State of Tennessee v. Jeremy Lynn Thornton ( 2021 )

01/15/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 10, 2020 Session
STATE OF TENNESSEE v. JEREMY LYNN THORNTON
Appeal from the Circuit Court for Benton County
No. 2019-CR-86 C. Creed McGinley, Judge
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No. W2020-00159-CCA-R3-CD
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The State appeals the trial court’s imposition of a community corrections sentence, arguing
the defendant did not qualify for alternative sentencing. Upon our review of the record and
the applicable law, we find the trial court erred in not considering all the applicable factors.
Accordingly, we reverse the decision of the trial court and remand the matter for a new
sentencing hearing consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and TIMOTHY L. EASTER, J., joined.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Michelle Morris-
Deloach, Assistant District Attorney General, for the appellant, State of Tennessee.
Kendall F. Stivers, Assistant Public Defender, Tennessee District Public Defenders
Conference, Franklin, Tennessee (on appeal) and Paul D. Hessing, Assistant District Public
Defender, Camden, Tennessee (at trial), for the appellee, Jeremy Lynn Thornton.
OPINION
Facts and Procedural History
On June 17, 2019, a Benton County grand jury indicted the defendant for possession
of methamphetamine with intent to sell or deliver, possession of heroin with intent to sell
or deliver, simple possession of Alprazolam, simple possession of marijuana, possession
of drug paraphernalia, and simple possession of Diazepam. After a jury trial, the defendant
was convicted of each count as charged in the indictment.
A sentencing hearing was held on November 19, 2019. After admitting into
evidence the defendant’s presentence report, the trial court acknowledged that it had
presided over the defendant’s case and recalled two specific facts from the defendant’s
trial: 1) the officers responded to an overdose call and had to use Narcan on the defendant
because “he was, basically, on the point of death” and 2) the heroin possessed by the
defendant was laced with Fentanyl.
The State, relying on the defendant’s prior convictions for possession of marijuana,
theft, assault, and domestic violence, argued the defendant’s sentence should be enhanced
based on the defendant’s history of criminal convictions or behavior. The State also noted
the defendant twice violated a protective order while released on bond in the instant matter.
Relying on these violations, the State argued the defendant’s sentence should be enhanced
based on his failure to comply with conditions of release into the community. Additionally,
the State argued the defendant’s sentence should be enhanced because the heroin was laced
with Fentanyl and, as such, created a high risk to human life. More specifically, the State
argued that “by its very nature, Fentanyl is deemed to cause a high risk to human life, and
that risk was exposed to those persons who were the [f]irst [r]esponders in this case.”
Finally, the State argued,
[i]t’s the State’s position, Your Honor, that confinement is necessary. It’s
necessary to protect society. It’s necessary to avoid depreciating the
seriousness of the offense and provide effective deterrence to others likely to
commit similar offenses.
Your Honor, may recall that the jury spoke very loudly, and clearly,
when they assessed the fines in this case. They were excessive.
The State also feels that confinement is necessary, because it shows
less restrictive measures have been proven unsuccessful for this defendant.
Time and time again, he has been given suspended sentences, but continues
to commit crimes. Time and time again, he has attended rehab, but continues
to resort to a way of life that includes drug use.
The [S]tate would also submit, Your Honor, that circumstances of the
offense committed were of an excessive and exaggerated degree, and that he
didn’t just possess this Schedule I and Schedule II [d]rugs with [i]ntent to
[d]eliver, he almost died from it.
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Not to mention that he put the [f]irst [r]esponders at risk, but then this
proof would show at trial, Your Honor, that then he tried to walk away from
medical care after it was being provided to him, after being Narcanned.
So, it’s not just the [p]ossession with [i]ntent to [d]eliver, Your Honor.
It carried higher consequences and significant effect. So again, the State
would suggest that confinement is reasonable under these circumstances.
In response, the defendant noted that there was another individual in the vehicle
with him and that all the drugs found in the vehicle were in a bottle which was located
between the defendant’s seat and the console. However, the driver was not charged with a
crime. The defendant also noted he was not charged with possession of Fentanyl or did
the lab report did not mention Fentanyl. Additionally, the defendant argued that despite
the jury’s finding to the contrary, there was no proof “indicating to anybody that these
drugs were possessed with the intent to distribute or sell.” The defendant also argued he
was an addict and has not been able to conquer his addiction. Finally, the defendant
claimed his recent violations of the order of protection were non-violent in nature. As the
defendant continued to argue he deserved some form of alternative sentencing, the trial
court interjected stating, “I already know what I’m going to do, if you want to know.”
When the State sought the opportunity to respond to the defendant’s argument, the
trial court made the following findings,
No. I’ve given you all the time. I’ve tried this case. [The defendant], the
biggest risk that he poses is to himself. It’s obvious that he’s got a severe
drug problem, and the jury didn’t subscribe to [the defendant’s] simple
[p]ossession argument, and he’s been convicted of two (2) Class B Felonies.
