State of Tennessee v. Robert Jason Allison

08/29/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 17, 2019 Session
STATE OF TENNESSEE v. ROBERT JASON ALLISON
Appeal from the Criminal Court for Davidson County
No. 2010-C-2264 Mark J. Fishburn, Judge
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No. M2017-02367-CCA-R3-CD
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Defendant, Robert Jason Allison, was indicted for two counts of delivery of marijuana;
possession with intent to distribute over ten pounds of marijuana in a drug-free school
zone; possession of a firearm during the commission of a dangerous felony; and two
counts of money laundering. Following a jury trial, at which Defendant represented
himself, he was convicted as charged. Following a sentencing hearing, the trial court
imposed partial consecutive sentencing resulting in an effective 25-year sentence. In this
appeal as of right, Defendant contends that: 1) the evidence was insufficient to support
his convictions for money laundering; 2) the indictment conflated two subsections of the
money laundering statute; 3) the trial court failed to instruct the jury on all of the
elements of money laundering; 4) Defendant’s convictions for money laundering violate
double jeopardy; 5) the money laundering statute is unconstitutionally vague; 6)
Defendant was deprived his right to a speedy trial; 7) the trial court erred by denying
Defendant’s motion to suppress evidence seized as a result of his warrantless arrest; 8)
the trial court erred by denying Defendant’s motion to suppress evidence seized as a
result of a search warrant; 9) the trial court erred in finding that Defendant waived his
right to the assistance of counsel at trial; 10) the trial court abused its discretion in
ordering consecutive sentencing; and 11) Defendant’s fines are excessive. Having
reviewed the entire record and the briefs of the parties, we find no error and affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.
Richard C. Strong, Nashville, Tennessee (on appeal) and Robert Jason Allison, Pro Se,
(at trial).
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Andrea
Green, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Pretrial motions
Motions to suppress
Prior to trial, Defendant filed pro se motions to suppress his statement to police
and evidence seized during the search of a home associated with one of the drug buys.
Defendant argued that the search warrant was not supported by probable cause because
the confidential informant was not credible and because Defendant’s sister, not
Defendant, was the owner of the property to be searched. In one of his pro se motions to
suppress, Defendant asserted that his statement to police should be suppressed because he
requested an attorney “at le[a]st (5) five times” during the interview. In his motion for
new trial, however, Defendant argued that his statement should have been suppressed
because it was made following a warrantless arrest.
At a hearing on Defendant’s motions, Detective Scott Cothran testified that a
confidential informant bought marijuana from Defendant on two separate occasions. On
both occasions, Defendant also fronted additional marijuana to the informant with the
expectation that the informant would pay Defendant after the fronted marijuana was sold.
The informant later paid Defendant for the fronted marijuana using money provided by
the police. The transactions involving Defendant occurred either at a home on Elkins
Avenue or a home on James Avenue. The transactions were monitored and recorded.
Detective Cothran testified that Defendant lived at the home on Elkins Avenue and that
Defendant’s girlfriend lived at the home on James Avenue.
Detective Cothran obtained a search warrant for the home on Elkins Avenue. He
testified that surveillance teams watched the home for an hour before the warrant was
executed. Defendant was standing “at the back of the property” behind the house.
Detective Cothran did not see Defendant arrive, but as soon as police saw Defendant
behind the house, Defendant was placed under arrest. During a search of Defendant’s
person, police found “around $2,400” that was used to purchase marijuana in the
controlled buys. During a search of the residence, police found approximately 47 pounds
of marijuana in a Rubbermaid tub in the garage. They found “several pistols, one of
which was stolen” in a bedroom in the home. Defendant gave a statement to police. The
interview, which was recorded, occurred in the garage, and Defendant was handcuffed
during the interview. Detective Cothran testified that Defendant was “absolutely”
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forthcoming in the interview. Defendant admitted that he knew what was inside the
Rubbermaid tub. Defendant told the police that the guns belonged to his sister, and he
kept them in his closet because he had heard threats that he might be robbed.
On cross-examination, Detective Cothran acknowledged that he did not have a
warrant for Defendant’s arrest. He also acknowledged that Defendant was near the trash
cans in an alley behind the house, and Detective Cothran could not say whether
Defendant “had a foot” on the property. Detective Cothran advised Defendant of his
Miranda rights outside by the trash cans when he was handcuffed. Detective Cothran
was present when the search warrant was signed, but the judge waited to give it to
another officer, Andrae Starling, who was at the Elkins Avenue residence during the
execution of the search warrant.
Lisa Smithson, Defendant’s sister, testified that she inherited the Elkins Avenue
property from her mother. She wrote a check to pay the property taxes on it about a week
after the search. She testified that the guns found inside the home belonged to her. On
cross-examination, Ms. Smithson testified that she did not know why Metro tax assessor
records, dated about two months before the search, listed Defendant as one of the
property owners.
Motion for speedy trial
No proof was presented at the hearing on Defendant’s motion to dismiss based on
a violation of his right to a speedy trial. Defense counsel argued, “I don’t know what the
problem has been with [Defendant] and the other attorneys. He has been nothing but a
gentleman with [co-counsel] and myself, maybe it’s in part he just needed someone who
would be willing to listen to him and would be willing to file motions that have merit in
the case.”
Trial court’s order
In a written order denying both of Defendant’s motions, the trial court found the
testimony of Detective Cothran to be credible. The court found that Defendant “was
within sufficient boundary of the residence to include him as an individual on the
premises subject to arrest by virtue of the search warrant.” The trial court also found that
there was sufficient independent corroboration of the informant’s information to justify
the issuance of a search warrant. Regarding Defendant’s speedy trial violation motion,
the trial court noted that Defendant had “demanded continuances and new counsel on at
least eight occasions.” The court found that the “entirety of the delay in this matter has
been caused by the Defendant himself.” The court also found that Defendant was not
prejudiced by the delay.
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Trial
Detective Scott Cothran testified that police used an informant to make two
controlled purchases of marijuana from Defendant. The first purchase occurred on
January 9, 2009. It was supposed to happen at the home on Elkins Avenue, but
Defendant became suspicious and the location was changed to the home on James
Avenue. The informant was given $5,000 to purchase five pounds of marijuana from
Defendant. Defendant “fronted” the informant three additional pounds, which the
informant was expected to sell and return the money from the sale to Defendant.
