State Of Tennessee v. Matthew Howard Norris

12/17/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Brief September 15, 2020
STATE OF TENNESSEE v. MATTHEW NORRIS
Appeal from the Criminal Court for Putnam County
No. 2017-CR-546, 616, 616A, and 667 Gary McKenzie, Judge
No. M2020-00310-CCA-R3-CD
_____________________________
In this multiple indictment case, the Defendant, Matthew Norris, pleaded guilty to one
count of burglary and two counts of theft over $2,500, in exchange for a total effective
sentence of eight years. The parties agreed to allow the trial court to determine the
manner of service of the sentence. After a hearing, the trial court ordered that the
Defendant serve his sentence in confinement. On appeal, the Defendant contends that the
trial court erred when it denied his request for judicial diversion and his request for an
alternative sentence. After review, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.
Craig P. Fickling, District Public Defender and Allison R. West, Assistant Public
Defender, Cookeville, Tennessee, for the appellant, Matthew Norris.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Beth E. Willis,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from allegations that the Defendant committed multiple thefts
from various storage facilities in 2017. For these offenses, a Putnam County Grand Jury
indicted the Defendant and a co-defendant, in three separate indictments, with one count
of burglary and three counts of theft of property valued over $2,500.1
1
The grand jury returned indictments in six additional cases which were dismissed as part of the plea agreement;
those indictments are not included in the record.
On April 9, 2018, the Defendant pleaded guilty to: one count of theft over $2,500
(case no. 2017-CR-546), for which he received a four-year sentence; burglary (case no.
17-CR-616), for which he received a four-year sentence; and one count of theft over
$2,500 (case no. 2017-CR-667), for which he received a four-year sentence. The parties
agreed that the four-year sentence for burglary would run consecutively to the sentences
in the remaining convictions and that the trial court would determine the manner of
service of the sentences.
B. Sentencing
Although the relevant documents are not included in the record, it appears from
the transcript of the sentencing hearing that the Defendant requested judicial diversion at
the initial sentencing hearing and the trial court denied this request. Because, at the
sentencing hearing, the trial court failed to properly enumerate its considerations when
denying the request, this court remanded the case for a new sentencing hearing. State v.
Matthew Howard Norris, No. M2018-01236-CCA-R3-CD, 2019 WL 2564395, at *1
(Tenn. Crim. App., at Nashville, June 21, 2019). At this second sentencing hearing, the
Defendant requested judicial diversion and also that he be sentenced to an alternative
sentence. The State argued that the Defendant was not eligible for judicial diversion and
asked the trial court to sentence the Defendant to incarceration.
The parties then presented the following evidence at the sentencing hearing:
Sergeant Ronnie Simmons testified that he had contact with the Defendant on March 12,
2018, when Sergeant Simmons stopped the Defendant’s vehicle for the Defendant’s
failure to use a seatbelt. The Defendant could not provide proof of insurance. While the
officer spoke with him, the Defendant was “moving around excessively” inside his
vehicle, which aroused the officer’s suspicions. The Defendant told Sergeant Simmons
that he could search his vehicle; during the search, Sergeant Simmons found a digital
scale inside a pair of gloves in the glove compartment. The Defendant stated that the
scale was used to measure gold coins. Sergeant Simmons continued to search the vehicle
and recovered from the inside of an air vent a baggie containing a “crystal-like”
substance and a glass pipe. The substance later tested positive for methamphetamine.
On cross-examination, Sergeant Simmons stated that the indictment resulting from
the methamphetamine discovery had been dismissed.
Dana Stickler, an employee on the Tennessee Department of Correction, testified
that she prepared the presentence report in this case, which was admitted as an exhibit,
and that she also performed a drug screen on the Defendant in April of 2018, prior to
preparing the report. The test results returned a positive screening for marijuana and
2
oxycodone. Ms. Stickler stated that, in April of 2018, the presentence report indicated
that the Defendant did not have a significant record of criminal convictions. She noted,
however, that the report indicated that the Defendant had numerous offenses for which
charges were dismissed, including thefts and burglaries. About his prior drug history, the
Defendant reported to Ms. Stickler that he had used methamphetamine in 2017 and
marijuana in 2018.
