State v. Antonio Jenkins ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1999 FILED
July 28, 1999
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9804-CC-00187
Appellee ) CONSOLIDATED WITH
01C01-9702-CC-00047
) RUTHERFORD COUNTY
vs. )
) Hon. J. S. Daniel, Judge
ANTONIO E. JENKINS, )
) (Sale of Cocaine over .5 grams, 4 cts.)
Appellant )
For the Appellant: For the Appellee:
Joe M. Brandon, Jr. John Knox Walkup
Attorney for Appellant Attorney General and Reporter
304 S. Lowry Street
Smyrna, TN 37167 Daryl J. Brand
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William C. Whitsell, Jr.
District Attorney General
Third Floor, Judicial Building
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Antonio E. Jenkins, appeals the sentencing decision of the
Rutherford County Circuit Court following his guilty pleas to four counts of sale of
cocaine over .5 grams, a Class B felony. The terms of the plea agreement provided
that the appellant would receive an eight year sentence for each count and the court
would determine whether concurrent or consecutive sentencing was appropriate, as
well as the manner of service of the sentence. In September of 1996, at the first
sentencing hearing, the trial court ordered that two of the eight year sentences run
consecutively for an effective sixteen year sentence. The court also found the
appellant statutorily ineligible for probation. The appellant appealed both the denial
of probation and imposition of consecutive sentences. In State v. Antonio E.
Jenkins, No. 01C01-9702-CC-00047 (Tenn. Crim. App. at Jackson, Dec. 31, 1997),
this court, upon motion by the State conceding eligibility for probation, remanded
this case to the trial court to determine whether the appellant was entitled to
probation. The issue of consecutive sentences was reserved pending entry of a
final order in the trial court.
A new sentencing hearing was held on February 2, 1998. Again, the trial
court denied probation. This sentencing decision was again appealed. By order of
this court on October 28, 1998, the initial appeal was consolidated with the instant
appeal. On consolidated appeal after remand, the appellant again challenges both
the trial court’s imposition of consecutive sentences and the denial of probation.
After review, the judgment of the trial court is affirmed.
BACKGROUND
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Following the appellant’s guilty pleas on August 14, 1996, a sentencing
hearing was conducted on September 23, 1996. The appellant’s pleas arise from
four separate sales of cocaine on April 9, 12, 16, and 19, in which he sold cocaine to
a confidential informant. In each respective sale, the amount of cocaine involved
was .9 grams for $140, .9 grams for $150, .8 grams and .7 grams for $120, and 1
gram for $100.
At the first sentencing hearing, the appellant testified that he was thirty-two
years old. Although the appellant is unmarried, he has three children and at that
time was expecting his fourth. The appellant received a dishonorable discharge
from the Navy. He had been employed three weeks prior to sentencing at Better-Bilt
as a “material handler.” Prior to this brief employment, the appellant related that he
was employed by Todd Loggins on a part-time basis in the aluminum siding
business. The appellant advised that he was paid “under the table” by Loggins.
This employment could not be verified and the presentence officer was unable to
locate a mailing address for this business.
On cross-examination, the appellant provided that “I just chose . . . to make
my living from which [sic] was wrong [sale of cocaine].” After losing his job with
Vintec in February of 1995, he testified that he began selling cocaine in April of 1995
and continued to do so “up to the point I got caught,” in July 1996. The presentence
report reflects that the appellant has three misdemeanor convictions for assault, one
for reckless endangerment, and one for simple possession of cocaine. Additionally,
his record contains seventeen traffic related offenses, including three convictions for
driving on a revoked license. The appellant has been placed on probation on at
least two prior occasions and has been noncompliant with the conditions placed
upon him.
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At the conclusion of the hearing, the trial court observed:
[The appellant] has a prior criminal record. He’s been on probation
both supervised and unsupervised before. He has a prior conviction in
‘94 for cocaine. That was reduced to a simple possession conviction.
He is a person who devoted his life to the sale of drugs and
derived his major source of livelihood from that activity. For over a
year he had no lawful employment, can demonstrate no lawful
employment during that period of time.
Under [Tenn. Code Ann. §] 40-35-115(B1) [sic] he qualifies . . .
for consecutive sentences. I’m going to run two of these sentences
consecutive. The balance run [sic] concurrent. The application is
denied because of his record, and the length of sentence making him
ineligible for probation.