Detective Cothran arranged to have the informant pay $3,000 to Defendant for the
“fronted” drugs on January 13, 2009, at the Elkins Avenue home, which was across the
street from a school.
Detective Cothran testified that Detective Steve Parks arranged the second
controlled buy, which occurred on January 16, 2009, at the Elkins Avenue address. The
informant purchased six pounds of marijuana, and Defendant “fronted” her an additional
four pounds. Payment was made to Defendant for the “fronted” amount at the James
Avenue address on January 20, 2009.
Detective Cothran testified that during one of the controlled buys, Defendant told
the informant that he expected “another load [to be] coming in.” Police obtained search
warrants for the Elkins Avenue and James Avenue addresses. The search warrants were
executed on January 21, 2009. A surveillance team at the Elkins Avenue address
reported seeing Defendant arrive in a truck and carry a green tub into a detached garage
at the back of the property. The search warrant was executed, and Detective Cothran and
another officer took Defendant into custody. During a search incident to arrest, they
discovered $2,460 of the controlled buy money on Defendant.
Detective Cothran testified that the Elkins Avenue home had belonged to
Defendant’s mother, who had passed away. Inside one of the bedrooms, police found
two pistols. The plastic tub inside the garage contained approximately 46 pounds of
marijuana. Defendant waived his Miranda rights and gave a recorded statement to
police. He told police that the guns belonged to his sister, and he had them in his closet
because he had recently been threatened. Detectives asked Defendant what he did for a
living, and Defendant said, “I ain’t got nothing [sic] going on right now.”
Special Agent Glen Glenn, of the Tennessee Bureau of Investigation (TBI) Crime
Lab, testified regarding the chain of custody requirements when evidence was submitted
for testing. Agent Glenn testified that the State’s exhibits were delivered to his lab on
May 14, 2009. He issued his reports on July 13, 2009. The initial report erroneously
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stated the amount in grams instead of pounds, and it was amended in 2013 to correct the
error. Agent Glenn testified that the green tub contained ten “bricks” of marijuana,
weighing 44.6 pounds total. A separate bag inside the tub contained 0.8 pounds of
marijuana. Agent Glenn also examined the contents of ten bags, containing 9.5 total
pounds of marijuana that was purchased by the informant from Defendant in the second
controlled buy on January 16, 2009. Agent Brett Trotter, of the TBI, testified that he
examined the marijuana that was purchased by the Defendant in the first controlled buy
on January 9, 2009, and he determined that it weighed slightly less than eight pounds.
Steven Keel, director of security for Metro Nashville Public Schools, testified that
Park Avenue Elementary School was located at 3703 Park Avenue. David Kline, of the
Metro Planning Department, prepared a map using information from the tax assessor’s
office that showed that the Elkins Avenue home was within 1,000 feet of the school.
Lisa Smithson, Defendant’s sister, testified it was not her signature on an affidavit
of heirship filed with the tax assessor’s office. She testified that she lived at the Elkins
Avenue address where the search warrant was executed. She testified that Defendant had
his own house and that he did not stay at her house. Ms. Smithson testified that she was
home on January 21, 2009, when “at least probably 20” police vehicles surrounded her
house. She testified that police exited their vehicles with guns drawn. She testified that
Defendant arrived with roofing materials for her home. She testified that there were
people working on her roof, and they had been going in and out of the garage. Ms.
Smithson saw Defendant get arrested in the alley behind her house. She testified that
Defendant was “actually more towards the house across the street.” Ms. Smithson
testified that officers used “a lot of force” and that they broke the ribs of another person,
Joe Keyes. An audio recording that Ms. Smithson made during a visit to the tax
assessor’s office, in which an employee stated that Defendant’s name was not listed as an
owner of the Elkins Avenue home, was admitted into evidence.
Heather Johnson testified that she was at Ms. Smithson’s house on the day of
Defendant’s arrest. She testified that the arrest occurred in the alley behind Ms.
Smithson’s home. She testified that officers had their guns drawn.
Defendant did not testify or present any other evidence.
Sentencing hearing
At the sentencing hearing, the presentence report was admitted into evidence.
Detective Cothran testified that he interviewed Defendant following Defendant’s arrest.
Detective Cothran asked Defendant how he was employed, and Defendant answered, “I
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don’t have anything going on right now.” Police seized over $2,000 in cash from
Defendant’s person.
Phillip Taylor, a drug task force investigator, testified that Defendant had been
under investigation since 2002. Between 2002 and 2005, Defendant was associated with
17 different vehicles. In October, 2002, an informant made a controlled buy of a quarter
of a kilo of cocaine for $7,000 from Defendant and another man, Trey Hines. On another
occasion, in 2005, an informant purchased two pounds of marijuana from Defendant.
During that transaction, Defendant gave the informant “samples” to give away “to get
customers interested in buying marijuana.”
Defendant did not testify or present any proof at the sentencing hearing.
At the conclusion of the sentencing hearing, the trial court noted that the jury
imposed fines of $2,500 for each of Defendant’s two convictions for delivery of
marijuana; $90,000 for Defendant’s conviction for possession with intent to distribute
over ten pounds of marijuana in a school zone; and $15,000 for each of Defendant’s two
money laundering convictions. The trial court stated on the record that it had considered
the evidence presented at trial and at the sentencing hearing, the presentence report, the
principles and purposes of the Sentencing Act, the arguments of both parties, the nature
and characteristics of the criminal conduct involved, the evidence offered as to
enhancement and mitigating factors, Defendant’s statements, and his potential for
rehabilitation. The trial court determined that Defendant’s prior convictions made him a
Range III offender in counts one through four and a Range II offender for the two Class
B felony money laundering convictions.
The trial court found that Defendant had prior convictions in addition to those
necessary to establish his range and that Defendant was a leader in the commission of the
offenses. See T.C.A. § 40-35-114(1) and (2). In mitigation, the trial court found that
Defendant’s crimes neither caused nor threatened serious bodily injury. See T.C.A. § 40-
35-113(1). The trial court noted that Defendant refused to provide information for the
presentence report. The trial court also noted that “since 2002, [Defendant’s] primary
activity seems to have been related to drug sales in one form or another.” The trial court
found that Defendant was a professional criminal who has knowingly devoted much of
his adult life to criminal acts as a major source of livelihood, that his record of criminal
activity is extensive, and that Defendant showed a clear disregard for the laws and morals
of society and a low probability of being rehabilitated.
