State of Tennessee v. Nicky Lowe Evans ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 14, 2015
STATE OF TENNESSEE v. NICKY LOWE EVANS
Direct Appeal from the Circuit Court for Madison County
No. 13-575 Donald H. Allen, Judge
No. W2014-01459-CCA-R3-CD - Filed December 9, 2015
The appellant, Nicky Lowe Evans, pled guilty in the Madison County Circuit Court to
two counts of theft of property valued $10,000 or more but less than $60,000, a Class C
felony; four counts of theft of property valued $1,000 or more but less than $10,000, a
Class D felony; and five counts of operating a home improvement business without a
license, a Class A misdemeanor. After a sentencing hearing, the appellant received an
effective sentence of ten years, eleven months, and twenty-nine days in confinement. On
appeal, the appellant contends that the length and manner of service of his sentences is
excessive. Based upon the record and the parties‟ briefs, we conclude that the appellant‟s
conviction in count one, theft of property valued $10,000 or more but less than $60,000,
must be reversed and the charge dismissed. The appellant‟s sentences for his remaining
convictions are affirmed. However, the judgments of conviction for counts seven
through eleven reflect the incorrect convicted offense. Therefore, the case is remanded to
the trial court for the correction of those judgments.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in
Part, Reversed in Part, and the Case is Remanded.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.
Joseph T. Howell (on appeal), Jackson, Tennessee, and Michael Ainley (at trial), Paris,
Tennessee, for the appellant, Nicky Lowe Evans.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In September 2013, the Madison County Grand Jury returned an eleven-count
indictment, charging the appellant with felony theft in counts one through six and
impersonating a licensed professional, a Class E felony, in counts seven through eleven.
On November 25, 2013, the appellant pled guilty as charged in counts one and three to
theft of property valued $10,000 or more but less than $60,000, a Class C felony, and in
counts two, four, five, and six to theft of property valued $1,000 or more but less than
$10,000, a Class D felony. In counts seven, eight, nine, ten, and eleven, the appellant
orally consented to an amendment of the indictment and pled guilty to operating a home
improvement business without a license, a Class A misdemeanor.
During the plea hearing, the State gave a factual account of the crimes. Regarding
count one, the State advised the trial court as follows:
Your, Honor, if it please the Court, in Count 1 the State
would show that on or about January through October of
2012 while here in Madison County, the defendant . . . did
knowingly obtain or exercise control of property greater than
the value of $10,000 without the effective consent of the
owners James Wiley, Sheila Pflueger, Gilford Yarbro, Mike
Mandels and Dennis and Susan Christiansen with intent to
deprive them of that property.
Regarding counts two through six, in which the victims were named as James E. Wiley,
Sheila Pflueger, Gilford Yarborough, Mike Mandles, and Dennis and Susan Christensen,1
respectively, the State advised the court that the victims entered into contracts with the
appellant‟s business, Inspector Roofing, and paid the appellant or his two employees for
roofing work on their homes that was never performed. Wiley paid $4,420.22 for
contracted work, Pflueger paid $10,685.13, Yarborough paid $3,300, Mandles paid
$3,995, and the Christensens paid $5,000. As to counts seven through eleven, the State
advised the court that the appellant provided a contractor license number that was found
to be fraudulent, “meaning the defendant was operating this business purported to be
Inspector Roofing without the proper license from the State of Tennessee, specifically
1
We note that several names, including the appellant‟s first name, are spelled differently in the
plea and sentencing hearing transcripts than they appear in the indictment. However, we have chosen to
spell the names as they appear in the indictment.
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home improvement/roofing contractor license for which he would need licensure to
operate such a business that he did not have while operating here in Madison County.”
Pursuant to the plea agreement, the trial court was to determine the length and
manner of service of the sentences after a sentencing hearing. However, during the plea
hearing, the State recommended that the appellant serve all of the sentences concurrently
with each other and a prior effective sentence of twenty-seven months in Robertson
County. The State advised the court that the recent Robertson County convictions
“[arose] out of the same planned scheme.”
