State of Tennessee v. Dinnie Merel Robertson

09/12/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 13, 2017
STATE OF TENNESSEE v. DINNIE MEREL ROBERTSON
Appeal from the Circuit Court for Lawrence County
Nos. 31906, 33049, 33414 Russell Parkes, Judge
___________________________________
No. M2016-02409-CCA-R3-CD
___________________________________
The Appellant, Dinnie Merel Robertson, was convicted in the Lawrence County Circuit
Court in case number 31906 of two counts of felony vandalism, carrying a firearm with
the intent to go armed, and misdemeanor reckless endangerment. Subsequently, he pled
guilty in the Lawrence County Circuit Court in case number 33049 to two counts of
retaliation for past action. The Appellant received an effective four-year sentence in case
number 31906 and an effective two-year sentence in case number 33049 to be served
consecutively as ten months in confinement followed by supervised probation. The
Appellant then was convicted in the Lawrence County Circuit Court in case number
33414 of selling one-half gram or more of methamphetamine and selling Clonazepam
and received an effective ten-year sentence to be served in confinement and
consecutively to the effective six-year sentence. The trial court also revoked the
Appellant’s probation in case numbers 31906 and 33049 and ordered that he serve his
sentences in those cases in confinement. In this consolidated appeal, the Appellant
contends that the evidence is insufficient to support his convictions in case number
33414, that the trial court erred by ordering that he serve his effective ten-year sentence
in that case consecutively to his prior sentences, and that the trial court erred by denying
his request for probation. He also contends that the trial court erred by revoking his
probation in case numbers 31906 and 33049 and ordering that he serve those sentences in
confinement. Based upon the record and the parties’ briefs, we affirm the judgments of
the trial court but remand the case for correction of the judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed,
Case Remanded
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.
Brandon E. White (on appeal) and Robert Stovall, Jr., and Travis Jones (at trial),
Columbia, Tennessee, for the appellant, Dinnie Merel Robertson.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Brent A. Cooper, District Attorney General; and Gary Howell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
On September 26, 2013, the Lawrence County Grand Jury indicted the Appellant
in case number 31906 for one count of attempted first degree murder, a Class A felony;
two counts of vandalism of property causing damage of $1,000 or more, a Class D
felony; three counts of aggravated animal cruelty, a Class E felony; one count of reckless
endangerment, a Class E felony; and one count of carrying a firearm with the intent to go
armed, a Class C misdemeanor. On direct appeal of the Appellant’s convictions, this
court gave the following factual account of the crimes:
Travis Springer testified that on June 23, 2013, he received a phone
call from his wife, who was a manager of a Mapco gas station in Lawrence
County. Mr. Springer’s wife complained that her truck was “making a
squealing racket.” Mr. Springer went to the gas station to check on his
wife’s truck and discovered that two of the truck’s tires had been slashed.
Mr. Springer changed the tires on his wife’s truck and then went into the
gas station to watch its security camera footage. Mr. Springer saw a gray
Pontiac pull up beside his wife’s truck on the security camera footage.
Mr. Springer testified that the car belonged to the Defendant, who
was sitting in the passenger seat, and was being driven by the Defendant’s
girlfriend. The Defendant’s girlfriend got out of the car and went into the
gas station to purchase some beer. Mr. Springer also saw a man, whom he
later identified as David Pruitt, get out of the backseat of the car and smoke
a cigarette. When the Defendant’s girlfriend returned to the car, Mr. Pruitt
“went around to the left side [of Mr. Springer’s wife’s truck] away from the
camera.” Mr. Pruitt returned to the Defendant’s car a few moments later,
and “they drove off.”
Mr. Springer testified that when he first watched the security camera
footage, he did not know who the man in the backseat of the car was. Mr.
Springer decided to go to the Defendant’s house and confront him “about
what was going on.” Mr. Springer testified that he had known the
Defendant since they were children. When he got to the Defendant’s house
-2-
that day, the Defendant offered Mr. Springer a beer. Mr. Springer declined
and said that he wanted to know what “all the tire cuttings [were] about.”
Mr. Springer testified that the Defendant replied, “I got it in for your old
lady.”
Mr. Springer then asked the Defendant who was in the backseat of
his car at the Mapco station. The Defendant denied that anyone had been in
the backseat of his car and threatened to “whoop [Mr. Springer’s] behind”
for “accusing” him. Mr. Springer testified that he got out of his truck, and
the Defendant began hitting him. According to Mr. Springer, the
Defendant hit him until he was “down to [his] knees.” Mr. Springer
testified that he then unholstered his pistol and pistol-whipped the
Defendant twice on the side of his head. With the Defendant on the
ground, Mr. Springer got back into his truck and drove away.
Sometime between 3:30 and 4:00 p.m. the next day, Mr. Springer, as
was his routine, went to his farm to feed his four horses. When he arrived,
Mr. Springer found his neighbor, Edward Willis, tending to one of his
horses. The horse, named Colty, “was just lifeless,” had blood “dripping
off [its] head,” and “had shots all through [its] ears.” Mr. Springer
discovered that an older horse, named Tony, had been shot “right in [its]
neck” and that another horse, named Blaze, had over 100 pellets shot into
its side. Mr. Springer also discovered that his tractor “had been shot
through the radiator and the left rear tire.”
Mr. Springer testified that as he was tending to his horses, he
received a phone call from his friend James Kenneth Wayne. Mr. Springer
estimated that this was between 4:30 and 5:30 p.m. While he was on the
phone with Kenneth, Mr. Springer saw the Defendant’s car go by. Mr.
Springer testified that he saw the Defendant’s girlfriend driving the car and
the Defendant in the passenger seat. Mr. Springer further testified that he
saw “a gun barrel sticking out the [passenger side] window” and that “the
gun was pulled back in the vehicle” as it passed him.
Mr. Springer testified that Colty eventually lost its left eye and
became very “jumpy.” Tony never recovered from being shot in the neck,
“lost a bunch of weight,” and could no longer be ridden. Mr. Springer
testified that he could still ride Blaze but that all of the shotgun pellets
remained under its hide. Mr. Springer further testified that his tractor had a
“busted” radiator and that he had to replace the radiator, the hood of the
tractor, and a hose. Mr. Springer estimated that he spent $520 repairing his
-3-
tractor and estimated that the bill from a veterinarian to examine the horses
was $165.