The trial court imposed sentences of five years for each of Defendant’s delivery of
marijuana convictions; ten years for his conviction for possession with intent to distribute
over ten pounds of marijuana in a school zone; three years for his firearm conviction; and
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15 years for each of his money laundering convictions. The court ordered partial
consecutive sentencing, resulting in an aggregate sentence of 25 years in confinement.
Analysis
Defendant contends that the evidence at trial was insufficient to support his
convictions for money laundering. Defendant also contends that the indictment conflated
two subsections of the money laundering statute, Tennessee Code Annotated section 39-
14-903, and he contends that the trial court’s instructions to the jury did not include an
essential element of the offense of money laundering. We will address each issue
separately.
Indictment
Defendant challenges the indictment, arguing that the indictment “appears to
conflate two separate subsections [subsections (b) and (c)] under Tenn. Code Ann. § 39-
14-903.” The State argues that this issue is waived for review. We agree. Defendant
failed to raise this issue prior to trial or in his motion for new trial or amended motion for
new trial. Accordingly, the issue is waived. See Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000) (holding that unless an indictment is so defective as to fail to vest
jurisdiction, challenges to an indictment must be raised prior to trial, citing Tenn. R.
Crim. P. 12(b)(2)(B)).
Jury charge
Defendant contends that the trial court omitted an element of the offense in its
instruction to the jury. Defendant argues that the trial court’s instruction to the jury
omitted the “conceal or disguise” element of subsection (c) of the money laundering
statute. The State responds that Defendant was not charged with concealing the
proceeds, but rather he was charged with using the proceeds in furtherance of carrying on
illegal activity. See T.C.A. § 39-14-902(c).
The trial court charged the jury as follows:
For you to find [Defendant] guilty of this offense, the State must have
proven beyond a reasonable doubt the existence of the following
elements: (1) knowingly conduct a financial transaction or make any
other disposition of property or proceeds with the intent to promote the
carrying on of the sale of a Schedule VI controlled substance, to-wit:
Marijuana; and (2) that it was represented to the defendant by another
person at the direction of a law enforcement officer to be the property or
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proceeds derived from the sale of a Schedule VI controlled substance, to-
wit: Marijuana, or other criminal activity.
Subsection (c) of the money laundering statute makes it an offense to “knowingly
conduct . . . a financial transaction . . . involving property or proceeds represented by a
law enforcement officer, . . . , to be the proceeds derived from a specified unlawful
activity with the intent to conceal or disguise the nature, location, source, ownership or
control of the criminally derived proceeds or with the intent to promote the carrying on of
a specified unlawful activity.” T.C.A. § 39-14-902(c) (emphasis added). Defendant was
not charged with concealing or disguising the criminally derived proceeds, but rather, he
was charged with using the proceeds in furtherance of carrying on illegal activity.
Therefore, the trial court’s omission of “conceal or disguise” in its charge to the jury was
not error. Defendant is not entitled to relief on this issue.
Sufficiency of the evidence
Defendant asserts that the evidence was insufficient to support his convictions for
money laundering. Specifically, Defendant argues that the evidence did not establish
“separate transactions” in the act of taking payment for the fronted drugs. Defendant
argues that the informant’s act of returning to pay Defendant for the amount of “fronted”
marijuana was not a distinct transaction, but rather “the conclusion of the single
transaction for the sale of marijuana.” Defendant argues, “[t]his constitutes the dirtying
of money, not the laundering of money.”
Defendant raises a unit-of-prosecution claim, contending that the payments made
for the fronted drugs were merely part and parcel of the original drug transactions, rather
than separate acts. Unit-of-prosecution claims arise when defendants who have been
convicted of multiple violations of the same statute assert that the multiple convictions
are for the “same offense.” When addressing unit-of-prosecution claims, courts must
determine “what the legislature intended to be a single unit of conduct for purposes of a
single conviction and punishment.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn.
2012); State v. Anthony T. Brandon, No. M2015-00654-CCA-R3-CD, 2016 WL
1600279, at *7 (Tenn. Crim. App. Apr. 19, 2016), no perm. app. filed. In determining the
unit of prosecution, we must first examine the statute in question to determine if the
statutory unit of prosecution has been expressly identified. State v. Smith, 436 S.W.3d
751, 768 (Tenn. 2014). If there is ambiguity or uncertainty in defining the unit of
prosecution, courts apply the “rule of lenity,” meaning that any ambiguity in defining the
unit of conduct for prosecution is resolved against the conclusion that the legislature
intended to authorize multiple units of prosecution. Watkins, 362 S.W.3d at 543-44.
“The legislature has the power to create multiple ‘units of prosecution’ within a single
statutory offense, but it must do so clearly and without ambiguity.” State v. Lewis, 958
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S.W.2d 736, 739 (Tenn. 1997). “As for criminal offenses in Tennessee, statutes are to be
construed ‘according to the fair import of their terms, including reference to judicial
decisions and common law interpretations, to promote justice, and effect the objectives of
the criminal code.’” Id. (citing T.C.A. § 39-11-104).
Tennessee Code Annotated section 39-14-903 makes it an offense “to knowingly
conduct . . . a financial transaction or make other disposition involving property or
proceeds represented by . . . another at the direction of a law enforcement officer, to be
the property or proceeds derived from a specified unlawful activity with the intent to . . .
promote the carrying on of a specified unlawful activity.” T.C.A. § 39-14-903(c)(1). In
the context of drug transactions, this court has noted that Tennessee Code Annotated
section 39-17-417 does not define the term “sale.” See State v. Clifford Leon Farra, No.
E2001-02235-CCA-R3-CD, 2003 WL 22908104, at *6 (Tenn. Crim. App. Dec. 10,
2003), perm. app. denied (Tenn. May 10, 2004). This court has adopted the definition of
“sale” in Black’s Law Dictionary 1200 (5th ed. 1979), as “a contract between two parties
by which the seller, in consideration of the payment or promise of payment of a certain
price in money, transfers to the buyer the title and possession of the property.” Id.
Defendant was indicted in count five for accepting payment of $3,000 from the
informant on January 13, 2009, for three pounds of marijuana “fronted” on January 9,
2009. Defendant was indicted in count six for accepting payment from the informant on
January 20, 2009, for four pounds of marijuana fronted on January 16, 2009. The State
argues, and we agree, that the act of accepting payment for the fronted drugs constituted a
“financial transaction” separate and distinct from the original transactions on January 9th
and 16th, in which Defendant and the informant arranged to exchange a particular
amount of marijuana for a specific price. In its closing argument, the State made clear
that the money laundering charges related solely to the money paid to Defendant as
payment for the fronted drugs. Detective Cothran testified that during one of the
transactions, “there was some discussion about another load coming in.”
