State of Tennessee v. Jo C. Borden ( 2022 )

03/21/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 1, 2022
STATE OF TENNESSEE v. JO C. BORDEN
Appeal from the Circuit Court for Henderson County
Nos. 19-360-3, 19-361-3 Kyle C. Atkins, Judge
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No. W2021-00305-CCA-R3-CD
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Jo C. Borden, Defendant, pled guilty in an open plea in case number 19-360-3 to two counts
of retaliation for past action and, in case number 19-361-3, to one count of vehicular
assault; three counts of reckless aggravated assault; one count of reckless endangerment
with a vehicle; and three counts of driving on a revoked license. The trial court sentenced
Defendant to an effective sentence of five years in case number 19-360-3 and to an
effective sentence of ten years in case number 19-361-3, and it aligned the sentences in the
two cases consecutively. On appeal, Defendant argues that the trial court improperly
sentenced him as a Range III, persistent offender, that it erred by imposing a sentence of
confinement, and that it abused its discretion by aligning his sentences consecutively. After
a thorough review, we determine that the trial court did not abuse its discretion by imposing
consecutive sentences or by denying alternative sentencing but that the trial court erred in
sentencing Defendant as a Range III, persistent offender. Accordingly, we remand for
resentencing consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part, Reversed in Part, and Remanded
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which J. ROSS DYER
and JOHN W. CAMPBELL, SR., JJ., joined.
Samuel W. Hinson, Lexington, Tennessee, for the appellant, Jo C. Borden.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Senior
Assistant Attorney General; Jody S. Pickens, District Attorney General; and Eric V. Wood
and Chadwick R. Wood, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Factual and Procedural History
The record on appeal does not contain the transcript of Defendant’s guilty plea
submission hearing; however, we conclude that the record is sufficient to address the issues
raised on appeal. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). The presentence
report listed the following as the factual history of the present case:
[On or about April 19, 2019,] Defendant was driving a 1997 Dodge Dakota
in the 100 block of North Broad Street and was under the influence of
marijuana, valium, and other possible narcotics that impaired his driving
abilities to the point that he crashed into a school bus. The crash resulted in
the serious bodily injury of a passenger, [the victim]. [D]efendant did admit
to the officers that he was under the influence of marijuana and had
consumed other narcotics this date.
....
[D]efendant’s Tennessee driver’s license was revoked for the offense of
driving under the influence that occurred (2014) in Chester County,
Tennessee.
....
On or about May 14, 2019, a telephone call was made by [Defendant] who
was currently an inmate at the Henderson County Criminal Justice Center.
[D]efendant ha[d] a pending vehicular assault charge with the victim being
Aimee Kilburn. At approximately 13:44 hours, [D]efendant placed a
telephone call to [a number] believed to belong to Bonnie Cox. During the
conversation, [D]efendant stated, “Bonnie, whip that bitch’s ass for me[.]”
Minutes later during the call, [Defendant] stated, “If she presses charges on
me Bonnie, I swear to God you whip that bitch’s ass!”
On or about May 14, 2019, a letter written by [Defendant], who was currently
an inmate at the Henderson County Criminal Justice Center[,] was submitted
to me by the DA’s office. [D]efendant ha[d] a pending vehicular assault
charge with the victim being Aimee Kilburn. Excerpts from said letter
include[,] “Tell all the females your [sic] in jail with who are my friends
about Amy pushing the charges. Tell all my friends there I love them and
when they see Amy to take care of that for me.” [“]Please tell all the girls
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who are my friend [sic] to handle this when they see Amy.” “I love ya
Christina[.] When you see Amy handle biz please. Tell all my friends in jail
do the same.”
Sentencing Hearing
The State introduced eight prior felony judgments of conviction as exhibits. These
prior felonies are as follows:
Case Offense Date Offense Felony Class Judgment Date
8949 June 30, 2008 Evading arrest Class E Feb. 9, 2009
8919 Mar. 5, 2008 Aggravated assault Class C Oct. 20, 2008
7541 Dec. 7, 1996 Forgery under $1000 Class E May 8, 1997
7541 Dec. 7, 1996 Forgery under $1000 Class E May 8, 1997
7541 Dec. 7, 19961 Forgery under $1000 Class E May 8, 1997
7541 Dec. 7, 1996 Forgery under $1000 Class E May 8, 1997
7540 Dec. 12, 1996 Aggravated burglary Class C May 8, 1997
7540 Dec. 12, 1996 Aggravated burglary Class C May 8, 1997
Becky Campagna testified that the victim was her 41-year-old daughter. She said
that the victim was injured in a vehicle accident with Defendant. Ms. Campagna stated
that, when she arrived at the hospital, the victim was unconscious, on a ventilator, and
wearing diapers. She explained that the victim had a traumatic brain injury from the
accident and that she was unconscious for about forty-five days. Ms. Campagna said that
the victim then came to live with her and that her short-term memory was affected. She
stated that the victim “can’t tell you what she ate for breakfast today[,]” that she has tardive
dyskinesia, and that she can no longer drive. Ms. Campagna explained, “I describe her as
being a 41-year-old 10-year-old, because she doesn’t have reasoning power that we have.”
