much as he bought, calculated the amount of gross
sales. He then subtracted from the gross sales amount the amount of any manufacturer’s
“buydown,” before calculating the amount of sales tax that should have been collected by
Preeminent Skate Specialty for each month of 2011.2
Agent McGhee made the following findings with regard to the remittance
of sales tax by Preeminent Skate Specialty for 2011:
Month Inventory Buydown Corrected Sales Tax Reported Sales
Purchased Amount Gross Sales Due Gross Tax
Sales Paid
January $168,806.89 $18,582.90 $150,223.99 $14,646.84 $30,108 $2,935
February $119,932.37 $11,838.50 $108,093.87 $10,539.15 $31,783 $8,098
March $165,415.52 $12,049.50 $153,366.02 $14,953.19 $28,261 $2,755
April $119,710.74 $22,626.90 $97,083.84 $9,465.67 $28,841 $2,812
May $164,523.14 $14,235.50 $150,287.64 $14,653.04 $29,063 $2,834
June $160,702.25 $14,262.50 $151,439.75 $14,765.38 $27,448 $2,677
July $97,809.18 $13,730 $84,079.18 $8,197.72 $1,744 $1,700
August $164,591.42 $9,848 $154,743.42 $15,087.48 $18,060 $1,764
September $162,923.12 $10,150.30 $152,772.82 $14,895.35 $21,440 $2,088
October $165,466.15 $14,154.60 $151,311.55 $14,752.88 $21,790 $2,125
November $158,783.51 $14,714.40 $144,069.11 $14,046.74 $18,446 $1,798
December $169,251.98 $16,513.30 $152,738.68 $14,892.02 $15,824 $1,543
Agent McGhee’s findings indicated that the defendant failed to remit $11,711.84 in sales
tax due in January; $7,441.15 in February; $12,198.19 in March; $6,653.67 in April;
$11,819.04 in May; $12,088.38 in June; $6,497.72 in July; $13,323.48 in August;
$12,807.35 in September; $12,627.88 in October; $12,248.74 in November; and
$13,349.02 in December. The total 2011 shortage was $132,766.46.
Agent McGhee interviewed the defendant for the first time in August 2012,
and during that interview, the defendant indicated that he was the owner and manager of
Preeminent Skate Specialty and that he alone was “financially responsible for everything
at the store.” The defendant told Agent McGhee that he paid himself a wage of $4 per
hour and that he additionally kept as a sort of “salary” the buydown money he received
from Phillip Morris. With regard to the collection of sales tax, the defendant said that at
2
Agent McGhee described a “buydown” as a manufacturer’s promotion offered to the retailer in
the form of a per-carton or per-item discount and explained that the retailer can choose whether to pass on
the discount to the consumer. Agent McGhee explained that buydowns, in contrast to manufacturer’s
coupons, are deducted from the sales price of an item before any sales tax is calculated.
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the end of each day, he placed 10 percent of the cash in the register into one bank bag and
then put the remaining cash into another bank bag before taking both bags home with him
every evening. When confronted with a previous sales tax return, the defendant admitted
that “he had messed up” and said that “he had been putting the wrong amount on the
gross sales tax.” The defendant told Agent McGhee “that he had been setting aside for
sales taxes as gross sales on that line and then taking 10% of 10%.”
During that same interview, the defendant told Agent McGhee that he did
not “use banks because he didn’t trust them.” Following the interview, however, Agent
McGhee discovered two bank accounts for Preeminent Skate Specialty. A review of the
those accounts indicated that the defendant made daily over-the-counter withdrawals so
that the amount of money in each account remained essentially static, with low beginning
and ending balances for each month of 2011. To be sure, neither bank account contained
enough funds at any given time to enable the defendant to purchase inventory and
otherwise operate his business without selling the products that he purchased.
Following his interview with the defendant, Agent McGhee confirmed that
the defendant made nearly all of the inventory purchases himself, using cash “the
majority of the time,” and that none of the defendant’s suppliers allowed him to purchase
products on credit. Agent McGhee visited Preeminent Skate Specialty and did not find
any surplus inventory stored on the premises that suggested the defendant was doing
anything other than selling the inventory he purchased from the wholesalers.
Additionally, he did not find anything during his visit to indicate that the defendant was
selling tobacco products at cost. Accordingly, Agent McGhee concluded that the
defendant was selling enough tobacco products each month to cover the cost of replacing
his inventory using cash. The daily cash withdrawals corroborated these findings.
During a second interview in May 2013, the defendant told Agent McGhee
that he was using a different “process that he used for the end of the day procedures and
the numbers that he used to complete his sales tax returns” than he was previously. The
defendant “described a different process where he actually used numbers off of the z
tapes instead of setting aside 10% and putting it in a bank bag and using that number that
he took 10% of the gross sales amount erroneously and put that on the sales tax return.”
The defendant told the agent that he took the contents of the cash register home each
night and then deposited the money the next day. The defendant told Agent McGhee that
he did not recall telling the agent about the two-bank-bag process in the April 2012
interview. The defendant acknowledged that he used proceeds from the sales at the
business to buy new inventory and that he alone was “the manager and financially
responsible” for the business. Agent McGhee said that because the defendant was
responsible for running the business, collecting the money, making deposits, and
purchasing all the product, the defendant should have been “very aware that the sales and
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the sales tax that he was completing on those returns was not adequate for what he was
purchasing.”
Representatives of two of the suppliers testified that the defendant made
nearly daily cash purchases of tobacco products in 2011. The State offered into evidence
the records of the defendant’s tobacco product inventory purchases for 2011.
Tennessee Department of Revenue tax audit manager Mark See testified
that he supervised the Retail Accountability Program (“the program”), a program created
in 2012 that required “wholesalers of beer and tobacco to report sales to retailers to the
department on a monthly basis.” He explained that the program compared the
information received from the wholesalers with “what the retailers reported their sales
were for the same periods. Then when there [are] big discrepancies, then [the
department] sends out assessments” for the difference in sales tax owed. To arrive at the
appropriate assessment figure, the law required the program to mark up the wholesale
price of tobacco products by eight percent before calculating the sales tax. Additionally,
the program provided credit for buydowns when retailers reported them.
Agent See said that the department assessed Preeminent Skate Specialty
three times between the time the program began and when the business closed in 2013.
