State of Tennessee v. Corey Huddleston ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 14, 2004 Session
STATE OF TENNESSEE v. COREY HUDDLESTON
Direct Appeal from the Circuit Court for Dickson County
Nos. 6490, 6661, 6662, and 6663 George C. Sexton, Judge
No. M2004-00812-CCA-R3-CD - Filed June 8, 2005
The appellant, Corey Huddleston, was convicted of multiple counts of theft of property valued under
$500, vandalism of property valued under $500, and criminal trespass. He received sentences of
eleven months and twenty-nine days for each of his theft and vandalism convictions and thirty days
for each of his criminal trespass convictions. On appeal, the appellant challenges the trial court’s
imposition of consecutive sentencing. Upon our review of the 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 are Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.
Michael J. Flanagan, Nashville, Tennessee (on appeal), and Mitchell B. Dugan, Dickson, Tennessee
(at trial), for the appellant, Corey Huddleston.
Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Kim Menke and Suzanne Lockert,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In March 2003, the Dickson County Grand Jury returned indictment number 6940 against
the appellant. Count one of the indictment charged the appellant with harassment, a Class A
misdemeanor, and count two charged the appellant with vandalism of property valued under $500,
also a Class A misdemeanor. In May 2003, the Dickson County Grand Jury returned indictment
numbers 6661, 6662, and 6663 against the appellant. Counts one and three of indictment 6661
charged the appellant with criminal trespass, a Class C misdemeanor. Counts two and four of the
same indictment charged the appellant with theft of property valued under $500, a Class A
misdemeanor. Indictment 6662 was a single count indictment charging the appellant with criminal
trespass. Count one of indictment 6663 charged the appellant with criminal trespass, and count three
charged the appellant with vandalism of property valued under $500.1
On September 17, 2003, the appellant entered pleas of nolo contendere to the charges in
indictment 6661. Subsequently, on November 14, 2003, the appellant entered guilty pleas to the
remainder of the foregoing offenses.2
At the sentencing hearing, the thirty-four-year-old appellant testified that all of his offenses
related to his addiction to drugs. He stated that he started drinking alcohol when he was thirteen
years old, and, in high school, he began to also use marijuana. The appellant started using cocaine
while he attended college. The appellant explained that his addictions continued to present day. The
appellant stated that the instant offenses occurred because
I got drunk, and when I get drunk and get high on that dope all I’m
thinking about is where to get the next whatever at. And I just go in
there and get it.
....
I get to the point it’s like two or three days without eating, just
drinking and smoking crank, and I’m just [losing] my mind. I’m just
out there doing whatever I got to do to get high.
The appellant admitted that he had previously been granted probation on prior offenses. He
also admitted that he frequently was unable to comply with the terms of release. He stated that “the
new charges always gets me violated.”
At the conclusion of the sentencing hearing, the trial court imposed sentences of eleven
months and twenty-nine days for each of the appellant’s theft and vandalism convictions and thirty
days for each of his criminal trespass convictions. The trial court found that “[b]ecause this
[appellant] is a professional criminal who has knowingly devoted his life to criminal acts as a major
source of income, and this [appellant’s] record of criminal activity is extensive, it is necessary for
the protection of the community that he be incarcerated.” The trial court also used the foregoing
reasoning to impose consecutive sentencing. The court ordered the sentences for indictment 6662
to be served consecutively to indictment 6661, the sentences for indictment 6663 to be served
consecutively to indictment 6662, the sentences for indictment 6490 to be served consecutively to
indictment 6663, and the sentences for counts one and two for indictment 6490 to be served
1
Count two of indictment 6662 was dismissed.
2
Neither the nolo contendere plea hearing nor the guilty plea hearing were included in the record for our
review. Therefore, the record does not reflect the factual basis for the appellant’s pleas.
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consecutively to each other. The counts for indictment 6661 were to be served concurrently with
each other, as were the counts for indictment 6663. For ease of understanding, we have compiled
the following table of the appellant’s convictions and sentences:
Indictment Count Offense Sentence Concurrent Consecutive
6661 1 criminal 30 days indictment n/a
trespass 6661, counts 2,
3, 4
2 theft over $500 11 months, 29 indictment n/a
days 6661, counts 1,
3, 4
3 criminal 30 days indictment n/a
trespass 6661, counts 1,
2, 4
4 theft over $500 11 months, 29 indictment n/a
days 6661, counts 1,
2, 3
6662 criminal 30 days n/a indictment 6661
trespass
6663 1 criminal 30 days indictment indictment 6662
trespass 6663, count 3
3 vandalism over 11 months, 29 indictment indictment 6662
$500 days 6663, count 1
6490 1 harassment 11 months, 29 n/a indictment 6663
days
2 vandalism over 11 months, 29 n/a indictment
$500 days 6490, count 1
On appeal, the appellant contests the imposition of consecutive sentencing.
II. Analysis
Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2003). In conducting its de novo review, this court considers
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 statement by the appellant in
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2003); 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(s). See Tenn. Code Ann. § 40-35-
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401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169.
We note that “[w]hether sentences are to be served concurrently or consecutively is a matter
addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn.
Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) (2003) contains the
discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson, 905 S.W.2d
933, 936 (Tenn. 1995). Specifically, that code section provides that consecutive sentencing is
permitted when any one of the following criteria are met:
(1) The defendant is a professional criminal who has knowingly
devoted such defendant’s life to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant’s criminal conduct
has been characterized by a pattern of repetitive or compulsive
behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing
a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant’s
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b)(1)-(7).
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In the instant case, the trial court found that the appellant was a professional criminal and that
he had an extensive criminal history. The professional criminal classification derived from Gray v.
State, 538 S.W.2d 391, 393 (Tenn. 1976). See Tenn. Code Ann. § 40-35-115, Sentencing
Commission Comments. Gray defined a professional criminal as “one who has knowingly devoted
himself to criminal acts as a major source of livelihood or who has substantial income or resources
not shown to be derived from a source other than criminal activity.” Id. We agree with the appellant
that there is little evidence in the record to support this finding.
However, the record clearly demonstrates that the appellant has an extensive criminal history.
The appellant’s presentence report reflects that the appellant’s criminal history spans approximately
ten years and consists of at least sixteen prior misdemeanor convictions and two felony convictions.
We conclude that this history is sufficiently extensive to warrant the imposition of consecutive
sentencing. See Adams, 973 S.W.2d at 231 (“Extensive criminal history alone will support
consecutive sentencing.”).
III. Conclusion
Finding no reversible error, we affirm the judgments of the trial court.
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NORMA McGEE OGLE, JUDGE
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