State of Tennessee v. Chad M. Nichol ( 2015 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs April 28, 2015, at Knoxville
    STATE OF TENNESSEE v. CHAD M. NICOL
    Appeal from the Criminal Court for Wilson County
    No. 13-CR-615       David Earl Durham, Judge
    No. M2014-01474-CCA-R3-CD - Filed July 14, 2015
    The Defendant, Chad M. Nicol, pleaded guilty to passing a worthless check of more than
    $500. The trial court sentenced him as a career offender to serve six years in the Tennessee
    Department of Correction. On appeal, the Defendant contends that the trial court erred when
    it sentenced him as a career offender. He further contends that the trial court erred when it
    ordered his sentence to be served consecutively to his sentence for another conviction and
    when it ordered him to serve his sentence in confinement. After a thorough review of the
    record and the applicable authorities, we affirm the trial court’s judgment.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
    J R., and T IMOTHY L. E ASTER, JJ., joined.
    Jonathan M. Tinsley, Lebanon, Tennessee, for the appellant, Chad M. Nicol.
    Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
    Tom P. Thompson, Jr., District Attorney General; James Lea, Jr., and Brian W. Fuller,
    Assistant District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    I. Facts
    This case arises from the Defendant writing a worthless check to a jeweler in
    Lebanon, Tennessee. A Wilson County grand jury indicted the Defendant for passing a
    worthless check of more than $500, and the Defendant pleaded guilty as charged. At the
    January 29, 2014, guilty plea hearing, the State announced the factual basis underlying the
    guilty plea as follows:
    [O]n December 3, 2011, the victim in this case, Shawn Smith, . . . a
    jeweler here in Lebanon, Wilson County, would state that the Defendant, [],
    came in to the store, made a purchase from the jeweler in the amount of
    [$785.84].
    [The Defendant] made that purchase with a check on the account of
    Nora Lynn Nicol and [the Defendant]. It’s [the Defendant’s] signature on the
    check. That check came back insufficient funds. A few days later the store
    did try to contact [the Defendant]. [The store made] contact with him several
    times. He continuously promised that he would come back in with the money.
    They did send him a letter stating that he needed to take care of the check. The
    check was never picked up and never paid.
    The State also made the following statement in open court:
    [The Defendant] wants to enter a plea with a sentencing hearing. He’s
    pleading guilty to a worthless check [charge] which is [a Class] E felony. [The
    State has] advised him . . . that his range would be anywhere from one to six
    years, Your Honor. He’s possibly a career offender and [the State will] be
    filing an enhancement notice.
    Based upon this evidence, the trial court accepted the Defendant’s guilty plea. The
    trial court addressed the State’s intention to file an enhancement notice and advised the
    Defendant that his prior convictions might place him in a higher sentencing range. The
    Defendant acknowledged his understanding of this possibility. On May 20, 2014, the State
    filed a notice of its intent to seek enhanced punishment for the Defendant as a career offender
    (hereinafter “notice”).
    A sentencing hearing was held on May 30, 2014, wherein the State offered the
    presentence report and certified copies of the Defendant’s prior convictions, which the trial
    court admitted into evidence. Also admitted into evidence were records provided by the
    Defendant in support of mitigation, copies of judgments for the Defendant’s prior
    convictions, and a booklet of statutory authority in support of his arguments. After hearing
    arguments and considering the evidence, the trial court stated that, for sentencing range
    purposes, it was considering the Defendant’s six prior felonies committed before December
    2011, the date of the Defendant’s current offense. Based upon this finding, the trial court
    determined that the Defendant was a career offender. See T.C.A. § 40-35-108(a)(3) (2014).
    The trial court next considered the mitigating factors. The trial court stated that it was
    2
    “helpful to the Defendant that he had been on good behavior while incarcerated. However,
    the trial court did not find any mitigating factors applicable for this particular offense. The
    trial court found two consecutive sentencing factors applicable: factor (2), that the
    Defendant’s record of criminal activity was extensive; and factor (6), that the Defendant was
    being sentenced for an offense committed while he was on probation. T.C.A. § 40-35-115
    (2), (6) (2014). The trial court noted that the Defendant had at least twenty-two convictions
    in Wilson, Sevier, and Cocke Counties. The trial court went on to state that sentencing
    alternatives were not appropriate in this case because the Defendant was serving a sentence
    for a Cocke County conviction at the time he was being sentenced. The trial court found that
    probation or other less restrictive means of punishment were not appropriate considering that
    the Defendant was a career offender and had been unsuccessful at completing sentences
    involving probation.
    The trial court sentenced the Defendant to six years as a career offender in the
    Tennessee Department of Correction and ordered that his sentence be served consecutively
    to his sentence in Cocke County. It is from this judgment that the Defendant now appeals.
    II. Analysis
    On appeal, the Defendant makes several arguments in regard to his sentence. He
    contends that the trial court erred in sentencing him as a career offender because the State
    filed a “defective” and “untimely” notice of its intent to seek the enhanced sentence. The
