State of Tennessee v. Marcus Moore ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 5, 2014
STATE OF TENNESSEE v. MARCUS MOORE
Appeal from the Criminal Court for Shelby County
Nos. 12-01502 & 12-01503 Lee V. Coffee, Judge
No. W2013-02763-CCA-R3-CD - Filed August 20, 2014
Appellant, Marcus Moore, entered guilty pleas without recommended sentences to two
counts of burglary of a building, a Class D felony. Following a sentencing hearing, the trial
court imposed sentences of twelve years as a career offender for each count to be served
consecutively to each other. Appellant now challenges the trial court’s alignment of his
sentences. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.
James Edward Thomas, Memphis, Tennessee, for the appellant, Marcus Moore.
Robert E. Cooper, Jr., Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Katie Ratton, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
At appellant’s July 30, 2013 guilty plea submission hearing, the State offered the
following factual bases for the pleas:
[O]n March 9th of 2011, [appellant] broke into Republic Coffee . . . He was
linked to this burglary based on the video surveillance taken at Republic
Coffee and, also, admitted to this burglary. [He] admitted to breaking into
Republic Coffee through the top window, breaking into it with an ashtray,
breaking the glass, going into the coffee house and stealing muffins and soda
....
[T]he facts of [the second case] are, on March 15th of 2011, [appellant] broke
into Central Wine and Spirits using the same sort of way in the sense that he
broke out a top glass of the exterior of the building. He broke into the
building, which was also caught on surveillance, stole a bottle of liquor and
left the building the same way he came in. He was questioned . . . about the
Central Wine and Spirits burglary, to which he confessed. He was also
wearing during his confession the exact same Kellogg’s jacket that he had on
in the video of Central Wine and Spirits.
The trial court advised appellant of his rights, and appellant indicated that he understood his
rights and wished to waive them and enter the guilty pleas. As part of the plea agreement,
the parties submitted the issue of sentencing to the trial court for determination.
The trial court held a sentencing hearing on October 18, 2013. The court noted that
the State had filed a notice of intent to seek enhanced punishment and a motion for
consecutive sentencing. The presentence report was entered into evidence, and no witnesses
were presented.
Appellant’s criminal history as outlined in the presentence report included juvenile
adjudications for shoplifting and theft-related offenses, as well as three drug offenses and a
grand larceny offense that would have been felonies if they had been committed by an adult.
His adult record contained felony convictions for burglary (seven counts); theft (three
counts); vandalism (one count); and possession of a controlled substance with intent to sell
(one count). Appellant had also amassed thirty-six misdemeanor convictions for the
following offenses: fifteen theft convictions for criminal trespass; seven convictions for theft
of property; four convictions for assault; three convictions for vandalism; two convictions
for possession of drug paraphernalia; two convictions for evading arrest; and one conviction
each for aggravated criminal trespass, illegal possession of a weapon, and disorderly conduct.
With regard to sentence alignment,1 the trial court considered the purposes and
principles of the sentencing act and concluded that appellant was a professional criminal who
1
Appellant was sentenced as a Range III, career offender, and accordingly, he received the
maximum sentence within the range. Tenn. Code Ann. § 40-35-108(c). Because he does not appeal his
status as a Range III offender, see id. § 40-35-108(d), a summary of the trial court’s findings and the
applicable legal authorities with regard to setting the lengths of appellant’s sentences is not necessary to our
analysis.
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had devoted himself to criminal acts as a major source of livelihood and that he had a record
that showed extensive criminal history and convictions. Tenn. Code Ann. § 40-35-
115(b)(1),(2). The trial court did, however, consider in appellant’s favor that he pleaded
guilty and took responsibility for his crimes. The trial court sentenced appellant to twelve
years for each burglary to be served consecutively to each other at sixty percent release
eligibility as a career offender.
II. Analysis
Appellant challenges the trial court’s alignment of his two twelve-year sentences.
Prior to 2013, on appellate review of sentence alignment issues, courts employed the abuse
of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim.
App. 1999). Our supreme court has since extended the standard of review enunciated in
State v. Bise, abuse of discretion with a presumption of reasonableness, to consecutive
sentencing determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); Bise, 380
S.W.3d 682, 707 (Tenn. 2012) (modifying standard of review of within-range sentences to
abuse of discretion with a presumption of reasonableness); see also State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (applying abuse of discretion with a presumption of
reasonableness to review of alternative sentencing determinations by the trial court). Thus,
the presumption of reasonableness gives “deference to the trial court’s exercise of its
discretionary authority to impose consecutive sentences if it has provided reasons on the
record establishing at least one of the seven grounds listed in Tennessee Code Annotated
section 40-35-115(b) . . . .” Pollard, 432 S.W.3d at 861.
The procedure used by the trial courts in deciding sentence alignment is governed by
Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to a
trial court’s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved for
the offense committed.” Id. § 40-35-103(2). The court may order consecutive sentences if
it finds by a preponderance of the evidence that one or more of the following seven statutory
criteria exists:
(1) The defendant is a professional criminal who has knowingly devoted
the 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;
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(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.
The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis for
the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.” Id.Of the seven statutory factors, the trial court in this case found the following to apply:
(1) appellant is a professional criminal who has knowingly devoted the defendant’s life to
criminal acts as a major source of livelihood; and (2) appellant is an offender whose record
of criminal activity is extensive. Tenn. Code Ann. § 40-35-115(b)(1), (2). Appellant
challenges the trial court’s aligning his sentences consecutively based on the court’s failure
to engage in a discussion of the Wilkerson factors that must accompany application of
Tennessee Code Annotated section 40-35-115(b)(4). Pollard, 432 S.W.3d at 862-63 (citing
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)) (stating that pursuant to Wilkerson,
before imposing consecutive sentences based upon the defendant’s status as a dangerous
offender, the trial court “must conclude that the evidence has established that the aggregate
sentence is ‘reasonably related to the severity of the offenses’ and ‘necessary in order to
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protect the public from further criminal acts’”). However, the trial court found appellant to
be a “professional criminal,” not a “dangerous offender.” Because the trial court did not rely
on Tennessee Code Annotated section 40-35-115(b)(4), it was unnecessary for it to make the
Wilkerson findings. This argument is unavailing.
Appellant makes a statement in passing “that the trial court certainly did not take
[appellant’s] pleas of guilty into consideration in determining that the sentences should be
served consecutively.” The record belies this contention, as the trial court specifically noted
that it considered appellant’s taking responsibility and pleading guilty favorably toward
appellant.
Finally, appellant contends that because he “has never been convicted of a crime of
violence, [b]ut only low level property crimes,” he should have reaped the benefit of
concurrent sentences. Appellant had a lengthy criminal history of nearly fifty convictions,
four of which were assaults, contrary to his contention that he had never been convicted of
a crime of violence. Notwithstanding, there is no requirement that a criminal defendant be
convicted of a violent crime before being subject to consecutive sentence alignment. This
argument must fail.
CONCLUSION
Based on our review of the record, the briefs of the parties, and the applicable legal
authorities, we affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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