State of Tennessee v. Joseph Antonia Hough

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 22, 2002 Session
STATE OF TENNESSEE v. JOSEPH ANTONIO HOUGH
Direct Appeal from the Criminal Court for Hamblen County
No. 98-CR-113 Kindall Lawson, Judge
No. E2000-02728-CCA-R3-CD Filed July 11, 2002
The appellant, Joseph Antonio Hough, was convicted of two counts of delivering cocaine and was
sentenced as a Range II offender to a total effective sentence of twenty-three years incarceration in
the Tennessee Department of Correction. On appeal, the appellant raises the following issues for
our review: (1) whether the trial court committed legal error by allowing the appellant to represent
himself, and (2) whether the trial court erred in sentencing the appellant. Upon review of the record
and the parties’ briefs, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.
Joseph Antonio Hough (at trial), Mountain City, Tennessee, Pro Se, and Gerald L. Gulley, Jr. (on
appeal), Knoxville, Tennessee, for the appellant, Joseph Hough.
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
C. Berkeley Bell, District Attorney General; and Chris Scruggs, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Factual Background
The Hamblen County Grand Jury charged the appellant by presentment with one
count of delivering .5 grams or less of cocaine and one count of delivering .5 grams or more of
cocaine in violation of Tenn. Code Ann. § 39-17-417(c) (1997). The trial court appointed a member
of the local public defender’s office to represent the appellant. Some months before trial, the
appellant appeared before Judge Ben K. Wexler and requested that he be allowed to proceed pro se.
Although the hearing before Judge Wexler is not a part of the record on appeal, it is apparent from
the record that the court granted the appellant’s motion and appointed the public defender as “elbow
counsel.” The court also ordered a competency evaluation. The record contains copies of both of
the evaluation letters. On April 6, 1999, mental health professionals from the Middle Tennessee
Mental Health Institute (MTMHI) found the appellant competent to stand trial. Furthermore, on
February 29, 2000, the MTMHI clinical staff concluded that “[the appellant] does have the ability
to participate in and understand the legal consequences of his decisions to represent himself pro se
and the effects of a conviction on his liberty.”
On the morning of trial, Judge Kindall Lawson, who had later been assigned to hear
the case, began by noting that the appellant had chosen to proceed pro se and then asked the
appellant to confirm this arrangement. The appellant responded that the public defender’s office was
not competent to represent him, and he preferred to represent himself rather than be represented by
members of the public defender’s office. The trial court apprised the appellant that he was facing
charges of delivery of cocaine, and the appellant acknowledged that he was aware of the charges he
was facing. The appellant further recognized that he had the right to be represented by an attorney.
The trial court advised the appellant that, in order to proceed pro se, the appellant would need to
know how to subpoena the necessary witnesses and present his case. The appellant informed the
court that he intended to present an entrapment defense and a necessity defense at trial and that the
public defender’s office refused to present such defenses. The trial court informed the appellant that
the entrapment defense was “complicated,” explaining that “[i]n fact, you might even have to say
that you did it but that you were entrapped into doing it.” The appellant stated that he understood
the defense and wished to pursue it; however, the public defender expressed to the court his belief
that the proof did not support an entrapment defense. The trial court initially denied the appellant
the right to represent himself. However, following further discussion with the appellant and the
public defender concerning their conflict regarding the defenses to be presented at trial, the trial court
agreed to allow the appellant to proceed pro se.
In allowing the appellant to represent himself, the trial court warned the appellant:
If you are not going to cooperate with the public defender in any way,
and you insist that they have some sort of conflict, and you, therefore,
apparently chose to present your case, you’re going to have that
choice. I’m going to let you do it if you want to, but I’m going to
hold you to the same rules that I would the best lawyer in town. I’m
not going to let you ramble on with irrelevant things, and ask
irrelevant questions, and do things that make no sense. We’re going
to try the case and we’re going to do it by the rules. And if you don’t
know the rules, then that’s going to be a problem for you.