    Defendant next contends that the trial court erred when it ordered his current sentence to run
    consecutively to his sentence in Cocke County. He states that he entered his plea under the
    false impression that this sentence would be served concurrently with his Cocke County
    sentence. Finally, the Defendant contends that the trial court erred when it ordered him to
    serve his sentence in confinement. The State counters that the record supports the trial
    court’s sentencing determinations. We agree with the State.
    In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
    and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
    announced that “sentences imposed by the trial court within the appropriate statutory range
    are to be reviewed under an abuse of discretion standard with a ‘presumption of
    reasonableness.’” State v. Bise, 
    380 S.W.3d 682
     (Tenn. 2012). 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)). To find an abuse of discretion, the record must be void of any substantial
    evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 
    568 S.W.2d 285
    , 286 (Tenn. 1978); State v. Delp, 
    614 S.W.2d 395
    , 398 (Tenn. Crim. App. 1980).
    3
    The reviewing court should uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. So long as the trial court
    sentences within the appropriate range and properly applies the purposes and principles of
    the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.
    Our Supreme Court extended the Bise standard to appellate review of the manner of
    service of the sentence and consecutive sentencing. The Court explicitly held that “the 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, including the questions related to probation or any other alternative sentence.”
    State v. Caudle, 
    388 S.W.3d 273
    , 278-79 (Tenn. 2012). In State v. Pollard, the Court held,
    “the appropriate standard of appellate review for consecutive sentencing is abuse of
    discretion accompanied by a presumption of reasonableness.” 
    432 S.W.3d 851
    , 860 (Tenn.
    2013). We also recognize that the defendant bears “the burden of demonstrating that the
    sentence is improper.” State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991).
    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 T.C.A.
    § 40-35-210 (2014); 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.
    T.C.A. § 40-35-103 (2014).
    A. Notice of Enhanced Punishment
    The Defendant contends that the State’s notice of its intent to seek career offender
    status failed to comply with the statutory ten-day notice requirement. T.C.A.§ 40-35-202(a)
    (2014). He also contends that the prior offense dates listed on the judgments for those
    offenses are incorrect because the prior offenses were part of a “crime spree” wherein the
    forged checks were written within a 24 hour period. The State replies that the Defendant had
    actual knowledge when he entered his guilty plea that the State would be seeking an
    enhanced sentence based upon the prosecutor’s statements at the guilty plea submission
    hearing. The State further responds that the faces of the prior judgments indicate six prior
    4
    felony convictions for six offenses committed on six different dates, thus warranting the
    career offender classification. The State also points out that the Defendant’s argument
    pertaining to the issue of the dates of his prior offenses should have been raised at the time
    those judgments were entered.
    “If the district attorney general believes that a defendant should be sentenced as a
    multiple, persistent or career offender, the district attorney general shall file a statement
    thereof with the court and defense counsel not less than ten (10) days before trial or
    acceptance of a guilty plea[.]” T.C.A. § 40-35-202(a); see also Tenn. R. Crim. P. 12.3(a).
    As stated in Rule 12.3(a), the relief available to a defendant when the State provides an
    untimely notice is a “reasonable continuance” of the proceedings. The Rule’s comments note
    that if the State’s notice is untimely, “the defendant is entitled to a continuance to rechart a
    course of action[,]” but “[i]f the defendant does not request a continuance, the written notice
    shall be valid.” Tenn. R. Crim. P. 12.3(a), Advisory Comm’n Cmts.
    The issue of an untimely notice was addressed by our Supreme Court in State v.
    Livingston, 
    197 S.W.3d 710
     (2006), wherein the State’s notice was filed pursuant to the
    original indictment; no such notice was filed when the indictment was later amended. The
    defendant in Livingston contended that the State’s failure to file a second notice with the
    superseding indictment prevented enhancement of his sentence. Our Supreme Court
    disagreed, stating that “perfect” notice of sentence enhancement is not required, only “some”
    notice and noted that the defendant had knowledge of the original notice filing. 
    Id. at 713, 715
    . Thus, the Court held that the defendant “had fair warning that the State intended to seek
    enhanced punishment” for his crimes and therefore, the “purpose” of section 40-35-202(a)
    had been “accomplished.” 
    Id. at 716
    .
    The Court’s opinion in Livingston also noted its earlier decision in State v.
    Stephenson, 
    752 S.W.2d 80
     (1988), wherein it held that an untimely notice was not
    “ineffective in the absence of some showing of prejudice on the part of the accused,
    particularly where defense counsel does not move for a continuance or postponement of the
    trial as he is clearly authorized to do under Rule 12.3(a).” 
    Id. at 81
    . The Court further noted
    that “[i]n the absence of a motion for continuance, in our opinion, any objection to the
    delayed notice by the State ordinarily should be deemed to have been waived.” 
    Id.
    In the present case, the State announced at the guilty plea hearing that the Defendant
