State of Tennessee v. Jeremiah Emery ( 2022 )

04/18/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 1, 2022
STATE OF TENNESSEE v. JEREMIAH EMERY
Appeal from the Circuit Court for Madison County
No. 18-566 Donald H. Allen, Judge
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No. W2021-00086-CCA-R3-CD
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Defendant, Jeremiah Emery, entered open guilty pleas to one count of possession of
marijuana with intent to sell (Count 1), one count of possession of marijuana with intent to
deliver (Count 2), one count of possession of drug paraphernalia (Count 3), two counts of
possession of a firearm during the commission of a dangerous felony (Counts 4 and 5), and
one count of unlawful possession of a firearm (Count 6). The trial court sentenced
Defendant to a total effective sentence of five years in confinement. On appeal, Defendant
argues that the trial court abused its discretion by misapplying enhancement factors and
ordering the maximum sentence for Counts 1 and 2, that the trial court erred in denying a
probated sentence for Counts 1 and 2, and that the trial court erred in ordering Defendant
to serve the conviction for possession of a firearm during the commission of a dangerous
felony to be served after Counts 1 and 2. Following our review of the entire record and the
parties’ briefs, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.
Brian D. Wilson, Franklin, Tennessee (on delayed appeal), Gregory D. Gookin, Jackson,
Tennessee (on appeal), and Harold Dorsey, Alamo, Tennessee (at trial), for the appellant,
Jeremiah Emery.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Andrew Craig Coulam, Assistant Attorney General; Jody S. Pickens,
District Attorney General; and Bradley F. Champine and Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On July 30, 2018, a Madison County Grand Jury indicted Defendant in Count 1 with
possession of marijuana with intent to sell, Count 2 with possession of marijuana with
intent to deliver, Count 3 possession of drug paraphernalia, Counts 4 and 5 with possession
of a firearm with intent to go armed during the commission of a dangerous felony, and
Count 6 with unlawful possession of a firearm. The following statement of facts was
presented at Defendant’s plea hearing:
Your Honor, may it please the Court, the State will show at trial
today that on January the 10th of 2018, that night officers with the
Jackson Police Department’s Street Crimes Unit and Metro
Narcotics Unit and [SWAT] Team executed a search warrant at 1580
North Royal Street, Apartment 901, which is located in Madison
County, Tennessee. Upon arrival, JPD Swat Officers knocked and
announced that they were the police and waited for a reasonable
amount of time and then forced entry into the apartment. Contact
was made with Mr. Jeremiah Emery who is in the back bathroom
and the door open and Mr. Emery was detained.
A search of the apartment revealed several items including an orange
book bag on the living room floor and the book bag contained three
glass jars of marijuana weighing approximately 80.3 grams, 11.3
grams and 10.5 grams. A black digital scale with marijuana residue
was located under the couch close to the book bag. On a small table
by the front door is a silver .22 caliber Phoenix Arms HP-22 handgun
that was loaded with one round in the chamber and seven live rounds
in the inserted magazine. The table also had a small bag of marijuana
that weighed approximately 4.9 grams and an open box of sandwich
bags. Another open box of sandwich bags was located on the living
room TV stand along with another box of .22 caliber ammunition
that contained 92 live rounds.
There was seven other people in the apartment that were detained
with Mr. Emery and everyone was interviewed and gave statements.
Mr. Emery was interviewed by Investigator Arnold with the Metro
Narcotics at which time he was read his rights and did give a
statement where he took responsibility for the marijuana that was
found inside the book bag. He took responsibility for the digital
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scale that was located underneath the couch and also took
responsibility for the handgun. He did admit to Officer Arnold that
he does use marijuana and he began selling marijuana so that he
could pay for the marijuana and not have to buy from other people.
He did admit that he got the gun to protect himself because he had
been recently robbed.
The drugs were sent off for testing to the TBI and Rachel Strandquist
with the TBI prepared a lab report and did confirm that the suspected
marijuana did test positive and was in fact marijuana. The marijuana
came back from one of the glass mason jars from inside the book
bag as a total tested weight of 78.31 grams. The marijuana that came
from the table next to the gun tested at 3.49 grams. Because all of
the statement taken from the individuals were consistent with each
other, only Mr. Emery was charged with possession with intent as
well as possession of the firearm during the commission of a
dangerous felony. The other individuals were given I believe
misdemeanor citations.