The trial court further admonished the appellant that he would be required to know the rules of
evidence and “they’re not simple.” The appellant informed the trial court that “I’ve read the rules.”
The trial court also asked the appellant if he had ever conducted a jury trial and the appellant
responded that he had not, but he had “been in two” trials previously. He further responded that he
had “read up on” how to voir dire the jury. The trial court retorted, “You read on it. Sir, it may be
kind of like heart surgery; I could read several books but I’m not too sure I could do it. All I can do
is to tell you that I think you’re wading in deep water here.” The appellant advised the court that “I
know we get eight premataries.” After some discussion, the court discerned that the appellant was
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referring to peremptory challenges. The appellant again insisted that he be allowed to present his
own defense and told the court that he wished to do so dressed in his prison attire as “part of my
defense.” The trial court informed the appellant that the court was “not too sure you can fly with
[the necessity defense,]” once again unsuccessfully cautioned the appellant against representing
himself, and proclaimed that the trial would start on schedule. As a precautionary matter, Judge
Lawson, like Judge Wexler, appointed the public defender, who had averred that he was prepared
to go to trial, as standby counsel for the appellant.
At trial, the State presented the testimony of Sergeant Dwayne Collins of the
Morristown Police Department. Sergeant Collins stated that, on July 29, 1997, he was working as
a member of the Third Judicial District Drug Task Force. The task force was then employing the
assistance of an informant, Terri Seabrook. Sergeant Collins noted that Seabrook was a former
Tennessee State Trooper. He acknowledged that Seabrook was paid $100 in compensation for each
transaction. On the day of the first offense, the police searched Seabrook’s person and her vehicle
and gave her money to make a controlled drug buy. Seabrook proceeded to the Ebony Outdoorsman
Club and spoke with “Little Johnny,” whom Sergeant Collins identified as the appellant. After
leaving the club, the appellant accompanied Seabrook to her residence and sold her ten “rocks” of
crack cocaine for $160. Sergeant Collins further testified that, on October 1, 1997, after the police
once again searched her person and her vehicle, Seabrook returned to the Ebony Outdoorsman Club.
Unable to find someone from whom to purchase drugs, Seabrook returned to her residence.
However, shortly after her return, the appellant appeared at her home. The appellant then sold
Seabrook fourteen “rocks” of crack cocaine for $200.
The State next presented the testimony of David Holloway, a forensic drug chemist
with the Tennessee Bureau of Investigation (TBI) crime laboratory. Holloway testified that the
substance recovered from the July sale was .4 grams of cocaine base, otherwise known as crack
cocaine. Holloway identified the substance bought in October as .9 grams of cocaine base.
Finally, the State presented the testimony of Seabrook. Seabrook explained that she
was working as a cooperating individual with the Drug Task Force, and, on July 29, 1997, the police
searched her and her car before she went to the Ebony Outdoorsman Club. She went to the club
looking for someone from whom she could buy drugs. Therein, she encountered “Little Johnny,”
whom she identified as the appellant, and drove him to her house. At her residence, the appellant
gave her ten “rocks” of crack cocaine in exchange for $160. On October 1, 1997, she returned to the
club but was unable to find anyone to sell her drugs. She returned to her home where, shortly
thereafter, the appellant arrived and sold her fourteen “rocks” of crack cocaine for $200.
The appellant testified in his own behalf, claiming a defense of entrapment and
necessity. He admitted that he had sold the drugs to Seabrook on both occasions. However, he
argued to the jury that he was entrapped by the police into selling drugs because Seabrook was a
former state trooper. Additionally, the appellant attempted to convince the jury that he was forced
to sell the drugs to support his newborn child.
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At the conclusion of the proof, the jury convicted the appellant of one count of
delivering .5 grams or less of cocaine, a Class C felony, and one count of delivering .5 grams or
more of cocaine, a Class B felony. The trial court sentenced the appellant as a Range II offender to
eight years incarceration for the Class C felony conviction and to fifteen years incarceration for the
Class B felony conviction and ordered that the sentences be served consecutively. On appeal, the
appellant argues that his waiver of the right to counsel was neither voluntary nor knowing and that
the trial court erred in sentencing him.