Mr. Springer’s neighbor, Mr. Willis, testified that on June 24, 2013,
his girlfriend “heard some shots she thought were like firecrackers.” This
caused Mr. Willis to look out one of his windows, and he saw one of Mr.
Springer’s horses “outside the fence.” Mr. Willis went to check on the
horse and saw that its “face was all bloody.” Mr. Willis led the horse back
to Mr. Springer’s farm, tried to clean the horse, and “repaired the fence
where nobody else would get out.”
Mr. Willis recalled that when Mr. Springer showed up, they checked
on the other horses. Mr. Willis testified that while they were checking on
the other horses, he saw two people drive by with a shotgun barrel “sticking
out the [car’s] window.” Mr. Willis further testified that he believed the car
was “a medium blue Chevy” but that it “was hard to tell . . . the way they
make cars anymore.” Mr. Willis also testified that he did not know the
Defendant and that he did not recall seeing the Defendant in the car that
day.
Jamie Wayne testified that he had known the Defendant for a “[l]ong
time.” Jamie recalled that on the afternoon of June 23, 2013, the Defendant
came by his house. Jamie explained that he did body work on cars and had
a shop at his house. According to Jamie, the Defendant was driving a silver
Pontiac and wanted to know if he “had seen Mr. Springer.” Jamie told the
Defendant that he had not seen Mr. Springer, and the Defendant responded
that he was “looking for” Mr. Springer. Jamie recalled that the Defendant
did not look “too good” and had “a cut on his forehead.” Jamie further
testified that the Defendant was acting “[k]ind of erratic.”
The next day, June 24, 2013, Jamie saw the Defendant’s Pontiac
being driven down his street. Jamie recalled that the Defendant was in the
passenger seat and that the driver “might have been [the Defendant’s]
girlfriend.” After the car was driven away, Jamie heard a gunshot. Jamie
testified that he did not recall seeing a gun in the car when it drove by and
that the car was too far away for him to see if the gunshot came from the
car. Jamie further testified that he was on the phone with his father,
Kenneth, when he heard the gunshot.
Kenneth testified that he was a friend of Mr. Springer’s and that he
knew the Defendant because the Defendant “was an associate of [his] son.”
-4-
Kenneth recalled that on June 23, 2013, Mr. Springer “pulled up in [his]
driveway,” and they talked for a few minutes. Kenneth testified that Mr.
Springer’s truck was visible from the road, and he remembered seeing “a
silver car” go by during their conversation.
The next day, June 24, 2013, Kenneth was working in his “out-shed”
that afternoon when he “heard a shot.” Kenneth “stepped outside” and saw
the “backend of a silver car go out of sight.” Kenneth thought that
somebody had driven by and “just shot in the air or something.” Kenneth
got into his SUV, which was parked in his driveway, and “went out to the
convenience store.” On the way to the convenience store, Kenneth called
Mr. Springer to tell him about the gunshot he heard, and Mr. Springer told
Kenneth about his horses having been shot.
When Kenneth returned from the convenience store, he parked his
SUV in front of his garage. Kenneth then went into the garage to put the
beer he had just purchased into “a little refrigerator that [sat] right inside
[his] garage.” A few minutes after Kenneth got out of his SUV, he heard
another gunshot. Kenneth testified that he looked out of his garage and saw
“the back windows of [his SUV] just shatter, and . . . go up in the air.”
Kenneth further testified that he saw a silver Pontiac, which he identified as
the Defendant’s car, accelerating away from his house. Kenneth recalled
that the driver’s side of the Pontiac was “closest to [his] house.” Kenneth
called Jamie after the shooting to tell him about it, and Jamie said that he
could see the car being driven away.
Kenneth admitted that he did not see the shooter, and he did not see
who was inside the Defendant’s car as it was being driven away from his
house. Kenneth also stated that he did not believe the shooter intended to
kill him because a large hedge obscured part of his garage and likely
prevented the shooter from seeing him inside the garage. Kenneth testified
that when he later trimmed the hedge he discovered shotgun pellets “all
over the side of [his] house.” Kenneth further testified that the shotgun
blast to his SUV damaged the tailgate and the interior of the vehicle in
addition to blowing out the rear windows. Kenneth received an estimate
that repairing the damage would cost $3,600.
Sergeant Melinda Brewer of the Lawrence County Sheriff’s
Department testified that on June 24, 2013, she was dispatched to Mr.
Springer’s farm regarding the shooting of his horses. While in route to Mr.
Springer’s farm, Sgt. Brewer was informed that there had been a second
-5-
“call of shots fired” and that the suspect vehicle was “coming toward where
[she] was at.” Sgt. Brewer and several other officers “staged up” to stop
the vehicle. The officers stopped a silver Pontiac with two people inside.
Sgt. Brewer testified that she approached the passenger side of the car and
could “see the butt of a gun” leaning against the passenger side door. Sgt.
Brewer reached into the car and removed the gun.
The Defendant was in the passenger seat of the car, and his girlfriend
was in the driver’s seat. Sgt. Brewer testified that the Defendant smelled of
alcohol. Inside the car, Sgt. Brewer found “an opened container of beer,” a
box of shotgun shells, and loose shotgun shells in the car’s console and the
floorboard of the passenger seat. Sgt. Brewer testified that the box stated
that it contained twenty-five shotgun shells, but there were only ten in the
box when she confiscated it. Sgt. Brewer admitted that she did not find any
spent shotgun shells inside the car and that the shotgun was unloaded when
she removed it from the car. Sgt. Brewer testified that she believed that the
shotgun was operational but that she never test fired it.
