State of Tennessee v. Michael Kent Walker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 23, 2014 at Knoxville

STATE OF TENNESSEE v. MICHAEL KENT WALKER

Appeal from the Criminal Court for Putnam County

No. 11-0765 Leon Burns, Judge

No. M2012-01134-CCA-R3-CD - Filed August 5, 2014

Pursuant to a plea agreement, the Defendant, Michael Kent Walker, pleaded guilty to selling

Schedule I and Schedule II controlled substances in a drug-free zone. The plea agreement

provided that the Defendant would receive concurrent Range I sentences for one Class B

felony and one Class C felony, with the trial court to determine his sentences. Following a

sentencing hearing, the trial court sentenced the Defendant to serve an effective sentence of

twelve years of incarceration. The Defendant asserts that the trial court abused its discretion

in ordering an effective twelve-year sentence. After a thorough review of the record and

applicable law, we affirm the trial court’s judgments.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R., J. and J OE H. W ALKER, III, S P.J., joined.

John Philip Parsons, Cookeville, Tennessee for the Appellant, Michael Kent Walker.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel;

Randy York, District Attorney General; and Anthony Craighead, Assistant District Attorney

General for the Appellee, State of Tennessee.

OPINION

I. Background and Facts

This case arises out of the Defendant’s sale of drugs within one thousand feet of

Baxter Branch Library in Putnam County, Tennessee. A Putnam County grand jury indicted

the Defendant for two counts of sale and delivery of a Schedule II controlled substance

(oxycodone), two counts of the sale and delivery of a Schedule I controlled substance

(heroin), and four counts of violation of the Drug-Free School Zone Act. On January 10,

2012, pursuant to a negotiated plea agreement, the Defendant entered guilty pleas, as a Range

I offender, to sale of a Schedule II controlled substance in a drug-free zone and sale of a

Schedule I controlled substance in a drug-free zone. The remaining charges in the indictment

were dismissed. The State offered the following recitation of the facts in support of the trial

court’s acceptance of the guilty pleas:

[O]n August the 9th of 2010, agents with the state High Addiction Drug

Task Force Agency were conducting an investigation into [the Defendant’s]

sale of controlled substances from his residence located on 314 Alexander

Street in Baxter. The [S]tate would show that an undercover officer,

introduced by a confidential informant, encountered the [D]efendant at that

location and did purchase on August the 9 th two Schedule II, Oxycodones, for

eighty dollars ($80.00). That substance was confirmed by a TBI Laboratory

analysis. This falls as a class “C” felony, Your Honor.

And September the 1st 2010, this operation continued, b[y] the same

undercover officer introduced by the confidential informant, then purchased

what the TBI Lab would later confirm to be point 0 nine grams (.09 gm.) of

Schedule I, heroine, for sixty dollars ($60.00).

And both of these . . . sales, the State would show, occurred within

1,000 feet of the Baxter Branch Library, located at 200 Main Street, in - -

Baxter.

Finding a factual basis for the guilty pleas, the trial court accepted the Defendant’s guilty

pleas. The agreement provided that the sentences for the convictions would run concurrently

to each other and consecutively to a revoked probation sentence, with the trial court to

determine the length of the sentences. The plea agreement provided that the Defendant

would be sentenced as a Range I standard offender, and the plea agreement did not enhance

the offense level pursuant to Tennessee Code Annotated section 39-17-432(b)(1).

At a sentencing hearing held on March 29, 2012, the parties presented the following

proof: Lindsey Houston, a Tennessee Board of Probation and Parole officer, testified that she

prepared the Presentence Investigation Report on the Defendant. The trial court admitted the

Presentence Report into the record. Ms. Houston agreed that the Defendant’s criminal

history spanned over seven pages of the Presentence Report. She acknowledged that many

of the offenses were misdemeanors involving “worthless checks.” The Defendant also

committed other misdemeanor offenses such as possession of drug paraphernalia, possession

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of marijuana, public intoxication, theft, DUI, “soliciting to commit some substance abuse,”

criminal impersonation, fraudulent use of a credit card, and unlawful possession of a weapon.

Ms. Houston testified that the Defendant had five felony forgery convictions. In 2004,

the Defendant was convicted of sale or delivery of a Schedule II controlled substance and

ordered to serve five years on probation. The Defendant’s probation sentence was revoked

on January 9, 2006 and he was ordered to serve the sentence in incarceration. The Defendant

received a two year probation sentence for a conviction involving a Schedule IV controlled

substance. This probation sentence was also revoked on January 9, 2006. In 2001, the

Defendant pled guilty to misdemeanor theft and was sentenced to probation. The Defendant

violated this probation sentence as well.