The trial court stated that, as agreed, the Defendant’s sentence would be eight
years. In consideration of the Defendant’s request for judicial diversion, the trial court
addressed the relevant common law factors, beginning with the Defendant’s amenability
to correction. State v. King, 432 S.W.3d 316, 323 (Tenn. 2014). The trial court stated
that in light of the Defendant’s arrest for possessing methamphetamine, as testified to by
Sergeant Simmons, which occurred while the Defendant was released on bond in the
present case, this factor did not weigh in the Defendant’s favor. Addressing the
circumstances of the offense, the trial court stated that this factor weighed against the
Defendant because this case involved multiple offenses of stealing property from
individuals.
The trial court addressed the Defendant’s criminal record and stated that this factor
weighed against the Defendant as well because of the multiple offenses on multiple dates
involved in this plea. The trial court stated that the Defendant’s social history weighed in
his favor. The trial court considered the deterrence value, which it stated weighed against
the Defendant because “the general public as a whole is tired of seeing repeat offenders.”
The trial court indicated that a sentence of probation would fail to deter other repeat
offenders.
The trial court concluded by stating that judicial diversion in the case would not
serve the interests of the accused as well as the public. Accordingly, the trial court
denied the Defendant’s request for judicial diversion.
As for the manner of service of his sentence, the trial court addressed the factors to
be considered when ordering an alternative sentence versus a sentence in confinement.
The trial court stated:
“Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct.” I think that applies.
And I’ll tell you why I think it applies. I think it applies because we have
criminal conduct that is on 2/4/17, 12/31/16, 2/22 of [2017], as well as the
criminal conduct, at first, in April of 2018, we have a possession. He’s
admitted to having marijuana in his system. That’s possession of an illegal
substance. It’s still illegal in Tennessee to possess it and use it.
3
We also have that he is in possession of digital scales, which is the
indication from Mr. Simmons, the trooper, he’s in possession again on
March the 12th of 2018, additional criminal conduct where he has
methamphetamine. And this area has a methamphetamine problem. And it
is of no -- listen, anybody that’s in the court system, that is in this criminal
court system, understands what we’re up against with the
methamphetamine problem. And so I think that he definitely has a long
history of criminal conduct.
We get some understanding and idea that maybe criminal history has
to go ten, twenty years before we say it’s long. I think that most people in
the general public, when you explain all of this to them, they’d say that’s a
long history, and I think he has it.
“Confinement is necessary to avoid depreciating the seriousness of
the offense, or confinement is particularly suited to provide an effective
deterrence to others likely to commit a similar offense.” I agree with that. I
think it applies here. And I think that, that to say that an individual could
break into and steal on three different occasions, break into a non -
habitation and then steal, “D” felony level offenses on different offense
dates, and then [in 2018], he is out committing more criminal offenses, I
think that to say to -- that the public sees that individual get probation, I
think it’s the wrong message that we’re sending.
I understand, again, if they are all one offense date, then maybe
there’s a different argument here. I mean, that’s what diversion is for, and I
think alternative sentencing comes to that. But here we’ve got a history of
criminal conduct, and I think it would depreciate the seriousness of these
type offenses. And they are serious, and the public thinks they’re serious.
“Confinement is suited to provide an effective deterrence.”
Absolutely, it would. We definitely have a problem. Thefts and property
crimes are high. And we’ve got three different crimes over three different
days. I find that applies.
“Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully.”
When I look at that statute, and I look at the way that it reads, it says,
“To implement the purpose of this chapter, the following principles shall
4
apply: Number (1) Sentences involving confinement should be based on the
following considerations: (C) Measures less restrictive than confinement
have frequently or recently been applied unsuccessfully to the defendant.”
There is no definition in this code of measures less restrictive than
confinement, and being released on bond while pending a sentencing
hearing, being released on bond while pending a criminal litigation of a
case, where you’re out on bond and then you recommit an offense in which
you get arrested, and then plead to all of those, those bonds, when an
individual is released, it’s a factor. It’s a factor. We’ve even had [Burgins]
hearings and revoked people’s bonds whenever the preponderance of the
evidence shows that they committed a new offense. So, certainly, release
on bond is a measure less restrictive than confinement.
When I take the plain and ordinary meaning of that language,
“measures less restrictive than confinement,” it would apply, being released
on bond; and we’ve got multiple criminal history, or criminal behavior and
conduct, and so that was applied unsuccessfully to the defendant, which is
why we can consider behavior whenever we’re looking at things like
diversion.
