State of Tennessee v. Kenneth Dunlap

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 12, 2011

STATE OF TENNESSEE v. KENNETH DUNLAP

Appeal from the Circuit Court for Madison County

Nos. 10-128, 10-137, 10-138 Donald H. Allen, Judge

No. W2010-01619-CCA-R3-CD - Filed May 25, 2011

The defendant entered pleas of guilty in the Madison County Circuit Court to five counts of

aggravated burglary, see T.C.A. § 39-14-403(a) (2006); two counts of theft of property

valued at $1,000 or more but less than $10,000, see id. § 39-14-103, -105(3); three counts

of theft of property valued at more than $500 but less than $1,000, see id. § 39-14-103, -

105(2); one count of vandalism of property valued at more than $500 but less than $10,000,

see id. § 39-14-408(a); one count of vandalism of property valued at $500 or less, see id. §

39-14-408, -105(2); and tampering with evidence, see id. § 39-16-503(a)(1). The trial court

imposed a total effective sentence of 15 years to be served in the Department of Correction.

In this appeal, the defendant contends that the trial court erred by ordering consecutive

sentencing. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.

T IPTON, P.J., and R OBERT W. W EDEMEYER, J., joined.

Gregory D. Gookin, Assistant District Public Defender, for the appellant, Kenneth Dunlap.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

On May 27, 2010, the defendant entered “blind” or “open” guilty pleas in case

number 10-128 to one count of aggravated burglary; one count of theft of property valued

at more than $500 but less than $1,000; and one count of vandalism of property valued at

$500 or less. The defendant also entered guilty pleas in case number 10-137 to three counts

of aggravated burglary; one count of theft of property valued at $1,000 or more but less than

$10,000; and two counts of theft of property valued at more than $500 but less than $1,000.

Finally, the defendant pleaded guilty in case number 10-138 to one count of aggravated

burglary; one count of theft of property valued at $1,000 or more but less than $10,000; one

count of vandalism of property valued at more than $500 but less than $1,000; and tampering

with evidence. The State provided the following recitation of facts:

Docket No. 10-128, the State would show at trial that on or

about November the 6th, 2009, Ms. Alisha Collins’ home was

burglarized at 72 Charlesmeade Drive here in Jackson, Madison

County. This occurred sometime after she left for work at about

8:00 that morning and about 1:00 that afternoon, [the defendant]

along with a codefendant, Mr. Caldwell, went into Bill’s Pawn

Shop here in Jackson . . . and tried to pawn a laptop computer.

[T]he owner of that pawn shop . . . found the name on there of

Ms. Collins’ boyfriend, your Honor. . . . He contacted them

about the laptop and then they discovered their home had been

burglarized and contacted law enforcement. [The shop owner]

did not buy the laptop, but took down the tag number because

the two individuals left the pawn shop. Mr. Caldwell . . . and

[the defendant were ] later identified by photo lineup by [the

owner] and his wife. . . . The back door had been kicked in on

the property and that’s how entrance was gained and damage

was done to that.

....

Docket No. 10-137 and 138 are connected . . . in

the sense that on or about November 13, 2009, a week after the

other one I talked about, a neighbor in the Beinville Street area

noticed three black males burglarizing his neighbor’s residence,

the neighbor’s residence being 100 Beinville Street.

. . . Law enforcement was contacted by this

neighbor who suspected a burglary. As sheriff’s deputies were

arriving at that location, they intercepted a suspect’s vehicle and

they turned around to follow it and the vehicle stopped and three

individuals got out of the vehicle and fled. They were able to

apprehend two of the individuals pretty quickly and that was

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[the defendant] . . . and Xavier Thompson . . . . But when they

stopped the car and observed the car, they found stolen property

in the vehicle from 100 Beinville Street, from 92 Beinville

Street, from 618 Hopper Barker Road and also from 95

Beinville Street. All of those victims were contacted and it was

discovered that their homes had all been burglarized that day

while the victims were not at home that morning and their stolen

property was then recovered from this vehicle.

In Docket No. 10-137, . . . [the defendant] did

unlawfully enter the habitation of Tommy Maxwell and Myra

Maxwell . . . and . . . did also knowingly obtain or excercise

control over property being electronic equipment and jewelry

over the value of $1,000 . . . . In Count 3 he did unlawfully

enter the habitation of Robert Doyle . . . and he did knowingly

obtain or exercise control over property being jewelry over the

value of $500 . . . . In Count 5 that he did unlawfully enter the

habitation of Pamela Humphrey . . . . [and] he did knowingly

obtain or exercise control over property being pills, money and

miscellaneous items over the value of $500 . . . .

He was also connected to that indicted in Docket

No. 10-138 for that same date November 13, 2009. That he did

unlawfully enter the habitation of Rose Weddle . . . . and did

knowingly obtain or exercise control over property being

electronics, jewelry and miscellaneous items over the value of

$1,000 . . . and did knowingly cause damage or destruction of

property belonging to Ms. Weddle over the value of $500. That

was for damage to her home. In Count 4, . . . [the defendant]

was giv[ing] a statement to law enforcement regarding this

matter and that he grabbed a page of the statement and the

officer told him not to destroy the statement because it’s

evidence and he proceeded to rip up the first page of his

statement and thus he did knowingly after an investigation or

official proceeding was pending or in progress destroy an item

to impair the availability as evidence and thus tampering with

evidence.

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The trial court accepted the defendant’s pleas of guilty and scheduled a sentencing hearing

to determine the length and manner of service of the sentences to be imposed.