II. Analysis
A. Self-Representation
The United States Constitution and the Tennessee Constitution both guarantee an
indigent defendant the right to be represented by appointed counsel during a criminal trial. See U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. Likewise, “[j]ust as there is the right to assistance of
counsel at trial, there is the alternative right to self-representation.” State v. Gillespie, 898 S.W.2d
738, 740 (Tenn. Crim. App. 1994); see also Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct.
2525, 2533 (1975) (“The Sixth Amendment does not provide merely that a defense shall be made
for the accused; it grants to the accused personally the right to make his defense . . . for it is he who
suffers the consequences if the defense fails.”); State v. Small, 988 S.W.2d 671, 673 (Tenn. 1999).
“The right to represent oneself, however, should be granted only after a determination by the trial
court that the defendant is both knowingly and intelligently waiving the valuable right to assistance
of counsel.” Small, 988 S.W.2d 673.
There are three essential prerequisites to activating the right of self-representation.
First, the right to proceed pro se must be timely asserted. State v. Herrod, 754 S.W.2d 627, 629
(Tenn. Crim. App. 1988). Second, the accused’s request to proceed pro se must be clearly and
unequivocally made. Id. at 630. Third, the “accused must knowingly and intelligently waive the
right to the assistance of counsel.” Id. Additionally, we note that “Rule 44(a) of the Tennessee
Rules of Criminal Procedure provides that indigent defendants should execute a written waiver
before being allowed to proceed pro se.”1 State v. Mohamed F. Ali, Nos. 03C01-9802-CR-00065
and 03C01-9809-CR-00310, 1999 Tenn. Crim. App. LEXIS 871, at *6 (Knoxville, Aug. 24, 1999).
The appellant’s sole complaint on this issue is that his waiver of the right to counsel was neither
knowing nor voluntary.
1
Specifically, T enn. R . Crim. P. 4 4(a) pro vides:
Every indigent defendant shall be entitled to have counsel assigned to represent him
in all matters necessary to his defense and at every stage of the proceedings, unless
he executes a written waiver. Before accepting such waiver the court shall first
advise the accused in open court of his right to the aid of counsel in every stage of
the proceedings. The court shall, at the same time, 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 such other matters as the
court may deem appro priate. Any waiver shall be spread upon the minutes of the
court and made a part of the record of the cause.
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We first observe that the record before us contains no explicit written waiver of the
right to counsel. See Tenn. R. Crim. P. 44(a). However, we again note that the hearing before Judge
Wexler is not part of the record. We caution that “[i]t is the [appellant’s] duty to have prepared an
adequate record in order to allow a meaningful review on appeal.” State v. Goodwin, 909 S.W.2d
35, 43 (Tenn. Crim. App. 1995). Regardless, the appellant does not complain about the lack of
written waiver. Moreover, it is clear from the multitude of pro se motions in the record, including
two motions to proceed pro se, that the appellant clearly sought to represent himself at trial without
the assistance of counsel. This court has previously held that such proof satisfies the requirement
for a written waiver of the assistance of counsel. See Goodwin, 909 S.W.2d at 39.
Typically, a motion to proceed pro se must be made prior to trial in order to be
considered timely. State v. Northington, 667 S.W.2d 57, 62 (Tenn. 1984); see also State v. Mark
S. Bodine, No. 03C01-9111-CR-00368, 1994 Tenn. Crim. App. LEXIS 174, at *3 (Knoxville, Mar.
25, 1994). The record indicates that the appellant made a motion to proceed pro se months before
trial. Notably, the appellant began submitting pro se motions to the court as early as August 19,
1999, and, on March 15, 2000, submitted a “Motion to dismiss Attorney/Proceed Pro-Se.” On the
day of trial, the trial court simply reaffirmed the appellant’s desire to proceed pro se. We find that
the evidence is sufficient to conclude that the appellant timely moved to proceed pro se.