Sgt. Brewer recalled that when the Defendant was arrested, he was
“ranting about the fact that [they had] got the wrong person,” told them that
he had been assaulted, and was “trying to show [them] his injury.” Officer
Zach Newton of the Saint Joseph Police Department testified that he
assisted in the Defendant’s arrest. Officer Newton recalled that the
Defendant had the shotgun “in [his] lap” when the car was stopped. Officer
Newton further recalled that as he was transporting the Defendant to jail,
the Defendant seemed “pretty upset” and said that the officers “would be
working a murder when he got out, because he would kill them next time.”
State v. Dinnie Merel Robertson, No. M2015-01137-CCA-R3-CD, 2016 WL 3177010, at
*1-4 (Tenn. Crim. App. at Nashville, May 27, 2016) (footnote omitted).
On January 21, 2015, the jury convicted the Appellant of reckless endangerment
of Kenneth Wayne, a Class A misdemeanor, as a lesser-included offense of attempted
first degree murder; three counts of animal cruelty, Class A misdemeanors, as lesser-
included offenses of aggravated animal cruelty; one count of vandalizing Kenneth
Wayne’s Chevrolet Tahoe causing damage of $1,000 or more but less than $10,000, a
Class D felony; one count of vandalizing Travis Springer’s tractor causing damage of
more than $500 but less than $1,000, a Class E felony; and one count of carrying a
firearm with the intent to go armed, a Class C misdemeanor. The jury acquitted the
Appellant of felony reckless endangerment of Travis Springer.
-6-
On February 4, 2015, while the Appellant was awaiting sentencing and out on bail
in case number 31906, he threatened Jamie and Kenneth Wayne, who had testified
against him at trial. As a result, on March 11, 2015, the Lawrence County Grand Jury
indicted him in case number 33049 for two counts of retaliation for past action, a Class E
felony. On April 13, 2015, the Appellant entered an “open” plea to the charges. That
same day, Judge Stella Hargrove held a sentencing hearing for both cases and ordered
that the Appellant serve an effective four-year sentence in case number 31906 and an
effective two-year sentence in case number 33049. The trial court noted that the
Appellant was required to serve the effective two-year sentence consecutively to the
effective four-year sentence pursuant to Tennessee Rule of Criminal Procedure 32(c)(3)
because he committed the offenses in case number 33049 while he was on bail in case
number 31906. The court ordered that the Appellant serve ten months of the effective
six-year sentence in confinement, with no credit for time served in jail, and that he serve
the remainder of the sentence on supervised probation.
On direct appeal of his convictions in case number 31906, this court reversed the
Appellant’s convictions of animal cruelty because the statute for the charged offense,
aggravated animal cruelty, expressly excluded horses. Id. at *5. Thus, the three counts
of aggravated animal cruelty failed to state an offense, and “the trial court lacked the
authority to allow the continued prosecution of the [Appellant] on the void indictments
by instructing the jury on the offense of cruelty to animals.” Id. However, this court
affirmed the Appellant’s remaining convictions.1
On August 10, 2015, just four months after the Appellant’s sentencing hearing in
case numbers 31906 and 33049, the Lawrence County Grand Jury indicted him in case
number 33414 for selling one-half gram or more of methamphetamine on May 9, 2014,
and selling Clonazepam on May 23, 2014. At trial, John Myers testified that he was an
investigator with the Lawrence County Sheriff’s Department’s Drug Unit from 2013 to
2014. In May 2014, Jonathan Gooch, an informant, contacted Investigator Myers and
advised him that Gooch could buy methamphetamine from the Appellant at “a residence
that belonged to a Pruitt Subject” on Gieske Road. Based on Gooch’s information,
Investigator Myers set up a controlled drug buy between Gooch and the Appellant at
David Pruitt’s residence. Investigator Myers said that Gooch worked with the sheriff’s
department “on a few different cases” but that he did not remember if those cases
occurred before or after Gooch’s work in the instant case.
Investigator Myers testified that prior to the drug buy, he investigated Pruitt and
the Appellant. He also used Google Earth to look at Gieske Road and determined that
1
The reversal of the Appellant’s three convictions of animal cruelty did not affect his effective
four-year sentence in case number 31906.
-7-
“it’s a hard road to actually park somewhere and watch the transaction.” On May 9,
2014, Investigator Myers and Investigator Greg Mayes met with Gooch and Gooch’s
girlfriend on a rural side road off Rabbit Trail Road. The officers searched Gooch, his
girlfriend, and the couple’s vehicle. The officers gave Gooch $100 of “recorded” money
for the drug buy and a recording device that looked like a wristwatch. Investigator Myers
said that the device was strictly for recording the drug buy and that he could not hear or
see the transaction while it was occurring.
Investigator Myers testified that he and Investigator Mayes followed Gooch and
Gooch’s girlfriend to Gieske Road. The couple turned onto Gieske while the officers
“kept going.” The officers drove to a cemetery off Rabbit Trail Road where they were
supposed to meet Gooch and his girlfriend after the transaction. Investigator Myers said
that “[a]fter a period of time,” Gooch had not arrived at the cemetery, so Investigator
Myers decided to “go check on him.” The officers rode by Pruitt’s home on Gieske Road
in their unmarked police car and saw Gooch, his girlfriend, and “a couple of other guys”
in the front yard. The officers returned to the cemetery, and Gooch and his girlfriend
arrived thirty minutes to one hour later.
Investigator Myers testified that Gooch turned over a white powdery substance in
a clear plastic bag and that Gooch claimed to have purchased the substance from the
Appellant. Investigator Myers field-tested the substance, and it was positive for
methamphetamine. The methamphetamine weighed one gram. The officers searched
Gooch, his girlfriend, and their vehicle but did not find any drugs. Investigator Myers
returned to the sheriff’s department to watch the video recording of the drug buy.
However, the device had failed to record anything. Investigator Myers stated, “I don’t
know if it was user error or if there was a problem with the equipment. But we didn’t --
it never started.”
Investigator Myers testified that on May 23, 2014, Gooch contacted him and
claimed he could buy ten Klonopin pills from the Appellant at the Pruitt residence.