At the sentencing hearing, James Wiley testified that he never dealt personally
with the appellant but that he paid $4,402.22 to Van Clendenin, who worked for
Inspector Roofing, in June 2012. Inspector Roofing was supposed to repair the roof on
Wiley‟s home, but no work was ever done. Wiley tried contacting Inspector Roofing
four or five times, but “all [he] got was an answering service.” Wiley requested that the
trial court sentence the appellant to one year in jail. On cross-examination, Wiley
testified that he gave Inspector Roofing a check from his insurance company for
$4,402.22. He acknowledged that he did not lose any money “out-of-pocket” but said,
“If I ever have my roof fixed, I‟ll have to pay that money.”
Sheila Pfleuger testified that in October 2012, State Farm gave her a check for
$10,685.13, which she endorsed and gave to Brook Madden, the appellant‟s girlfriend.
Inspector Roofing was supposed to replace the roof on Pfleuger‟s home, and Madden
promised to have shingles delivered to Pfleuger‟s house. About one week later, Pfleuger
researched Inspector Roofing and “saw all of the reviews on the internet calling them
criminals and there is no services being rendered.” She said that she began contacting
Inspector Roofing and that someone kept promising the work was going to start.
However, in December 2012, Pfleuger “gave up.” She later learned that the appellant
and Inspector Roofing were in bankruptcy, and she hired an attorney to represent her in
the bankruptcy proceeding. At the time of the sentencing hearing, Pfleuger had not been
reimbursed any of the money she paid Madden. Pfleuger requested that the appellant
serve his sentences in prison.
Gina Mandels, Mike Mandels‟s wife, testified that in June 2012, “[a] salesman
named Van” came to their home and that they paid Inspector Roofing $3,995 as a deposit
to replace their roof. The Mandels never dealt with the appellant personally but learned
about him from the internet and by talking to Brooke Madden when they tried to get
Inspector Roofing to do the work. Mrs. Mandels requested restitution from the appellant
and that he serve his sentences in confinement, stating that the appellant “continued to
live a pretty nice life with our money. He needs to pay for that.”
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Gilford Yarborough testified that in March 2012, the appellant and another
salesman stopped by Yarborough‟s house. The appellant told Yarborough that “he saw
some shingles had blown off” and offered to inspect Yarborough‟s roof. The appellant
gave Yarborough an estimate of more than $9,000 to repair the roof and made an
appointment for Yarborough‟s insurance agent to inspect it. On May 9, 2012,
Yarborough wrote a personal check to Inspector Roofing in the amount of $3,300 as a
deposit for the repairs. Inspector Roofing never repaired the roof, so Yarborough had to
pay another roofing company to do the work. He acknowledged that he was “still out”
the money he paid to Inspector Roofing. He requested restitution and “whatever the law
allows the maximum for prison time.”
Susan Christiansen testified that in July 2012, two men stopped by her house and
said they had seen damage to her roof. One of the men was named “Van.” Mrs.
Christansen‟s husband wrote a personal check to Inspector Roofing in the amount of
$5,000 as a deposit for a new roof, and the work was supposed to start within thirty days.
When no work was done, the Christiansens began calling Inspector Roofing and were
told the company was “backed up.” Mrs. Christansen said that she never dealt with the
appellant but that she “dealt with a woman on the phone.” The Christiansens later had
another company replace their roof, and their insurance company paid for the new roof.
However, the Christiansens were never reimbursed for their deposit to Inspector Roofing.
The State introduced the appellant‟s presentence report into evidence. According
to the report, the then thirty-nine-year-old appellant was twice divorced with three
children aged nine, ten, and twenty years old. The report showed that the appellant left
school after the ninth grade because he needed to work, that he worked as a salesman for
Lexus of Nashville from December 2003 to December 2006, and that he became the
“owner/contractor” of Inspector Roofing in December 2009. In the report, the appellant
described his physical health as good. He stated that he began consuming alcohol when
he was thirteen years old and that he did not commit crimes when he was intoxicated but
that “a problem alcohol caused was fighting.” The report showed that in November
2013, the appellant was convicted in Robertson County of four counts of theft of property
valued $1,000 or more but less than $10,000 and received an effective sentence of
twenty-seven months to be served in confinement. The report also showed that the
appellant had two prior convictions of contributing to the delinquency of a minor and one
conviction of simple assault.