The trial court denied the Defendant’s request for alternative sentencing. It is
from these judgments that the Defendant now appeals.
II. Analysis
On appeal, the Defendant contends that the trial court erred when it denied the
Defendant’s request for judicial diversion and when it denied his request for an
alternative sentence.
A. Judicial Diversion
The Defendant contends that the trial court erred when it denied his application for
judicial diversion. He asserts that the charge related to Sergeant Simmons’s testimony
regarding his April 2018 possession of methamphetamine was dismissed and thus not
indicative of the Defendant’s inability to correct his behavior. He contends that his minor
criminal history is evidence of his amenability to correction. He argues that the trial
court failed to weigh the factors correctly when considering judicial diversion. The State
counters that the trial court properly reviewed the relevant factors and did not abuse its
discretion when it denied the Defendant’s request. We agree with the State.
5
When a defendant is eligible for judicial diversion, a judge has the discretion to
defer proceedings without entering a judgment of guilty. T.C.A. § 40-35-313(a)(1)(A)
(2019). The statute states that a trial court may grant judicial diversion in appropriate
cases. Id. Following a grant of judicial diversion, the defendant is on probation but is not
considered a convicted felon. Id. To be eligible for judicial diversion, a defendant must
be a “qualified defendant” as defined by the Tennessee Code section governing judicial
diversion:
(B)(i) As used in this subsection (a), “qualified defendant” means a
defendant who
(a) Is found guilty of or pleads guilty or nolo contendere to
the offense for which deferral of further proceedings is
sought;
...
(c) Has not previously been convicted of a felony or a Class
A misdemeanor.
T.C.A. § 40-35-313(a)(1)(B)(i) (2019). Eligibility does not automatically entitle the
defendant to judicial diversion. State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).
Once a defendant is deemed eligible for judicial diversion, the trial court must
consider several factors when deciding whether to grant judicial diversion. Due to the
similarities between pre-trial diversion, which is administered by the district attorney
general, and judicial diversion, courts draw heavily from pre-trial diversion law and
examine the same factors:
[A court] should consider the defendant’s criminal record, social history,
mental and physical condition, attitude, behavior since arrest, emotional
stability, current drug usage, past employment, home environment, marital
stability, family responsibility, general reputation and amenability to
correction, as well as the circumstances of the offense, the deterrent effect
of punishment upon other criminal activity, and the likelihood that
[judicial] diversion will serve the ends of justice and best interests of both
the public and the defendant.
State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997).
6
When the trial court “specifically identifies the relevant factors and places on the
record its reasons for granting or denying judicial diversion,” this court will “apply a
presumption of reasonableness and uphold the grant or denial so long as there is any
substantial evidence to support the trial court’s decision.” State v. King, 432 S.W.3d 316,
327 (Tenn. 2014). Our Supreme Court has stated:
Although the trial court is not required to recite all of the Parker [932
S.W.2d 945 (Tenn. Crim. App. 1996)] and Electroplating [990 S.W.2d 211(Tenn. Crim. App. 1998)] factors when justifying its decision on the record
in order to obtain the presumption of reasonableness, the record should
reflect that the trial court considered the Parker and Electroplating factors
in rendering its decision and that it identified the specific factors applicable
to the case before it. Thereafter, the trial court may proceed to solely
address the relevant factors.
Id. Failure to consider the common law factors results in loss of the presumption of
reasonableness, and this court is required to conduct a de novo review or remand to the
trial court for reconsideration. Id.The record in this case demonstrates that the trial court considered the Parker and
Electroplating factors and identified those specifically applicable to this case. The trial
court considered the Defendant’s amenability to correction in light of the fact that, while
the Defendant was released on bond for his theft and burglary offenses, he was arrested
for possession of methamphetamine. The trial court noted several factors, particularly the
Defendant’s lack of criminal history, which weighed in the Defendant’s favor. In
considering all the factors, the trial court concluded that the Defendant’s crimes, the
value of deterrence, and his risk to reoffend if released back into the community
outweighed the factors favoring the grant of judicial diversion.