Investigator Myers and Investigator John Roberts followed the same procedure from May
9, followed Gooch and his girlfriend to Gieske Road, and waited for them in the
cemetery. Gooch and his girlfriend arrived at the cemetery about one hour later, and
Gooch gave eleven pills to Investigator Myers. Investigator Myers watched the video
from the recording device and saw a small blue pickup truck in the video. He later
learned the truck belonged to the Appellant. He said that in exchange for Gooch’s
cooperation in the drug buys, the sheriff’s department either paid Gooch or “helped him
out on some trouble that his brother might have been in.”
On cross-examination, Investigator Myers acknowledged that in order for Gooch
to earn money or help for his brother, Gooch had to bring drugs to the cemetery on May 9
-8-
and May 23. He also acknowledged that a female officer was not present on May 9 or
23; accordingly, the officers conducted “low-level” searches of Gooch’s girlfriend. On
May 9, Gooch and his girlfriend were completely out of Investigator Myers’s sight for
about one and one-half hours, and they were completely unmonitored during that time.
Investigator Myers acknowledged that after the May 9 transaction, Gooch told him that
the Appellant “had to leave Pruitt’s residence to go get the methamphetamine to come
back with it.” Investigator Myers said that the May 23 video recorded a person that
“look[ed] a lot like” the Appellant but that he could not say with 100% certainty that the
person was the Appellant. He acknowledged that most of the conversation on the May 23
recording was unintelligible and that he did not verify the Appellant owned the blue truck
in the video.
Jonathan Gooch testified that he met the Appellant while they were in jail. After
Gooch was released, he and the Appellant “hung out and drank together.” Gooch
described David Pruitt as “just another buddy” and said Pruitt lived on Gieske Road.
Gooch had never been to Pruitt’s house prior to May 9, 2014.
Gooch testified that two or three weeks before May 9, he talked to law
enforcement about buying drugs from the Appellant. Gooch had seen the Appellant with
methamphetamine and had talked with the Appellant about buying, selling, and using the
drug. On May 9, Gooch spoke with the Appellant on the telephone about Gooch buying
methamphetamine, and the Appellant suggested they meet at Pruitt’s house. Gooch
telephoned law enforcement about the the drug buy and met officers at Liberty Grove
Church. The officers patted down Gooch and his wife; searched their car; and gave
Gooch “a device” and money to buy one gram of methamphetamine. The device was a
wristwatch with a camera on it.
Gooch testified that he and his wife went to Pruitt’s house to make the drug buy,
that they were outside with Pruitt and the Appellant, and that the officers rode by the
house about thirty minutes after they arrived. Pruitt and the Appellant then went into the
house. Gooch said, “They stayed in there for a while then they told us when we [could]
come in[.]” When Gooch and his wife went into the house, Pruitt and the Appellant were
“weighing up the meth.” Gooch gave money to the Appellant, and the Appellant gave
Gooch a bag of methamphetamine. Gooch said he and his wife drove to where they were
supposed to meet the officers and did not stop anywhere.
Gooch testified that two weeks later, officers contacted him about making another
drug buy, so Gooch arranged to buy ten Klonopin pills from the Appellant for $10.
Again, the Appellant suggested they meet at Pruitt’s house. Gooch and his wife went to
the house, and Gooch bought ten Klonopin pills from the Appellant. The Appellant gave
Gooch one extra pill. Gooch and his wife met with the officers, and Gooch turned over
-9-
the eleven pills to the officers. The transaction was video recorded, and the State played
the recording for the jury. Gooch identified a voice in the video as that of the Appellant
and said that the blue truck in the video was the Appellant’s truck.
On cross-examination, Gooch denied using, selling, or “cooking”
methamphetamine. The methamphetamine Gooch bought on May 9 came from
somewhere inside Pruitt’s house. Gooch said that the Appellant did not live in the home
but that “[a]fter Dinnie got done weighing it he set it on the bar and I gave him the money
and I took the bag.” Gooch said he participated in the drug transactions to help his
brother.
Jennifer Sullivan, a special agent forensic scientist for the Tennessee Bureau of
Investigation, testified as an expert in forensic chemistry that she analyzed the evidence
collected in this case. She first tested an off-white powder in a plastic bag. The powder
was methamphetamine and weighed 1.01 grams. Agent Sullivan then tested eleven white
tablets. The tablets were Clonazepam, also known as Klonopin.
At the conclusion of Agent Sullivan’s testimony, the State rested its case. The
Appellant did not present any proof, and the jury convicted him as charged of selling one-
half gram or more of methamphetamine, a Class B felony, and selling Clonazepam, a
Class D felony. After a sentencing hearing, the trial court sentenced the Appellant to
concurrent sentences of ten years and three years, respectively. The court ordered that
the Appellant serve the sentences consecutively to his previous effective six-year
sentence in case numbers 31906 and 33049 and denied his request for probation. In a
subsequent probation revocation hearing, the court revoked the Appellant’s probation in
case numbers 31906 and 33049 and ordered that he serve those sentences in confinement.
On appeal, the Appellant challenges the sufficiency of the evidence in case number
33414 and various sentencing decisions made by the trial court in all three cases.
II. Analysis
A. Sufficiency of the Evidence in Case Number 33414
The Appellant contends that the evidence is insufficient to support his convictions
of selling methamphetamine and Clonazepam in case number 33414 because Jonathan
Gooch had a motive to lie about buying drugs from him, the May 9 drug buy was not
recorded, Investigator Myers did not follow Gooch to the Pruitt residence on May 9 or 23
or observe the drug buys, and Gooch had time on both occasions to travel somewhere
else to obtain the drugs or Gooch’s wife could have been hiding the drugs on her person.
The State argues that the evidence is sufficient. We agree with the State.
- 10 -
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the
same whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
Taken in the light most favorable to the State, the evidence shows that on May 9
and May 23, 2014, Gooch and his wife met with Investigator Myers. Investigator Myers
searched the couple and their car; provided Gooch with a recording device; and provided
Gooch with money to buy one gram of methamphetamine from the Appellant on May 9
and ten Klonopin pills from the Appellant on May 23. Both transactions were to occur at
the Pruitt residence on Gieske Road. On May 9, Investigator Myers followed Gooch and
his wife to the turnoff for Gieske Road and then proceeded to a cemetery to wait on them.