The appellant testified in his own behalf that he started Inspector Roofing with his
wife and brother; that they “grew the company from nothing”; and that they had “over
600 satisfied and happy customers,” including District Attorney General Hansel
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McCadams and Sheriff Monte Belew of Paris, Tennessee. However, at some point, the
company “hit a few bumps in the road.” The appellant said that his brother fell off a roof
and filed a worker‟s compensation claim against him, which the appellant settled for
$180,000. Numerous monetary judgments were entered against the appellant, and he had
no choice but to file for bankruptcy. The appellant stated that “there were 13 houses that
I didn‟t put on through this whole thing,” that he did not intend to deceive anyone, and
that he was never taught to steal from people. He said he would “make it right” and “pay
the money back.”
On cross-examination, the appellant testified that he started Inspector Roofing in
2008 in Hendersonville and expanded the business to Madison County. The company
office was located in Jackson and was open for six or seven months. Brooke Madden
worked in the office and collected money from customers. Van Clendenin also worked
for the company and accepted money from customers. The appellant said that Madden
and Clendenin “brought money in that was deposited through the company” but that the
appellant was “100 percent responsible for what happened with that money” and “[m]ore
or less” made all of the business decisions.2 The appellant said that he tried to pull the
company “out of it” when the company began to fail. However, after the company
developed a bad reputation on the internet, the appellant could not do anything to save the
business.
The appellant testified that he “didn‟t know exactly what license we needed to
carry” because “what we done was negotiated insurance claims and then we
subcontracted out work out to [licensed] contractors.” He acknowledged that he never
had a contractor‟s license but said that he had “liability insurance, bonding and
everything else that we needed.” He said that he had a businesss license in Madison
County and that “[w]e tried our best to put [the roofs] on, but we just didn‟t have the
money to do it.” He said he would pay back the victims “[a]s soon as I can get out there
and go to work.” He stated that he usually earned $100,000 to $150,000 per year and that
he thought he could repay the victims within a couple of years.
At the conclusion of the proof, the trial court noted the State‟s recommendation
that the appellant serve all of the sentences in this case concurrently with each other and
concurrently with his twenty-seven-month sentence in Robertson County. The court
announced that it was not going to accept the recommendation, stating that “I just don‟t
find that in the interest of justice that that would be appropriate in this matter.” The court
2
During the guilty plea hearing, the State described Madden and Clendenin as “indicted
codefendants.” Counts seven through eleven of the indictment alleged that the appellant, Clendenin, and
a third name that has been redacted, presumably that of Madden, impersonated a licensed professional in
violation of Tennessee Code Annotated section 39-16-302.
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gave the appellant the opportunty to withdraw his guilty pleas and took a brief recess in
order for defense counsel to discuss the matter with the appellant. When the hearing
resumed, counsel advised the court that the appellant did not want to withdraw his pleas
and wanted to proceed with sentencing.
The trial court stated that it had considered the evidence at the plea and sentencing
hearings, the appellant‟s presentence report, the principles of sentencing, the arguments
regarding sentencing alternatives, and the nature and characteristics of the criminal
conduct involved. The trial court found the following enhancement factors applicable to
the appellant‟s felony convictions: (1), that the defendant has a previous history of
criminal convictions in addition to those necessary to establish the appropriate range; (2),
that the defendant was a leader in the commission of the offenses involving two or more
criminal actors; (13), that the defendant was “on some kind of pretrial release” for
contributing to the delinquency of a minor when he committed “the majority” of the
offenses in the instant case; and (14), that “[t]he defendant abused a position of public or
private trust, or used a professional license in a manner that significantly facilitated the
commission or the fulfillment of the offense” because he was “holding himself out as . . .
a licensed contractor, which he was not.” Tenn. Code Ann. § 40-35-114(1), (2), (13),
(14). The court gave factors (1), (2), and (13) great weight and factor (14) moderate
weight. In mitigation, the court applied factor (1), that the defendant‟s conduct neither
caused nor threatened serious bodily injury, and gave the factor slight weight. See Tenn.