Next, we examine whether the appellant’s request to proceed pro se was clear and
unequivocal. The appellant insisted numerous times prior to and on the day of trial that he wished
to represent himself. Although the appellant remarked that “I’d rather do it myself if [the public
defender] got to do it. I don’t trust them,” our supreme court has advised that
[t]he right of an accused to assistance of counsel, however, does not
include the right to appointment of counsel of choice, or to special
rapport, confidence, or even a meaningful relationship with appointed
counsel. The essential aim of the Sixth Amendment is to guarantee
an effective advocate, not counsel preferred by the defendant.
State v. Carruthers, 35 S.W.3d 516, 546 (Tenn. 2000), cert. denied, 533 U.S. 953, 121 S. Ct. 2600(2001) (citations omitted); see also State v. Timothy M. Reynolds, No. M1998-00059-CCA-R3-CD,
2000 Tenn. Crim. App. LEXIS 15, at *14 n. 2 (Nashville, Jan. 7, 2000) (stating that “[a] defendant
does not have the right to appointed counsel of his choice”). The trial court repeatedly advised the
appellant that the public defender’s office could adequately represent the appellant. In response, the
appellant adamantly insisted that he desired to “present my evidence,” and maintained that “I can
do my case.” The appellant again asserted that he wanted to be allowed to represent himself. We
conclude that the appellant’s insistence on self-representation was clear and unequivocal.
Finally, we must determine whether the appellant knowingly and intelligently waived
his right to counsel. In order to determine the knowing nature of the appellant’s waiver, our courts
have suggested that trial courts follow the guidelines contained in 1 Bench Book for United States
District Judges 1.02-2 to -5 (3d ed. 1986), also contained in the appendix to United States v.
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McDowell, 814 F.2d 245, 251-52 (6th Cir. 1987). Herrod, 754 S.W.2d at 630. Additionally, the
United States Supreme Court has instructed:
[A] judge must investigate as long and as thoroughly as the
circumstances of the case before him demand. The fact that an
accused may tell him that he is informed of his right to counsel and
desires to waive this right does not automatically end the judge’s
responsibility. To be valid such waiver 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. 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.
Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 323 (1948).
While the instant court did not mechanically ask all of the questions suggested, we
conclude that the court substantially complied with the suggested format. See Goodwin, 909 S.W.2d
at 41-42. The trial court warned the appellant of the dangers of self-representation, particularly
because the appellant had a tendency to seem “disorganized.” See State v. Vincent Hatch, No.
W2000-01005-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 849, at *16 (Jackson, Oct. 19, 2001).
The court further warned the appellant that he would need to be familiar with the rules of evidence,
the voir dire procedure, and the subpoena process. The court also cautioned the appellant that he
would be held to the same standard as “the best lawyer in town.” The appellant asserted that he had
“read up on” the rules of evidence and was familiar with other court procedures.2 The court inquired
as to whether the appellant had previously represented himself in a jury trial. The appellant denied
previous self-representation, but advised that he had “been in two” trials previously. The appellant
also recognized that he could be sentenced as a Range II offender and that he was facing charges of
the delivery of drugs to Seabrook. See Ali, Nos. 03C01-9802-CR-00065 and 03C01-9809-CR-
00310, 1999 Tenn. Crim. App. LEXIS 871, at *11. Additionally, the trial court and the appellant
discussed potential defenses and lesser-included offenses. Nevertheless, the appellant repeatedly
maintained, despite the trial court’s advice to submit to the representation of counsel, that he wished
to represent himself and told the court, “I can do my case.” See State v. Simmie Black, No. 02C01-
9803-CR-00081, 1999 Tenn. Crim. App. LEXIS 453, at *14 (Jackson, May 7, 1999). Furthermore,
the trial court required the public defender to remain as standby counsel for the appellant during trial,
although the record is unclear as to whether the appellant ever utilized the attorney’s advice. Id. at
*15; see also Hatch, No. W2000-01005-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 849, at **16-
2
In the app ellant’s “M otion to dismiss Attorn ey/Proceed P ro-Se,” the appellan t states:
The defend ant is 30 years of age and has an college education. The defenda nt is
knowledgable of the procedure and rules of court, in which I have file numerous
motion without an answer or order concerning the motion.