From this proof, a reasonable jury could infer that Defendant was in the business
of selling marijuana and that he intended to use the money paid to him for the fronted
drugs to buy more drugs to deliver or sell. This is the conduct that the money laundering
statute intends to proscribe. We conclude that the evidence is sufficient to support
Defendant’s money laundering convictions. Defendant is not entitled to relief on this
issue.
Double jeopardy
In a related issue, Defendant contends that his convictions for the sale of
marijuana and money laundering violate double jeopardy because they occurred from the
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same transaction. The State argues that Defendant engaged in four separate transactions.
On two occasions, the informant contracted with Defendant to purchase particular
amounts of marijuana, five and six pounds respectively. On both occasions, after
concluding the initial transaction, the informant and Defendant entered into new
agreements in which Defendant agreed to front the informant more marijuana, for which
the informant would pay Defendant later.
Whether multiple convictions violate double jeopardy is a mixed question of law
and fact, which we review de novo without any presumption of correctness. See State v.
Thompson, 285 S.W.3d 840, 846 (Tenn. 2009). The Double Jeopardy Clause has been
interpreted as providing three separate protections: (1) protection against a second
prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.
Ct. 2072, 23 L. Ed. 2d 656 (1969), abrogated on other grounds by Alabama v. Smith, 490
U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). This appeal involves the third
category of protection afforded by the Double Jeopardy Clause – protection against
multiple punishments for the same offense imposed in a single prosecution.
In determining whether two statutes define the same offense, the United States
Supreme Court long ago declared that “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger v. U.S., 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.
Ed. 306 (1932); see also Rutledge v. U.S., 517 U.S. 292, 297, 116 S. Ct. 1241, 134 L. Ed.
2d 419 (stating that the Court has applied Blockburger for over a half century to
determine whether a defendant has been punished twice for the “same offense”). The
Blockburger test requires an examination of the statutory elements in the abstract,
without regard to the proof offered at trial in support of the offenses. See U.S. v. Dixon,
509 U.S. 688, 696, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993) (“The same-elements test,
sometimes referred to as the ‘Blockburger’ test, inquires whether each offense contains
an element not contained in the other . . . .”). If each offense includes an element that the
other offense does not, “the Blockburger test is satisfied, notwithstanding a substantial
overlap in the proof offered to establish the crimes.” Iannelli v. U.S., 420 U.S. 770, 785
n. 17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975).
In a Blockburger analysis, our primary focus is whether the General Assembly
expressed an intent to permit or preclude multiple punishments. State v. Watkins, 362
S.W.3d 530, 556 (Tenn. 2012). When the General Assembly has expressed an intent to
permit multiple punishments, no further analysis is necessary, and multiple convictions
should be upheld against a double jeopardy challenge. Id. Likewise, if the General
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Assembly has expressed an intent to preclude multiple punishment, then no further
analysis is necessary, and improper multiple convictions should be vacated. Id. When
the legislative intent is unclear, however, we must apply the “same elements test” from
Blockburger. Id. at 546-47. Under this test, the first step is to determine whether the
convictions arise from the same act or transaction. Id. at 545. The second step is to
determine whether the elements of the offenses are the same. Id. at 557. If each offense
contains an element that the other offense does not, the statutes do not violate double
jeopardy. Id.
Here, the money laundering statute specifically provides that, “[a] defendant
charged with a violation of one (1) or more offenses within § 39-14-903 may also be
jointly charged, tried and convicted in a single prosecution for committing any related
specified unlawful activity, which shall be separately punished.” T.C.A. § 39-14-904.
We conclude that the legislature intended to permit multiple punishments. Defendant is
not entitled to relief on this issue.
Money laundering statute
Defendant contends that Tennessee Code Annotated section 39-14-903, which
prohibits engaging in a financial transaction to promote the “carrying on” of a specified
illegal activity, is void for vagueness. Specifically, Defendant argues that the phrase
“carrying on” “fails to alert someone as to what constitutes a prohibited action under the
statute.” The State asserts that Defendant has waived consideration of this issue by
failing to raise it in a pretrial motion. We note that the issue was raised in Defendant’s
motion for new trial.
In any event, we conclude that the statute is not unconstitutionally vague. Because
Defendant has challenged the constitutionality of a statute, the general principles of
statutory construction apply. Appellate courts are charged with upholding the
constitutionality of statutes wherever possible. State v. Lyons, 802 S.W.2d 590, 592
(Tenn. 1990). In other words, we are required to indulge every presumption and resolve
every doubt in favor of the constitutionality of the statute when reviewing a statute for a
possible constitutional infirmity. Lyons, 802 S.W.2d at 592.
The language of a penal statute must be clear and concise to give adequate
warning so that individuals might avoid the prohibited conduct. State v. Boyd, 925
S.W.2d 237, 242-43 (Tenn. Crim. App. 1995). A statute is void for vagueness if it is not
“sufficiently precise to put an individual on notice of prohibited activities.” State v.
Thomas, 635 S.W.2d 114, 116 (Tenn. 1982); see also State v. Wilkins, 655 S.W.2d 914,
915 (Tenn. 1983). A criminal statute “shall be construed according to the fair import of
[its] terms” when determining if it is vague. T.C.A. § 39-11-104. “Due process requires
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that a statute provide ‘fair warning’ and prohibits holding an individual criminally liable
for conduct that a person of common intelligence would not have reasonably understood
to be proscribed.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001) (citing Grayned v.
City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)).
This court has previously held that the money laundering statute is sufficiently
precise to put an individual on notice of prohibited activities. State v. Joseph Chi-Choi
Wong, No. M2003-00504-CCA-R3-CD, 2004 WL 1434384, at *13 (Tenn. Crim. App.
June 25, 2004), perm. app. denied (Tenn. Dec. 6, 2004). In that case, the defendant
challenged the statute as vague because, the defendant argued, “by its nature it applies to
every felony under state law” and “makes the use of money under any context of a
knowing violation of any felony a separate and distinct offense” which “makes it
impossible for a person to know what is or what is not a crime with respect to money
laundering.” Id. A panel of this court held that the statute is “not void for vagueness
because it applies to the proceeds of any unlawful activity.” Id. (emphasis in original).