He testified that in the fourth quarter of 2012, wholesalers reported sales to the defendant
of $262,965 while the defendant reported sales of $30,000 and remitted only $2,925 in
sales tax. As a result of this discrepancy, the department issued an assessment of $24,765
for that quarter. For the first quarter of 2013, data received from the wholesalers showed
that the defendant made inventory purchases in excess of $316,000, but the defendant
reported sales of only $73,340. As a result, the department issued an assessment of
$26,155. Finally, in the second quarter of 2013, wholesalers reported that the defendant
purchased in excess of $211,000 in inventory, but the defendant reported sales of just
over $18,000 and remitted no sales tax at all. According to Agent See, the defendant
never provided any buydown information and was thus never given any credit for any
buydowns.
Following Agent See’s testimony, the pro se defendant elected not to testify
but chose to present proof.
Danny Sample testified that he was a customer at Preeminent Skate
Specialty and that he struck up a friendship with the defendant, whom he considered a
very friendly person.
Based upon this evidence, the jury convicted the defendant as charged of
money laundering, theft of property valued at more than $60,000, and 12 counts of sales
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tax evasion.3 Following a sentencing hearing,4 the trial court imposed Range II sentences
of 18 years each for the defendant’s Class B felony convictions of money laundering and
theft and sentences of four years for each of the defendant’s Class E felony convictions of
sales tax evasion. The court ordered the sentences to be served concurrently and ordered
the defendant to serve the effective 18-year sentence as five years’ incarceration followed
by community corrections placement. The trial court also imposed the $80,000 in fines
recommended by the jury and ordered restitution to the State in the amount of
$132,766.46 to be paid in installments of $500 per month following the defendant’s
release on community corrections.
The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant contends that (1) the trial court
erred by permitting the State to introduce certain evidence in violation of Tennessee Rule
of Evidence 404(b); (2) the evidence was insufficient to support a conviction of money
laundering; (3) the State failed to discover exculpatory evidence in violation of Brady v.
Maryland; (4) the trial court violated his constitutional privilege against self-
incrimination by asking the defendant to reveal during a pretrial hearing the date on
which he was released from federal custody; (5) the trial court erred by concluding that
certain of the defendant’s convictions would be admissible for purposes of Tennessee
Rule of Evidence 609; (6) the trial court erred by imposing a Range II sentence; and (7)
the sentence imposed by the trial court is illegal. We consider each claim in turn.
I. Evidentiary Issues
The defendant presents three evidentiary challenges. First, he claims that
the trial court erred by permitting the State to introduce evidence of the 2012 and 2013
assessments issued to Preeminent Skate Specialty by the Retail Accountability Program
in violation of Tennessee Rule of Evidence 404(b). Second, he claims that the State
failed to discover exculpatory evidence in the form of coupon and buydown information
from two companies and then failed to provide that information to him in violation of
Brady v. Maryland. Finally, he claims that the trial court erred by concluding that his
convictions, which were older than 10 years, would be admissible for purposes of
impeachment pursuant to Tennessee Rule of Evidence 609 and, in a related claim, that
the trial court violated his constitutional privilege against self-incrimination by asking
him to reveal during the hearing to discuss potential Rule 609 evidence the date on which
he was released from federal custody.
3
Prior to trial, the State dismissed that count of the presentment charging the defendant with
forgery.
4
The defendant requested counsel prior to the sentencing hearing, and the trial court appointed the
public defender’s office to represent him.
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A. Tennessee Rule of Evidence 404(b)
Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity with the character trait.” Tenn. R. Evid. 404(b). The rationale
underlying the general rule is that admission of such evidence carries with it the inherent
risk of the jury’s convicting the defendant of a crime based upon his bad character or
propensity to commit a crime, rather than upon the strength of the evidence. State v.
Thacker, 164 S.W.3d 208, 239 (Tenn. 2005). This rule is subject to certain exceptions,
however, including “evidence of a pertinent trait of character offered by an accused or by
the prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. The rule specifies three
prerequisites to admission:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court must find by
clear and convincing evidence that the defendant committed the other crime or bad act.
Id., Advisory Comm’n Comments; State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997).
When the trial court substantially complies with the procedural
requirements of Rule 404(b), this court will overturn the trial court’s ruling only when
there has been an abuse of discretion. See Thacker, 164 S.W.3d at 240; see also DuBose,
953 S.W.2d at 652. If, however, the strict requirements of the rule are not substantially
observed, the reviewing court gives the trial court’s decision no deference. See id.
Prior to trial, the State moved the trial court to rule on the admissibility of
evidence that the defendant had underpaid his sales tax in 2012 and 2013 despite having
been warned by Agent McGhee in 2012 that he had previously failed to remit sufficient
payments. The State argued that the evidence was admissible to show that the defendant
intentionally underreported his monthly gross sales and underpaid sales tax and to show
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that the underpayment was not simply an accounting mistake.
At the April 14, 2016 hearing, Agent McGhee testified as he did at trial that
he warned the defendant during the August 2012 interview “[t]hat he had under reported
his sales and sales tax on his sales tax returns.” When the defendant told the agent that he
set aside 10 percent of the total sales each day as his “gross sales” “and then took
approximately 10 percent of that amount to record as the sales tax,” Agent McGhee
placed the defendant “on notice” that his accounting method was incorrect. Agent
McGhee also encouraged the defendant to attend the “new business owner . . . workshop”
offered by the taxpayer services division.
Agent See testified, in keeping with his trial testimony, that the department
issued assessments to Preeminent Skate Specialty in “the fourth quarter of 2012, the first
quarter of 2013, and the second quarter of 2013.”
At the conclusion of the hearing, the trial court deemed the evidence
admissible:
So the [c]ourt finds that the probative nature of the
evidence is high and it’s not being offered solely as
propensity evidence but to show that the defendant didn’t
make a mistake and that he had an intent to commit the act . .
. . So I believe the [S]tate can introduce it.
But, however, with that being said, [the defendant] has
certainly asked certain questions about it that I believe the
jury can ascertain whether or not they feel like that
information is reliable or not. That’s the question.
But I think the [S]tate can introduce it for the purposes
of showing [it is] lack of mistake, lack of accident, intent,
common scheme or pla[n] . . . . So I’m going to allow the
[S]tate to introduce it, and I find that it is sufficiently
probative and not being offered solely for propensity of
evidence based on intent, lack of accident, common scheme
or plan, et cetera.
And I do find that even though these acts occurred
afterwards, it is the law that you can under the right
circumstances use subsequent acts to show intent on previous
acts.