After waiting for a while, Investigator Myers drove to Gieske Road to check on Gooch
and saw him in the yard of the Pruitt residence with the Appellant and Pruitt.
Investigator Myers returned to the cemetery to wait. Gooch said that after the officer
drove by, he and his wife went inside the Pruitt residence, and he purchased one gram of
methamphetamine from the Appellant. Gooch and his wife then drove to the cemetery
and gave the methamphetamine to the officer. Although the recording device did not
- 11 -
capture any of the drug buy, Investigator Myers observed Gooch with the Appellant at
the Pruitt residence.
On May 23, Investigator Myers again followed Gooch and his wife to the turnoff
for Gieske Road and waited for the couple at the cemetery. Gooch said that he went to
the Pruitt residence and purchased Klonopin pills from the Appellant. He then went to
the cemetery and gave the pills to the officer. This time, the recording device captured
the drug transaction. The State played the video for the jury, and Gooch identified the
Appellant’s voice and truck in the video. The jury, not this court, was in the best position
to judge the credibility of the witnesses, and the jury obviously accredited the testimony
of Investigator Myers and Gooch. Thus, the evidence is sufficient to support the
convictions.
B. Sentencing in Case Number 33414
Next, the Appellant contends that the trial court erred when it ordered that his
effective ten-year sentence for the drug buys in case number 33414 run consecutively to
his effective six-year sentence in case numbers 31906 and 33049 because the record did
not show that he was a dangerous offender or that his record of criminal activity was
extensive. He also contends that the court erred by failing to sentence him to probation in
case number 33414. The State argues that the trial court properly sentenced the
Appellant. We agree with the State.
At the Appellant’s October 17, 2016 sentencing hearing for case number 33414,
Tammy Mathis testified for the Appellant that she was a probation and parole officer with
the Tennessee Department of Correction, that he had been on supervised probation in
case numbers 31906 and 33049 since April 13, 2015, and that he had been serving
probation for about eighteen months. The Appellant last reported to his probation officer
on October 5, 2016, just twelve days before the sentencing hearing. The Appellant
committed the drug offenses in case number 33414 prior to his being placed on probation
on April 13, 2015, and the Appellant had not committed any other offenses since that
date. Mathis stated that the Appellant had never missed a meeting with his probation
officer and that he had reported to the officer more than one time per month for the past
five months. She said that she was “sure” he had been drug tested while on probation and
that nothing in his file indicated he had failed a drug test. The Appellant was required to
pay $45 dollars per month in supervision fees and last paid the fee on August 24, 2016.
Mathis stated that the Appellant worked for Killen Trucking Company and that she did
not know of any complaints about him. On July 25, 2016, a probation violation report
was filed in case numbers 31906 and 33049.
- 12 -
On cross-examination, Mathis read the following from the probation violation
report:
Incident was filed on 6/24/16. Stating that the offender had threatened to
kill Jonathan Gooch and that the offender had bumped the rear of a car with
Jonathan Gooch and [his wife] inside while driving down the road.
Jonathan Gooch was a witness in the offender’s trial.
The State did not present any witnesses but introduced the Appellant’s September
15, 2016 presentence report into evidence. According to the report, the then forty-two-
year-old Appellant was married with two daughters, ages ten and eight, and a
stepdaughter. He graduated from high school in 1992 and obtained his commercial
driver’s license from the Truck Driving Institute in 1995. In the report, the Appellant
described his physical health as “fair” due to blindness in his left eye and his mental
health as “good.” The Appellant reported that he was bipolar and took medication for the
issue. The Appellant stated in the report that he began consuming alcohol when he was
sixteen years old and that he usually consumed six to eight beers on weekends. He also
stated that “was usually sober for a week at a time,” that he last consumed alcohol on
September 6, 2016, and that he was not intoxicated when he committed the crimes. The
Appellant stated that he first used marijuana when he was thirty-five years old, that he
“seldom [used] the drug,” and that he last used marijuana in 2013. In the report, the
Appellant denied selling drugs to anyone. The report showed that in addition to the four
felony and two misdemeanor convictions in case numbers 31906 and 33049, the
Appellant violated the seatbelt law in 2015 and was convicted of misdemeanor domestic
violence in 2007.
At the conclusion of the hearing, the trial court stated that it had considered the
evidence presented at trial and sentencing, the presentence report, the principals of
sentencing, the arguments made by counsel regarding sentencing and alternative
sentencing, the nature of the criminal conduct involved, mitigating and enhancing factors,
and statistical information provided by the Administrative Office of the Courts. The trial
court noted that the Appellant was a Range I, standard offender and applied enhancement
factor (1), that “[t]he defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range,” to the
Appellant sentences due to the Appellant’s prior convictions. Tenn. Code Ann. § 40-35-
114(1). The trial court also stated that it had reviewed this court’s opinion in case
number 31906 and that the opinion “details criminal behavior in addition to that
necessary to establish the appropriate range.” In mitigation, the trial court found that the
Appellant’s behavior neither caused nor threatened serious bodily injury. See Tenn.
Code Ann. § 40-35-113(1). The court found that the enhancing factor outweighed the
mitigating factor and sentenced the Appellant to ten years, the midpoint in the range, for
- 13 -
selling one-half gram or more of methamphetamine, a Class B felony, and three years,
the midpoint in the range, for selling Clonazepam, a Class D felony. See Tenn. Code
Ann. § 40-35-112(a)(2), (4).
Regarding consecutive sentencing, the trial court found that consecutive
sentencing was not appropriate and ordered that the Appellant serve the ten- and three-
year sentences concurrently for a total effective sentence of ten years. However, the trial
court ordered that the Appellant serve the effective ten-year sentence consecutively to the
effective six-year sentence in case numbers 31906 and 33049 based upon the Appellant’s
being a dangerous offender. The trial court specifically addressed the Wilkerson factors
and found that confinement for an extended period of time was necessary to protect
society from the Appellant and that the aggregate length of the sentences was reasonably
related to the offenses for which the Appellant was convicted. The trial court denied the
Appellant’s request for probation and ordered that he serve his effective ten-year sentence
in confinement.