Defendant agreed with the prosecutor’s description of the facts but argued that he was
smoking the marijuana, not selling it. The prosecutor then read the statement Defendant
had given to law enforcement:
The bag of marijuana that was laying on the table with the gun is
mine. I had just bagged it up for my personal smoke sta[sh]. The
three glass jars that were in the backpack in the living room belonged
to me. The big jar had regular weed in it and the small jars had gas
or high grade marijuana. The digital scale found in the living room
floor is mine and I use it to weight out and buy bags of marijuana. I
sell marijuana and have been selling marijuana for a couple of
months. I started selling marijuana because I got tired of buying it
for everyone else to smoke. I started selling so I could smoke for
free. The two boxes of sandwich bags found in the living room are
mine and I use them to bag up the marijuana that I sell. I sell regular
marijuana for $5 a gram and sell gas or high grade marijuana for $15
a gram.
Defendant admitted that he made the above statement. Defendant pled guilty to all charges
and acknowledged that he understood his trial and appellate rights, that he was waiving
those rights, and that he could not withdraw his plea. The trial court reviewed the
sentencing range and fines Defendant faced for each of his convictions. Defendant
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acknowledged that he understood the possible sentences for each of his convictions. The
trial court explained that it would have to consider the length of each of Defendant’s
sentences, whether to impose an alternative sentence, and whether to align the sentences
concurrently or consecutively. Defendant affirmed that he understood. After reviewing
the facts as described above, the trial court accepted Defendant’s pleas.
Sentencing Hearing
At the sentencing hearing, the only evidence offered by the State was the
presentence report. The State argued that, although Defendant was a Range I offender, he
should serve all sentences in confinement without probation based on his prior
misdemeanor convictions for simple possession of marijuana, driving on a suspended
license, and for committing these crimes while being on unsupervised probation for other
sentences. Therefore, the State recommended that Defendant serve three years at 100
percent for possession of a firearm during the commission of a dangerous felony as
required by law to run consecutively to a one-year, eight-month sentence at thirty percent
for possession of marijuana with intent to sell and deliver plus a $2,000 fine for Counts 1
and 2 which would merge. Finally, the State suggested a concurrent, eleven-month,
twenty-nine-day sentence for possession of drug paraphernalia with a $150 fine, and a
concurrent eleven-month, twenty-nine-day sentence at seventy-five percent for unlawful
possession of a firearm.
Defendant entered into evidence his certificate of completion from the trial court’s
“Life’s Healing Choices” course which he had completed while incarcerated. Defendant
offered no other evidence. Defendant argued in favor of an alternative sentence of
probation for all charges, except for the mandatory three-year sentence at 100 percent for
the conviction of possession of a firearm during the commission of a dangerous felony
conviction. Defendant suggested that he was fit for probation based on his completion of
the trial court’s drug class, his personal development since being incarcerated, and the fact
that the instant charges were his first felony convictions.
The trial court considered the evidence presented when Defendant entered his guilty
pleas, the presentence report, the principles of sentencing, the arguments of counsel, the
nature and characteristics of the criminal conduct, and the evidence offered by the parties,
including Defendant’s statement set out in the presentence report, in which Defendant said
the following: “The marijuana in my possession at the time of my arrest was for personal
use. I was in possession of scales and baggies to weigh and bag marijuana purchased from
other people. I wanted to double check the weight. I have not used illegal drugs since my
arrest.”
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The trial court found the above statement by the Defendant not credible, stating, “I
don’t really give it a lot of credibility because I don’t think it’s true.” The trial court also
considered Defendant’s potential for rehabilitation and treatment finding that Defendant’s
completion of the Life’s Healing Choices course suggested that he had “some type of
potential for rehabilitation” which the trial court gave “very very slight weight.”
The trial court then considered and applied three enhancement factors: (1) that
Defendant had a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range; (2) that defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community; and (3) that at the time the felony was committed, defendant was released on
probation. T.C.A. §40-35-114 (1), (8), and (13)(C). Regarding Enhancement Factor 1, the
trial court found that Defendant’s prior criminal record of his August 2017 conviction for
possession of marijuana and his December 2017 conviction for driving on a suspended
license warranted great weight. The trial court allocated “very slight weight” to
Defendant’s six minor traffic offenses. The trial court also considered Defendant’s
admitted criminal conduct of marijuana and alcohol usage as a minor and gave “great
weight” to that “criminal behavior.” The trial court also considered and applied
Enhancement Factors 8 and 13(c)1 based on information in the presentence report that
Defendant had committed the instant offenses while he was on probation for two cases
arising out of Jackson City Court, and his conviction for driving on a suspended license
occurred while he was on probation for his conviction of simple possession of marijuana.