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The defendant contends that the trial court failed to find that the State had
established the other bad acts by clear and convincing evidence and that the probative
value of the evidence outweighed the danger of unfair prejudice before admitting the
evidence. The State argues that these findings are implicit in the court’s ruling and that,
in any event, the evidence was admissible under the terms of Rule 404(b) to establish that
the defendant acted intentionally.
As our supreme court has observed, “‘the plain language’ of Rule 404(b)
uses the phrase ‘other crimes, wrongs, or acts’ rather than ‘prior crimes, wrongs, or
acts,’” thus “permit[ting] the introduction of evidence of subsequent acts to establish
one’s intent during a prior act in appropriate cases.” State v. Elkins, 102 S.W.3d 578, 584
(Tenn. 2003) (citing State v. Elendt, 654 S.W.2d 411, 414 (Tenn. Crim. App. 1983)).
When “determining whether to allow the admission of evidence of subsequent crimes,
wrongs, or acts in a given case,” the trial court “should be mindful of the similarity of the
offenses or acts and the proximity in time.” Id.
“Subsequent as well as prior collateral offenses can be put in
evidence, and from such system, identity or intent can often
be shown. The question is one of induction, and the larger
the number of consistent facts, the more complete the
induction is. The time of the collateral facts is immaterial,
provided they are close enough together to indicate that they
are a part of the system. A man may be honestly mistaken
and have no fraudulent intent if a transaction stands alone, but
the probabilities of an honest mistake diminish as the number
of similar transactions, indicating a scheme or system,
increases.”
Thompson v. State, 101 S.W.2d 467, 473 (Tenn. 1937) (quoting Wharton’s Criminal
Evidence, vol. 1, pp. 527-30).
Here, evidence that the defendant continued to under report his gross sales
and underpay his sales tax even following his meeting with Agent McGhee tended to
establish that the defendant acted intentionally and that his failure to remit the appropriate
amount of sales tax was not the result of an accounting mistake or misunderstanding.
Agent See’s testimony established the subsequent acts by clear and convincing evidence,
and, in our view, the probative value of this evidence outweighed the danger of unfair
prejudice. Although the defendant claims that the admission of the evidence created a
danger that the jury would include the amounts of the 2012 and 2013 assessments as part
of the aggregated theft charge, the record does not support his claim. In consequence, the
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trial court did not err by admitting this evidence.
B. Brady v. Maryland
The defendant contends that the State violated the constitutional
requirement that it disclose exculpatory evidence by failing to obtain and provide to him
records from a North Carolina company called Inmar Coupon Redemption and buydown
information from a Virginia Company called JT International. The State avers that no
such violation occurred because the information the defendant desired was at no time in
the possession of the State.
At trial, the defendant asked Agent McGhee whether, as part of his
investigation, he had obtained buydown information from a company called JT
International and whether he had obtained coupon information from Inmar Coupon
Redemption. Agent McGhee replied that he had sent “an official request to JT
International like [he] did the other[]” wholesale suppliers but “received no information
back.” When asked whether he had obtained coupon information from Inmar Coupon
Redemption, Agent McGhee indicated that he was not familiar with the company. The
agent also testified that coupon information was irrelevant to the calculation of sales tax
due, explaining, “[T]he manufacturer coupon it’s different than the buydown, . . . you
actually calculate and collect sales tax on the full selling price of the pack of cigarettes
and then the discount comes after that.”
“It is well settled that the government has the obligation to turn over
evidence in its possession that is both favorable to the accused and material to guilt or
punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v.
Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963)). Indeed, the
“suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To
establish a due process violation via the suppression of evidence, the defendant must
establish that (1) he “requested the information (unless the evidence is obviously
exculpatory, in which case the [S]tate is bound to release the information whether
requested or not),” (2) “the State suppressed the information,” (3) “the information was
favorable to” his case, and (4) “the information was material.” Johnson v. State, 38
S.W.3d 52, 56 (Tenn. 2001). “Evidence ‘favorable to an accused’ includes evidence
deemed to be exculpatory in nature and evidence that could be used to impeach the
[S]tate’s witnesses.” Johnson, 38 S.W.3d at 55-56 (citing State v. Walker, 910 S.W.2d
381, 389 (Tenn. 1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App.
1998); United States v. Bagley, 473 U.S. 667, 676 (1985)).
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Although courts have used different terminologies to define
“materiality,” a majority of this Court has agreed, “[e]vidence
is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine
confidence in the outcome.”
Ritchie, 480 U.S. at 57 (citations omitted); see also Bagley, 473 U.S. at 682.
Importantly, “Brady obviously does not apply to information that is not
wholly within the control of the prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir.
1998); see State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). The State
has no duty “‘to disclose information that the defendant already possesses or is able to
obtain’” or “which is not possessed by or under the control of the prosecution or other
governmental agency.” Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011)
(quoting Marshall, 845 S.W.2d at 233). The State is also under no obligation “to seek
out exculpatory evidence not already in its possession or in the possession of a
governmental agency.” Marshall, 845 S.W.2d at 233 (citing United States v. Xheka, 704
F.2d 974, 982 (7th Cir. 1983)). When the defendant knows or should know “‘the
essential facts permitting him to take advantage of any exculpatory information,’” or
when “‘the evidence is available . . . from another source,’” there can be no Brady
violation “because in such cases there is really nothing for the government to disclose.”
Coe, 161 F.3d at 344 (quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1989)).
“When exculpatory evidence is equally available to the prosecution and the accused, the
accused ‘must bear the responsibility of [his] failure to seek its discovery.’” Marshall,
845 S.W.2d at 233 (quoting United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.
1985)).
Here, the defendant is not entitled to relief because the challenged evidence
was not within the exclusive control of the prosecution and was instead equally available
to both the defendant and the State through the use of compulsory process.
C. Tennessee Rule of Evidence 609
The defendant argues that the trial court erred by concluding that his prior
felony convictions would be admissible as impeachment evidence because the State
failed to establish that the convictions satisfied the prerequisites for admission under
Tennessee Rule of Evidence 609. In a related claim, he claims that the trial court’s
asking him to divulge the date on which he was released from his sentence on the prior
convictions during the Rule 609 hearing violated his constitutional privilege against self-
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incrimination. The State asserts that the trial court properly concluded that the
defendant’s prior convictions would be admissible under Rule 609 and that the defendant
waived any challenge to the trial court’s question regarding his release date by failing to
object at trial and by failing to raise the issue in his motion for new trial.