First, the Appellant contends that the trial court abused its discretion by ordering
that he serve the effective ten-year sentence consecutively to the effective six-year
sentence. Appellate review of the length, range, or manner of service of a sentence
imposed by the trial court is to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to
consecutive sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)
(applying the standard to alternative sentencing). In conducting its review, this court
considers 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 enhancement
and mitigating 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 by the Appellant in his own behalf; and (8) the potential for rehabilitation or
treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at
697-98. The burden is on the Appellant to demonstrate the impropriety of his sentence.
See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
Consecutive sentencing is appropriate when a 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.” Tenn. Code Ann. § 40-35-
115(b)(4). Our case law clearly reflects that in order to impose consecutive sentencing
based upon finding that a defendant is a dangerous offender, a court must also find that
“(1) the sentences are necessary in order to protect the public from further misconduct by
- 14 -
the defendant and [that] (2) ‘the terms are reasonably related to the severity of the
offenses.’” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996) (quoting State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)); see also State v. Lane, 3 S.W.3d 456,
461 (Tenn. 1999).
Here, the trial court specifically addressed the Wilkerson factors and found that
consecutive sentencing was necessary to protect the public from further misconduct by
the Appellant and that consecutive sentencing was reasonably related to the severity of
the offenses. We agree. In June 2013, the Appellant shot Kenneth Wayne’s SUV with a
shotgun, shattering his windows and spraying his home with shotgun pellets. Wayne was
nearby at the time. The Appellant also drove by Travis Springer and Edward Willis with
the barrel of a shotgun protruding from his car window; shot Springer’s horses2; and
damaged Springer’s tractor by shooting it with a shotgun. Despite being indicted for
various offenses, including attempted first degree murder, the Appellant then sold
methamphetamine and Clonazepam to Jonathan Gooch in May 2014. In February 2015,
while out on bond for the offenses he committed in June 2013, the Appellant threatened
Kenneth and Jamie Wayne, who had testified against him at trial. Victim impact
statements attached to the Appellant’s April 2, 2015 presentence report in case numbers
31906 and 33049 described the Appellant as “unpredictable,” “extremely dangerous,”
and threatening and reflected that his victims were very afraid of him and what he might
do to their families and property. We agree with the trial court that consecutive
sentencing was necessary to protect the public from further misconduct by the Appellant
and that his effective six-year sentence reasonably related to the severity of the offenses.
Thus, the trial court did not err by ordering consecutive sentencing.
The Appellant also contends that the trial court erred by denying his request for
probation in case number 33414. 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). The
Appellant’s sentences meet this requirement. Moreover, an appellant who is an
especially mitigated or standard offender convicted of a Class C, D, or E felony should be
considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6). As a Range I, standard offender,
convicted of a Class B felony, the Appellant is not considered a favorable candidate for
alternative sentencing for his selling methamphetamine. Tennessee Code Annotated
section 40-35-103(1) sets forth the following sentencing considerations which are utilized
in determining the appropriateness of alternative sentencing:
2
Although the State mischarged the Appellant in this case, preventing convictions of aggravated
animal cruelty or animal cruelty, the Appellant’s shooting Mr. Springer’s horses certainly qualified as
animal cruelty. See Tenn. Code Ann. § 39-14-202(a)(1) (providing that anyone who intentionally or
knowingly maims an animal is guilty of animal cruelty).
- 15 -
(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 confinement is particularly
suited to provide an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the
defendant.
See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal
conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. Tenn. Code Ann. § 40-35-102(5).
In denying the Appellant’s request for probation, the trial court stated as follows:
Now, as it relates to the probation considerations, the Court has
considered the following in deciding to grant or deny any form of
alternative sentencing. I have considered the pre-sentence report, I have
considered the Defendant’s physical and mental condition and social
history as detailed therein; the facts and circumstances surrounding the
offense; and the nature and circumstances of the criminal conduct. I’ve
also considered the prior criminal history of the Defendant in this particular
case, and while not extensive, certainly present. I’ve also considered the
previous actions and/or character of this particular Defendant and whether
or not the Defendant might reasonably be expected to be rehabilitated, and
the Defendant’s potential or lack of potential for rehabilitation including the
risks that during the period of probation the Defendant will commit another
crime.
Before this Court is a revocation warrant and the Court has taken
notice of that warrant as detailed in the testimony by the pre-sentence
officer.
- 16 -
The Court has also considered whether or not the interests of society
will be protected from possible future criminal conduct of the Defendant,
and whether or not there are less restrictive means other than confinement
which have recently been unsuccessful to the Defendant. That is not one
that the Court is -- while I considered it, I do not believe it to be appropriate
for purposes of determining probation considerations.
The Court has considered whether or not a sentence of full probation
would unduly depreciate the seriousness of the offense.
The Court finds that probation should not be granted in this case, and
thus sentences the defendant to serve 10 years in the Tennessee Department
of Corrections.
The trial court’s comments demonstrate that it denied probation based on the need
to protect society by restraining a defendant who has a long history of criminal conduct,
in order to avoid depreciating the seriousness of the offenses, and the Appellant’s lack of
potential for rehabilitation. Again, we agree with the trial court. Over the course of three
years, the Appellant committed six felonies and two misdemeanors, and he threatened
two witnesses. His being indicted and convicted in case number 31906 failed to deter
him from continuing to commit crimes. Moreover, alcohol apparently has played a role
in some of the Appellant’s actions, yet he has never sought treatment. Accordingly, he
lacks potential for rehabilitation. We conclude that the trial court did not abuse its
discretion by denying the Appellant’s request for probation.
C. Revocation of Probation in Case Numbers 31906 and 33049
The Appellant contends that the trial court erred by revoking his probation in case
numbers 31906 and 33049 based upon his new convictions in case number 33414. The
Appellant acknowledges that a published case is adverse to his position but contends that
this court should overrule that case or least hold that application of that case to the instant
case would produce a fundamentally unfair result. In a related argument, the Appellant
contends that the State’s delay between the time he committed the crimes in case number
33414 and the State’s seeking to revoke his probation in case numbers 31906 and 33049
violated his rights to due process and speedy trial. The State argues that the Appellant is
not entitled to relief. We agree with the State.