She said that the victim cannot be a mother to her four children.
On cross-examination, Ms. Campagna agreed that the victim voluntarily got into a
vehicle with Defendant and that the victim knew that Defendant had used narcotics that
day.
Defendant then gave an allocution:
Well, sir, Your Honor, I made a very bad decision that day to drive
and I have regretted it every day of my life since then. I know I made a very
bad decision and I want you to know that I’m going to better myself. I want
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The judgment form in this count incorrectly lists December 7, 1997, as the offense date.
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to change the way I do things. And I’m very sorry for the way -- for what --
for driving that day.
I’m just -- I’m just very sorry, Your Honor. I feel really bad. I wake
up . . . in my sleep sometimes having bad dreams about this. I -- I feel very
bad, sir, and I really do.
Defendant then addressed the victim and apologized to her.
The prosecutor argued that, for the purposes of determining offender status,
Defendant had five prior felony convictions and should be sentenced as a Range III,
persistent offender. He noted that Defendant’s two 1997 aggravated burglary convictions
occurred within a 24-hour period and said,
I’ve highlighted on everybody’s copy the Section 4 where it says: separate
convictions of aggravated burglary under 39-13-403, everything in a 24-hour
period counts as one. . . .2 The Section 4 maintains that the aggravated
burglary statute does not fall under the 24-hour counting as one provision.
[The aggravated burglary convictions] would count separately.
Defense counsel objected to Defendant’s status as a Range III, persistent offender.
The trial court merged Defendant’s three counts for driving on a revoked license.
In determining the appropriate sentence, the court considered the evidence presented at this
sentencing hearing, stating:
I’ve looked at the [p]resentence [r]eport. I’ve looked at the principles of
sentencing, listened to the arguments made as to the sentencing, the nature
and characteristics of the criminal conduct involved, the information
supplied by the parties regarding mitigating and enhancement factors. I’ve
taken into consideration the statement made by [D]efendant today and his
potential for rehabilitation.
The trial court determined that Defendant was a Range III, persistent offender. It
concluded that Defendant’s two 1997 aggravated burglary convictions fell under the
exception to the 24-hour merger rule in section 40-35-107(b)(4), so it counted each of those
as separate convictions.
2
The record does not contain the copy of “Section 4” that was highlighted by the State. Tennessee
Code Annotated section 39-13-403, at the time of the sentencing hearing, codified the offense of especially
aggravated robbery. Aggravated burglary was codified at section 39-14-403.
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The trial court found that enhancement factor (1) applied, stating:
[D]efendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range in
that he has, by my count, five prior B misdemeanors, [thirty-three]3 prior A
misdemeanors -- and I won’t go through each and every one of them -- five
E felonies, and three C felonies, all occurring since he was 18 years old.
The trial court also applied enhancement factors (3), that the offense involved more
than one victim; (6), that the personal injuries inflicted or amount of property damage
sustained was particularly great; and (11), that the felony resulted in serious bodily injury.
The trial court did not apply any mitigating factors.
The trial court stated that Defendant’s mental and physical health, prior criminal
history, previous actions and character, and amenability to correction, as well as the facts
and circumstances surrounding the offense, all weighed against a grant of probation. The
trial court noted that Defendant had previously violated the terms of probation five different
times. It said that the interest in protecting society against Defendant’s future conduct also
weighed against probation.
In determining consecutive sentencing, the trial court stated that Defendant “is an
offender whose record of criminal activity is extensive. And I find that he is being
sentenced for an offense committed while on probation.” The presentence report indicated
that Defendant was on probation for theft of property valued under $500 and for escape at
the time of the present offenses. The trial court sentenced Defendant as follows:
Case No. Count4 Offense Offense Class Sentence
19-360-3 1 Retaliation for past action E felony 5 years
19-360-3 2 Retaliation for past action E felony 5 years
19-361-3 1 Vehicular assault D felony 10 years
19-361-3 2 Reckless aggravated assault D felony 10 years
19-361-3 3 Reckless aggravated assault D felony 10 years
19-361-3 4 Reckless aggravated assault D felony 10 years
19-361-3 5 Reckless endangerment with a E felony 5 years
vehicle
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The presentence report lists thirty-three total prior convictions, twenty-five of which were
misdemeanors.
4
The State dismissed counts 6 and 7 in case number 19-361-3, both for DUI, because “ultimately
they would have merged” into count 1 for vehicular assault.