The transcript of pretrial proceedings on April 11, 2016, establishes that the
defendant asked the trial court to rule on the “notice of impeaching convictions filed
pursuant to Tennessee Rule of Evidence 609 that was also filed by” the State. No copy of
this notice appears in the record on appeal. The trial court indicated that the State’s
notice showed the State’s intent to impeach the defendant “with a 1990 cocaine
conviction out of the United States District Court of Southern West Virginia and also a
separate 1990 conviction of 6.5 grams of cocaine with intent to distribute . . . in Count 2.”
The defendant objected, arguing that those convictions were stale because “the record
reflect[s] that the ten years has elapsed.” The court then asked, “When is it you say you
were released, Mr. Burkes, when did you get out?” The defendant replied, “February 5,
2005.” The trial court took the motion under advisement and, following a brief recess,
ruled that the State would be permitted to use the 1990 convictions because the defendant
was released from confinement in 2005, less than 10 years before the superseding
presentment was issued on November 17, 2014.
Tennessee Rule of Evidence 609 provides, in pertinent part:
(a) General Rule. For the purpose of attacking the credibility
of a witness, evidence that the witness has been convicted of
a crime may be admitted if the following procedures and
conditions are satisfied:
(1) The witness must be asked about the conviction on cross-
examination. If the witness denies having been convicted, the
conviction may be established by public record. If the
witness denies being the person named in the public record,
identity may be established by other evidence.
(2) The crime must be punishable by death or imprisonment
in excess of one year under the law under which the witness
was convicted or, if not so punishable, the crime must have
involved dishonesty or false statement.
(3) If the witness to be impeached is the accused in a criminal
prosecution, the State must give the accused reasonable
written notice of the impeaching conviction before trial, and
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the court upon request must determine that the conviction’s
probative value on credibility outweighs its unfair prejudicial
effect on the substantive issues. The court may rule on the
admissibility of such proof prior to the trial but in any event
shall rule prior to the testimony of the accused. If the court
makes a final determination that such proof is admissible for
impeachment purposes, the accused need not actually testify
at the trial to later challenge the propriety of the
determination.
(b) Time Limit. Evidence of a conviction under this rule is
not admissible if a period of more than ten years has elapsed
between the date of release from confinement and
commencement of the action or prosecution; if the witness
was not confined, the ten-year period is measured from the
date of conviction rather than release. Evidence of a
conviction not qualifying under the preceding sentence is
admissible if the proponent gives to the adverse party
sufficient advance notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest
the use of such evidence and the court determines in the
interests of justice that the probative value of the conviction,
supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.
Tenn. R. Evid. 609(a)-(b). We review the trial court’s determination of this issue via an
abuse of discretion standard. State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App.
2000).
In our view, the trial court did not err. The defendant was released from
confinement in 2005, less than 10 years from the date of the superseding presentment.
As the trial court observed, the prior convictions were not similar to those offenses
charged in the presentment, mitigating the danger of unfair prejudice.
We agree with the State that the defendant has waived plenary review of his
allegation that the trial court erred by asking him to reveal the date he was released from
confinement on his most recent conviction by failing to object to the question when it
was asked and by failing to raise the issue in his motion for new trial. Perhaps more
importantly, however, the record simply does not support the defendant’s claim that the
trial court’s question violated his privilege against self-incrimination because “[n]ot even
a shadow of testimonial compulsion upon or enforced communication by the accused was
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involved.” Schmerber v. California, 384 U.S. 757, 765 (1966). Here, the trial court did
not force, coerce, or otherwise compel the defendant to answer any question against his
will. Instead, the defendant, while advocating the position that the convictions were stale
under the terms of Rule 609, freely and voluntarily divulged the date of his release from
confinement. That the defendant acted pro se at trial does not alter our analysis. The
defendant was repeatedly offered the assistance of counsel throughout the entire
proceeding in the trial court, and he repeatedly and forcefully rejected the offer of even
elbow counsel, even going so far as to indicate that he did not want elbow counsel
present in the courtroom during any proceeding. In sum, no error attends the trial court’s
asking the pro se defendant when he was last released from confinement.
II. Sufficiency
Citing State v. Jackson, 124 S.W.3d 139 (Tenn. Crim. App. 2003), the
defendant asserts that the evidence adduced at trial was insufficient to support his
conviction of money laundering.5 He does not claim that he did not use the funds saved
by underpaying his sales tax to subsidize his tax evasion scheme but instead claims that
the State failed to present proof “that a second ‘washing’ transaction was used to hide the
theft.” The State contends that money laundering as alleged in the presentment in this
case does not require evidence of concealment.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
5
The defendant does not challenge the sufficiency of the evidence supporting the remainder of his
convictions.
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As alleged in this case, “[i]t is an offense to knowingly use proceeds
derived directly or indirectly from a specified unlawful activity with the intent to
promote, in whole or in part, the carrying on of a specified unlawful activity.” T.C.A. §
39-14-903(b)(1).
“Knowingly uses or attempts to use proceeds derived directly
or indirectly from a specified unlawful activity” means that
any person or party to the transaction or act knew that the
property or proceeds involved in the transaction or act
represented or constituted, either in whole or in part, proceeds
from some form, though not necessarily which form, of any
criminal offense under the laws of this state, or any other
jurisdiction. . . .
Id. 39-14-902(3). “‘Proceeds’ includes gross profits from the commission of any
specified unlawful activity . . . acquired or derived, directly or indirectly, from, produced
through, realized through or caused by an act or omission.” Id. § 39-14-902(4). The
Code defines “specified unlawful activity” as “any act, including any preparatory or
completed offense, committed for financial gain that is punishable as a felony under the
laws of this state.” Id. § 39-14-902(5)(A).
The evidence adduced at trial established that the defendant under reported
his gross sales for each month in 2011 and that he failed to remit the appropriate amount
of sales tax to the State in each of those months. The evidence also established that the
money to purchase inventory for Preeminent Skate Specialty each month could have
come from no source other than the sales at the business, including that money that
should have been remitted as sales tax to the State. In consequence, the evidence
supported a conclusion that the defendant knowingly used the money that he retained by
evading his sales tax obligation as the means to continue his scheme to underpay his
taxes and illegally retain money that rightfully belonged to the State. Contrary to the
defendant’s assertion, Code section 39-14-903(b)(1), unlike subsection (a)(1), contains no
requirement that the State show the defendant had “the intent to conceal or disguise the
nature, location, source, ownership or control of the criminally derived proceeds.”
