State of Tennessee v. Quindarius Lamonta Jordan

09/02/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 24, 2021
STATE OF TENNESSEE v. QUINDARIUS LAMONTA JORDAN
Appeal from the Criminal Court for Davidson County
No. 2018-A-383 Jennifer Smith, Judge
No. M2020-00714-CCA-R3-CD
The Defendant, Quindarius Lamonta Jordan, pleaded guilty in the Davidson County
Criminal Court to attempted second degree murder, a Class B felony, aggravated assault,
a Class C felony, and unlawful possession of a firearm, a Class A misdemeanor See T.C.A.
§§ 39-13-210 (2018) (second degree murder); 39-12-101 (2018) (criminal attempt); 39-13-
102 (2018) (aggravated assault); 39-17-1307 (2018) (unlawful weapon possession). The
trial court imposed eleven years for attempted second degree murder, five years for
aggravated assault, and eleven months, twenty-nine days for the firearm violation. The
court imposed partial consecutive service, for an effective sixteen-year sentence. On
appeal, the Defendant contends that the trial court erred by ordering confinement and
consecutive service. Although we affirm the judgments of the trial court, we remand the
case for the entry of judgment forms reflecting a dismissal of the charges in indictment
Counts 1, 4, 5, and 6.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.
Jeffrey A. DeVasher (on appeal), District Public Defender; and Tanner Gibson and Jon
Wing (at sentencing), Assistant District Public Defenders, for the appellant, Quindarius
Lamonta Jordan.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Glenn R. Funk, District Attorney General; Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant’s convictions relate to a shooting incident on October 5, 2017. The
grand jury returned a seven-count indictment charging the Defendant with three counts of
attempted first degree murder, reckless aggravated assault, reckless endangerment,
employing a firearm during the commission of a dangerous felony, and unlawful
possession of a firearm with the intent to go armed.1 Pursuant to a plea agreement, the
Defendant pleaded guilty to the attempted second degree murder of Brian Love, aggravated
assault of Marilyn Jenkins, and misdemeanor unlawful possession of a firearm. One count
each of attempted first degree murder, reckless aggravated assault, reckless endangerment,
and employing a firearm during the commission of a dangerous felony were dismissed
pursuant to the plea agreement. The trial court would determine the length and the manner
of service of the sentences.
At the guilty plea hearing, the State’s recitation of the facts was as follows:
. . . [H]ad this matter proceeded to trial, the State expects that the facts
would . . . show that on October 5th of 2017, at around 2:50 p.m., Mr.
Quindarius Jordan fired four shots while standing in an alleyway of Litton
Avenue between Gallatin Road and Davis Street. Mr. Jordan was aiming in
the direction of Brian Love. . . . [W]hile the shots were being fired, one of
the shots hit a bystander, Ms. Marilyn Jenkins, who was waiting in the
parking lot . . . . She was struck in the hip with the bullet, which remains
lodged in her body. Witnesses called the police and a show-up was
conducted that identified Mr. Quindarius Jordan as the shooter. . . . Mr.
Quindarius Jordan was subsequently stopped by officers near the scene, and
a handgun -- a .32 caliber handgun was recovered from that vehicle. That
handgun was subsequently tested, and a DNA match came back to Mr.
Jordan. A show-up was conducted, and two of the witnesses identified Mr.
Jordan as the individual who had fired the shots. All these facts occurred
here in Davidson County -- Mr. Jordan does not have a handgun permit, and
therefore was prohibited from possessing a handgun at this time.
At the December 6, 2019 sentencing hearing, the presentence report was received
as an exhibit and showed that the twenty-year-old Defendant did not have previous criminal
convictions. However, the Defendant had juvenile delinquency adjudications between
March 2011 and May 2016. In March 2011, a petition for delinquency was filed alleging
that the Defendant had committed aggravated assault involving a knife and disorderly
conduct. In May 2011, a petition for delinquency was filed alleging that the Defendant had
1
The indictment included an eighth count charging the Defendant’s brother with being an accessory after
the fact. See T.C.A. § 39-11-411 (2018).
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committed disorderly conduct, and the Defendant received pretrial diversion for the
aggravated assault and two counts of disorderly conduct. The petitions for delinquency
were ultimately dismissed in August 2011. In October 2011, the Defendant was found
delinquent for two counts of assault involving the fear of bodily injury. The presentence
report reflects probation violations on June 27, 2012, and on April 5, 2012. In May 2016,
the Defendant was found delinquent for assault involving bodily injury and for failure to
appear in connection with the assault.