We determine that the phrase “carrying on” is not susceptible to different
interpretations regarding that which the statute actually proscribes. See State v.
Whitehead, 43 S.W.3d 921, 928 (Tenn. Crim. App. 2000). In its order denying
Defendant’s motion for new trial, the trial court concluded that “‘carrying on’ clearly
means the continuation or furtherance of an unlawful activity.” We agree. In his brief on
appeal, Defendant offers no alternative interpretation to the term “carrying on.”
Defendant is not entitled to relief on this issue.
Speedy trial
Defendant contends that the trial court erred by denying his motion to dismiss the
charges against him based on a violation of his right to a speedy trial. The State responds
that the trial court properly denied Defendant’s motion.
“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). 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. 407 U.S. at 530.
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The right to a speedy trial attaches at the time of arrest or indictment, whichever
comes first, and continues until the date of the trial. State v. Vickers, 985 S.W.2d 1, 5
(Tenn. Crim. App. 1997). In this case, Defendant was indicted on August 26, 2010, and
the trial began on April 13, 2015, resulting in a delay of over four and a half years. A
delay of one year or longer will usually trigger an inquiry into a speedy trial violation.
Id.
The second factor, the reason for delay, generally falls into one of four categories:
(1) intentional delay to gain a tactical advantage over the defense or delay designed to
harass the defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to
the fair and effective prosecution of the case; and (4) delay caused, or acquiesced in, by
the defense. Wood, 924 S.W.2d at 346-47. A review of the record shows that the delay
in this case falls squarely into the fourth category.
The record shows that on July 19, 2012, the trial court granted a motion to
withdraw filed by Defendant’s counsel as of that date. On August 24, 2012, new counsel
was appointed. Defendant’s new counsel filed a motion to dismiss the charges based on a
violation of Defendant’s right to a speedy trial. In the motion, new defense counsel
acknowledged that Defendant had already been represented by five attorneys. The trial
court denied the motion to dismiss on October 26, 2012. On December 12, 2012, new
counsel filed a motion to be relieved. On February 8, 2013, the trial court granted the
motion and allowed Defendant to represent himself. On March 22, 2013, the trial court
held a hearing and appointed another attorney to represent Defendant. On April 12,
2013, newly appointed counsel filed a motion to withdraw as counsel, stating that
Defendant had “informed counsel of his intent to represent himself at trial and waive his
right of counsel.” Counsel also filed on behalf of Defendant a motion to waive counsel
and allow Defendant to represent himself. The trial court’s minutes reflect that
Defendant was allowed to proceed pro se.
On July 17, 2013, Defendant filed a pro se motion for speedy trial. Defendant
contended that none of his previous attorneys would honor his request to file a motion for
speedy trial. Defendant’s trial was set to begin on September 23, 2013, and Defendant
requested that the trial be continued and he be appointed new counsel. Defendant was
once again appointed new counsel, and this attorney filed a motion to withdraw on
January 30, 2014. The trial court granted the motion, and counsel was relieved on
February 7, 2014. On March 12, 2014, Defendant filed a pro se motion to dismiss based
on a violation of his right to a speedy trial. The trial court denied Defendant’s motion on
March 14, 2014. On July 28, 2014, Defendant requested that counsel be appointed to
represent him, and the court appointed new counsel. New counsel filed several motions,
including a motion to dismiss, a motion for speedy trial, motions to suppress evidence
seized during the execution of two search warrants, and a motion to suppress Defendant’s
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statement to police. The State filed responses to Defendant’s motions. Following a
hearing, the trial court denied Defendant’s motions by written order on November 19,
2014.
Defendant’s latest attorney also subsequently filed a motion to withdraw and also
moved to recuse the trial judge. The trial court granted counsel’s motion to withdraw and
ordered Defendant “to hire his own attorney.” Also, the trial court granted Defendant’s
motion to recuse itself. On February 4, 2015, a new trial judge was assigned, and on
February 25, 2015, another attorney was appointed to represent Defendant. Thereafter,
Defendant sought an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure, from the trial court’s denial of his motion to dismiss the indictment
due to a violation of Defendant’s right to a speedy trial. Defendant’s application for
permission to appeal was denied based on an insufficient record because Defendant did
not include with his application the motion to dismiss, any response from the State, or a
transcript of the hearing on the motion.
Defendant’s trial was set for April 14, 2015. On that day, Defendant filed a pro se
motion to recuse the second trial judge. Defendant also filed a motion to quash,
contending that the grand jury returned indictments based upon perjured testimony. The
trial court denied both motions, and Defendant proceeded to trial.
In denying Defendant’s last motion to dismiss based on a violation of his right to a
speedy trial, the trial court made the following findings and conclusions:
The Defendant has been incarcerated for over four years after having his
bond revoked when he picked up new charges in this case.
....
On October 26, 2012, this Court denied a previously filed speedy trial
motion filed by the Defendant based on his obstinance as illustrated by
the numerous attorneys he has fired throughout the proceedings. As the
State points out, the Defendant has demanded continuances and new
counsel on at least eight occasions. He also insisted on proceeding pro
se at trial, however, on the morning of trial, the Defendant thought better
of such strategy and again requested appointment of new counsel.
Considering these facts, the Court finds that the entirety of the delay in
this matter has been caused by the Defendant himself.
Regarding the third factor, the record shows that Defendant asserted his right to a
speedy trial in two separate motions. Finally, we must determine whether Defendant was
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prejudiced by the delay, which is the “final and most important factor in the [speedy trial]
analysis.” State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001). Prejudice is to be
assessed in light of the following interests of the accused which the right to a speedy trial
was designed to protect: (1) to prevent undue and oppressive incarceration prior to trial;
(2) to minimize the anxiety and concern that results from being accused of a crime; and
(3) to limit the risk that the defense will be impaired. Id. Our supreme court has stated
that “the most important issue concerning prejudice to the defendant is the impairment of
the ability to prepare a defense.” State v. Berry, 141 S.W.3d 549, 568 (Tenn. 2004)
(citing State v. Baker, 614 S.W.2d 352, 356 (Tenn. 1981)). Defendant makes no claims
regarding how the delay impaired his defense, asserting only that “prejudice in this matter
is apparent because [Defendant] was subjected to over five years of pre-trial
incarceration.” Under the circumstances, we conclude that his incarceration prior to trial
was not so excessively oppressive as to outweigh the other factors. As we explained, the
delays in trial were the result of numerous requests by Defendant to be appointed new
counsel. In balancing the factors, we conclude that Defendant’s right to a speedy trial
was not violated. Accordingly, Defendant is not entitled to relief on this issue.
