State of Tennessee v. Ricky Trumaine Salters, Sr. ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 25, 2012 Session
STATE OF TENNESSEE v. RICKY TRUMAINE SALTERS, SR.
Appeal from the Criminal Court for Knox County
Nos. 92897, 92898, 92899A, 93669 Bob R. McGee, Judge
No. E2012-00035-CCA-R3-CD-FILED-DECEMBER 6, 2012
Appellant, Ricky Trumaine Salters, Sr., entered guilty pleas without recommended sentences
to drug offenses stemming from four separate indictments, for which the trial court imposed
an effective thirteen-year sentence to be served in the Tennessee Department of Correction.
Appellant contends on appeal that the trial court erred by ordering partially consecutive
sentences and by refusing alternative sentencing. Upon review of the record and the parties’
briefs, 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 J AMES C URWOOD W ITT, J R.,
and R OBERT W. W EDEMEYER, JJ., joined.
Keith Lowe, Knoxville, Tennessee, for the appellant, Ricky Trumaine Salters, Sr.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Jennifer Welch,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History and Sentencing Facts
In addition to entering pleas without recommended sentences to four separate
indictments in case numbers 92897, 92898, 92899A, and 93669, appellant also pleaded guilty
to five counts of a fifth indictment (95897) and was convicted by a jury on the sixth count
of the indictment in case number 95897. Appellant received an effective fourteen-year
sentence on case number 95897, which the trial court ordered to run consecutively to the
effective thirteen-year sentence in case numbers 92897, 92898, 92899A, and 93669, for a
total effective sentence of twenty-seven years. However, the notice of appeal in this case
only lists case numbers 92897, 92898, 92899A, and 93669. In addition, there is no judgment
or indictment for case number 95897 in the record.1 Thus, the effective fourteen-year
sentence imposed in case number 95897 is not properly before this court. We confine our
review to the propriety of the effective thirteen-year sentence imposed in case numbers
92897, 92898, 92899A, and 93669.
The trial court began the sentencing hearing by stating that it was sentencing appellant
on five cases, including the jury verdict and all of the guilty pleas. Because the trial court
discussed five separate indictments in the sentencing hearing, we begin our review by setting
forth the counts contained in each indictment and the sentence imposed for each:
#92897: Count I: sale of less than 0.5 g of cocaine, a Class C felony
Count II: delivery of less than 0.5 g of cocaine, a
Class C felony
Appellant pleaded guilty, and the trial court merged the
convictions and sentenced him to four years.
#92898: Count I: sale of more than 0.5 g of cocaine, a Class B
felony
Count II: delivery of more than 0.5 g of cocaine, a Class B
felony
Appellant pleaded guilty, and the trial court merged the
convictions and sentenced him to nine years.
#92899A: Count I: sale of more than 0.5 g of cocaine, a Class B
felony
Count II: delivery of more than 0.5 g of cocaine, a Class B
felony
Appellant pleaded guilty to Count I, and the trial court dismissed
Count II and sentenced him to nine years.
1
The trial court’s determination of the length and manner of service in case number 95897 is gleaned
from the amended sentencing order.
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#93669: Count I: sale of more than 0.5 g of cocaine, a Class B
felony
Count II: delivery of more than 0.5 g of cocaine, a Class B
felony
Appellant pleaded guilty, and the trial court merged the
convictions and sentenced him to nine years.
#95897: Count I: sale of more than 0.5 g of cocaine, a Class B
felony
Count II: delivery of more than 0.5 g of cocaine, a Class B
felony
Count III: unlawful possession of a weapon, a Class E
felony
Count IV: unlawful possession of a weapon, a Class E
felony
Count V: unlawful possession of a weapon, a Class E
felony
Count VI: employing a firearm during commission of a
dangerous felony, a Class D felony
Following a jury trial on Count VI, the court merged Counts I
and II and sentenced appellant to nine years. The trial court
merged Counts III, IV, and V and sentenced appellant to two
years. The trial court imposed the mandatory five-year sentence
to be served at 100% on Count VI.
The trial court ordered the sentences in case numbers 92898 (nine years), 92899 (nine years),
and 93669 (nine years) to run concurrently with each other but consecutively to the sentence
imposed in case number 92897 (four years), for an effective thirteen-year sentence on the
cases included in this appeal. The court also ordered the sentence on merged Counts I and
II (nine years) and merged Counts III, IV, and V (two years) in case number 95897 to run
concurrently with each other but consecutively to the sentence imposed on Count VI (five
years), for an effective fourteen-year sentence. All sentences in case number 95897 were to
run consecutively to the sentences imposed on case numbers 92897, 92898, 92899, and
93669, resulting in an effective twenty-seven year sentence.