The presentence report reflects that the Defendant completed the tenth grade before
dropping out of school. He reported having good physical and mental health but stated he
had been hospitalized previously at a behavioral health facility for two to three weeks. He
reported that he had been prescribed Seroquel but that he had stopped taking the medication
as prescribed. The Defendant reported also receiving treatment at “Centerstone” as a
juvenile. The Defendant reported first using marijuana at age nine and using it when it was
available thereafter. The Defendant reported first drinking alcohol at age thirteen or
fourteen and last drinking alcohol at age eighteen. The Defendant reported living with his
mother and five siblings before being removed from the family home and placed in State
custody from ages twelve to eighteen. The Defendant reported having a one-year-old son.
The Defendant reported employment between May and September 2017 but was fired
because he came to work smelling of marijuana. The Strong-R Assessment stated that the
Defendant had a score of “high for violence.”
Marilyn Jenkins testified that on the day of the shooting, she walked across Litton
Avenue, sat on a rock, and waited on her “ride.” She said that “some boys jumped from
behind that limo place with guns” and that the next thing she knew, she had been shot. She
said that two bullets remained lodged in her leg, that they could not be removed because
the risk of paralysis and death was too high, and that she would have to “deal with it” for
the rest of her life. She said that she remained under a physician’s care and that she was
prescribed “all kind[s]” of pain medication for constant pain. She walked with a cane since
the shooting.
Ms. Jenkins testified that the Defendant was about eight to nine feet from her at the
time of the shooting. She recalled that the shooting occurred during the early afternoon
daylight hours. She said that she was happy and went places before the shooting but that
since the shooting, she was scared and did not do things anymore. She said that it was
difficult to get around physically and that loud noises caused her distress. She said that she
now relied on her daughter for assistance and believed that she suffered from depression
and post-traumatic stress disorder, although she had not sought mental health treatment.
Melissa Knapp, a literary coach at an elementary school, testified for the defense as
a character witness. She recalled that the Defendant had been hardworking and had not
caused disciplinary issues from first through fourth grade.
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The Defendant testified that he was age eighteen at the time of the shooting. He
said that he had been in pretrial confinement for more than two years and that he had not
been in confinement this long previously. He said that his arrest in this case was his first
since becoming an adult. He described his confinement as “drama,” “losing hope,” and
“not knowing what to do.” He said that his confinement had helped him decide his child
was the most important person in his life.
The Defendant testified that he was responsible for shooting Ms. Jenkins, although
he intended to shoot John Holden. He agreed his conduct “grievously” harmed Ms.
Jenkins. The Defendant denied intending to shoot Mr. Holden, whom he knew from
previous altercations, when the Defendant left home on the morning of the shooting. The
Defendant said Mr. Holden and Brian Love were friends. The Defendant agreed an
ongoing feud existed between the three men and said the feud stemmed from a robbery.
When discussing the robbery, the Defendant said that he and his friend attempted to sell
“him” a gun and that “they ended up robbing us.” The Defendant said a “back-and-forth”
began and that he had shot “him” in the leg on August 25. The Defendant agreed that “he”
had shot at the Defendant previously, as well. The Defendant denied being a gang member.
The Defendant testified that Mr. Holden and Mr. Love were incarcerated at the time
of the sentencing hearing and that he did not intend to associate with them if he received
probation.
The Defendant testified that in July 2017, he obtained the firearm from Marcus
Summers, who was with the Defendant on the day of the shooting. He agreed he had the
firearm for several months before the shooting. When asked how he felt about Ms.
Jenkins’s injuries, the Defendant said that he was disappointed in himself and apologized
to her. He denied intending to hurt Ms. Jenkins and said he hoped her medical condition
improved. He said that his conduct was “dead wrong.”
The Defendant testified that his son was born during his two-year pretrial
confinement, that he wished he could be there for his son, and that he wanted to “be a man”
and learn from his mistakes. He said that he lived with his mother and five siblings before
he entered foster care in June 2012 at age thirteen. He said his mother, ultimately,
relinquished her parental rights. He described his childhood as “hopeless” and said that
his mother “had nothing” and that he and his siblings “needed things [they] could never
get.” He recalled that they moved frequently, staying in motels. He said that his mother
had not visited during his pretrial confinement. He said that he barely knew his father,
whom he believed was in prison. The Defendant said he first met his father at age fifteen.