Code Ann. § 40-35-113(1). The court also applied mitigating factor (13), the catchall
provision, for the appellant‟s pleading guilty, accepting responsibility for his actions, and
employment history. See Tenn. Code Ann. § 40-35-113(13).
The trial court sentenced the appellant as a Range I, standard offender to
concurrent, six-year sentences for the Class C felony theft convictions in counts one and
three and to concurrent, four-year sentences for the Class D felony theft convictions in
counts two, four, five, and six. For the misdemeanor convictions of operating a home
improvement business without a license in counts seven through eleven, the trial court
sentenced the appellant to concurrent sentences of eleven months, twenty-nine days with
seventy-five percent release eligibility. The trial court ordered that the appellant serve
the effective six-year, four-year, and misdemeanor sentences consecutively to each other
for a total effective sentence of ten years, eleven months, and twenty-nine days. The trial
court also ordered that the appellant serve the effective sentence consecutively to his
twenty-seven-month sentence in Robertson County and that he pay restitution to the
victims for their “out-of-pocket expenses,” which “totals about $27,400 . . . or a little
over that.” The court denied the appellant‟s request for alternative sentencing and
ordered that he serve the sentences in confinement.
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II. Analysis
The appellant contends that the length of his sentences is excessive, that the trial
court failed to state its basis for ordering consecutive sentencing, and that the trial court
erred by failing to grant his request for alternative sentencing. The State argues that the
trial court properly sentenced the appellant.
Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to
consecutive sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)
(applying the standard to alternative sentencing). In sentencing a defendant, the trial
court shall consider the following factors: (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
enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn.Code Ann. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to
demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‟n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because
the general assembly set the minimum length of sentence for
each felony class to reflect the relative seriousness of each
criminal offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in § 40–35–113
and 40–35–114.
Tenn. Code Ann. § 40-35-210(c).
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Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].‟” Id. at 343. Appellate courts are “bound by a trial court‟s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.
An appellant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). The appellant‟s sentences
meet this requirement. Moreover, an appellant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable
candidate for alternative sentencing absent evidence to the contrary. See Tenn. Code
Ann. § 40-35-102(6). Tennessee Code Annotated section 40-35-103(1) sets forth the
following sentencing considerations which are utilized in determining the appropriateness
of alternative sentencing:
(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.
See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal
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conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. Tenn. Code Ann. § 40-35-102(5).
Although not raised by appellant, we must first address count one of the
indictment. Count one reads that the appellant:
on or about January through October of 2012, in Madison
County, Tennessee, and before the finding of this indictment,
did knowingly obtain and/or exercise control over property,
equal to or over the value of Ten Thousand Dollars
($10,000.00), without the effective consent of the owners,
JAMES E. WILEY, SHEILA PFLEUGER, GILFORD
YARBOROUGH, MIKE MANDLES, and DENNIS and
SUSAN CHRISTENSEN, with the intent to deprive the said
owners thereof, in violation of T.C.A. §39-14-103, all of
which is against the peace and dignity of the State of
Tennessee.
After the appellant testified at the sentencing hearing, the State advised the trial
court as follows:
[Count 1] seems to be an overarching count. I have tried to
understand how it was indicted this way and I don‟t really
have a satisfactory answer, but Your Honor can see from the
counts of the indictment that there is a Count 1 that Your
Honor will see mentions all five victim names and then they
are individually mentioned in Count 2, 3, 4, 5 and 6. . . . I
think it would be appropriate for the Court to merge those in
some way. I would suggest letting Counts 2 through 6 stand
for the individual. . . . The first one is the one that I‟m afraid
we will run into a double jeopardy issue with charging him
for the same crime essentially twice. . . . I think it may be
more proper if the Court sentences him based on Counts 2
through 6 for each individual count that was done instead of
one overarching count. I think they are maybe alternative
theories, but that would be what I would suggest as far as
merging the counts.
After the parties gave their closing arguments regarding sentencing, the trial court
announced that it was going to take the matter under advisement and announce the
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sentences at a later date. When the sentencing hearing resumed three days later, the trial
court failed to address the State‟s concerns regarding count one and sentenced the
appellant to six years for the Class C felony theft.