Ms. Houston testified that the Defendant had criminal convictions in the State of

California for: reckless driving, assault with a deadly weapon, “under the influence of a

controlled substance,” and two counts of forgery. He received a probation sentence for one

of the forgery convictions. Ms. Houston testified that the Defendant was fifty-five years of

age. He had been disabled since 1992 and unemployed for “numerous years.”

On cross-examination, Ms. Houston confirmed that the Defendant had seven felony

convictions in the State of Tennessee and one felony conviction in the State of California.

Ms. Houston agreed that the Defendant had advised her that he received Social Security

Disability benefits due to head and back injuries. Ms. Houston confirmed that the Defendant

was currently serving a four-year sentence, for which his probation had been revoked on

January 10, 2012. She was unaware of when that sentence expired.

After hearing the evidence, the trial court made the finding that the Defendant had an

extensive history of criminal activity and had failed to comply with previous sentences

involving release in the community on probation or parole. Based upon this, the trial court

enhanced the Defendant’s sentences to the maximum within the range, imposing a six-year

sentence for the sale of a Schedule II controlled substance and a twelve-year sentence for the

sale of a Schedule I controlled substance. It is from these judgments that the Defendant now

appeals.

II. Analysis

The Defendant argues that the trial court failed to make a proper record to justify the

sentence. He asserts that the trial court “rushed the judgment” at the sentencing hearing. The

State responds that the trial court imposed a sentence consistent with the purposes and

principles of the Sentencing Act and that the Defendant has failed to show that the sentence

is improper. We agree with the State.

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In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” 380 S.W.3d 682, 708 (2012). A finding of abuse of discretion “‘reflects

that the trial court’s logic and reasoning was improper when viewed in light of the factual

circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,

45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

To find an abuse of discretion, the record must be void of any substantial evidence that would

support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should

uphold the sentence “so long as it is within the appropriate range and the record demonstrates

that the sentence is otherwise in compliance with the purposes and principles listed by

statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the

appropriate range and properly applies the purposes and principles of the Sentencing Act, its

decision will be granted a presumption of reasonableness. Id. at 707. We are also to

recognize that the defendant bears “the burden of showing that the sentence is improper.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, 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 Tennessee Code Annotated

sections 40-35-113 and -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 made in the defendant’s own behalf about sentencing. See T.C.A.

§ 40-35-210 (2012); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). 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 (2012).

At the sentencing hearing, the trial court sentenced the Defendant, as a Range I,

standard offender, to six years, the maximum in the sentencing range, for sale of a Schedule

II controlled substance, a Class C felony, and to twelve years, also the maximum in the

sentencing range, for the sale of a Schedule I controlled substance, a Class B felony. About

its decision to impose maximum sentences, the trial court made the following findings:

Probation has been revoked more than once, not only here but in

California, but particularly here in Tennessee.

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Many, many offenses. Forgeries, thefts, drug charges, DUIs. An

extensive history.

And so I think that, based upon the extensive history, and the failure to

comply, that those factors would be justified to enhance to the maximum

within the range.

The record supports the trial court’s findings. The trial court found that “the

[D]efendant ha[d] a previous history of criminal convictions [or] criminal behavior in

addition to those necessary to establish the appropriate range.” See T.C.A. § 40-35-114(1).

Our review of the record shows that the Defendant had seven felony convictions in the State

of Tennessee, one felony conviction in the State of California and numerous misdemeanor

convictions. The trial court also found that the Defendant had “failed to comply with the

conditions of a sentence involving release into the community.” See T.C.A. § 40-35-114(8).

The record evidences that, in the past, trial courts had ordered sentences involving probation

and that the Defendant failed to comply with the conditions of his release on at least three

occasions. Moreover, the Defendant’s probation sentence in another case was revoked on

the same day he entered a guilty plea as to these offenses.

The record shows that the trial court “place[d] on the record [ ] what enhancement or

mitigating factors were considered, . . . as well as the reasons for the sentence” in ordering

a within-range sentence. Bise, 380 S.W.3d at 706 n. 41 (citing T.C.A. § 40-35-210(e)). The

Defendant has not established that the trial court abused its discretion.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the

trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgments.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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