The Defendant admitted that had been adjudicated delinquent for assaults, some of
which involved his brothers and classmates. He agreed he frequented the juvenile court
system and said he had been angry because he had nobody to rely upon as a child. He said
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that he now had someone for whom to live, that he wanted to raise his son, and that his
son’s mother was at the hearing. He said that he had known her since he was age twelve
or thirteen and that they had been involved in a serious romantic relationship for more than
three years. He said that if he received probation, he would live with his son and his son’s
mother and that living outside of east Nashville would be beneficial. He said that his son’s
mother had two jobs and that he wanted to help raise their child.
The Defendant testified that if he received probation, he would work at a warehouse
with his son’s mother. He said that he completed the tenth grade but left because he went
“on the run and drying out in DCS.” He said that he was responsible for each of his
previous bad decisions. He said he wanted to earn his GED and obtain his driver’s license.
He said his son’s mother would drive him to probation meetings until he obtained his
driver’s license.
On cross-examination, the Defendant testified that in March 2011, he received
pretrial diversion for aggravated assault with a deadly weapon and that he struck someone
with a bat. He said that he was adjudicated delinquent in a second aggravated assault in
October 2011 and that the incident involved fighting. The Defendant recalled being on
probation in juvenile court and did not dispute he violated the conditions of his release
twice. He denied using drugs and said the probation violations probably involved his not
being at home. He did not recall his arrests for evading arrest and trespass but said that he
was arrested for aggravated robbery and aggravated burglary in 2014, that he robbed
someone downtown, and that “we broke into a house.” He admitted stealing a television
and game console from the home and said the owners were not home at the time. He
admitted that he committed aggravated robbery with the use of a handgun in October 2014
and that he took the victims’ money. He said that in 2014, he smoked marijuana. He did
not dispute that in 2014, he was involved in a fight, which resulted in what would have
been a misdemeanor if he had been adult. He agreed he was found delinquent for assault
in November 2015 and that fighting was involved. Although he did not recall the details,
he did not dispute he was found delinquent for failing to appear in 2015.
The Defendant testified that although he did not intend to kill anyone during the
shooting in the present case, he admitted he fired the handgun at Mr. Love and Mr. Holden.
He said that he was sorry for harming Ms. Jenkins and for “[f]iring a gun, period.”
On redirect examination, the Defendant testified relative to the October 2011
aggravated assault that he and his brother fought at a motel, that he had a knife, that his
brother hit him with a bottle, and that he never stabbed his brother. Regarding the March
2011 incident, he did not dispute that he and his mother argued, that he ran away from the
motel, and that she called the police. The Defendant said he would work on his anger. He
agreed that his running away from foster care resulted in probation violations in juvenile
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court. He said that the aggravated robberies addressed by the prosecutor involved a group
of people that included adults and other juveniles.
The Defendant submitted without objection a report from The Education Rights
Project detailing the Defendant’s educational and social services histories. The court
agreed to consider the report, but the report is not contained in the appellate record. The
court took sentencing under advisement.
On April 16, 2020, the trial court entered an order denying the Defendant’s request
for alternative sentencing and imposing an effective sentence of eighteen years, eleven
months, and twenty-nine days’ confinement after considering the evidence at the guilty
plea and sentencing hearings, the presentence report, the nature and circumstances of the
offenses, the mitigating and enhancement factors, the Defendant’s testimony, and the
Defendant’s potential for rehabilitation.
Relative to mitigation evidence, the trial court applied factor (13) because the
Defendant pleaded guilty to the charges, expressed remorse for his conduct, and was “a
victim of neglectful parents.” See T.C.A. § 40-35-113(13) (2019) (“Any other factor
consistent with the purposes of this chapter.”). The court placed some weight on this
evidence. However, the court declined to apply factor (6). See id. § 40-35-113(6) (“The
defendant, because of youth or old age, lacked substantial judgment in committing the
offense[.]”). The court found, based upon the Defendant’s testimony, that he knew his
conduct was wrong at the time of the offenses. The court found that the Defendant had not
availed himself of opportunities for rehabilitation. The court, likewise, declined to place
any blame on the Department of Children’s Services and the school system for the
Defendant’s conduct.