The Court is going to sentence him to ten (10) years on each of those. That’s
Counts 1 and 2. I’ve already announced the earlier fines. As far as the other
four (4) counts, it will be eleven twenty-nine (11-29) on each of those. The
grounds don’t really exist for the Court to run sentences consecutive. He
only has a misdemeanor record. So as a result of that the Court feels he’s an
appropriate candidate for split confinement. I’m going to order that he serve
one year. Be given credit for time served, and then, when he is out on
probation, I’m going to --- It will be State Probation. When he is out on State
Probation, I’m going to order that he be assessed for A and D, and follow all
recommendation, including rehab.
When the State noted that the defendant, as a result of his conviction for possession
of heroin, was not eligible for probation, the trial court, without making any findings
pursuant to Tenn. Code Ann. § 40-36-106, immediately announced it was sentencing the
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defendant to community corrections. In response, the State argued the defendant did not
qualify “for community corrections for a number of reasons. His past pattern of violent
behavior, as evidenced by the domestic violence [] conviction, the assault conviction, as
well as . . . he has failed to comply with the terms of his release on probation, previously,
and you have to be . . . eligible for probation to qualify for community corrections, and
he’s not eligible for probation by statute, because of his Schedule I here.” The defendant,
relying on the special needs section of the community corrections statute, see Tenn. Code
Ann. § 40-36-106(c), argued, “the Court is authorized to sentence an eligible offender as
defined in this section to any appropriate community-based alternative to incarceration
provided in accordance with the terms of this chapter, and under the additional terms and
conditions as the Court may prescribe, which you have done, in lieu of incarceration in a
state penal institution, or local jail, or workhouse.”
Finally, the State argued that the defendant’s prior assault conviction and two
violations of an order of protection established a “past pattern of behavior of violence”
made the defendant ineligible for community corrections. The trial court made no specific
findings concerning the defendant’s assault and domestic violence convictions but did find,
however, the defendant’s violations of an order of protection “collateral” to the defendant’s
case. The trial court then affirmed its decision to place the defendant on community
corrections after the service of one year. This timely appeal followed.
Analysis
On appeal, the State contends the trial court abused its discretion in sentencing the
defendant to community corrections rather than incarceration. The State argues the
defendant is not statutorily eligible for community corrections because of he has “a present
or past pattern of behavior indicating violence” and “a pattern of committing violent
offenses,” and the defendant is not eligible under the special needs section of the
community corrections statute because his conviction for possession of heroin made the
defendant ineligible for probation. See Tenn. Code Ann. § 40-36-106(a)(1)(E)-(F) and (e).
The defendant insists the trial court “properly exercise[d] its sound discretion when it
concluded that [the defendant’s] two prior misdemeanors were not enough to show ‘a
pattern of violent behavior’ that would preclude a community corrections sentence.” Upon
our review of the record and the applicable law, we reverse the judgment of the trial court
and remand the matter for a new sentencing hearing consistent with this opinion.
In determining an appropriate sentence, a trial court must consider 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 mitigating and enhancement factors; (6)
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any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” Id. § 40-35-103(4).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See id.
§§ 40-35-114, -210(c). Although the application of the factors is advisory, a court shall
consider “[e]vidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The
trial court must also place on the record “what enhancement or mitigating factors were
considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.” Id. § 40-35-210(e).
This Court reviews the trial court’s sentencing determination under an abuse of
discretion standard accompanied by a presumption of reasonableness. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). If a trial court misapplies an enhancement or mitigating
factor in passing sentence, said error will not remove the presumption of reasonableness
from its sentencing determination. Bise, 380 S.W.3d at 709. This Court will uphold the
trial court’s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Id. at 709-10. Moreover, under such circumstances, appellate courts
may not disturb the sentence even if we had preferred a different result. See State v. Carter,
254 S.W.3d 335, 346 (Tenn. 2008). The abuse-of-discretion standard of review and the
presumption of reasonableness also applies to “questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). The
party challenging the sentence imposed by the trial court has the burden of establishing that
the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Despite the adoption of a more deferential standard of review in Bise, courts have
continued to emphasize the need for trial courts to “place on the record, either orally or in
writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.” Bise, 380
S.W.3d at 705-06 n. 41 (emphasis omitted) (quoting Tenn. Code Ann. § 40-35-210(e)).
This serves to promote meaningful appellate review and public confidence in the integrity
and fairness of our judiciary. As explained in Bise, however, “[m]ere inadequacy in the
articulation of the reasons for imposing a particular sentence . . . should not negate the
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presumption [of reasonableness].” Id. at 705–06. Thus, “while a trial court’s less
comprehensive findings may require appellate courts to more carefully review the record,
sentences should be upheld so long as the statutory purposes and principles, along with any
applicable enhancement and mitigating factors, have been properly addressed.” Id. at 706.