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17. However, during trial the public defender did attempt to clarify certain matters for the trial court.
We also note that the public defender and the appellant both recognized the appellant’s competency
to stand trial, a strong indicator of his competency to waive the right to counsel. See Godinez v.
Moran, 509 U.S. 389, 398, 113 S. Ct. 2680, 2686 (1993). Moreover, the trial court acknowledged
two separate reports from mental health professionals who deemed the appellant competent to stand
trial and competent to proceed pro se. See Clifton D. Wallen v. State, No. E2000-02052-CCA-R3-
PC, 2001 Tenn. Crim. App. LEXIS 540, at *9 (Knoxville, July 25, 2001), perm. to appeal denied,
(Tenn. 2001); State v. Clyde Turner, No. W1999-00797-CCA-R3-CD, 2000 Tenn. Crim. App.
LEXIS 416, at *8 (Jackson, May 24, 2000) (stating that “[t]he standard of competency for waiving
the right to counsel is the same as that for standing trial”). Based upon the foregoing, we conclude
that the appellant knowingly and intelligently waived the right to the assistance of counsel at trial.
B. Sentencing
The appellant also argues that the trial court erred in sentencing him because the court
failed to consider an applicable mitigating factor and the court improperly imposed consecutive
sentencing. 3 As a preliminary matter, we observe that there is no affirmative showing in the record
that the trial court adequately considered the sentencing principles; therefore, we will review the trial
court’s determinations de novo without a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In any event, the burden is on
the appellant to demonstrate the impropriety of his sentence. Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments.
We must consider the following factors in the course of our de novo review: (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 statement by the appellant in his own behalf; and (7)
the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103
(1997), -210 (Supp. 2001); see also Ashby, 823 S.W.2d at 168. A copy of the presentence report,
which was obviously employed by the trial court in sentencing the appellant, is absent from the
record on appeal. The appellant has the duty to prepare a record which conveys a fair, accurate, and
complete account of the events in the trial court regarding the issues underlying his appeal. State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). Because of this omission, the appellant has arguably
waived his issues on appeal concerning sentencing. Tenn. R. App. P. 24(b). However, we choose
to address his concerns based upon the record before us.
Initially, we note that, the presumptive sentence for a Class B or Class C felony is the
minimum sentence in the absence of enhancement or mitigating factors. Tenn. Code Ann. § 40-35-
3
We note that the app ellant, ac ting p ro se at his sentencin g hearing , sugg ested no m itigating factors for the
trial cou rt to conside r.
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210(c) (Supp. 2001). However, if there are enhancement factors but no mitigating factors, the trial
court may set the sentence above the minimum but still within the range. Id. at (d). However, if
there are both enhancement factors and mitigating factors, “the court must start at the minimum
sentence in the range, enhance the sentence within the range as appropriate for the enhancement
factors, then reduce the sentence within the range as appropriate for the mitigating factors.” Id. at
(e). Because the appellant is a Range II offender, the proper range for the appellant’s sentence is
between six to ten years for the Class C felony and between twelve to twenty years for the Class B
felony. Tenn. Code Ann. § 40-35-112(b)(2) and (3) (1997).
In sentencing the appellant, the trial court found the presence of three enhancement
factors. First, the trial court noted that the appellant had a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range. Tenn. Code
Ann. § 40-35-114(1) (1997). The sentencing hearing transcript reflects that the appellant had at least
two prior felony convictions, which established that the appellant is a Range II offender. Tenn. Code
Ann. § 40-35-106(a)(1) and (c) (1997). Seabrook testified at trial that she had bought drugs from
the appellant “for years.” Moreover, the appellant conceded that he has committed more offenses
than the two felony offenses. Specifically, the appellant admitted that he sold drugs as a way of
providing support for his son and his son’s mother. We conclude that application of this
enhancement factor was appropriate.