At the July 12, 2011 sentencing hearing, burglary victim Alisha Collins

testified that the “carport door” to her home was “kicked in” and that the defendant and

codefendant took her television and two laptops as well as destroyed some of her belongings

while they were inside the home. She said that one laptop was recovered from Bill’s Pawn

Shop, but the television and second laptop were never found. She asked the trial court to

impose a “fair” sentence. Her financial loss totaled more than $1,000.

Burglary victim Robert Doyle testified that two doors were kicked in at his

home and that a ring was taken during the burglary. Mr. Doyle said that the ring was

recovered and returned to him but that he had to pay out of his own pocket to repair the

damage to the two doors. His financial loss totaled some $1,331.

Burglary victim Pamela Humphrey testified that the defendant and codefendant

damaged a door to her home and that the cost to repair the door as well as her lost wages

totaled $250.

Burglary victim Tommy Maxwell testified that the defendant and codefendant

took jewelry, shoes, and antique coins from his home and that his insurance did not

reimburse him for the loss of the coins. He estimated his total financial loss as more than

$500.

The parties stipulated that the financial loss suffered by burglary victim Rose

Weddle was $500.

The presentence report established that the 18-year-old defendant had previous

convictions of criminal trespassing and vandalism as well as a juvenile adjudication of

reckless endangerment and sentence of probation that occurred only three months prior to the

defendant’s eighteenth birthday and was, as a result, being supervised by adult probation

services. The defendant also had a juvenile adjudication of aggravated burglary in January

2008. The defendant had previously held jobs at McDonald’s, Long John Silver’s, and as

a janitor at an office building, but he had been unemployed since August 2009.

At the conclusion of the sentencing hearing, the trial court imposed sentences

of five years for each conviction of aggravated burglary, five years for the conviction of

tampering with evidence, three years and six months for each conviction of theft of property

valued at more than $1,000 but less than $10,000, two years for each conviction of theft of

property valued at more than $500 but less than $1,000, two years for the conviction of

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vandalism of property valued at more than $500 but less than $1,000, and 11 months and 29

days for the conviction of theft of property valued at $500 or less. In determining sentence

length, the trial court found that the defendant had a history of criminal convictions in

addition to those necessary to establish the appropriate range, see T.C.A. § 40-35-114(1); that

the defendant was a leader in the commission of the offenses, see id. § 40-35-114(2); that the

defendant had failed to comply with a sentence involving release into the community, see id.

§ 40-35-114(8); that the defendant possessed a firearm during the commission of the offense

based upon the theft of a handgun from one residence, see id. § 40-35-114(9); that the

defendant was on probation when he committed the offenses, see id. § 40-35-114(13); and

that the defendant had a juvenile adjudication for an offense that would have been a felony

if committed by an adult, see id. § 40-35-114(21). The court also found in mitigation that

the defendant had accepted responsibility for his actions and had expressed remorse. See id.

§ 40-35-113(13).

Regarding the sentence alignment, the court ordered that the convictions within

each case should be served concurrently to one another, for an effective sentence in each case

of five years, but that these three effective sentences should be served consecutively to one

another for a total effective sentence of 15 years. The court based its decision to impose

partially consecutive sentencing on its conclusion that the defendant’s record of criminal

activity was extensive, see id. § 40-35-115(b)(2), and that the defendant was on probation

when he committed the offenses in each case, see id. § 40-35-115(b)(6). The court also

ordered that the 15-year sentence be served consecutively to a previously-imposed 11-month

and 29-day sentence.

The trial court denied all forms of alternative sentencing, concluding that the

nature and circumstances of the criminal conduct and the defendant’s failure to comply with

recent stints on probation militated against the imposition of alternative sentencing. The

court concluded that the defendant’s record of violating probation evinced poor amenability

to correction. Finally, the court concluded that a sentence of 15 years’ incarceration was

“particularly suited to provide an effective deterrent not only to [the defendant] but also to

others who are willing to commit such” offenses.

In this appeal, the defendant asserts that the trial court erred by ordering

consecutive service of the 5-year sentences imposed in each case. The State contends that

consecutive sentencing was appropriate.

When considering challenges to the length and manner of service of a sentence

this court conducts a de novo review with a presumption that the determinations of the trial

court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “is

conditioned upon the affirmative showing in the record that the trial court considered the

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sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The appealing party, in this case the defendant, bears the burden of

establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n

Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that

the trial court gave “due consideration and proper weight to the factors and principles which

are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are

adequately supported in the record, then we may not disturb the sentence even if we would

have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). In the event the record fails to demonstrate the required consideration by the trial

court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing decision, the trial court must consider:

(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 the

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114;

(6) Any statistical information provided by the administrative

office of the courts as to sentencing practices for similar

offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the

defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed.” Id. § 40-35-103(5).

The trial court may impose consecutive sentences if it finds by a preponderance

of the evidence that:

(1) The defendant is a professional criminal who has

knowingly devoted the defendant’s life to criminal acts as a

major source of livelihood;

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(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;

(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.

T.C.A. § 40-35-115(b). Here, the trial court determined that the defendant was an offender

whose record of criminal activity is extensive and that the defendant had committed the

offenses at issue on appeal while on probation. The record supports these findings. Just shy

of his nineteenth birthday, the defendant had managed to accumulate 15 criminal convictions,

12 of them for felony offenses. The record also established that the defendant committed the

13 offenses in case numbers 10-128, 10-137, and 10-138 while he was serving a probationary

sentence imposed for convictions of criminal trespassing and vandalism.

Accordingly, the judgments of the trial court are affirmed.

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_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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