Our review of the record reveals that there is substantial evidence to support the
trial court’s decision. Over the course of multiple months, the Defendant burglarized
three different people, stealing their property. Thereafter, the Defendant was released
into the community while awaiting adjudication of the charges in this case, during which
time he was arrested for possession of methamphetamine. Based upon this evidence, we
conclude that the trial court did not abuse its discretion when it denied the Defendant
judicial diversion. The Defendant is not entitled to relief.
B. Alternative Sentencing
The Defendant contends that the trial court erred when it denied his request for an
alternative sentence because the factors considered by the trial court weigh in favor of
7
granting the Defendant’s request. He contends that his minor criminal record makes it
clear that confinement is not necessary to protect society. The State responds that the
Defendant has not shown that the trial court abused its discretion when it ordered him to
serve his sentence in confinement. We agree with the State.
As previously stated, “the abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). We also reiterate that the defendant bears “the burden of showing that the
sentence is improper.” Ashby, 823 S.W.2d at 169. A trial court’s decision regarding
probation will only be invalidated if the court “wholly departed from the relevant
statutory considerations in reaching its determination.” State v. Sihapanya, 516 S.W.3d
473, 476 (Tenn. 2014). Under an abuse of discretion standard, an appellate court may not
substitute its judgment for that of the trial court. Id. at 475.
With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:
In recognition that state prison capacities and the funds to build and
maintain them are limited, convicted felons committing the most severe
offenses, possessing criminal histories evincing a clear disregard for the
laws and morals of society, and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving
incarceration.
A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a) (2019). A
defendant is not, however, automatically entitled to probation as a matter of law. The
burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-35-303(b) (2019); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App.
1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet
this burden, the defendant “must demonstrate that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App.1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d 166,
8
168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103(1) (2019). “When considering probation, the trial court should
consider the nature and circumstances of the offense, the defendant’s criminal record, the
defendant’s background and social history, the defendant’s present condition, including
physical and mental condition, the deterrent effect on the defendant, and the best interests
of the defendant and the public.” State v. Brian Allen Cathey, No. E2015-01284-CCA-
R3-CD, 2016 WL 2641766, at *3 (Tenn. Crim. App., at Knoxville, May 6, 2016)
(citations omitted), no perm. app. filed. The court should also consider the defendant’s
truthfulness. State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). The trial court must
also consider the potential or lack of potential for rehabilitation or treatment of the
defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2019).
The trial court considered the statutory factors enumerated in section 40-35-103
and stated that the Defendant’s actions and the circumstances of the three offenses did not
lend themselves to an alternative sentence. The trial court stated that the Defendant had
been given the opportunity to show that his release into the community would be in the
best interest of the public and that he had failed to demonstrate that he was a suitable
candidate for release. The trial court noted that the Defendant did not have a decades-
long history of criminal convictions but that his commission of three offenses in three
months warranted this factor to weigh against granting an alternative sentence. The trial
court stated that the deterrence value of ordering the Defendant to serve his sentence was
an important factor that weighed against the Defendant.
The evidence presented at the sentencing hearing established that the Defendant
committed a drug offense while released on bond and tested positive for marijuana and
prescription pills during a drug screening at his presentence report meeting, also while on
bond. We conclude that this conduct of committing offenses while on bond shows a poor
9
amenability to rehabilitations. State v. Miranda Sexton, No. E2006-01471-CCA-R3-CD,
2007 WL 596415, at *5 (Tenn. Crim. App., at Knoxville, Feb. 27, 2007) (citing State v.
Rickey Hailey, No. 02C01-9705-CR-00198, 1998 WL 240506, at *3 (Tenn. Crim. App.,
at Jackson, May 14, 1998) (affirming incarcerative sentence because defendant
committed other offenses while released on bond, satisfying the factor that measures less
restrictive than confinement have unsuccessfully been applied to the defendant); and
State v. Larry Lenord Frazier, No. M2003-00808-CCA-R3-CD, 2004 WL 49112, at *7
(Tenn. Crim. App., at Nashville, Jan. 8, 2004) (stating the fact that the defendant
reoffended while on bond was “an appropriate consideration” under section 40-35-
103(1)(C) and (5)). Thus, based on this conclusion and the entire record before this
court, we conclude that the Defendant has not established that the trial court abused its
discretion by denying him an alternative sentence. The Defendant is not entitled to relief.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgments.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
10