Compare T.C.A. § 39-14-903(b)(1) with id. § 39-14-903(a)(1). Thus, the evidence was
sufficient to support the defendant’s conviction of money laundering.
III. Sentencing
The defendant makes several attacks on the sentence imposed by the trial
court. First, the defendant asserts that the trial court erroneously admitted “mittimus
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judgments”6 to establish two of his prior convictions and failed to conduct an elements
analysis of his out-of-state convictions and, as a result, erroneously concluded that he was
a Range II offender. The defendant also contends that the trial court erred by ordering a
term of five years’ incarceration as part of the total effective sentence in violation of
Code section 40-35-306. The State contends that the trial court properly found the
defendant to be a Range II offender but concedes that the trial court erred by imposing a
sentence of split confinement with a five-year term of incarceration.
Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments 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 706 n.41 (citing 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.” Id. at 709.
A. Range Classification
The defendant contends that the trial court erred by imposing a Range II
sentence in this case. Specifically, he argues that when calculating the appropriate range,
the trial court erred by considering evidence that was not properly admitted during the
sentencing hearing and that the trial court failed to apply the correct test to determine
whether the defendant’s out-of-state convictions would qualify as felonies in Tennessee.
The State avers that the defendant has waived any challenge to the evidence considered
by the trial court by failing to object at the sentencing hearing. The State also contends
that the trial court did not err by classifying the defendant as a Range II offender.
6
In Tennessee, “[a] mittimus is an affidavit to the sheriff or jailer as to the defendant’s sentence”
that “serves to direct the jailer or sheriff as to a prisoner’s commitment or discharge and is kept by the
sheriff, or jailer, under the sheriff’s direction. A mittimus is directory in nature; it is not a judgment and
does not require a judge’s signature.” Clifford L. Taylor v. State, No. W2003-02198-CCA-R3-PC (Tenn.
Crim. App., Jackson, Mar. 11, 2005) (citing T.C.A. § 41-4-106). Similarly, in Connecticut, [t]he
mittimus is the warrant by virtue of which a convict is transported to and rightly held in prison.” State v.
Lenihan, 200 A.2d 476, 478 (Conn. 1964); see Conn. Gen. Stat. Ann. § 54-98 (West).
-16-
As is applicable in this case, “[a] multiple offender is a defendant who has
received . . . [a] minimum of two (2) but not more than four (4) prior felony convictions
within the conviction class, a higher class, or within the next two (2) lower felony
classes.” T.C.A. § 40-35-106(a).
Prior convictions include convictions under the laws of any
other state, government or country that, if committed in this
state, would have constituted an offense cognizable by the
laws of this state. In the event that a felony from a
jurisdiction other than Tennessee is not a named felony in this
state, the elements of the offense shall be used by the
Tennessee court to determine what classification the offense
is given.
Id. “A defendant who is found by the court beyond a reasonable doubt to be a multiple
offender shall receive a sentence within Range II.” Id. § 40-35-106(c).
At the sentencing hearing, the State asked that the defendant be sentenced
as a Range II, multiple offender and indicated that it had filed a notice seeking enhanced
punishment and had “certified copies of priors . . . to rely on.” Neither the State’s notice
nor the “certified copies of priors” have been included in the record on appeal. The State
also apparently provided the trial court with a copy of the Connecticut statutes under
which the defendant had been convicted. The State conceded that, upon an examination
of the elements of the underlying offense, the defendant’s May 9, 1989 conviction would
not have been a felony in Tennessee and could not be used to calculate sentencing range.
The State argued that the May 17, 1989 Connecticut conviction for the sale of narcotics,
based upon an examination of Connecticut Code section 21a-277, would have been at
least a Class C felony under Tennessee law in effect at that time. The State contended
that the two federal cocaine convictions would have been Class B felonies but conceded
that those convictions should be counted as a single offense.
The defendant objected to the use of any of the out-of-state convictions. He
argued that the State had failed to establish beyond a reasonable doubt that the
Connecticut conviction would have been a felony utilizing a “factor-to-factor type
comparison.” The defendant also produced a letter that purported to be from an attorney
named Steven Gallagher, who stated that he had assisted the defendant in having the
Connecticut convictions “modified” in 2006. Like the certified copies of the defendant’s
Connecticut convictions, this letter was shared with the State and the trial court but has
not been included in the record on appeal. The defendant argued that the information
contained in the letter cast doubt upon the continuing validity of the certified copies of
convictions that had been presented by the State. The defendant also noted that the
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copies provided by the State were “mittimus judgments that were saved at the department
of corrections” rather than “certified by a clerk at the courthouse, not the Superior Court
of Connecticut.” As a result, he claimed, the mittimus judgments are not self-
authenticating under Rule 902. As to the federal convictions, the defendant argued that
the State had failed to establish that the defendant had been convicted of a crime that
would have been a felony if committed in Tennessee, noting that the State had not
produced either the portion of the United States Code under which the defendant had
been convicted or any of the “facts underlying the case.”
The trial court recessed to allow the parties to muster more proof with
regard to the admissibility and applicability of the out-of-state convictions. After the
State produced the federal statute under which the defendant was convicted, the
defendant conceded the application of the federal convictions to the range calculation but
continued to object to the admissibility of the copies of the Connecticut judgments
offered by the State, arguing that because they were “mittimus from a department of
corrections,” they did not qualify as “a public record” as that term is used in evidence
rule 902. The trial court disagreed with the defendant’s characterization of the document
offered by the State and stated that it would “consider this a judgment.”
At that point, the defendant, citing State v. Vick, 242 S.W.3d 792 (Tenn.
Crim. App. 2007), argued that the State was required “to show facts to prove the
elements, not just necessarily an elemental comparison” before the court could consider
an out-of-state conviction when calculating the appropriate sentencing range. The trial
court rejected the defendant’s argument and found “that the convictions that are presented
here today are sufficiently named offenses to be able to ascertain and compare the
elements to determine whether or not they are crimes in Tennessee.”
The trial court determined that the defendant did have the requisite number
of convictions to be considered a Range II offender:
Well, the [c]ourt finds that the Federal sentences are clearly at
least class C felonies under Tennessee law as it existed at the
time of the offense. It was a felony at that time. If you look
at the punishment that existed, they call it a class X offense at
that time, but for a schedule two, not less than four years, but
more than ten years. Well, that’s either a C or B felony, one
or the other. So I do think . . . that that’s applicable.
