State of Tennessee v. Thorsten John Boger ( 2001 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs March 14, 2001
    STATE OF TENNESSEE v. THORSTEN JOHN BOGER
    Direct Appeal from the Circuit Court for Montgomery County
    No. 36977 & 40325     John H. Gasaway, III, Judge
    No. M1999-02476-CCA-R3-CD - Filed April 4, 2001
    Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court
    following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to
    nine years in the Department of Correction on each count, with the sentences to be served
    concurrently. On appeal, he argues that he should have received the minimum sentence of eight
    years. Finding no error, we affirm.
    Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
    DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
    JOHN EVERETT WILLIAMS, JJ., joined.
    Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Thorsten John Boger.
    Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Angele M.
    Gregory, Assistant Attorney General, John Wesley Carney, Jr., District Attorney General, and C.
    Daniel Brollier, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    On July 27, 1999, the Appellant, Thorsten John Boger, pled guilty to two counts of sale of
    cocaine, class B felonies, and was sentenced to concurrent nine year sentences on each count. On
    the date these offenses were committed, the Appellant was on probation as a result of his placement
    on judicial diversion. In October of 1996, the Appellant had been granted judicial diversion
    following his guilty pleas to the offenses of criminal trespass and class C aggravated assault.
    Adjudication of guilt was deferred for a period of three years. Following entry of his July 1999
    guilty pleas for the sale of cocaine, the Appellant’s diversion status was terminated. Accordingly,
    adjudication of guilt was entered for the past offenses of criminal trespass and aggravated assault and
    the Appellant received an effective three year sentence for the offenses. This three year sentence
    was ordered to be served consecutively to his nine year sentences for the sale of cocaine for an
    effective sentence of twelve years. The Appellant does not appeal imposition of his sentences for
    aggravated assault and criminal trespass. Instead, he argues that he should have received the
    minimum sentence of eight years for each of his class B felony convictions. After review, we affirm
    the judgment of the Montgomery County Circuit Court.
    Standard of Review
    At the time of the sentencing hearing, the Appellant was twenty-six years of age and single.
    He is the father of four children and currently resides with his girlfriend. He dropped out of high
    school but did obtain a GED. His employment history is, at best, sporadic. He currently is employed
    with a roofing company. He pays child support to two of his four children and is currently in arrears
    in the sum of $9,000. His first encounters with the law began when he was a juvenile. His first adult
    conviction occurred when he was eighteen. His criminal history includes ten or eleven prior
    offenses, including the felony offense of aggravated assault and two prior misdemeanor drug
    offenses. The Appellant has been granted probation on five prior occasions, which obviously has
    proved unsuccessful.
    The trial court found two enhancement factors: (1) the defendant has a previous history of
    criminal convictions in addition to those necessary to establish the appropriate range; and (2) the
    felony was committed while the defendant was on release status. See Tenn. Code Ann. § 40-35-
    114(1) & (13). The trial court also applied as a non enumerated factor that the defendant voluntarily
    entered a plea of guilty and has expressed remorse for his conduct. See Tenn. Code Ann. § 40-35-
    113(13). The Appellant does not contest the application of these enhancement and mitigating
    factors. Instead, the Appellant only argues that the trial court erred in ordering a sentence of nine
    years instead of the presumptive minimum sentence of eight years.
    The weight to be afforded an existing factor is left to the trial court’s discretion so long as
    the court complies with the purposes and principles of the 1989 Sentencing act and its findings are
    adequately supported by the record. State v. Boggs, 
    932 S.W.2d 467
    , 475 (Tenn. Crim. App. 1996).
    The weight to be afforded mitigating and enhancement factors derives from balancing relative
    degrees of culpability within the totality of the circumstances of the case involved. Boggs, 932
    S.W.2d at 476; See also State v. Marshall, 
    870 S.W.2d 532
    , 541 (Tenn. Crim. App. 1993). The
    record clearly supports the trial court’s decision to enhance the Appellant’s sentence based on his
    prior criminal history and commission of a felony while on release status. Accordingly, we find the
    trial court’s imposition of the nine-year sentences for the sale of cocaine to be clearly justified.
    -2-
    CONCLUSION
    Following a de novo review, we find the nine-year sentences imposed for the sale of cocaine
    to be appropriate in the present case. Accordingly, we affirm the judgment of the Montgomery
    County Circuit Court.
    ___________________________________
    DAVID G. HAYES, JUDGE
    -3-
    

Document Info

Docket Number: M1999-02476-CCA-R3-CD

Judges: Judge David G. Hayes

Filed Date: 4/4/2001

Precedential Status: Precedential

Modified Date: 10/30/2014