State of Tennessee v. Kenneth Dunlap ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 12, 2011
STATE OF TENNESSEE v. KENNETH DUNLAP
Appeal from the Circuit Court for Madison County
Nos. 10-128, 10-137, 10-138 Donald H. Allen, Judge
No. W2010-01619-CCA-R3-CD - Filed May 25, 2011
The defendant entered pleas of guilty in the Madison County Circuit Court to five counts of
aggravated burglary, see T.C.A. § 39-14-403(a) (2006); two counts of theft of property
valued at $1,000 or more but less than $10,000, see id. § 39-14-103, -105(3); three counts
of theft of property valued at more than $500 but less than $1,000, see id. § 39-14-103, -
105(2); one count of vandalism of property valued at more than $500 but less than $10,000,
see id. § 39-14-408(a); one count of vandalism of property valued at $500 or less, see id. §
39-14-408, -105(2); and tampering with evidence, see id. § 39-16-503(a)(1). The trial court
imposed a total effective sentence of 15 years to be served in the Department of Correction.
In this appeal, the defendant contends that the trial court erred by ordering consecutive
sentencing. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and R OBERT W. W EDEMEYER, J., joined.
Gregory D. Gookin, Assistant District Public Defender, for the appellant, Kenneth Dunlap.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On May 27, 2010, the defendant entered “blind” or “open” guilty pleas in case
number 10-128 to one count of aggravated burglary; one count of theft of property valued
at more than $500 but less than $1,000; and one count of vandalism of property valued at
$500 or less. The defendant also entered guilty pleas in case number 10-137 to three counts
of aggravated burglary; one count of theft of property valued at $1,000 or more but less than
$10,000; and two counts of theft of property valued at more than $500 but less than $1,000.
Finally, the defendant pleaded guilty in case number 10-138 to one count of aggravated
burglary; one count of theft of property valued at $1,000 or more but less than $10,000; one
count of vandalism of property valued at more than $500 but less than $1,000; and tampering
with evidence. The State provided the following recitation of facts:
Docket No. 10-128, the State would show at trial that on or
about November the 6th, 2009, Ms. Alisha Collins’ home was
burglarized at 72 Charlesmeade Drive here in Jackson, Madison
County. This occurred sometime after she left for work at about
8:00 that morning and about 1:00 that afternoon, [the defendant]
along with a codefendant, Mr. Caldwell, went into Bill’s Pawn
Shop here in Jackson . . . and tried to pawn a laptop computer.
[T]he owner of that pawn shop . . . found the name on there of
Ms. Collins’ boyfriend, your Honor. . . . He contacted them
about the laptop and then they discovered their home had been
burglarized and contacted law enforcement. [The shop owner]
did not buy the laptop, but took down the tag number because
the two individuals left the pawn shop. Mr. Caldwell . . . and
[the defendant were ] later identified by photo lineup by [the
owner] and his wife. . . . The back door had been kicked in on
the property and that’s how entrance was gained and damage
was done to that.
....
Docket No. 10-137 and 138 are connected . . . in
the sense that on or about November 13, 2009, a week after the
other one I talked about, a neighbor in the Beinville Street area
noticed three black males burglarizing his neighbor’s residence,
the neighbor’s residence being 100 Beinville Street.
. . . Law enforcement was contacted by this
neighbor who suspected a burglary. As sheriff’s deputies were
arriving at that location, they intercepted a suspect’s vehicle and
they turned around to follow it and the vehicle stopped and three
individuals got out of the vehicle and fled. They were able to
apprehend two of the individuals pretty quickly and that was
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[the defendant] . . . and Xavier Thompson . . . . But when they
stopped the car and observed the car, they found stolen property
in the vehicle from 100 Beinville Street, from 92 Beinville
Street, from 618 Hopper Barker Road and also from 95
Beinville Street. All of those victims were contacted and it was
discovered that their homes had all been burglarized that day
while the victims were not at home that morning and their stolen
property was then recovered from this vehicle.
In Docket No. 10-137, . . . [the defendant] did
unlawfully enter the habitation of Tommy Maxwell and Myra
Maxwell . . . and . . . did also knowingly obtain or excercise
control over property being electronic equipment and jewelry
over the value of $1,000 . . . . In Count 3 he did unlawfully
enter the habitation of Robert Doyle . . . and he did knowingly
obtain or exercise control over property being jewelry over the
value of $500 . . . . In Count 5 that he did unlawfully enter the
habitation of Pamela Humphrey . . . . [and] he did knowingly
obtain or exercise control over property being pills, money and
miscellaneous items over the value of $500 . . . .
He was also connected to that indicted in Docket
No. 10-138 for that same date November 13, 2009. That he did
unlawfully enter the habitation of Rose Weddle . . . . and did
knowingly obtain or exercise control over property being
electronics, jewelry and miscellaneous items over the value of
$1,000 . . . and did knowingly cause damage or destruction of
property belonging to Ms. Weddle over the value of $500. That
was for damage to her home. In Count 4, . . . [the defendant]
was giv[ing] a statement to law enforcement regarding this
matter and that he grabbed a page of the statement and the
officer told him not to destroy the statement because it’s
evidence and he proceeded to rip up the first page of his
statement and thus he did knowingly after an investigation or
official proceeding was pending or in progress destroy an item
to impair the availability as evidence and thus tampering with
evidence.