....
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Now, next I need to consider the judgments that have
been submitted. We’ve already addressed the Federal
judgments. But now the next one I want to consider is the
State of Connecticut Superior Court convictions.
. . . I’m trying to look at this Connecticut law that’s
been supplied to me. . . .
. . . So it’s not more than fifteen years. And then for a
second offense, it went to thirty years. Comparing the
elements of that statute to the elements of the Tennessee
[s]tatute as it existed at the time, the Court is of the opinion
that this . . . would be what we would now know as a class B
felony. But it’s certainly, at a minimum, a class C felony.
But doing the elemental analysis on the Connecticut statute,
listening to the argument of the parties, I just cannot find that
they are not the same.
The defendant first asserts that the trial court erred by considering the
presentence report, which included information about the defendant’s prior convictions,
because it was never admitted into evidence at the sentencing hearing. Code section 40-
35-210, however, specifically provides that “the court shall consider” the presentence
report in addition to “[t]he evidence, if any, received at the trial and the sentencing
hearing.” T.C.A. § 40-35-210(b)(1), (2). Here, the presentence report met the statutory
requirements for preparation and filing, see id. § 40-35-207 (describing information to be
included in presentence report); id. § -208 (providing time for filing presentence report
with the trial court), and it was submitted to the trial court for consideration during the
sentencing hearing. The defendant’s claim on this issue lacks merit.
The defendant next contends that the trial court erred by considering the
certified copies of the judgments for his Connecticut convictions because they were not
properly admitted into evidence. He claims that the documents, which he refers to as
“mittimus judgments,” did not satisfy the requirements of Tennessee Rule of Evidence
902. Additionally, he claims that the court should not have considered the documents
because the State did not actually enter them into evidence.
We consider first the defendant’s claim that the certified copies of his prior
convictions were not actually admitted into evidence. As indicated, the State said that it
intended to rely on the certified copies and shared them with the court and the defendant.
After hearing the arguments of the parties regarding their admissibility, the trial court
stated that it would consider the documents presented by the State and then utilized those
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documents to perform an elements analysis of the convictions. In our view, the trial
court’s accepting and then utilizing the documents indicates that they had been admitted
into evidence.
Although we have concluded that they were admitted into evidence at the
sentencing hearing, the documents relied on by the court are not a part of the record on
appeal. The defendant, as the appellant, bore the burden to prepare an adequate record
for appellate review, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), and, in the
absence of 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). Without
the benefit of those documents in the record, this court cannot consider the defendant’s
claim that the documents did not satisfy the requirements for admissibility under
evidence rule 902.
That being said, admission of the certified copies of conviction, standing
alone, did not satisfy the State’s burden to establish beyond a reasonable doubt that the
defendant’s Connecticut conviction of the sale of drugs would have been at least a class
D felony in Tennessee. The State cannot rely on the offense’s name or the length of
sentence imposed but is instead required to show that the offense, as committed by the
defendant, would have constituted a felony in Tennessee. State v. Vick, 242 S.W.3d 792,
794-95 (Tenn. Crim. App. 2007). Unless the elements of the out-of-state conviction are
identical to a Tennessee felony, the State must present facts to indicate that the
defendant’s criminal conduct would have satisfied the elements of a Tennessee felony.
Id.
The presentence report lists a number of predominantly misdemeanor
convictions for the defendant, but relevant to our inquiry, the report lists two Connecticut
convictions with a disposition date of May 17, 1989, and two federal convictions with a
disposition date of October 5, 1990. With regard to all these convictions, the presentence
report lists both the “charge offense” and the “conviction offense” as “not defined.” The
defendant’s federal convictions are alternative counts of possession with intent to
distribute and distribution of crack cocaine, and the disposition is listed as “210 mos in
jail, 8 yrs supervised release.” The defendant does not challenge the use of the federal
convictions. The State indicated that it only sought to utilize the first of the May 17,
1989 Connecticut convictions, for which the presentence report lists a disposition of “sale
narcotics: 3 yrs.” During the sentencing hearing, the State referred the trial court to
Connecticut Code section 21a-277, which provided at the time of the defendant’s
conviction as follows:
(a) Any person who manufactures, distributes, sells,
prescribes, dispenses, compounds, transports with the intent
-20-
to sell or dispense, offers, gives or administers to another
person any controlled substance which is a hallucinogenic
substance other than marihuana, or a narcotic substance,
except as authorized in this chapter, for a first offense, shall
be imprisoned not more than fifteen years and may be fined
not more than fifty thousand dollars or be both fined and
imprisoned; and for a second offense shall be imprisoned not
more than thirty years and may be fined not more than one
hundred thousand dollars, or be both fined and imprisoned;
and for each subsequent offense, shall be imprisoned not
more than thirty years and may be fined not more than two
hundred fifty thousand dollars, or be both fined and
imprisoned.
(b) Any person who manufactures, distributes, sells,
prescribes, dispenses, compounds, transports with intent to
sell or dispense, possesses with intent to sell or dispense,
offers, gives or administers to another person any controlled
substance, except a narcotic substance, or a hallucinogenic
substance other than marihuana, except as authorized in this
chapter, may, for the first offense, be fined not more than
twenty-five thousand dollars or be imprisoned not more than
seven years or be both fined and imprisoned; and, for each
subsequent offense, may be fined not more than one hundred
thousand dollars or be imprisoned not more than fifteen years,
or be both fined and imprisoned.
(c) No person shall knowingly possess drug paraphernalia in a
drug factory situation as defined by subdivision (20) of
section 21a-240 for the unlawful mixing, compounding or
otherwise preparing any controlled substance for purposes of
violation of this chapter.