The trial court heard testimony at the sentencing hearing. The State presented Officer
J.D. Sisk who was assigned to the repeat offenders squad of the Knoxville Police
Department. He first encountered appellant on September 28, 2009, when he utilized a
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confidential informant (“CI”) to purchase crack cocaine from appellant. The CI knew
appellant, so his identity was not in question. Upon completion of the transaction, Officer
Sisk sent the substance purchased by the CI to be tested at the Tennessee Bureau of
Investigation’s toxicology lab. The report indicated that the substance contained 0.1 gram
of cocaine base. This purchase formed the basis of indictment 92897.
Officer Sisk testified that a CI completed the second buy on October 1, 2009, at a
local market close to appellant’s home. The lab report indicated that the substance he
purchased contained 0.7 gram of cocaine base. This evidence supported indictment 92899.
On October 6, 2009, a CI purchased 4.6 grams of cocaine base from appellant at his home,
forming the basis for indictment 92898. An October 13, 2009 purchase from appellant at his
residence yielded 0.6 gram of cocaine base and established indictment 93669. The four CI
purchases established probable cause to obtain a search warrant, which led to the arrest of
appellant and the offenses contained in indictment 95897.
On cross-examination, Officer Sisk acknowledged that appellant was cooperative
during his interrogation and offered Officer Sisk useful information about other people
involved in drug transactions.
Appellant testified that he had previously held legitimate jobs at Burger King,
O’Reilly’s Auto Parts, and various jobs through Randstad, a temporary placement agency.
His last employer was Arrowhead Manufacturing. He enrolled at Tennessee Tech University
to earn a license in cosmetology so he could become a barber. He had neither graduated from
high school nor obtained a general educational development (“GED”) equivalent prior to his
incarceration, but he later earned a GED while incarcerated. Appellant remained active as
a volunteer in the Knox County Schools Adult Education Program because he wanted to
assist other people in obtaining GEDs.
Appellant claimed that he resorted to selling drugs to pay his bills and that he was
ashamed of that decision. He was married, and his wife lived in Nashville at the time of the
sentencing hearing. He testified on direct examination that if he were granted probation, he
would reside with his wife. However, on cross-examination, he admitted that they were
separated and that he lived with someone else in government housing.
On cross-examination, appellant acknowledged that he had been given opportunities
to enroll in and complete drug addiction classes following his prior drug convictions, but he
never had time to do so. He also failed to complete anger management classes following his
convictions for domestic violence. He admitted he was on probation when he was arrested.
Appellant also knew that he was not allowed to possess a firearm as a convicted felon.
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In a written sentencing order, the trial court sentenced appellant as a Range I
offender.2 In determining the appropriate sentence within the range, the trial court noted
appellant’s two prior convictions for distribution of cocaine and possession with intent to sell
cocaine as well as four prior domestic assault misdemeanors. Accordingly, the trial court
found enhancement factor (1), that appellant had a criminal history greater than that required
to establish his offender range. See Tenn. Code Ann. § 40-35-114(1) (2010). The trial court
found no other enhancing or mitigating factors.
With respect to its consecutive sentencing analysis, the trial court found by a
preponderance of the evidence that appellant was a professional criminal who knowingly
devoted his life to criminal acts as a major source of his livelihood. The court noted that
appellant told police he sold drugs to get money for bills and that he possessed a firearm
because “in his line of work,” he could not trust people. The court also found that appellant
was an offender whose record of criminal activity was extensive.
II. Analysis
Appellant challenges the length of his effective thirteen-year sentence as being
excessive and the trial court’s failure to impose alternative sentencing.
A. Standard of Review
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) 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) (2010). In addition, “[t]he sentence imposed should be the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
Tenn. Code Ann. § 40-35-103(4) (2010).
When imposing a sentence within the appropriate range of punishment for a
defendant,
2
Neither party has raised the propriety of this determination on appeal.
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the court shall consider, but is not bound by, the following advisory sentencing
guidelines:
(1) The minimum sentence within the range of punishment is the sentence
that should be imposed, because the general assembly set the minimum
length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as appropriate,
by the presence or absence of mitigating and enhancement factors set
out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c) (2010). From this, “the trial court is free to select any
sentence within the applicable range so long as the length of the sentence is ‘consistent with
the purposes and principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343
(Tenn. 2008) (quoting Tenn. Code Ann. § 40-35-210(d)).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
minimum sentence and rendered enhancement factors advisory only. See Tenn. Code Ann.
§§ 40-35-114, 40-35-210(c) (2010). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(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 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, to ensure fair and consistent
sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing factors is left
to the sound discretion of the trial court. Carter, 254 S.W.3d at 345. The burden of proving
applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-9403-
CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial court’s
weighing of the various enhancement and mitigating factors is not grounds for reversal under
the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v. Devin Banks, No.
W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007),
aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).
When a trial court orders a sentence involving confinement, the court should consider
whether: (A) “confinement is necessary to protect society by restraining a defendant who has
a long history of criminal conduct;” (B) “confinement is necessary to avoid depreciating the
seriousness of the offense” or to “provide an effective deterrence to others likely to commit
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similar offenses;” or (C) less restrictive measures have been frequently or recently applied
to defendant unsuccessfully. Tenn. Code Ann. § 40-35-103(1) (2010).