Motions to suppress
Defendant contends that the trial court erred by denying his motion to suppress his
statements to police following his arrest, as well as to suppress the evidence found in the
search of the Elkins Avenue home.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the prevailing party is “entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. We note
that “in evaluating the correctness of a trial court’s ruling on a pretrial motion to
suppress, appellate courts may consider the proof adduced both at the suppression
hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
There are three categories of police-citizen interaction and their corresponding
evidentiary requirements: “(1) full-scale arrest, which must be supported by probable
cause; (2) brief investigatory detention, which must be supported by reasonable suspicion
of criminal activity; and (3) brief police-citizen encounter that requires no objective
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justification.” State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citations omitted).
The parties do not dispute that a full-scale arrest is at issue in this case.
Defendant contends that the trial court should have suppressed any statements he
made as a result of his warrantless arrest. Defendant argues that he was illegally arrested
because there was no proof that he was on the property of the Elkins Avenue home at the
time the search warrant was executed. In denying Defendant’s motion to suppress, the
trial court made findings of fact that Defendant was on the property to be searched and
therefore subject to arrest. The State argues that police had probable cause to arrest
Defendant regardless of his presence on or off the property.
Probable cause for an arrest without a warrant exists if, at the time of the arrest,
the facts and circumstances within the knowledge of the officers, and of which they had
reasonably trustworthy information, are “sufficient to warrant a prudent man in believing
that the [defendant] had committed or was committing an offense.” State v. Bridges, 963
S.W.2d 487 (Tenn. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Officers were aware of Defendants’ two controlled drug buys. Defendant was
named in the search warrant. Detective Cothran listened to an audio recording of one of
the controlled buys, in which Defendant told the informant that he was expecting a
shipment of marijuana to arrive at the Elkins Avenue home. We conclude that
Defendant’s arrest was supported by probable cause.
Defendant also argues that the statements of the informant failed to support
probable cause for the issuance of the search warrant because there was no showing of
the reliability of the informant. In denying Defendant’s motion to suppress, the trial court
ruled:
Extensive surveillance was conducted in this matter, which led
detectives to seek a search warrant. Four controlled drug transactions
were conducted by detectives using the confidential informant. On each
occasion, the informant was searched and fitted with a hidden audio
transmitter which was monitored by the detectives, who also maintained
surveillance and retrieved the contraband given to the informant by the
Defendant.
At the time of the suppression hearing in the present case, a supporting affidavit
that included information supplied by an unknown informant or a criminal informant was
required to show (1) the informant’s basis of knowledge; and (2) the veracity of the
informant or the reliability of the informant’s information. See State v. Jacumin, 778
S.W.2d 430, 436 (Tenn. 1989) (citing Spinelli v. U.S., 393 U.S. 410, 415-16 (1969);
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Aguilar v. Texas, 378 U.S. 108, 114 (1964)). The Tennessee Supreme Court has since
adopted the totality-of-the-circumstances test, which requires the issuing magistrate to
“‘make a practical, commonsense decision whether, given all the circumstances set forth
in the affidavit before him, including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” State v. Tuttle, 515 S.W.3d 282, 303-04
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quotations omitted).
Under the totality-of-the-circumstances analysis, the informant’s basis of knowledge and
veracity or credibility are no longer separate and independent considerations but are
“‘closely intertwined issues that may usefully illuminate the commonsense, practical
question [of] whether there is probable cause to believe that contraband or evidence is
located in a particular place.’” Id. at 308 (quoting Gates, 462 U.S. at 230) (internal
quotations omitted). Barebones affidavits including only conclusory statements remain
insufficient, and independent police corroboration of the information provided by the
informant continues to add value to the affidavit. Id. at 307-08.
In the present case, the affidavit states that the informant placed phone calls to
Defendant in the presence of officers and arranged to meet with Defendant to purchase
marijuana. Officers observed Defendant arrive at the location the informant and
Defendant had arranged to meet. Officers listened to the controlled drug buys via
electronic surveillance. Following the controlled drug buys, officers took possession of
several pounds of marijuana. Considering the totality of the circumstances, we conclude
that the information in the affidavit is sufficient to establish probable cause for issuance
of the search warrants. Accordingly, the trial court was correct in denying the
Defendant’s motion to suppress. Defendant is not entitled to relief on this issue.
Right to assistance of counsel
Defendant contends that the trial court erred by finding that Defendant implicitly
waived his right to the assistance of counsel at trial and at sentencing. The State responds
that Defendant expressly waived his right to counsel.
The standard of review for a defendant’s exercise of the right of self-
representation and the concurrent waiver of the right to counsel is a mixed question of
law and fact. State v. Hester, 324 S.W.3d 1, 29 (Tenn. 2010). Our review is de novo
with a presumption of correctness as to the trial court’s factual findings. Id. at 29-30.
“An error in denying the exercise of the right to self-representation is a structural
constitutional error not amenable to harmless error review and requires automatic
reversal when it occurs.” Id. (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.
2008)).
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It has long been established that a criminal defendant has a constitutional right to
proceed without counsel “when he voluntarily and intelligently elects to do so.” Faretta
v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State
v. Small, 988 S.W.2d 671, 673 (Tenn. 1999). There are three essential prerequisites that
must be present before the right of self-representation becomes absolute: (1) the right
must be asserted in a timely manner; (2) the request must be clear and unequivocal; and
(3) the defendant must knowingly and intelligently waive the right to counsel. Id. at 30-
31. A defendant need not have knowledge of the law and the legal system equivalent to
that of an attorney to knowingly and intelligently waive his right to counsel. State v.
Goodwin, 909 S.W.2d 35, 40 (Tenn. Crim. App. 1995) (citing Faretta, 422 U.S. at 835,
95 S. Ct. 2525). The record need only show that the defendant made his decision
knowing the disadvantages and the dangers of self-representation. Id.
“The accused’s lack of expertise or professional capabilities is not a factor to be
considered by the trial court when an accused invokes his constitutional right to self-
representation.” State v. Herrod, 754 S.W.2d 627, 630 (Tenn. Crim. App. 1988) (citing
Faretta, 422 U.S. at 836, 95 S. Ct. 2525. In Faretta, the Court said that “a defendant
need not himself have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation.” 422 U.S. at 835, 95 S. Ct. 2525.