Here, it is not completely clear as to the trial court’s rational for placing the
defendant on community corrections. While the trial court recalled the facts of the case
and made passing reference to the defendant’s criminal record, he did so when ordering a
probationary sentence. However, when the State pointed out that the defendant’s
conviction for possession of heroin disqualified him from probation, the trial court
immediately ordered the defendant to serve his sentence on community corrections without
making any additional findings. More specifically, when the State, relying on the
defendant’s prior convictions for assault and domestic violence and two violations of an
order of protection, argued the defendant did not qualify for community corrections based
on his past pattern of behavior indicating violence, the trial court, without hearing any proof
relating to the violations, simply stated, “well, there’s just two order of protection
[violations] and they are collateral to this. I’m not going to consider that prior acts of
violence.” Despite the State then reminding the trial court of the defendant’s convictions
for assault and domestic violence, the trial court simply reaffirmed its decision to place the
defendant on “community corrections after the service of one year.”
While great deference is given to the trial court in sentencing matters, the trial court
is required to make minimal findings at best. Here, however, our review of the record
reveals the trial court simply placed the defendant on community corrections once the State
pointed out that the defendant was not eligible for probation. Contrary to the defendant’s
claim that the trial court found his criminal history did not amount to a pattern of violence,
no such finding was made. Rather, the trial court simply stated that two violations of a
protective order were “collateral” issues. Again, we note that the trial court made this
finding without any proof presented. Additionally, we are perplexed by the trial court’s
finding that these violations, which occurred while the defendant was released on bond
after his conviction in the instant matter, were “collateral” and not relevant to the
defendant’s suitability for alternative sentencing, especially one involving release into the
community. Not only did the trial court fail to hear any evidence on the nature of the
defendant’s violations or make a finding as to whether these violations were violent in
nature, but it also failed to make any finding relating to the defendant’s convictions for
assault and domestic violence. Moreover, the trial court failed to make any findings
pursuant to Tennessee Code Annotated § 40-36-106 as to how the defendant qualified for
community corrections. Based on our review of the record, the trial court abused its
discretion by imposing a sentence of community corrections without making any findings
concerning the defendant’s violations of a protective order, whether he has a history of
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violence, and his overall suitability for community corrections. Therefore, we reverse the
finding of the trial court and remand the matter for a new sentencing hearing consistent
with this opinion.
Finally, while it does not appear from our review of the record that the trial court
necessarily relied on the “special needs” section of the community correction statute, the
defendant argued during the hearing and now on appeal that he qualifies under the statute.
See Tenn. Code Ann. § 40-36-106(c). Because we are remanding this matter for a new
sentencing hearing and the defendant has argued he is eligible for community corrections
under the special needs section, we will address the defendant’s claim.
Section (c) of the community corrections statute, which is sometimes referred to as
the “special needs” provision, states:
Felony offenders not otherwise eligible under subsection (a), and who
would be usually considered unfit for probation due to histories of chronic
alcohol or drug abuse, or mental health problems, but
whose special needs are treatable and could be served best in
the community rather than in a correctional institution, may be considered
eligible for punishment in the community under the provisions of this
chapter.
Tenn. Code Ann. § 40-36-106(c). In other words, felons not otherwise eligible under the
criteria of subsection (a) are eligible under subsection (c) of Tennessee Code Annotated
section40-36-106 if they are unfit for probation due to a history of chronic alcohol abuse,
drug abuse, or mental health problems, but their special needs are better treatable in a
community corrections program than in incarceration. However, before being placed in
community corrections based upon Tennessee Code Annotated section40-36-106(c), an
offender must first be eligible for regular probation. State v. Johnson, 342 S.W.3d 520,
522-23 (Tenn. Crim. App. 2009); see also, State v. Cowan, 40 S.W.3d 85, 86 (Tenn. Crim.
App. 2000); State v. Kendrick, 10 S.W.3d 650, 655 (Tenn. Crim. App. 1999); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d 934,
936 (Tenn. Crim. App. 1989); State v. George C. Peery, III, No. E2008-00086-CCA-R3-
CD, 2009 WL 537064, at *4 (Tenn. Crim. App. Mar. 4, 2009); State v. Jennifer Leslie
Pendleton, No. E2007-00578-CCA-R3-CD, 2008 WL 2805609 (Tenn. Crim. App. July 22,
2008) (concluding that a defendant convicted of Tennessee Code Annotated section 39-17-
417(i) was not eligible for probation and, therefore, could not be placed
in community corrections under the “special needs” provision). Because the defendant’s
conviction for possession of heroin disqualifies him from receiving a sentence of probation,
he is not eligible for community corrections under the special needs section of the
community correction statute.
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Conclusion
Based on the foregoing, we reverse the judgment of the trial court and remand this
matter for a new sentencing hearing consistent with this opinion.
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J. ROSS DYER, JUDGE
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