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19-361-3 8 Driving with a revoked license – B misdemeanor Merged with
first offense count 10
19-361-3 9 Driving with a revoked license – A misdemeanor Merged with
second or subsequent offense count 10
19-361-3 10 Driving with a revoked license – A misdemeanor 11 months,
second or subsequent offense 29 days
The trial court aligned the counts in each case concurrently and aligned the
sentences in both cases consecutively, for a total effective sentence of fifteen years with a
forty-five percent release eligibility.
Analysis
Defendant argues that the trial court erred by sentencing him as a Range III,
persistent offender. He asserts that the trial court abused its discretion by imposing
consecutive sentencing. Finally, he contends that the trial court “did not adequately
consider” alternative sentencing.
Offender Status
Defendant argues that his two 1997 convictions for aggravated burglary should
count as one prior offense for the purpose of establishing his offender status because they
both occurred within a 24-hour period. He contends that Tennessee Code Annotated
section 40-35-107(b)(4), on which the trial court relied, did not exclude aggravated
burglary from the 24-hour merger rule at the time the aggravated burglaries were
committed. The State concedes that the trial court erred and requests remand for
resentencing Defendant as a Range II, multiple offender.
The standard of review applicable to the length of sentences adopted in State v. Bise,
380 S.W.3d 682, 707 (Tenn. 2012), has now been applied to the trial court’s determination
the range classification. State v. Laylon Ward, Jr., No. W2017-00736-CCA-R3-CD, 2018
WL 1091792, at *2 (Tenn. Crim. App. Feb. 23, 2018) (citing State v. Joseph Cordell
Brewer, III, No. W2014-01347-CCA-R3-CD, 2015 WL 4060103, at *7-8 (Tenn. Crim.
App. June 1, 2015)). Thus, if the trial court’s determination that Defendant was a Range
III, persistent offender is supported by the record and reflects that the trial court properly
applied the purposes and principles of sentencing, the trial court’s decision is reviewed for
an abuse of discretion, with a presumption of reasonableness.
As pertinent here, a Range III, persistent offender is “a defendant who has received
[a]ny combination of five (5) or more prior felony convictions within the conviction class
or higher or within the next two (2) lower felony classes[.]” Tenn. Code Ann. § 40-35-
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107(a)(1) (2020). A Range II, 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[.]” Tenn.
Code Ann. § 40-35-106(a)(1) (2020). “The State bears the burden of establishing beyond
a reasonable doubt that the defendant possesses the requisite number of prior felonies to
qualify for a particular range.” Laylon Ward, Jr., 2018 WL 1091792, at *7.
At the time of Defendant’s 1997 aggravated burglary convictions, both Class C
felonies, the 24-hour merger rule stated that, “[e]xcept for convictions for which the
statutory elements include serious bodily injury, bodily injury, threatened serious bodily
injury, or threatened bodily injury to the victim or victims, convictions for multiple felonies
committed within the same 24-hour period constitute one (1) conviction for the purpose of
determining prior convictions[.]” Tenn. Code Ann. § 40-35-107(b)(4) (1997). In 2009,
this section was amended to also exclude aggravated burglary from the 24-hour merger
rule. See Tenn. Code Ann. § 40-35-107(b)(4) (2009). This court has previously noted that
aggravated burglaries within a 24-hour period “‘occurring on or after August 17, 2009,
shall count as [separate] prior convictions for the purposes enumerated in this act.’” State
v. Jamie Paul Click, No. E2015-01769-CCA-R3-CD, 2017 WL 1189750, at *16 (Tenn.
Crim. App. Mar. 30, 2017) (quoting Tenn. Code Ann. §§ 40-35-106, Compiler’s Notes; -
107, Compiler’s Notes; -108, Compiler’s Notes), abrogated on other grounds by State v.
Patterson, 564 S.W.3d 423 (Tenn. 2018), perm. app. denied (Tenn. Aug. 16, 2017); see
also State v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-CD, 2011 WL 5517000,
at *6 (Tenn. Crim. App. Nov. 8, 2011) (“The legislature amended the statute in 2009 to
exclude aggravated burglary from the twenty-four-hour merger rule[.]”).
Here, Defendant’s two aggravated burglaries occurred within twenty-four hours, on
December 12, 1996, and he was convicted in May 1997. For the 24-hour merger rule as it
existed at the time, these two 1997 aggravated burglary convictions “constitute one (1)
conviction for the purpose of determining prior convictions” for establishing offender
status. Tenn. Code Ann. § 40-35-107(b)(4) (1997); see id. Defendant’s other prior felonies
include a 2008 evading arrest conviction (a Class E felony), a 2008 aggravated assault
conviction (a Class C felony), and four 1997 forgery convictions that also merge under the
24-hour merger rule (a Class E felony). The felonies in the present case are either D or E
felonies, so all four of Defendant’s prior felonies are within the same conviction class, a
higher conviction class, or within two lower conviction classes of the present offenses.