When a defendant asks to proceed pro se, the court must conduct an intensive
inquiry as to his ability to represent himself. See State v. Northington, 667 S.W.2d 57, 61
(Tenn. 1984). To be valid, a defendant’s waiver of his right to counsel “must be made
with an apprehension of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct.
316, 92 L. Ed 309 (1948). “A judge can make certain that an accused’s professed waiver
of counsel is understandingly and wisely made only from a penetrating and
comprehensive examination of all the circumstances under which such a plea is
tendered.” Id.
Tennessee Rule of Criminal Procedure 44(b)(1) specifically provides:
Before accepting a waiver of counsel, the court shall: (A) advise the
accused in open court of the right to the aid of counsel at every stage of
the proceedings; and (B) determine whether there has been a competent
and intelligent waiver of such right by inquiring into the background,
experience, and conduct of the accused, and other appropriate matters.
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Additionally, the waiver of counsel must be submitted in writing and made a part
of the record. Tenn. R. Crim. P. 44(b)(2), (3).
In addition to affirmatively waiving the right to counsel, a defendant can implicitly
waive or forfeit the right to counsel. See State v. Carruthers, 35 S.W.3d 516, 547 (Tenn.
2000); see also State v. Holmes, 302 S.W.3d 831, 840 (Tenn. 2010). Our supreme court
has held that “an indigent criminal defendant may implicitly waive or forfeit the right to
counsel by utilizing that right to manipulate, delay, or disrupt trial proceedings.”
Carruthers, 35 S.W.3d at 549. “[A]n implicit waiver may appropriately be found, where
. . . the record reflects that the trial court advises the defendant the right to counsel will be
lost if the misconduct persists and generally explains the risks associated with self-
representation.” Id. Thus, “compared to an affirmative waiver expressed through words,
an implicit waiver is presumed from the defendant’s conduct after he has been made
aware that his continued misbehavior will result in the dangers and disadvantages of
proceeding pro se.” Holmes, 302 S.W.3d at 840.
The record shows that the trial court provided Defendant with a written colloquy,
advising him of his right to counsel, and Defendant refused to sign the form. On April 9,
2015, one week before the start of Defendant’s trial, the trial court held a hearing and
provided Defendant with a form containing the required colloquy regarding self-
representation. Defendant’s counsel informed the court that Defendant “didn’t look at
it.” The trial court asked Defendant, “[w]hy are you refusing to cooperate with [defense
counsel]?” Defendant replied, “[b]ecause he told me off the rip [sic] he’s not filing no
motions on my behalf, and that’s what ever[y] lawyer, how many lawyers, twelve
lawyers, has told me the whole time.” Defendant then told the trial court that he was
going to represent himself. The trial court stated, “[w]ell, you need to fill out the form
that was attempted to be presented to you by [defense counsel], then we’ll get back to it
after that.” Defendant then requested copies “of every motion that’s been filed on [his]
behalf.” The trial court responded, “[s]ure.” After some discussion between the State
and the trial court regarding redactions in Defendant’s statement, Defendant told the trial
court, “I don’t want to sign anything.” The trial court stated,
Well, for the record, the Court will note that [Defendant] has had the
benefit of I believe twelve different attorneys, maybe thirteen with
[current defense counsel], and he’s refused to basically cooperate with
all of them, as they are continuing to have to file motions to withdraw
because of conflict created by [Defendant].
Following the hearing, the trial court entered a written order stating that Defendant
had been provided a “Colloquy for Waiver of Counsel packet that posed a lengthy series
of questions to [Defendant] as a means of assuring that he is fully informed of the rights
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he is foregoing and the risks associated with self-representation in a criminal case” and
that Defendant had “refused to fill out or sign the colloquy under oath.”
On the day of jury selection, the trial court revisited the issue. The following
exchange occurred:
THE COURT: Let me get a few things out of the way.
[DEFENDANT]: Okay.
THE COURT: Also, I want to make sure that it is your personal
decision this morning that you want to proceed to trial in representing
yourself?
[DEFENDANT]: Yes, sir.
THE COURT: And I want to make sure that it’s your personal decision
and you want to proceed to trial representing yourself without the benefit
of having elbow counsel there for legal advice, in the event that you
want legal advice?
[DEFENDANT]: Yes, sir.
After the jury returned its verdict, the trial court asked Defendant if he wanted
counsel appointed to represent him for sentencing. Defendant responded, “I just want to
remain silent.” The trial court stated, “[w]ell, since you have previously waived your
attorney, I’m going to place the burden on you that if you want an attorney, you will have
to be the one that requests it, otherwise, the waiver remains in effect, and you will
continue to represent yourself pro se.” At the conclusion of the sentencing hearing, the
trial court again asked Defendant, “do you wish the Court to appoint you an attorney to
represent you on your motion for new trial and/or your appeal?” Defendant replied,
“[y]es.”
As set out earlier in this opinion, Defendant was repeatedly afforded the
opportunity to hire counsel or have one appointed to represent him. This is not a case of
implicit waiver. There is nothing in the record to suggest that the trial court warned
Defendant that his misbehavior could result in waiver of counsel. The trial court
provided Defendant with a written waiver, and Defendant refused to sign the form. In
State v. Rashunus B. Pearsons, a panel of this court held that the record did not establish
that Defendant waived his right to counsel because the record did not contain a written
waiver by Defendant as explicitly required by Tennessee Rule of Criminal Procedure
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44(b)(2). No. 2017-01488-CCA-R3, 2018 WL 4026758, at *8 (Tenn. Crim. App. Aug.
22, 2018). In that case, however, the panel noted that in addition to the lack of a written
waiver in the appellate record, there was no indication in the record that Defendant was
offered a written waiver to sign or refused to sign a written waiver when offered. Here,
Defendant was offered a written waiver and refused to sign. Defendant cannot benefit in
this case from his refusal to sign the written waiver. The record is clear that he
knowingly waived representation by counsel, that he refused the trial court’s offer to have
elbow counsel, and that he stubbornly refused to sign the waiver. Defendant got what he
requested. He knew from prior experience that he could request counsel if he desired to
do so, even after expressing a desire to proceed pro se.