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The trial court accepted the defendant’s pleas of guilty and scheduled a sentencing hearing
to determine the length and manner of service of the sentences to be imposed.
At the July 12, 2011 sentencing hearing, burglary victim Alisha Collins
testified that the “carport door” to her home was “kicked in” and that the defendant and
codefendant took her television and two laptops as well as destroyed some of her belongings
while they were inside the home. She said that one laptop was recovered from Bill’s Pawn
Shop, but the television and second laptop were never found. She asked the trial court to
impose a “fair” sentence. Her financial loss totaled more than $1,000.
Burglary victim Robert Doyle testified that two doors were kicked in at his
home and that a ring was taken during the burglary. Mr. Doyle said that the ring was
recovered and returned to him but that he had to pay out of his own pocket to repair the
damage to the two doors. His financial loss totaled some $1,331.
Burglary victim Pamela Humphrey testified that the defendant and codefendant
damaged a door to her home and that the cost to repair the door as well as her lost wages
totaled $250.
Burglary victim Tommy Maxwell testified that the defendant and codefendant
took jewelry, shoes, and antique coins from his home and that his insurance did not
reimburse him for the loss of the coins. He estimated his total financial loss as more than
$500.
The parties stipulated that the financial loss suffered by burglary victim Rose
Weddle was $500.
The presentence report established that the 18-year-old defendant had previous
convictions of criminal trespassing and vandalism as well as a juvenile adjudication of
reckless endangerment and sentence of probation that occurred only three months prior to the
defendant’s eighteenth birthday and was, as a result, being supervised by adult probation
services. The defendant also had a juvenile adjudication of aggravated burglary in January
2008. The defendant had previously held jobs at McDonald’s, Long John Silver’s, and as
a janitor at an office building, but he had been unemployed since August 2009.
At the conclusion of the sentencing hearing, the trial court imposed sentences
of five years for each conviction of aggravated burglary, five years for the conviction of
tampering with evidence, three years and six months for each conviction of theft of property
valued at more than $1,000 but less than $10,000, two years for each conviction of theft of
property valued at more than $500 but less than $1,000, two years for the conviction of
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vandalism of property valued at more than $500 but less than $1,000, and 11 months and 29
days for the conviction of theft of property valued at $500 or less. In determining sentence
length, the trial court found that the defendant had a history of criminal convictions in
addition to those necessary to establish the appropriate range, see T.C.A. § 40-35-114(1); that
the defendant was a leader in the commission of the offenses, see id. § 40-35-114(2); that the
defendant had failed to comply with a sentence involving release into the community, see id.
§ 40-35-114(8); that the defendant possessed a firearm during the commission of the offense
based upon the theft of a handgun from one residence, see id. § 40-35-114(9); that the
defendant was on probation when he committed the offenses, see id. § 40-35-114(13); and
that the defendant had a juvenile adjudication for an offense that would have been a felony
if committed by an adult, see id. § 40-35-114(21). The court also found in mitigation that
the defendant had accepted responsibility for his actions and had expressed remorse. See id.
§ 40-35-113(13).
Regarding the sentence alignment, the court ordered that the convictions within
each case should be served concurrently to one another, for an effective sentence in each case
of five years, but that these three effective sentences should be served consecutively to one
another for a total effective sentence of 15 years. The court based its decision to impose
partially consecutive sentencing on its conclusion that the defendant’s record of criminal
activity was extensive, see id. § 40-35-115(b)(2), and that the defendant was on probation
when he committed the offenses in each case, see id. § 40-35-115(b)(6). The court also
ordered that the 15-year sentence be served consecutively to a previously-imposed 11-month
and 29-day sentence.
The trial court denied all forms of alternative sentencing, concluding that the
nature and circumstances of the criminal conduct and the defendant’s failure to comply with
recent stints on probation militated against the imposition of alternative sentencing. The
court concluded that the defendant’s record of violating probation evinced poor amenability
to correction. Finally, the court concluded that a sentence of 15 years’ incarceration was
“particularly suited to provide an effective deterrent not only to [the defendant] but also to
others who are willing to commit such” offenses.
In this appeal, the defendant asserts that the trial court erred by ordering
consecutive service of the 5-year sentences imposed in each case. The State contends that
consecutive sentencing was appropriate.
When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “is
conditioned upon the affirmative showing in the record that the trial court considered the
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sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.
In making its sentencing decision, 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 §§ 40-35-113 and
40-35-114;
(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 wishes to make in the
defendant’s own behalf about sentencing.
T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).
The trial court may impose consecutive sentences if it finds by a preponderance
of the evidence that:
(1) The defendant is a professional criminal who has
knowingly devoted the defendant’s life to criminal acts as a
major source of livelihood;
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(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.
T.C.A. § 40-35-115(b). Here, the trial court determined that the defendant was an offender
whose record of criminal activity is extensive and that the defendant had committed the
offenses at issue on appeal while on probation. The record supports these findings. Just shy
of his nineteenth birthday, the defendant had managed to accumulate 15 criminal convictions,
12 of them for felony offenses. The record also established that the defendant committed the
13 offenses in case numbers 10-128, 10-137, and 10-138 while he was serving a probationary
sentence imposed for convictions of criminal trespassing and vandalism.
Accordingly, the judgments of the trial court are affirmed.
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_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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