The trial court applied enhancement factors (1), (6), (8), (9), and (10). See id. § 40-
35-114 (2019). The court found that the Defendant had a lengthy juvenile record of
criminal behavior, including violent offenses. See id. § 40-35-114(1) (“The defendant has
a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range[.]”). The court found that the personal injuries
suffered by Ms. Jenkins were particularly great. See id. § 40-35-114(6) (“The personal
injuries inflicted upon . . . the victim [were] particularly great[.]”). The court found that
she had two bullets lodged inside her body, that she suffered constant pain, that she required
the use of a cane since the shooting, and that she might suffer from post-traumatic stress
disorder and depression. The court placed great weight on this factor. The court applied
factor (8) because the Defendant had been adjudicated delinquent for violating the terms
of his probation on April 5, 2012, and June 27, 2012. See id. § 40-35-114(8) (“The
defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community[.]”).
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Likewise, the trial court applied enhancement factor (9) to the attempted second
degree murder and aggravated assault convictions because the Defendant used a firearm
during the commission of the offenses. See id. § 40-35-114(9) (“The defendant possessed
or employed a firearm . . . during the commission of the offense[.]”). The court applied
factor (10), as well, because the Defendant fired his weapon four times during the daylight
hours. See id. § 40-35-114(10) (“The defendant had no hesitation about committing a
crime when the risk to human life was high[.]”). The court found that the Defendant’s
conduct endangered his intended victims and innocent bystanders. The court placed great
weight on this factor. The court, likewise, determined that the enhancement factors
outweighed the mitigation evidence.
The trial court determined, with regard to consecutive service, that the Defendant
was an offender whose record of criminal activity was extensive based upon the
presentence report and the evidence presented at the sentencing hearing. See id. § 40-35-
115(b)(2) (2018). Although the court considered the nature of the Defendant’s criminal
conduct as a juvenile, the court found that the Defendant’s behavior included three assaults
involving bodily injury and/or the use of a deadly weapon. The court likewise determined
that the Defendant was a dangerous offender whose behavior indicated little to no regard
for human life and that he had no hesitation about committing a crime in which the risk to
human life was high. See id. § 40-35-115(b)(4). The court relied upon the facts of the
present offenses and focused on the Defendant’s use of a firearm during the day in a public
location, his firing multiple shots at multiple intended victims, and his juvenile record,
which included offenses involving the use of a firearm. The court determined based upon
the circumstances of the offenses that the Defendant’s conduct was aggravated, posing a
risk to the public even beyond his intended victims, and evidenced little or no regard for
human life. See id. § 40-35-115(b)(4). The court found that consecutive service reasonably
related to the severity of the offenses and was necessary to protect the public from the
Defendant’s further criminal behavior.
The trial court sentenced the Defendant as a Range I, standard offender and imposed
twelve years for the attempted second degree murder conviction, six years for the
aggravated assault conviction, and eleven months, twenty-nine days for the firearm
violation. The court imposed consecutive service, for an effective sentence of eighteen
years, eleven months, and twenty-nine days.
However, on April 23, 2020, the Defendant filed a motion for a reduction of his
sentence pursuant to Tennessee Criminal Procedure Rule 35. On June 10, 2020, the trial
court entered an order reducing the Defendant’s sentences and modifying its previous order
of consecutive service. The court reduced the attempted second degree murder sentence
to eleven years and the aggravated assault sentence to five years and ordered consecutive
service of only the eleven-year and the five-year sentences, for an effective sixteen-year
sentence. The court declined to reconsider its denial of alternative sentencing based upon
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the seriousness of the offenses and its previous determinations. Although the court
modified its order of consecutive service, the court determined that the circumstances of
the offenses were egregious and that consecutive service was related to the severity of the
offenses. Amended judgments were entered reflecting the modified sentences. This appeal
followed.
The Defendant contends that the trial court erred by ordering the Defendant to serve
his entire sentence in confinement. He acknowledges that his eleven-year sentence for
attempted second degree murder renders this sentence ineligible for alternative sentencing
and requests that this court modify the sentence to ten years, making the sentence eligible
for probation. Likewise, the Defendant contends that the trial court erred by relying on his
juvenile record in imposing consecutive service, although he acknowledges that his
juvenile adjudications can be considered. He asserts that many of his adjudications were
the result of fighting with his brother and of his association with adults who were
committing criminal offenses and that he is not a dangerous offender.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));
see T.C.A. §§ 40-35-102 (2018), 41-1-126 (2018) (validated risk and needs assessments)..
Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness. State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012). Generally, probation is available to a defendant
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sentenced to ten years or less. T.C.A. § 40-35-303(a) (2018). The burden of establishing
suitability for probation rests with a defendant, who must demonstrate that probation will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes,
803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40-35-303(b); State v. Carter,
254 S.W.3d 335, 347 (Tenn. 2008).
A sentence is based upon “the nature of the offense and the totality of the
circumstances,” including a defendant’s background. Ashby, 823 S.W.2d at 168; see State
v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006). A trial court is permitted to sentence a
defendant to incarceration when:
(A) [c]onfinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
T.C.A. § 40-35-103(1)(A)-(C) (2018); see Trotter, 201 S.W.3d at 654. A trial court must
consider (1) the defendant’s amenability to correction, (2) the circumstances of the offense,
(3) the defendant’s criminal record, (4) the defendant’s social history, (5) the defendant’s
physical and mental health, and (6) the deterrence value to the defendant and others. See
State v. Trent, 533 S.W.3d 282, 291 (Tenn. 2017) (concluding that the same factors used
to determine whether to impose judicial diversion are applicable in determining whether to
impose probation); see also State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim.
App. 1998); State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).
The abuse of discretion with a presumption of reasonableness standard also applies
to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 (Tenn.
2013). A trial court has broad discretion in determining whether to impose consecutive
service. Id. A trial court may impose consecutive sentencing if it finds by a preponderance
of the evidence that one criterion is satisfied in Tennessee Code Annotated section 40-35-
115(b)(1)-(7) (2019). In determining whether to impose consecutive sentences, though, a
trial court must ensure the sentence is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4) (2019); see State v. Desirey, 909
S.W.2d 20, 33 (Tenn. Crim. App. 1995).
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The trial court imposed within-range sentences for each conviction offense. See
T.C.A § 40-35-111 (imprisonment terms for felonies and misdemeanors). As a result, the
court’s determinations are afforded a presumption of reasonableness. The record reflects
that the court considered the evidence at the guilty plea and sentencing hearings, the
presentence report, the principles of sentencing, the nature and circumstances of the
offenses, the mitigating and enhancement factors, the Defendant’s testimony, and the
Defendant’s potential for rehabilitation. Although the court applied one mitigating factor
because the Defendant pleaded guilty, expressed remorse for his conduct, and suffered a
neglectful childhood, the court applied five enhancement factors. The court placed great
weight on Ms. Jenkins’s injuries, noting that two bullets would remain lodged in her body
for the remainder of her life, that she suffered constant pain, and that she walked with a
cane since the shooting. The court likewise placed great weight on the Defendant’s having
no hesitation about committing a crime when the risk to human life was high. After
weighing all of the factors, the court determined that the enhancement factors outweighed
the single mitigating factor. The record supports the court’s determinations. The
Defendant attempted to shoot Mr. Holden and Mr. Love because of a previous dispute
involving the robbery, fired multiple shots in broad daylight, and injured Ms. Jenkins, an
unintended victim, who was mere feet from the Defendant when he fired the handgun.
Relative to the trial court’s denial of alternative sentencing, probation is available
to a defendant sentenced to ten years or less. Id. § 40-35-303(a) (2018). The Defendant
received an eleven-year sentence for attempted second degree murder and was, therefore,
ineligible to receive probation. Furthermore, the record supports the trial court’s ordering
the Defendant to serve this within-range sentence in confinement.
The record reflects that the trial court considered the appropriate principles in
ordering the Defendant to serve his entire sentence in confinement. The court determined,
based upon the Defendant’s extensive history of juvenile adjudications and delinquent
conduct, that the Defendant had failed to avail himself to the numerous opportunities for
rehabilitation. The Defendant received the benefit of pretrial diversion for two counts of
disorderly conduct and one count of aggravated assault involving either a bat or a knife in
March 2011, but he continued to engage in delinquent conduct. The Defendant’s juvenile
adjudication history occurred between March 2011 and May 2016 and involved multiple
offenses of violence, including an assault that occurred seventeen months before the
shooting in this case. The Defendant admitted committing what would have been
aggravated robbery and aggravated burglary if he had been adult. The Defendant admitted
robbing a person at gunpoint and breaking into a home. The Defendant likewise admitted
that less than two months before the present offenses he had shot one of his intended
victims in the present case. The Defendant’s history of delinquent conduct, along with the
present offenses, reflects an escalating use of violence and deadly weapons and an
extensive history of delinquent conduct. See id. § 40-35-103(1)(A). Likewise, the
Defendant received the benefit of probation as a juvenile offender but violated the
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conditions of his release twice and also failed to appear in connection with the delinquency
petition for an assault with bodily injury. See id. § 40-35-103(1)(C).