Tenn. Code Ann. § 40-35-106(a)(1) (2020). Thus, for the purposes of establishing offender
status, Defendant has four prior felony convictions, and is a Range II, multiple offender.
Id. The trial court erred in sentencing Defendant as a Range III, persistent offender, and
we remand for resentencing of Defendant as a Range II, multiple offender.
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Consecutive Sentencing
Defendant argues that consecutive sentencing resulted in an excessive sentence
because his actions were not intentional. The State responds that the trial court properly
based its consecutive sentencing determination on two factors.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. Bise, 380 S.W.3d at 707. A
finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See Tenn.
Code Ann. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).
The trial court must also consider the potential or lack of potential for rehabilitation or
treatment of the defendant in determining the sentence alternative or length of a term to be
imposed. Tenn. Code Ann. § 40-35-103(5) (2020).
To facilitate meaningful appellate review, the trial court must state on the record the
factors it considered and the reasons for imposing the sentence chosen. Tenn. Code Ann.
§ 40-35-210(e) (2020); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the
articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging the
sentence on appeal bears the burden of establishing that the sentence was improper. Tenn.
Code Ann. § 40-35-401 (2020), Sentencing Comm’n Cmts.
In State v. Pollard, the Tennessee Supreme Court expanded its holding in Bise to
trial courts’ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851,
859 (Tenn. 2013). “The court may order sentences to run consecutively if the court finds
by a preponderance of the evidence that[] . . . [t]he defendant is an offender whose record
of criminal activity is extensive[.]” Tenn. Code Ann. § 40-35-115(b)(2) (2020). This
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factor has been interpreted “to apply to offenders who have an extensive history of criminal
convictions and activities, not just to a consideration of the offenses before the sentencing
court.” State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999). Moreover, the
court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that[]. . . [t]he defendant is sentenced for an offense committed while on
probation.” Tenn. Code Ann. § 40-35-115(b)(6) (2020). Any one ground set out in the
above statute is “a sufficient basis for the imposition of consecutive sentences.” Pollard,
432 S.W.3d at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long
as a trial court properly articulates reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R. Crim.
P. 32(c)(1)).
The presentence report supports the trial court’s determination that Defendant has
an extensive criminal record. Since 1997, Defendant has accrued thirty-three convictions,
with eight of those being felony convictions. See Tenn. Code Ann. § 40-35-115(b)(2)
(2020). Moreover, Defendant was on probation for theft and escape at the time of the
present offenses. See Tenn. Code Ann. § 40-35-115(b)(6) (2020). The trial court did not
abuse its discretion in imposing consecutive sentencing.
Alternative Sentencing
Within his argument concerning consecutive sentencing, Defendant also states that
he “would be an excellent candidate for probation.” He asserts that probation would not
depreciate the seriousness of the offenses.
The State responds that the trial court based its denial of alternative sentencing on
several relevant factors. It contends that Defendant failed to meet his burden to
demonstrate that probation was appropriate.
When a trial court denies probation or any other alternative sentence to an eligible
defendant and states on the record reasons that are in accordance with the purposes and
principles of sentencing, the court’s decision is reviewed under an abuse of discretion
standard, accompanied by a presumption of reasonableness. Caudle, 388 S.W.3d at 278-
79; Bise, 380 S.W.3d at707. We will reverse the trial court’s decision for abuse of
discretion “only when the court applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.” State
v. Gilliland, 22 S.W.3d 266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999)) (internal quotation marks omitted).
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Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1) (2020).
Here, the trial court noted that Defendant had previously violated the terms of
probation five times. The trial court stated that Defendant’s mental and physical health,
prior criminal history, previous actions and character, and amenability to correction, as
well as the facts and circumstances surrounding the offenses, all weighed against a grant
of probation. It determined that confinement was necessary to protect society by
restraining a defendant who has a long history of criminal conduct. The trial court did not
abuse its discretion by denying alternative sentencing because Defendant has a long history
of criminal conduct and because measures less restrictive than confinement have frequently
been applied unsuccessfully to Defendant. See Tenn. Code Ann. § 40-35-103(1)(A), (C)
(2020). Defendant is not entitled to relief on this issue.
Conclusion
For the foregoing reasons, we affirm the trial court’s imposition of a sentence of
confinement and its consecutive sentencing alignment. We reverse the trial court’s
sentencing of Defendant as a Range III, persistent offender and remand for resentencing of
Defendant as a Range II, multiple offender.
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ROBERT L. HOLLOWAY, JR., JUDGE
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