Conn. Gen. Stat. Ann. § 21a-277 (West 1988). Although the presentence report narrows
the conviction offense down to the sale of narcotics, the report does not indicate the
nature of the narcotics that the defendant sold in order to garner this conviction. On at
least one occasion, the trial court discussed the sale of a specified amount of cocaine, but
it is unclear whether the court was referring to the federal convictions or the Connecticut
convictions. Presumably, this information was in the judgment forms, but we have no
way of knowing whether this is the case because those documents were not included in
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the record on appeal. That being said, Connecticut defines “narcotic substance” as used
in Connecticut Code section 21a-277 as follows:
“Narcotic substance” means any of the following, whether
produced directly or indirectly by extraction from substances
of vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis: (A) Morphine-type: (i) Opium and opiate, and any
salt, compound, derivative, or preparation of opium or opiate
which are similar thereto in chemical structure or which are
similar thereto in physiological effect and which show a like
potential for abuse, which are controlled substances under this
chapter unless modified; (ii) any salt, compound, isomer,
derivative, or preparation thereof which is chemically
equivalent or identical with any of the substances referred to
in clause (i), but not including the isoquinoline alkaloids of
opium; (iii) opium poppy and poppy straw; (B) cocaine-type,
coca leaves and any salt, compound, derivative or preparation
of coca leaves, and any salt, compound, isomer, derivatives or
preparation thereof which is chemically equivalent or
identical with any of these substances or which are similar
thereto in physiological effect and which show a like potential
for abuse, but not including decocainized coca leaves or
extractions of coca leaves which do not contain cocaine or
ecgonine[.]
Conn. Gen. Stat. Ann. § 21a-240(30). This definition is nearly identical to the definition
of “narcotic drug” provided in our Code:
“Narcotic drug” means any of the following, whether
produced directly or indirectly by extraction from substances
of vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis:
(A) Opium and opiate, and any salt, compound, derivative, or
preparation of opium or opiate;
(B) Any salt, compound, isomer, derivative, or preparation
thereof that is chemically equivalent or identical with any of
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the substances referred to in subdivision (17)(A), but not
including the isoquinoline alkaloids of opium;
(C) Opium poppy and poppy straw; and
(D) Coca leaves and any salt, compound, derivative, or
preparation of coca leaves, and any salt, compound, isomer,
derivative, or preparation thereof that is chemically
equivalent or identical with any of these substances, but not
including decocainized coca leaves or extractions of coca
leaves that do not contain cocaine or ecgonine[.]
T.C.A. § 39-17-402(17). At the time of the defendant’s conviction, the sale of a narcotic
drug in this state would have been a Class C felony. Because the elements of the
defendant’s conviction offense line up so clearly with a felony offense in our own Code,
it is our view that the State was not required to show the specific facts underlying that
conviction to satisfy the requirements of Code section 40-35-106.
Utilizing the defendant’s federal conviction for the distribution of cocaine,
which would have been a Class C felony, and his Connecticut conviction for the sale of
narcotics, which would also have been at least a Class C felony, the State was able to
establish beyond a reasonable doubt that the defendant was a Range II offender.
Consequently, the trial court did not err by imposing a Range II sentence.
C. Sentence Length
The defendant contends that the trial court erred by applying certain
enhancement factors and by failing to apply certain mitigating factors to arrive at a total
effective sentence length of 18 years. We need not tarry long over the defendant’s
challenge to the enhancement factors because, even assuming the trial court misapplied
certain enhancement or mitigating factors, “a trial court’s 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.
Nothing suggests that the trial court “wholly departed” from the Sentencing Act when
considering the enhancement and mitigating factors in this case. The defendant is not
entitled to relief on this issue.
-23-
D. Manner of Service
The defendant contends that the trial court erred by ordering a sentence of
split confinement to be served as five years’ incarceration followed by a placement on
community corrections. The State concedes that the trial court erred.
When considering the appropriate manner of service of the defendant’s
sentence, the trial court found that “the deterrence factor is one primary consideration”
and that “efforts have been attempted to rehabilitate [the defendant], and they’ve not been
successful because he was on probation and then he commits serious felonies again.”
The court concluded that these factors as well as the need to avoid “depreciating the
seriousness of the offense” justified a period of confinement. The trial court stated:
Now, consider whether that should be all incarceration or
whether I should consider some type of alternative split
sentence because as I’ve already stated, I don’t think that
putting you on community corrections, at least, initially – I do
think that would depreciate the seriousness of the offense and
would not sufficiently serve as a deterrent factor to you and
others.
The trial court also expressed an opinion that a sentence of full incarceration was not
appropriate in this case. Ultimately, the court sentenced the defendant to “eighteen years,
split confinement, five years. The rest will be on community corrections.”
The judgment forms for the defendant’s Class B felony convictions of theft
and money laundering reflect Range II sentences of 18 years with 60 months “to be
served prior to release on probation or Community Corrections.” The judgment forms for
the sales tax evasion convictions reflect only a Range II sentence of four years’
incarceration. Despite that the trial court ordered a sentence of split confinement, the
judgment forms for all of the defendant’s convictions indicate that the defendant is
sentenced to the Department of Correction (“TDOC”).
At the time of the defendant’s offense, Code section 40-35-104 provided
that the trial court could impose “[t]he following sentencing alternatives in any
appropriate combination” so long as a defendant is “otherwise eligible under” the terms
of any given provision:
(1) Payment of a fine either alone or in addition to any other
sentence authorized by this subsection (c);
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(2) Payment of restitution to the victim or victims either alone
or in addition to any other sentence authorized by this
subsection (c);
(3) A sentence of confinement that is suspended upon a term
of probation supervision that may include community service
or restitution, or both;
(4) A sentence of periodic confinement that may be served in
a local jail or workhouse in conjunction with a term of
probation;
(5) A sentence of continuous confinement to be served in a
local jail or workhouse in conjunction with a term of
probation;
(6) A sentence of continuous confinement in a local jail or
workhouse;
(7) Work release in accordance with § 40-35-315;
(8) A sentence of continuous confinement in the department if
the conviction is for a felony and the sentence is at least one
(1) year, unless:
(A) The sentence is prohibited by subsection (b); or
(B) The defendant is convicted of a violation of § 39-14-
103, involving property valued at less than one thousand
dollars ($1,000), and the defendant is sentenced as an
especially mitigated offender as defined in § 40-35-109, or
a standard offender as defined in § 40-35-105; or
(9) A sentence to a community based alternative to
incarceration in accordance with the provisions, including
eligibility requirements, of chapter 36 of this title.
T.C.A. § 40-35-104(b). To be eligible for community corrections placement, a defendant
must meet “all of the following minimum criteria”:
-25-
(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;
(E) Persons who do not demonstrate a present or past pattern
of behavior indicating violence; and
(F) Persons who do not demonstrate a pattern of committing
violent offenses.