We conclude that the trial court substantially complied with Rule 44. Despite
Defendant’s repeated requests to represent himself, the trial court offered the assistance
of counsel to Defendant at every stage of the proceeding. Defendant is not entitled to
relief on this issue.
Consecutive sentencing
Defendant contends that the trial court erred by ordering partial consecutive
sentencing. Specifically, Defendant asserts that the trial court’s imposition of
consecutive sentences was improper because the trial court failed to make the requisite
findings of fact under State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). It is well-
settled law that such findings are required only when a trial court orders consecutive
sentencing based on the “dangerous offender” statutory factor. The State responds that
the trial court did not find Defendant to be a dangerous offender. We agree with the
State.
When the record establishes that the sentence imposed by the trial court was
within the appropriate range and reflects a “proper application of the purposes and
principles of our Sentencing Act,” this court reviews the trial court’s sentencing decision
under an abuse of discretion standard with a presumption of reasonableness. State v.
Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The trial court must state on the record the
factors it considered and the reasons for the sentence imposed. T.C.A. § 40-35-210(e);
Bise, 380 S.W.3d at 706. The party challenging the sentence on appeal bears the burden
of establishing that the sentence was improper. T.C.A. § 40-35-401, Sentencing Comm’n
Cmts.
In State v. Pollard, 432 S.W.3d 851 (Tenn. 2013), the Tennessee Supreme Court
expanded its holding in Bise to also apply to decisions by trial courts regarding
consecutive sentencing. Id. at 859. A trial court is permitted to impose consecutive
sentences when it provides reasons on the record that establish one of the seven factors
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enumerated in Tennessee Code Annotated section 40-35-115(b). This court must give
“deference to the trial court’s exercise of its discretionary authority to impose consecutive
sentences if it has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b).” Id. at 861. “Any
one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for the
imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735
(Tenn. 2013)).
Defendant is correct that when a trial court relies on Tennessee Code Annotated
section 40-35-115(b)(4) to impose consecutive sentencing, “the record must also
establish that the aggregate sentence reasonably relates to the severity of the offenses and
that the total sentence is necessary for the protection of the public from further crimes by
the defendant.” See Wilkerson, 905 S.W.2d at 938. However, contrary to Defendant’s
assertion, the trial court did not rely on this factor to impose consecutive sentencing.
The record reflects that the trial court properly considered the purposes and
principles of the Sentencing Act and stated its reasons for imposing consecutive
sentencing on the record. At the conclusion of the sentencing hearing, the trial court
found:
There simply just isn’t a lot of information for the Court to consider,
other than the fact that [Defendant] does have an extensive criminal
history and at least for the last twelve years, if not longer, at least the last
twelve years, his primary source of income appears, from the record
before this Court, to have been through drug activities, the sale of drugs,
whether it be cocaine or marijuana, therefore the Court finds that the
defendant is a professional criminal who has knowingly devoted much of
his adult life to criminal acts as a major source of livelihood, and further
that his record of criminal activity is extensive, even though he hasn’t
had any felony convictions in the twenty-first century, the terms of
consecutive sentencing addresses criminal activity, not just criminal
convictions. It appears, at least since 2002, he’s been heavily involved
in criminal activity of drug-dealing, based on the evidence that is before
[the] Court, therefore the Court finds that there certainly is grounds for
consecutive sentencing . . . .
The trial court applied two of the statutory factors in imposing partially
consecutive sentences. The trial court found that the Defendant “is a professional
criminal who has knowingly devoted the defendant’s life to criminal acts as a major
source of livelihood.” T.C.A. § 40-35-115(b)(1). The trial court also found that
Defendant “is an offender whose record of criminal activity is extensive.” T.C.A. § 40-
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35-115(b)(2). The evidence does not preponderate against the trial court’s findings. We
conclude that the trial court did not abuse its discretion by imposing partial consecutive
sentencing. Defendant is not entitled to relief on this issue.
Excessive fines
Defendant also contends that the fines imposed by the trial court are excessive.
The jury imposed an aggregate fine of $125,000. In denying Defendant’s motion for new
trial, the court held that “based on the factors already addressed at the sentencing
[hearing] and weighing those factors against Defendant’s future ability to pay, the court
finds that fines are necessary because of the nature of the offenses (illegal conduct for
financial gain in lieu of lawful employment), and future deterrence because of the
Defendant’s lengthy criminal history.” The trial court reduced the fines to $40,000.
The United States Constitution and the Tennessee Constitution prohibit excessive
fines. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”); Tenn. Const. art. I, § 16 (“That
excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”). Moreover, any fine over $50 must be assessed by a jury. Tenn.
Const. art. VI, § 14 (“No fine shall be laid on any citizen of this State that shall exceed
fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at
the time they find the fact, if they think the fine should be more than fifty dollars.”).
The imposition of fines is viewed as a portion of a defendant’s sentence, and the
standard of review is abuse of discretion. See State v. Bryant, 805 S.W.2d 762, 727
(Tenn. 1991); see also Bise, 380 S.W.3d at 707; State v. Anthony Xen Maples, No.
E2013-00961-CCA-R3-CD, 2014 WL 1056671, at *5 (Tenn. Crim. App. Mar. 18, 2014),
no perm. app. filed. The amount of any fine should be based upon the principles of
sentencing, including “prior offenses, potential for rehabilitation, mitigating and
aggravating circumstances, and other matters relevant to an appropriate sentence.”
Bryant, 805 S.W.2d at 765-66. “A defendant’s ability to pay is a factor in the
establishment of fines.” State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App.
1996); see T.C.A. § 40-35-207(a)(7) (2014) (requiring upon the trial court’s request that
the presentence report include information to “assist the court in imposing a fine”).
“[A]lthough the defendant’s ability to pay a fine is a factor, it is not necessarily a
controlling one.” State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993).
Furthermore, “a significant fine is not automatically precluded just because it works a
substantial hardship on a defendant – it may be punitive in the same fashion incarceration
may be punitive.” Id.
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The presentence report reflects that Defendant refused to cooperate or provide any
information for the presentence report. Consequently, the report contains no information
regarding Defendant’s ability to pay. The record reflects that the trial court considered
Defendant’s extensive criminal history and his low potential for rehabilitation. Under
these circumstances, we conclude that the trial court did not abuse its discretion by
imposing an aggregate fine of $40,000. Defendant is not entitled to relief on this issue.
CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
____________________________________________
THOMAS T. WOODALL, JUDGE
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