The trial court reasoned:
Now, I also find as an enhancement factor that the defendant before
trial or sentencing in this case has failed to comply with the
conditions of a sentence involving release into the community. I
show that on at least two different dates that being December 27th,
2017 and then also January 10th, 2018 that he committed violations
of the law while he was already on probation for other violations of
the law. So, I do give great weight to that factors (sic).
Finally as an enhancement factor under the statute, I do find Factor
No. 14 (sic) that at the time that he committed these felony drug
offenses and at the time that he committed this felony handgun
offense plus committed possession of drug paraphernalia, all of that
on January the 10th of 2018, he was actually on probation out of
1
The trial court stated that it was applying Enhancement Factor 14, but in its analysis, clearly
applied Enhancement Factors 8 and 13(c). Enhancement Factor 14 deals with a position of public or private
trust which was not an issue in this case.
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Jackson City court in two different cases. He was on probation out
of Jackson City Court for an 11 months and 29 day sentence
involving possession of marijuana. He was also on probation out of
Jackson City Court for a six month sentence involving driving on a
suspended license. Two separate cases for which he had been
granted probation and then while on probation committed these new
offenses. So I do give great weight to each of these three different
enhancement factors.
The trial court did not find any mitigating factors applicable but did give “some
slight weight” to the fact that Defendant was twenty-three years old at the time of
sentencing and “still young” for purposes of mitigation. However, the trial court believed
that Defendant was “old enough to know better than to commit these offenses.” The trial
court also gave “slight consideration” to the fact that Defendant had been incarcerated since
January 2018 and had completed the Life’s Healing Choices program.
Prior to Defendant’s sentencing hearing, the parties agreed that Defendant was a
Range I Offender. The trial court merged Counts 4 and 5, possession of a firearm during
the commission of a dangerous felony and ordered Defendant to serve three years in
confinement at 100 percent as required by law. The trial court also merged Counts 1 and
2, the two felony marijuana convictions, and ordered Defendant to serve the maximum of
two years. Finally, the trial court ordered Defendant to serve an eleven-month, twenty-
nine-day sentence for possession of drug paraphernalia and a six-month sentence for
unlawful possession of a firearm. The trial court ordered the two-year sentence for the
felony marijuana conviction to run consecutively to the three-year sentence for the felony
firearm conviction and the misdemeanor convictions to run concurrently with the other
convictions for a total effective sentence of five years. The trial court found that Defendant
was not a suitable candidate for probation and ordered all sentences to be served in
confinement. Defendant did not file an immediate appeal. We view this petition as one
for post-conviction relief pursuant to the Post-Conviction Procedure Act. As such, the
post-conviction court had jurisdiction to grant a delayed appeal pursuant to Tennessee
Code Annotated section 40-30-113, and that court entered an order granting delayed appeal
on January 12, 2021. This appeal followed.
Analysis
On appeal, Defendant contends that the trial court erred in imposing the maximum
sentences for his felony marijuana conviction as a result of misapplication of enhancement
factors, that the trial court erred in denying probation, and that the trial court erred in
ordering Defendant to serve the mandatory three-year conviction for possession of a
firearm during the commission of a dangerous felony after serving the felony marijuana
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sentence. The State argues that the trial court correctly applied multiple enhancement
factors and considered Defendant’s suitability for probation and did not abuse its discretion
in sentencing Defendant. We agree with the State.
When an accused challenges the length of a sentence, this court reviews the trial
court’s sentencing determinations under an abuse of discretion standard accompanied by a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “This
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing.” State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012). A finding of abuse of
discretion indicates 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). A trial court has not abused its
discretion unless “the record [is] void of any substantial evidence that would support the
trial court’s decision.” Id.In making sentencing decisions, trial courts must consider the following: (1) the
evidence received at 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 conduct involved; (5) evidence and information offered by the parties
regarding the statutory mitigation and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (6) any statistical information provided by
the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make on his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See T.C.A. § 40-35-210(b).