T.C.A. § 40-36-106(a)(1). Code section 40-36-302(b) provides that a community
corrections placement “may be used in conjunction with a period of shock incarceration
or in conjunction with a term of probation and/or a term of split confinement or periodic
confinement as provided in chapter 35 of this title.” Id. § 40-36-302(b). Code section
40-35-306 provides that “[a] defendant receiving probation may be required to serve a
portion of the sentence in continuous confinement for up to one (1) year in the local jail
or workhouse, with probation for a period of time up to and including the statutory
maximum time for the class of the conviction offense.” Id. § 40-35-306(a) (emphasis
added).
The record establishes that the defendant was eligible for a community
corrections placement, and a period of incarceration coupled with community corrections
placement is an appropriate combination of sentencing alternatives. See id. §§ 40-35-
104(b); -36-302(b); State v. Smith, 898 S.W.2d 742, 746 (Tenn. Crim. App. 1994)
(“When sentencing an accused pursuant to the Tennessee Community Corrections Act of
1985, a trial court may release the accused into society immediately, order a designated
period of straight incarceration, or order split confinement in the form of weekend
sentencing.”); see also State v. Byrd, 861 S.W.2d 377, 381 (Tenn. Crim. App. 1993)
(“[A] court in a particular case is justified in sentencing an eligible offender to
community corrections after a period of confinement.”). Such a period of shock
incarceration or split confinement, however, cannot exceed one year. See State v. Beard,
189 S.W.3d 730, 737 (Tenn. Crim. App. 2005) (observing that “the one year limit was
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derived from Tennessee Code Annotated section 40-35-306, the statute authorizing a
sentence of split confinement of up to one year in jail followed by a period of
probation”); State v. Jimmy D. Johnson, No. 03C01-9602-CC-00062 (Tenn. Crim. App.,
Knoxville, Oct. 16, 1997) (observing that the court saw “no reason why the legislature
would consider the term of confinement for ‘shock’ value authorized under the
Community Corrections Act to be any different than that allowed for probation”); see
also generally, e.g., State v. Derrick L. Dillard, No. M2002-03089-CCA-R3-CD (Tenn.
Crim. App., Nashville, Jan. 16, 2004) (“If incarceration is imposed as a condition of
continuing in the Community Corrections sentence, however, the period of confinement
may not exceed one year.”); State v. Robert J. Williams, No. W2002-02366-CCA-R3-CD
(Tenn. Crim. App., Jackson, Apr. 14, 2003) (observing that “in the appropriate case, a
defendant may be given as much as one year of shock confinement as a condition of a
community corrections sentence”); State v. Adrian Patterson, No. M2001-01991-CCA-
R3-CD (Tenn. Crim. App., Nashville, Sept. 23, 2002) (stating that “a one year period of
confinement may be imposed as a special condition of a community corrections sentence
in the appropriate case”). Because the five-year term of confinement was not authorized,
we vacate the sentence imposed by the trial court and remand the case for a new
sentencing hearing.
We also observe error in the judgment forms regarding the place of the
defendant’s confinement. Each of the defendant’s judgment forms indicates a sentence to
TDOC. The law is clear, however, that the place of confinement for the incarcerative
portion of a split confinement sentence must be the local jail or workhouse. See T.C.A. §
40-35-314(a); Shorts v. Bartholomew, 278 S.W.3d 268, 275 (Tenn. 2009) (stating that
when a defendant received a sentence of split confinement, the appropriate place of
confinement was the local jail or workhouse, “erroneously marked TDOC box
notwithstanding”). Thus, the trial court’s checking the “TDOC” box on the uniform
judgment document in this case was erroneous. Shorts, 278 S.W.3d at 275 (“Although
the standard judgment form . . . provided an option for sentencing an offender to the
county jail or workhouse, with a corresponding option of designating a period of
incarceration to be served prior to release . . . , the trial court erroneously checked the box
next to ‘TDOC’ . . . .”). Should the trial court impose a sentence of split confinement
upon remand, it should take care that the judgments reflect the place of service of the
defendant’s one-year period of confinement as the local jail or workhouse.
E. Restitution
Although not raised by the parties, we observe plain error in the restitution
ordered by the trial court. The defendant did not challenge the amount of restitution
requested by the State and agreed that he could pay as much as $500 per month toward
restitution. As part of the sentence for the defendant’s conviction of theft, the trial court
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ordered the defendant to pay $132,766.46 restitution to the Department of Revenue. The
court ordered the defendant to pay $500 per month toward this amount following his
release from his five-year period of confinement. Even if the defendant fully complies
with the payment plan as originally ordered by the trial court, he will have paid only
$102,000 by the end of his sentence.
When the trial court orders the payment of restitution, it must satisfy the
requirements in Code section 40-35-304. See id. § 40-35-304(g) (“The procedure for a
defendant sentenced to pay restitution pursuant to § 40-35-104(c)(2), or otherwise, shall
be the same as is provided in this section with” certain statutory exceptions not applicable
here.). The trial court “may permit payment or performance in installments,” but “any
payment or performance schedule established by the court shall not extend beyond the
expiration date” of the defendant’s sentence. Id. § 40-35-304(c), (g)(2); see State v.
Comer, 278 S.W.3d 758, 761-62 (Tenn. Crim. App. 2008) (“The court may not, however,
establish a payment or schedule extending beyond the expiration of the sentence.”).
Although “any unpaid portion” of the restitution ordered “may be converted to a civil
judgment,” T.C.A. § 40-35-304(h)(1); State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim.
App. 2001), the amount as originally ordered must comply with the requirements of Code
section 40-35-304. Because the defendant cannot satisfy the total amount of restitution
ordered before the expiration of his sentence by following the performance schedule set
by the trial court, the restitution order must be modified. Upon remand, the trial court
must either modify the total amount of restitution to reflect an amount that the defendant
can satisfy within the previously-established performance schedule or upwardly adjust
the monthly installment to be paid by the defendant so that he can satisfy the total amount
of restitution before the end of his sentence. Given the current state of the record, before
the trial court could upwardly adjust the monthly installment, the court would be required
to specifically consider the defendant’s ability to pay more than $500 per month.
Conclusion
Because the five-year term of confinement imposed in this case was not
authorized, we vacate the sentencing decision of the trial court and remand the case for
resentencing. Because the restitution order in this case does not comply with the
requirements of Code section 40-35-304, the case must be remanded for a modification of
that order to one that the defendant can satisfy before the expiration of his sentence. The
judgments of the trial court are affirmed in all other respects.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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