    was “possibly a career offender” and stated its intention to file a notice seeking an enhanced
    sentencing range. The trial court made clear to the Defendant that his prior convictions
    might place him in a higher sentencing range. The Defendant acknowledged that he
    understood this possibility. Written notice of the State’s intention was filed after the guilty
    plea and before the sentencing hearing, providing the Defendant with a specific list of the
    5
    prior convictions the State sought to use to enhance his sentence.
    We acknowledge our Supreme Court’s admonishment that “good practice requires that
    the notice be filed in accordance with the procedural rule.” Stephenson, 
    752 S.W.2d at 81
    .
    Based upon these facts, however, we conclude that the Defendant was given sufficient notice
    of his sentencing enhancement possibilities, both at the guilty plea hearing and in the written
    notice filed ten days before the sentencing hearing. Accordingly, we conclude that the
    State’s notice was valid. 
    Id.
    As to the Defendant’s challenge to the accuracy of the dates of his prior offenses listed
    on the judgments, the Defendant’s criminal history included seven prior felony convictions
    for offenses committed on seven separate dates. Therefore, the career offender sentencing
    classification was proper. The Defendant is not entitled to relief on this issue.
    B. Consecutive Sentencing
    The Defendant next contends that the trial court erred when it ordered consecutive
    sentencing. The Defendant claims that he entered his guilty plea “under the false
    impression” that consecutive sentencing was not “mandated by statute.” The State counters
    that the Defendant’s extensive criminal history warranted consecutive sentences. We agree
    with the State.
    Consecutive sentencing is a matter addressed to the sound discretion of the trial court.
    State v. James, 
    688 S.W.2d 463
    , 465 (Tenn. Crim. App. 1984). A trial court may order
    multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that
    at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2014). In
    addition to these criteria, consecutive sentencing is subject to the general sentencing principle
    that the length of a sentence should be “justly deserved in relation to the seriousness of the
    offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-
    102(1), -103(2) (2014); see also State v. Imfeld, 
    70 S.W.3d 698
    , 708 (Tenn. 2002).
    In this case, the trial court found two consecutive sentencing factors applicable: factor
    (2), that the Defendant’s record of criminal activity was extensive; and factor (6), that the
    Defendant was being sentenced for an offense committed while he was on probation. T.C.A.
    § 40-35-115 (2), (6) (2014). The trial court stated that it was clear from the evidence that the
    Defendant was on probation when he committed this offense, in support of factor (6). In
    discussing the applicability of the factor (2) to the Defendant, the trial court stated the
    following:
    The Defendant is an offender whose record of criminal activity is
    6
    extensive. That does exist. When I counted up the total number of actual
    convictions, [I counted] twenty-two.
    So I did look at these other statutes. You know, I must look at
    sentencing alternatives under [T.C.A. §] 40-35-114. They’re not applicable
    because [the Defendant] is now [serving] an eight year sentence currently, is
    my understanding from Cocke County. The sentencing considerations under
    [T.C.A. §] 40-35-103, the Court did consider all of those, and there’s one
    particularly I’d like to point out and that is [T.C.A. §] 40-35-103(1)(c), which
    states, measures less restrictive than confinement have frequently been applied
    or recently been applied unsuccessfully to the Defendant.
    We conclude that the evidence supports the trial court’s imposition of consecutive
    sentences. The evidence at the sentencing hearing supports the trial court’s determination
    that the Defendant was serving a probation sentence at the time of this offense. Further, the
    certified copies of the Defendant’s prior convictions support a finding that the Defendant has
    an extensive history of criminal activity. The Defendant is not entitled to relief on this issue.
    C. Manner of Service
    The Defendant lastly contends that the trial court erred when it ordered him to serve
    his sentence in confinement. He contends that this punishment for “writing one worthless
    check” is “much greater than that deserved for the offense committed.” The State responds
    that the trial court did not abuse its discretion when it ordered the Defendant to serve his
    sentence in confinement. We agree with the State.
    We reiterate that the manner of service of a sentence ordered by the trial court is
    presumptively reasonable unless the Defendant can demonstrate that the sentence was
    improper. See Pollard, 432 S.W.3d at 860; Ashby, 
    823 S.W.2d at 169
    . The trial court stated
    its reasons for ordering the Defendant to serve his sentence rather than granting him
    probation. That the Defendant had been given multiple chances with alternative sentencing
    that proved unsuccessful. The Defendant’s conviction follows a long list of prior offenses
    involving similar behavior. Accordingly, we conclude that the trial court did not abuse its
    discretion when it ordered the Defendant to serve his sentence in confinement. The
    Defendant is not entitled to relief.
    III. Conclusion
    In accordance with the aforementioned reasoning and authorities, we affirm the trial
    court’s judgment.
    7
    ________________________________
    ROBERT W. WEDEMEYER, JUDGE
    8
    

Document Info

Docket Number: M2014-01474-CCA-R3-CD

Judges: Judge Robert W. Wedemeyer

Filed Date: 7/14/2015

Precedential Status: Precedential

Modified Date: 7/14/2015