“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 sentencing
statutes. Bise, 380 S.W.3d at 706. A sentence within the appropriate range will be upheld
“so long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute.” Id.
Enhancement Factors
Defendant argues that the trial court abused its discretion by imposing the maximum
sentence for his felony marijuana conviction and misapplied all enhancement factors. The
trial court found that Defendant had a prior criminal history at the time of his sentencing.
See T.C.A. § 40-35-114(1). “The defendant has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range.” Id.
(emphasis added). This court has recognized that a trial judge may find evidence of
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criminal behavior even though there has been no conviction. State v. Ward, 138 S.W.3d
245, 282 (Tenn. Crim. App. 2003) (citing State v. Massey, 757 S.W.2d 350, 352 (Tenn.
Crim. App. 1988)). A trial court may even apply enhancement factor based on facts
underlying an offense for which the defendant has been acquitted, so long as the facts have
been established in the record by a preponderance of the evidence. Id. (citing State v.
Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)). In applying this enhancement factor, the trial
court afforded “great weight” to Defendant’s convictions for simple possession of
marijuana and driving on a suspended license and gave “very slight weight” to Defendant’s
six other traffic incidents documented in the presentence report. The trial court also gave
“great weight” to Defendant’s admitted criminal behavior of underage use of alcohol and
marijuana. Defendant contends that this factor was misapplied because Defendant’s
convictions were not severe. Defendant also argues that Tennessee courts have not
provided a specific definition for “criminal behavior” within the context of application of
this enhancement factor. The record is clear that Defendant had prior criminal convictions
at the time of his sentencing and admitted criminal behavior sufficient for the trial court to
have applied Enhancement Factor 12.
Defendant next argues that the trial court misapplied Enhancement Factor 8, which
provides for sentence enhancement when a defendant, “before trial or sentencing, failed to
comply with the conditions of a sentence involving release into the community[.]” T.C.A.
§ 40-35-114(8). Defendant argues that this factor does not apply when the defendant’s
failure to comply occurred through the commission of the offense at issue in the sentencing
hearing. The record is clear that Defendant violated his August 2017 probated sentence
for simple possession of marijuana when he was charged with and convicted of driving on
a suspended license in December 2017. Then while serving a sentence of probation for
driving on a suspended license, Defendant was charged and convicted of the instant
offenses. Defendant argues that the Jackson City Court did not issue a probation violation
warrant. However, Tennessee Code Annotated section 40-35-114(8) requires only that the
sentencing court find that Defendant “failed to comply with the conditions of a sentence
involving release into the community.” A finding of a violation of the terms of probation
is not required. The trial court did not abuse its discretion in applying Enhancement Factor
8, having found that Defendant failed to comply with the conditions of a sentence involving
release into the community before trial or sentencing.
Defendant also contests the trial court’s analysis of Enhancement Factor “14,”
arguing that it does not appear to align with the actual language of the enhancement factor
when a defendant abuses a position or public or private trust. Based on the record, the trial
2
As noted in Defendant’s reply brief, we are aware that State v. Quinton Devon Perry, No. W2019-
01553-SC-R11-CD (Tenn. Nov. 18, 2021) is pending before the Supreme Court. However, the issue raised
in Perry relates to what constitutes prior criminal activity for the purposes of consecutive sentencing, not
for purposes of enhancement, and are therefore not relevant to Defendant’s appeal.
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simply court misspoke when it referenced factor 14 because in its analysis, the trial court
explained that it found enhancement necessary based on the fact that Defendant was “on
probation out of Jackson City Court in two different cases” when he committed the offenses
in this case. Enhancement Factor 13(c) provides that “[a]t the time the felony was
committed, one (1) of the following classification was applicable to the defendant: . . . (c)
Released on probation.” T.C.A. § 40-35-114(13)(c). The trial court’s misstatement of the
specific number of the enhancement factor it applied does not invalidate Defendant’s
sentence. The record supports the application of Enhancement Factor 13(c) to Defendant’s
sentence. Defendant is not entitled to relief on his claims that the trial court misapplied all
enhancement factors.