On February 2, 1998, upon remand from this court to consider the appellant’s
eligibility for probation, the trial court’s order states that “considering his record and
past performance,” probation was again denied.
I. SENTENCING
This court’s review of the length, range, or manner of service of a sentence is
de novo with a presumption that the determination made by the trial court is correct.
Tenn. Code Ann. § 40-35-401(d) (1990). See also State v. Bingham, 910 S.W.2d
448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is
only applicable if the record demonstrates that the trial court properly considered
relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The record reflects that the trial court considered the relevant principles of
sentencing; accordingly, the presumption is afforded.
Upon de novo review, this court must consider the evidence heard at trial and
at sentencing, the presentence report, the arguments of counsel, the nature and
characteristics of the offense, any mitigating and enhancement factors, the
defendant’s statements, and the defendant’s potential for rehabilitation. Tenn. Code
Ann. § 40-35-102 (1996 Supp.); Tenn. Code Ann. § 40-35 -103(5)(1990); Tenn.
Code Ann. § 40-35 -210(b) (1996 Supp.); see also State v. Byrd, 861 S.W.2d 377,
379 (Tenn. Crim. App. 1993).
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A. CONSECUTIVE SENTENCES
The appellant first contends the trial court erred in finding him to be a
professional criminal. See Tenn. Code Ann. § 40-35-115(b)(1) (1990). The
consecutive sentencing classification provisions of Tenn. Code Ann. § 40-35-115
are, in essence, a codification of the holdings in Gray v. State, 538 S.W.2d 391(Tenn. 1976) and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). See Sentencing
Commission Comments, Tenn. Code Ann. § 40-35-115. The first four criteria, which
include section 115(b)(1), professional criminal, were taken directly from Gray.
Sentencing Commission Comments, Tenn. Code Ann. § 40-35-115. Gray defines
the 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.” Gray, 538 S.W.2d
at 393.
The appellant argues that his testimony that he worked “odd jobs and
construction work” refutes that he was not a professional criminal as intended by the
statute. He also argues that his candid nature with the court is “probative for
rehabilitation.” Thus, he contends that his sentences should run concurrently. The
State argues that consecutive sentences were appropriate based upon the
appellant’s admissions of selling drugs for one year without other verifiable
employment during this period.
The record reflects the appellant’s admissions of “mak[ing] my living” and “life
of drug dealing.” His own testimony reveals that this lifestyle continued for one year
only receiving money “under the table” after losing his employment with Vintec in
February of 1995. Accordingly, the evidence does not preponderate against the trial
court’s finding that the appellant was a professional criminal unable to establish any
other verifiable source of income other than through his criminal activity.
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Additionally, we must determine, in accordance with the Sentencing
Commission Comments to Tenn. Code Ann. § 40-35-115, whether the consecutive
sentences are necessary to protect the public from the possibility of the appellant’s
future criminal conduct and whether the aggregate sentence is reasonably related to
the severity of the present offenses. See also State v. Wilkerson, 905 S.W.2d 933,
939 (Tenn. 1995); Taylor, 739 S.W.2d 227; Gray, 538 S.W.2d 391.
From our de novo review of the record, we conclude the trial court did not err
in imposing consecutive sentences. Based upon the appellant’s admissions, his
extensive criminal history, and his prior unsuccessful attempts at rehabilitation, the
record supports that confinement is necessary to protect the public from the
appellant’s future criminal conduct. Furthermore, considering the four counts
involved in the instant case, consecutive sentences are reasonably related to the
severity of the crimes.
B. PROBATION
The appellant challenges the trial court’s denial of an alternative sentence,
specifically probation. Although he has previously been placed on supervised
probation, the appellant argues that he has not been placed on intensive probation
or split confinement. Initially, we note the appellant is not entitled to the
presumption for an alternative sentencing option because he was convicted of four
Class B felonies. See Tenn. Code Ann. § 40-35-102(6). Moreover, because the
appellant “has a long history of criminal conduct” and “measures less restrictive than
confinement” have proven unsuccessful, confinement is necessary. Tenn. Code
Ann. § 40-35-103(1)(A) and (C). The appellant has failed to carry his burden of
establishing his entitlement to a sentence other than one of total confinement. See
Bingham, 910 S.W.2d at 455. We find no error of law mandating reversal of the trial
court’s judgment.
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The judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________
JERRY L. SMITH, Judge
____________________________________
NORMA MCGEE OGLE, Judge
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