State of Tennessee v. Nathaniel Shelbourne - Concurring ( 2012 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs September 5, 2012
    STATE OF TENNESSEE v. NATHANIEL SHELBOURNE
    Appeal from the Circuit Court for Lake County
    No. 09-CR-9299     R. Lee Moore, Jr., Judge
    No. W2011-02372-CCA-R3-CD - Filed December 26, 2012
    T HOMAS T. W OODALL, J., concurring.
    I concur with the majority opinion except as to the issues of consecutive sentencing
    and lesser included offenses. The trial court ordered consecutive sentencing based upon the
    finding that Defendant was a dangerous offender pursuant to Tennessee Code Annotated
    section 40-35-115(b)(4)(2010 Repl.). The State candidly admits in its brief that the trial
    court, at most, only “implicitly” found the additional “Wilkerson” requirements for a
    dangerous offender: that the resulting consecutive sentence is reasonably related to the
    offense and necessary to protect the public. See State v. Wilkerson, 
    905 S.W.2d 933
    , 939
    (Tenn. 1995) (held that the imposition of consecutive sentences based upon “dangerous
    offender” category requires additional findings by the trial court that an extended sentence
    is necessary to protect the public against further criminal conduct by the defendant, and
    consecutive sentences are reasonably related to the severity of the offenses.).
    The importance of making this mandatory finding of fact when a trial court orders
    consecutive sentencing based upon a defendant being a “dangerous offender” causes me to
    be hesitant in this case to find that the trial court “implicitly” made the findings which have
    long been mandated by our supreme court. Normally, I would hold that the order of
    consecutive sentencing must be reversed. However, as mentioned in the State’s brief,
    Defendant also, at least marginally, qualified for consecutive sentencing under the “extensive
    criminal history” category pursuant to Tennessee Code Annotated section 40-35-
    115(b)(2)(2010 Repl.). Defendant committed the offense which is the subject of this appeal
    when he was 30 years old and incarcerated in the Tennessee Department of Correction for
    prior felony convictions. Defendant had prior convictions for the following offenses,
    committed at the noted age: assault, age 19; Class E felony theft, age 20; two convictions for
    separate acts of especially aggravated robbery at age 22; and assault at age 22, with the
    record indicating this last offense also occurred while Defendant was incarcerated.
    Defendant reported to the presentence report investigating officer that he began using
    marijuana at age 11 and that he was “happy [until] the age of 16. Moved out of Dad[’]s
    house started using drugs.” I would therefore affirm the consecutive sentencing based upon
    Defendant’s extensive criminal history. Furthermore, I note that the General Assembly of
    this state has authorized the trial courts to order consecutive sentencing “for any offense
    committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(6). It is puzzling as to
    why the legislature has declined to provide the same authority to trial courts for an offense
    committed while incarcerated in a state penitentiary, county jail, workhouse, or other such
    place of confinement.
    Finally, I take this occasion and the circumstances of this case to clarify what I believe
    is the only logical conclusion on the issue of a trial court’s failure to charge an appropriate
    lesser included offense. Based upon the clear and specific holding of our supreme court in
    State v. Davis, 
    266 S.W.3d 896
    , 910 (Tenn. 2008), the reasons for the holding stated therein,
    Id. at 903-907, and upon the well settled law that juries are presumed to follow the
    instructions of the trial court, see State v. Shaw, 
    37 S.W.3d 900
    , 904 (Tenn. 2001), it can
    never be reversible error when a trial court fails to charge a lesser included offense.
    In Davis the supreme court’s holding is,
    We hold that, where a criminal defendant is entitled to jury instructions on
    lesser-included offenses, the trial court shall instruct the jury to consider the
    offenses in order from greatest to least within each count of the
    indictment and that it [the jury] shall not proceed to consider any lesser-
    included offense until it has made a unanimous determination that the
    Defendant is not guilty of the immediately-preceding greater offense.
    Id. at 910 (emphasis added).
    In this case, even if misdemeanor reckless endangerment had been charged as a lesser
    included offense, the jury was prohibited from considering it because the jury convicted
    Defendant of the charged offense of Class C felony aggravated assault, never acquitted
    Defendant of that charged offense, and thus could never consider the lesser included offense
    of misdemeanor reckless endangerment even if it had been charged.
    ___________________________________
    THOMAS T. WOODALL, JUDGE
    -2-
    

Document Info

Docket Number: W2011-02372-CCA-R3-CD

Judges: Judge Thomas T. Woodall

Filed Date: 12/26/2012

Precedential Status: Precedential

Modified Date: 10/30/2014