Furthermore, the record supports the trial court’s denial of alternative sentencing
based upon the seriousness of the offenses. See id. § 40-35-103(1)(B). The Defendant
fired a handgun multiple times around 3:00 p.m. in a public area because of a previous
dispute between the Defendant and his intended victims. The Defendant was mere feet
from Ms. Jenkins when he fired the handgun, showing no regard for her safety. Ms.
Jenkins, an innocent bystander waiting for someone to pick her up, was shot and suffered
serious and permanent injuries. The record supports the court’s determinations that the
Defendant’s conduct was aggravated in that it endangered everyone in the area and that the
Defendant had no hesitation about committing the offenses when the risk to human life
was high. The record supports, as well, the court’s determination that confinement was
necessary to protect the public from the Defendant’s further criminal behavior. As a result,
the trial court did not abuse its discretion, and the Defendant is not entitled to relief on this
basis.
Relative to consecutive service, the trial court determined that the Defendant was
an offender whose record of criminal activity was extensive. See id. § 40-35-115(b)(2);
see also State v. LaQuinton Brown, No. E2015-00899-CCA-R3-CD, 2016 WL 3633474,
at *14 (Tenn. Crim. App. June 29, 2016) (“This court has repeatedly ‘approved the
consideration of a defendant’s history of juvenile adjudications in determining whether a
defendant has an extensive record of criminal activity for consecutive sentencing
purposes.’”) (quoting State v. Carlos Campbell, No. E2014-00697-CCA-R3-CD, 2015 WL
6155893, at *22 (Tenn. Crim. App. Oct. 15, 2015)), perm. app. denied (Tenn. Oct. 20
2016); Lamario Sumner v. State, No. W2009-00453-CCA-R3-PC, 2010 WL 4544955, at
*8 (Tenn. Crim. App. Nov. 10, 2010). We have already concluded that the record supports
this determination based upon the presentence report and the Defendant’s testimony at the
sentencing hearing. As a result, the trial court did not err by imposing consecutive service
on this basis alone.
Additionally, the trial court imposed consecutive service because the Defendant was
a dangerous offender whose behavior indicated little to no regard for human life and that
he had no hesitation about committing a crime in which the risk to human life was high.
See T.C.A. § 40-35-115(b)(4). The court, relying on the presentence report and the
sentencing hearing evidence, found that the circumstances of the offenses were aggravated
in that the Defendant fired a handgun multiple times in a public area during the afternoon
daylight hours, endangering the intended victims along with innocent bystanders, including
Ms. Jenkins. The Defendant was mere feet from Ms. Jenkins when he fired the handgun,
and he admitted that although he did not intend to hurt Ms. Jenkins, his conduct nonetheless
caused her permanent injuries. Likewise, the shooting was prompted by a feud between
the Defendant and his intended victims, and the Defendant admitted shooting one of his
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intended victims less than two months before the present offenses. The Defendant’s history
of criminal conduct shows a pattern of escalating violence. As a result, the record supports
the court’s determinations that consecutive service was reasonably related to the severity
of the offenses and was necessary to protect the public from the Defendant’s further
criminal behavior. See State v. Wilkerson, 905 S.W.2d 993, 939 (Tenn. 1995); State v.
Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999). The trial court did not abuse its discretion by
ordering consecutive service on this basis. The Defendant is not entitled to relief.
In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court. However, the record does not contain judgment forms for indictment
Counts 1, 4, 5, and 6. See State v. Berry, 503 S.W.3d 360 (Tenn. 2015); Tenn. R. Crim. P.
32(e)(3). Therefore, we remand the case to the trial court for the entry of judgment forms
reflecting that Counts 1, 4, 5, and 6 were dismissed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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