The Appellant committed the crimes in case number 31906 on June 24, 2013; the
crimes in case number 33414 on May 9 and 23, 2014; and the crimes in case number
33049 on February 4, 2015. On April 13, 2015, the trial court sentenced the Appellant in
case numbers 31906 and 33049 to an effective six-year sentence and ordered that he
- 17 -
serve the sentence as ten months in confinement and the remainder on supervised
probation. The Appellant was indicted in case number 33414 on August 10, 2015, and a
jury convicted him on July 1, 2016. On July 25, 2016, the Appellant’s probation
supervisor in case numbers 31906 and 33049 filed a probation violation report based
upon the new convictions in case number 33414 and a June 24, 2016 “incident report,”
which alleged that the Appellant had threatened to kill Jonathan Gooch and bumped the
rear of Gooch’s car while Gooch and his wife were in the car. The trial court issued an
arrest warrant that same day, and the police arrested the Appellant on August 14, 2016.
At the December 16, 2016 probation revocation hearing, Stephanie Wilburn of the
Tennessee Department of Correction testified for the State that she began supervising the
Appellant’s probation in case numbers 31906 and 33049 on April 13, 2015. On July 25,
2016, she filed the probation violation report due to the new drug convictions in case
number 33414 and the incident report in which the Appellant threatened Gooch and
Gooch’s wife. Wilburn did not conduct an independent investigation of the incident
report but talked with the Appellant about it. She said that the Appellant admitted to an
encounter with Gooch but that the Appellant “told me that it wasn’t how it sounded in the
report, that the things didn’t happen the way that it was said that it happened. . . . He said
it was Jonathan Gooch who actually started the whole thing, he came to his house, not the
other way around.” The Appellant told Wilburn that he followed Gooch but did not tell
her that he bumped Gooch’s car. Other than the new convictions and the incident report,
Wilburn did not have any complaints about the Appellant.
On cross-examination, Wilburn acknowledged that the Appellant claimed he had
been at home when Gooch pulled into his driveway and “initiated whatever happened
later on.” The Appellant admitted to Wilburn that he followed Gooch and told her that he
“probably shouldn’t have done that.” The Appellant claimed that he acted in self-defense
and that the incident was instigated by Gooch. Wilburn acknowledged that she had no
firsthand knowledge of the incident. She also acknowledged that the Appellant already
had committed the offenses in case number 33414 when she began supervising his
probation in case numbers 31906 and 33049 and that the new convictions resulted from
incidents that occurred almost one year before he was placed on probation. She said that
the Appellant had “done well” on probation and that he passed a drug test on April 6,
2016. The Appellant worked as a truck driver and had maintained steady employment
for the past one and one-half years. Wilburn said, “He struggled a little right before he
went to jail but it was because with him being out on bond, I had to have him report to
the office very frequently and he had trouble maintaining employment. He worked when
he could.”
Investigator Myers testified for the State that after Gooch purchased drugs from
the Appellant in May 2014, Investigator Myers did not immediately obtain a warrant for
- 18 -
the Appellant’s arrest or pursue a grand jury indictment. He explained, “Normally when
we do controlled buys, we will wait a little while and either get indictments or possibly
look at other sources.” The Appellant was sentenced in case numbers 31906 and 33049
on April 13, 2015, and Investigator Myers obtained a warrant for the Appellant’s arrest
for the drug buys in case number 33414 on April 23, 2015. Investigator Myers did not
testify at the Appellant’s April 13 sentencing hearing and did not know about the
sentencing hearing when he obtained the arrest warrant. Prior to Investigator Myers’s
obtaining the arrest warrant, the only people who would have known about the drug buys
were Investigator Myers, the two investigators who assisted him with the drug buys,
Johnathan Gooch, and Gooch’s wife.
On cross-examination, Investigator Myers testified that he left the Lawrence
County Sheriff’s Department soon after he obtained the Appellant’s arrest warrant. He
said he did not have any firsthand knowledge about the June 24, 2016 incident report
involving the Appellant and Jonathan Gooch.
The State introduced the April 2, 2015 presentence report prepared for Appellant’s
sentencing hearing in case numbers 31906 and 33049 into evidence. The report did not
mention the drug buys. The State argued that Judge Hargrove did not know about the
drug buys when she ordered split confinement.
The trial court found that the State did not present sufficient proof of the “Gooch
incident” to revoke the Appellant’s probation in case numbers 31906 and 33049.
However, the court found that, in reviewing the presentence report presented to Judge
Hargrove, Judge Hargrove was unaware of the Appellant’s drug buys when she sentenced
the Appellant to split confinement in those cases. The court further found that based on
case law, it was authorized to revoke the Appellant’s probation in case numbers 31906
and 33049 based upon the drug convictions in case number 33414. The trial court
revoked the Appellant’s probation and ordered that he serve the effective six-year
sentence in case numbers 31906 and 33049 in confinement.
Upon finding by a preponderance of the evidence that the appellant has violated
the terms of his probation, a trial court is authorized to order an appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -
311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in
the sound discretion of the trial court and will not be overturned by this court absent an
abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995);
see Pollard, 432 S.W.3d at 864 (concluding that abuse of discretion with a presumption
of reasonableness is the appropriate standard of appellate review for all sentencing
decisions). “A trial court abuses its discretion when it applies incorrect legal standards,
reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the
- 19 -
proof, or applies reasoning that causes an injustice to the complaining party.” State v.
Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).
In State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997), this court
held that a trial court may revoke a defendant’s probation based upon criminal acts
committed by the defendant before being sentenced to probation if the trial court was
unaware of the prior acts at the time of sentencing. This court then stated,
We recognize that a defendant who is granted probation has a liberty
interest that is protected by due process of law. Practy v. State, 525 S.W.2d
677, 680 (Tenn. Crim. App. 1974). Also, it is fundamental to our system of
justice through due process that persons who are to suffer penal sanctions
must have reasonable notice of the conduct that is prohibited. United States
v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812 (1954); State v. Ash, 729
S.W.2d 275, 279 (Tenn. Crim. App. 1986). In this vein, a trial court would
usually be unable to revoke a defendant’s suspended sentence based on
violations of probation conditions before those conditions are set.