The trial court also found that the appellant has a previous history of unwillingness
to comply with the conditions of a sentence involving release in the community. Tenn. Code Ann.
§ 40-35-114(8). The appellant conceded at trial and at the sentencing hearing that he previously
failed to complete a “boot camp” program and repeatedly sold drugs while on probation. Moreover,
the appellant admitted that a probation revocation warrant had been previously issued against the
appellant due to a failed drug screen. Accordingly, we conclude that the record sufficiently indicates
that the appellant has violated his probation on more than one occasion.
The trial court also found enhancement factor (13):
The felony was committed while on any of the following forms of
release status if such release is from a prior felony conviction:
(A) Bail, if the defendant is ultimately convicted of such prior felony;
(B) Parole;
(C) Probation;
(D) Work release; or
(E) Any other type of release into the community under the direct or
indirect supervision of the department of correction or local
governmental authority.
Tenn. Code Ann. § 40-35-114(13). The record indicates that the appellant committed the instant
offenses while on probation for a felony offense. Id. at (C). Thus, this enhancement factor was
correctly applied.
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The appellant argues that the trial court should have considered as a mitigating factor
that his conduct neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-
113(1) (1997). This court has previously discouraged the use of this mitigating factor in cases
involving cocaine. See State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997).
However, our supreme court recently refuted the idea of a per se denial of this mitigating factor in
all cases involving cocaine. State v. Ross, 49 S.W.3d 833, 848-49 (Tenn. 2001). Regardless, our
supreme court left open the denial of this mitigating factor depending on the facts in a given case.
Id. at 848. In the instant case, the appellant met with Seabrook on two occasions and sold her crack
cocaine. While the amount sold was not insignificant, we recognize that neither was it particularly
large. See State v. Richard Lynn Norton, No. E1999-00878-CCA-R3-CD, 2000 Tenn. Crim. App.
LEXIS 637, at *23 (Knoxville, Aug. 22, 2000), perm. to appeal denied, (Tenn. 2001). Accordingly,
the trial court should have considered this mitigating factor. Nonetheless, no especial weight need
be given to this mitigation factor. Ross, 49 S.W.3d at 849. Thus, we conclude that, even though the
trial court should have considered this mitigation factor, the length of the appellant’s sentences is
appropriate.
The appellant also contends that the trial court erred in imposing consecutive
sentences. The appellant, relying on Norton, No. E1999-00878-CCA-R3-CD, 2000 Tenn. Crim.
App. LEXIS 637, at *28, argues that the police could have arrested him after the first sale; therefore,
his sentences should run concurrently. Additionally, the appellant contends that “[t]o base
consecutive sentencing on a factor [namely the appellant’s extensive criminal history] that already
is used to increase the time within [the appellant’s] sentencing range to almost the maximum within
the range, was improper and should not have been considered by the trial court.” We disagree with
the appellant’s arguments.
We begin by noting that this court has previously observed that
[t]here is no prohibition in the 1989 Sentencing Act against using the
same facts and circumstances both to enhance sentences under
applicable enhancement factors and to require those sentences to be
served consecutively. In fact, this Court has previously held that
consideration of prior criminal convictions and conduct for both
enhancement and consecutive sentencing purposes is allowed.
State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993) (citing State v. Davis, 825 S.W.2d
109, 113 (Tenn. Crim. App. 1991)); see also State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim.
App. 1994). Accordingly, the trial court did not err by using the appellant’s previous criminal
history to both enhance his sentence and to impose consecutive sentencing.
In addressing the appellant’s remaining argument regarding consecutive sentencing,
we acknowledge that cases such as Norton suggest that ordering consecutive sentences for
convictions resulting from multiple controlled buys may be excessive. Norton, No. E1999-00878-
CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 637, at *27. The facts in the instant case are
distinguishable. The majority of cases addressing this issue have involved situations in which the
number of offenses was three or more. See State v. William Lewis Houston, No. M1999-01430-
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CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 936, at **35-38 (Nashville, Dec. 7, 2000); Norton, No.