“A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner‟s effective consent.” Tenn. Code Ann. § 39-14-103(a). In this case, the State
properly charged the appellant in counts two through six for the separate acts of theft
from each of the five victims. However, the State also charged the appellant in count one
with a single act of theft for his collectively taking money from all of the victims. In
effect, the State charged the appellant with two counts of theft as to each victim for his
taking “identical property from the identical person with the identical intent.” State v.
Coleman, 891 S.W.2d 237, 239 (Tenn. Crim. App. 1994). As pointed out by the State
during the sentencing hearing, the prohibition against double jeopardy does not allow the
appellant‟s conviction in count one. See U.S. Const. amend. V; Tenn. Const. art. I, § 10.
Therefore, that conviction is reversed, and the charge is dismissed.
Regarding the appellant‟s claim that the length of his sentences is excessive, the
appellant states that the trial court “erred when it weighed and applied the enhancement
factors.” However, the appellant has waived this issue because he has failed to make any
argument regarding the trial court‟s misapplication of any enhancement or mitigating
factors. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Furthermore, the
2005 amendments to the 1989 Sentencing Act “deleted as grounds for appeal a claim that
the trial court did not weigh properly the enhancment and mitigating factors.” State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008).
As to the appellant‟s claim that the trial court failed to state its basis for ordering
consecutive sentencing, the trial court specifically stated that it was ordering consecutive
sentencing based upon the appellant‟s being “an offender whose record of criminal
activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). The appellant‟s presentence
report shows that he has four prior felony convictions and three prior misdemeanor
convictions. Therefore, he is not entitled to relief on this issue.
Finally, regarding the trial court‟s denial of alternative sentencing, the trial court
stated that the victims “paid this gentleman, Mr. Evans, basically a little over $27,000 and
none of them got a roof. . . . They are out completely all of the money that they paid.”
The trial court noted that, according to the presentence report, the appellant bought a
home valued at $305,900 in 2010 but that “there‟s been no plan suggested on how he
would pay these victims back.”3 The court also noted that the appellant testified that he
3
According to the appellant‟s presentence report, he did not list a residential address on the
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received money from thirteen people who paid for new roofs but never received them,
“[s]o, apparently there [are] some other victims out there.” The court stated that “this
was truly a scheme by the defendant to defraud people and never put any effort into
putting roofs on their house.” The court found that the appellant lacked a potential for
rehabilitation and that the interests of society in being protected from this defendant‟s
possible future criminal conduct was great. The court also found that confinement was
particularly suited to provide an effective deterrent to others likely to commit similar
offenses, stating that “I have to look at what he‟s done not only in this county, but in
Robertson County.” Accordingly, we conclude that the trial court did not abuse its
discretion by denying alternative sentencing.
We note that the judgments of conviction for counts seven through eleven reflect
that the appellant pled guilty to contracting without a license pursuant to Tennessee Code
Annotated section 62-6-120. However, the appellant‟s signed guilty plea form shows that
he agreed to plead guilty to the “[a]mended charge” of “operating a [home improvement]
business w/o license” pursuant to Tennessee Code Annotated section 62-6-512. The
State also advised the trial court during the plea hearing that the appellant was pleading
guilty to violating Tennessee Code Annotated section 62-6-512. Therefore, the case is
remanded to the trial court for correction of the judgments.
III. Conclusion
Based upon the record and the parties‟ briefs, we conclude that the appellant‟s
theft conviction in count one must be reversed and the charged dismissed. We note that
our reversal does not affect the appellant‟s total effective sentence because the trial court
ordered that he serve his six-year sentences in counts one and three concurrently. The
appellant‟s sentences for the remaining convictions are affirmed. However, the case is
remanded to the trial court for the correction of the judgments in counts seven through
eleven to reflect that the appellant was convicted of operating a home improvement
business without a license.
_________________________________
NORMA MCGEE OGLE, JUDGE
personal questionnaire for the report. However, one of the appellant‟s ex-wives advised the preparer of
the report that the appellant was still living in the home.
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