However, revoking probation based upon criminal acts a defendant
committed before being placed on probation does not implicate these due
process concerns because, unlike other conditions of probation that may be
imposed, the defendant is deemed to have notice that his or her conduct
must conform to the requirements of the law from the time of the law’s
enactment.
Id. Even more recently, this court, relying on Stubblefield, upheld a trial court’s
revocation of probation for crimes committed before a defendant was sentenced to
probation when the trial court was unaware of the prior crimes at the time of sentencing.
See State v. Terry Eugene Fisher, Jr., No. M2015-01388-CCA-R3-CD, 2016 WL 552727,
at *2 (Tenn. Crim. App. at Nashville, Feb. 12, 2016); State v. Mark Tyre, No. W2012-
01458-CCA-R3-CD, 2013 WL 1557394, at *2-3 (Tenn. Crim. App. at Jackson, Apr. 12,
2013).
We have reviewed the Appellant’s sentencing hearing transcript and presentence
report from case numbers 31906 and 33049, and neither mentions the May 2014 drug
buys. Investigator Myers testified at the probation revocation hearing that he obtained
the arrest warrant in case number 33414 ten days after the Appellant’s sentencing hearing
in case numbers 31906 and 33049, that he was unaware of the Appellant’s sentencing
hearing when he obtained the arrest warrant, and that the only people who would have
known about the drug buys prior to his obtaining the warrant were himself, the two
investigators who assisted with the drug buys, and Jonathan Gooch and his wife.
- 20 -
Accordingly, the evidence supports the trial court’s finding that Judge Hargrove was
unaware of the drug buys when she ordered split confinement in case numbers 31906 and
33049. Thus, the trial court did not abuse its discretion or violate the Appellant’s due
process rights when it revoked the Appellant’s probation in case numbers 31906 and
33049 for his new convictions in case number 33414.
In a related argument, the Appellant contends that Investigator Myers’s waiting
almost one year to obtain the arrest warrant in case number 33414, that the State’s
waiting more than two years to file the probation revocation report in case numbers
31906 and 33049, and that the trial court’s holding the probation revocation hearing two
and one-half years after he committed the crimes in case number 33414 violated his right
to a speedy trial. “The right to a speedy trial arises under the Sixth Amendment to the
Constitution of the United States made applicable to the State by the Fourteenth
Amendment . . . and Article 1, § 9 of the Constitution of Tennessee.” State v. Bishop,
493 S.W.2d 81, 83 (Tenn. 1973). Moreover, “a probation revocation proceeding is a
continuation of the criminal prosecution, and, as such, the defendant . . . has a
constitutional right to a speedy trial on ‘the offense of violation of the terms of
probation.’” Allen v. State, 505 S.W.2d 715, 719 (Tenn. 1974). To determine whether a
defendant’s constitutional right to a speedy trial has been violated, this court must
conduct the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972). See State
v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 S.W.2d 352, 353 (Tenn.
1981). Under the Barker analysis, the following four factors must be considered: (1) the
length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of the right
to a speedy trial; and (4) the prejudice resulting from the delay. Barker, 407 U.S. at 530.
A delay approaching one year between the issuance of a probation violation
warrant and a probation revocation hearing generally triggers further inquiry into the
remaining three Barker factors. See Allen, 505 S.W.2d at 717 (considering whether the
delay of two and one-half years between issuance of the probation violation warrant and
the probation revocation hearing denied the defendant his right to a speedy trial); State v.
Utley, 956 S.W.2d 489, 494 (Tenn. 1997) (providing that a delay approaching one year
triggers Barker v. Wingo analysis). Here, the trial court issued the probation revocation
warrant on July 25, 2016, and held the probation revocation hearing just five months
later. Thus, it is unnecessary for us to consider the remaining Barker factors. The
Appellant’s right to a speedy trial was not violated.
Although not raised by either party, our careful review of the sentencing hearing
transcript for case number 33414 reveals that during the sentencing hearing, the State
argued that the Appellant should serve his effective ten-year sentence in that case
consecutively to “the case for which he is currently on probation, that being 31906.”
Defense counsel argued against consecutive sentencing “to the six years he’s already on
- 21 -
probation for.” The trial court ordered that the Appellant serve the ten-year sentence in
case number 33414 consecutively to the sentence in case number 31906 but did not say
that the Appellant also was to serve the ten-year sentence consecutively to the sentence in
case number 33049. Moreover, the judgment of conviction for the Appellant’s ten-year
sentence in case number 33414 shows that the sentence is to be served consecutively to
31906 but does not show that the sentence is to be served consecutively to 33049.
Tennessee Rule of Criminal Procedure 32 provides that when a judgment is silent as to
concurrent or consecutive sentencing, the sentences shall run concurrently. Therefore,
ordinarily, the Appellant’s effective ten-year sentence in case number 33414 would run
consecutively to the effective four-year sentence in case number 31906 but concurrently
with the effective two-year sentence in case number 33049 for a total effective sentence
in all three cases of fourteen, not sixteen, years. However, we believe that when the
parties and the trial court talked about the Appellant’s prior probation sentence in case
number 31906, they actually were referring to his effective six-year sentence in case
numbers 31906 and 33049. We note that at the Appellant’s subsequent probation
revocation hearing for case numbers 31906 and 33049, the trial court stated that “this
Court handed down a ten year sentence consecutive to the six year sentence for which
this probation hearing is now being held.” Thus, the record demonstrates that the trial
court intended that the Appellant serve the ten-year sentence in case number 33414
consecutively to both prior sentences for a total effective sentence of sixteen years.
Accordingly, we remand the case to the trial court for correction of the judgments to
reflect that the Appellant is to serve the ten-year sentence in case number 33414
consecutively to both the four-year sentence in case number 31906 and the two-year
sentence in case number 33049 for a total effective sentence of sixteen years.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court but remand the case to the trial court for correction of the judgments.
____________________________________
NORMA MCGEE OGLE, JUDGE
- 22 -