E1999-00878-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 637, at *27; State v. John Derrick
Martin, No. 01C01-9502-CR-00043, 1995 Tenn. Crim. App. LEXIS 984, at *14 (Nashville, Dec.
19, 1995); see also State v. Thornton, 10 S.W.3d 229, 244 (Tenn. Crim. App. 1999). In Norton,
Martin, and Houston, supra, this court modified the sentences imposed and instructed the trial court
to order service of a number of the imposed sentences consecutively and the remainder concurrently.
However, in the instant case, there were only two controlled purchases from the appellant. Notably,
the second sale was actively sought by the appellant, not by Seabrook. We conclude that there was
no error in ordering the appellant’s two sentences be served consecutively.
The State, does not address the appellant’s argument concerning consecutive
sentencing for multiple controlled drug buys, and focuses on the facts of the offenses to justify
consecutive sentencing. The State initially argues that
It would appear that the defendant was at some point released on
parole. . . . In 1997, when these offenses were committed, the
defendant’s twelve-year sentence [for possession of .5 grams or more
of cocaine with the intent to sell] had not expired. Thus, it appears
that the defendant committed these offenses while on parole, and
consecutive sentencing is therefore mandatory [pursuant to Tenn. R.
Crim. P. 32(c)(3)(A)].
However, due to the lack of proof in the record that the appellant was on parole, not probation, at
the time of the offenses, we decline to find that the appellant’s consecutive sentences were
mandatory.
Nevertheless, the trial court may impose consecutive sentences if the State proves by
a preponderance of the evidence that the offender meets at least one of the following criteria:
(1) The defendant is a professional criminal who has knowingly
devoted such defendant's life to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant's criminal conduct
has been characterized by a pattern of repetitive or compulsive
behavior with heedless indifference to consequences;
(4) The 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;
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(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant's
undetected sexual activity, the nature and scope of the sexual acts and
the extent of the residual, physical and mental damage to the victim
or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b)(1)-(7) (1997); see, eg., Gray v. State, 538 S.W.2d 391 (Tenn.
1976); State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). In the instant case, the trial court found that
the appellant had an extensive record of criminal activity. We conclude, from the evidence in the
record, that the trial court did not err in so finding. The appellant has a history of several
misdemeanor convictions, and, importantly, has a well-documented history of selling drugs.
Moreover, during trial, the appellant essentially conceded that he committed the instant offenses
while on probation for a previous felony offense. Thus, the appellant falls under two categories for
permissive consecutive sentencing. Tenn. Code Ann. § 40-35-115(2) and (6). Considering the
appellant’s vast history of drug sales, his obvious lack of remorse for the crimes committed, and his
high likelihood of repeated criminal behavior, we conclude that the trial court did not err in imposing
consecutive sentences. See State v. Tracy T. Bostic, Nos. M2000-02941-CCA-R3-CD and M2000-
03220-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 429, at *16 (Nashville, May 13, 2002); State
v. Antonio E. Jenkins, Nos. 01C01-9804-CC-00187 and 01C01-9702-CC-00047, 1999 Tenn. Crim.
App. LEXIS 759, at *8 (Nashville, July 28, 1999).
We also note the appellant’s complaint that the trial court erred in failing to consider
whether “(1) the sentences are necessary in order to protect the public from further misconduct by
the defendant and (2) ‘the terms are reasonably related to the severity of the offenses,’” the so-called
Wilkerson factors. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The appellant fails to
realize that, in State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999), our supreme court clarified that the
Wilkerson factors are “limited to cases involving consecutive sentencing of ‘dangerous offenders.’”
See Tenn. Code Ann. § 40-35-115(4). In the case sub judice, there was no proof that the appellant
is a “dangerous offender”; therefore, we need not address the Wilkerson factors.
III. Conclusion
Based upon the foregoing, we affirm the judgments of the trial court.
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NORMA McGEE OGLE, JUDGE
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