Defendant also complains that the trial court did not reference its consideration of
any information from the Administrative Office of the Courts regarding sentencing
practices. See T.C.A. § 40-35-210(b)(6). However, Defendant fails to provide any
evidence that his within-range sentence was inconsistent with the sentencing practices for
similar offenses in Tennessee. The burden is on the challenging party to prove the
impropriety of the sentence imposed. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).
Defendant failed to meet his burden of proving that his sentence was improper in light of
the sentencing practices for similar offenses in Tennessee.
Probation
While conceding that his conviction for possession of a firearm during commission
of a dangerous felony is required to be served in confinement, Defendant argues that the
trial court erred in denying an alternative sentence for his felony marijuana conviction.
When a trial court denies probation or any other alternative sentence to an eligible
defendant and states on the record reasons 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 at 707. 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 pay complaining.” State v. Gilliland, 22
S.W.3d 266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
Tennessee Code Annotated section 40-35-103, requires the trial court to consider the
following factors 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 confinement.
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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.
T.C.A. § 40-35-103(1)(A)-(C). When Defendant committed the crimes in this case, he was
serving other sentences on probation and had violated the terms of his probation by
committing new crimes. In addition to considering Defendant’s lack of success with
probation, the trial court announced that it had considered Defendant’s physical and mental
condition, the facts and circumstances of the offense, and Defendant’s criminal history.
The trial court was troubled by Defendant’s pattern of violating the terms of his probation
and found that less restrictive measures than confinement had been applied recently and
were unsuccessful. The trial court also found Defendant not to be credible in his statement
to the presentence report investigator that all of the marijuana was for personal use and that
he used scales and baggies to weigh and bag marijuana he purchased from other people.
See State v. Sharp, 327 S.W.3d 704, 716 (Tenn. Crim. App. 2010) (“The trial court may
consider a defendant’s untruthfulness and lack of candor as they relate to the potential for
rehabilitation”). The trial court considered Defendant’s history of criminal conduct
resulting in sentences where measures less restrictive than confinement were unsuccessful.
See T.C.A. § 40-35-103(1)(C). Defendant is not entitled to relief on this issue.
Alignment of Sentences
We first note that Defendant does not challenge the consecutive nature of his
sentences, but only the order of the sentences. Defendant argues that the trial court erred
when it ordered his sentence for possession of a firearm during the commission of a
dangerous felony to be served consecutively to the felony marijuana sentence because it
must be served 100 percent before release eligibility, and he will be eligible for release on
his felony marijuana sentence after thirty percent. The applicable statutes provide that “it
is an offense to possess a firearm or antique firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony.” T.C.A. § 39-17-1324(a). “A
sentence imposed for a violation of subsection (a) or (b) shall be served consecutive to any
other sentence the person is serving at the time of the offense or is sentenced to serve for
conviction of the underlying dangerous felony.” Id. § 39-17-1324(e)(1). “A violation of
subsection (a) is a Class D felony, punishable by a mandatory minimum three-year
sentence to the department of correction.” Id. § 39-17-1324(g)(1). “There shall be no
release eligibility for a person committing a violation of § 39-17-1324(a) or (b) on or after
January 1, 2008, until the person has served one hundred percent (100%) of the minimum
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mandatory sentence established in § 39-17-1324(g) or (h) and imposed by the court less
sentence credits earned and retained[.]” T.C.A. § 40-35-501(j).
In this case, the trial court ordered Defendant’s sentence for possession of a firearm
during the commission of a dangerous felony to run consecutively to the underlying felony
marijuana conviction as set out in the statute. Defendant cites to no cases that suggest that
his firearm sentence must run first, nor has our review yielded any caselaw to suggest the
same. Defendant raises concerns regarding calculation of his eligibility for release based
on the alignment of the sentences; however, such concerns are outside the purview of this
court and are handled by the Tennessee Department of Correction (TDOC). TDOC
possesses the authority to determine the release eligibility and sentence expiration of
defendants “regardless of where they are housed.” Yates v. Parker, 371 S.W.3d 152, 155
(Tenn. Crim. App. 2012); see also T.C.A. § 40-35-501(r). The trial court’s order was not
inconsistent with the statute and is therefore presumptively reasonable. Defendant is not
entitled to relief on this issue.
Conclusion
Based on the foregoing analysis, we affirm the judgments of the trial court.
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JILL BARTEE AYERS, JUDGE
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