When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, ___ S.W.3d ___, No.
E2011-00005-SC-R11-CD, 2012 WL 4380564, at *17 (Tenn. Sept. 26, 2012). If a trial
court misapplies an enhancing or mitigating factor in passing sentence, said error will not
remove the presumption of reasonableness from its sentencing determination. Id. at *17.
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. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result. See
Carter, 254 S.W.3d at 346. 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
(2010), Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
B. Length of Sentence & Partial Consecutive Sentencing
The record reflects that the trial court considered the principles of the sentencing act.
The court also reviewed the range of punishment for each offense to which appellant pleaded
guilty and arrived at a sentence of one year above the minimum sentence after finding
enhancement factor (1). Tenn. Code Ann. § 40-35-114(1) (2010). In finding enhancement
factor (1), the trial court noted appellant’s prior drug felonies and four prior misdemeanor
domestic violence convictions. It did not find any mitigating factors. Based on the record,
we conclude that the trial court did not abuse its discretion in determining the length of each
sentence within the appropriate range.
The trial court ordered the nine-year sentences for the three class B felonies to run
concurrently with each other but consecutive to the one class C felony, for an effective
sentence of thirteen years on the four cases. The determination of whether to order
consecutive rather than concurrent sentences is a matter primarily within the discretion of the
trial court. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999). The
procedure is governed by Tennessee Code Annotated section 40-35-115, which lists seven
factors that are relevant to a trial court’s sentencing decision. The court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of the
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seven statutory criteria exists. Tenn. Code Ann.§ 40-35-115(b) (2010). Of the seven factors,
the trial court found the following applicable to appellant’s case 3 :
(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood; and
(2) The defendant is an offender whose record of criminal activity is
extensive.
Appellant directs this court to State v. John Derrick Martin, No. CCA-01C01-9502-
CR-00043, 1995 WL 747824 (Tenn. Crim. App. Dec. 19, 1995), aff’d, remanded, 940
S.W.2d 567 (Tenn. 1997), as support for his argument against consecutive sentences.
However, John Derrick Martin involved four ten-year consecutive sentences for four
controlled buy drug offenses. Id. at *4. In that case, this court reduced the forty-year
sentence to twenty years by imposing a combination of concurrent and consecutive sentences.
Id. at *5. In modifying the sentences, this court concluded that forty years was not
reasonably related to the drug convictions. Id.
We must again note that the propriety of the fourteen-year sentence comprising a
portion of appellant’s twenty-seven-year effective sentence is not properly before this court.
Thus, our review is limited to the effective thirteen-year sentence imposed for three Class B
felonies and one class C felony in case numbers 92897, 92898, 92899, and 93669 and the
trial court’s ordering the thirteen-year sentence to run consecutively to the fourteen-year
sentence. Given the evidence from the sentencing hearing, we determine that both the
thirteen-year sentence imposed in the instant case and the resulting twenty-seven year
sentence are reasonably related to the offenses to which appellant pleaded guilty and are
supported by the record. The trial court did not abuse its discretion in ordering partial
consecutive sentences.
C. Alternative Sentencing
We begin our analysis with the proposition that an appellant is eligible for alternative
sentencing if the sentence actually imposed is ten years or less. See Tenn. Code Ann.
§ 40-35-303(a) (2010). An especially mitigated or standard offender convicted of a Class
3
The sentencing order does not reflect that the trial court found factor (6), that defendant was
sentenced for an offense committed while on probation. Tenn. Code Ann.§ 40-35-115(b)(6) (2010).
Furthermore, the record does not contain a copy of the presentence report. However, the evidence adduced
at trial established that appellant was on probation from charges in South Carolina at the time he committed
these offenses, and appellant concedes in his brief that factor (6) applies to him.
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C, D, or E felony is considered to be a favorable candidate for alternative sentencing in
absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6) (2010). However,
we are unable to review this issue because appellant did not include the presentence report,
his application for probation, or the trial court’s ruling on his application. See State v.
Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993) (citing State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988)). Appellant bears the responsibility of preparing a record that
sufficiently “convey[s] a fair, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal.” Tenn. R. App. P. 24. Because appellant failed
to include the relevant transcripts and documents, we presume the trial court’s findings are
correct. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993); State v. Ody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). Appellant has waived his argument with regard
to alternative sentencing for our review.
Waiver notwithstanding, our review of the merits would have resulted in affirmance
of the trial court’s order. Appellant stands convicted of three Class B felonies in the instant
case. Thus, he is not a favorable candidate for alternative sentencing. Moreover, he was on
probation for drug convictions garnered in another state when he committed the instant
offenses. The record fully supports the trial court’s order denying appellant’s request for
alternative sentencing.
CONCLUSION
Based on our review of the record and the parties’ briefs, we discern no error and
affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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