State of Tennessee v. Andrew Boykin

03/27/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 6, 2016

STATE OF TENNESSEE v. ANDREW BOYKIN

Appeal from the Circuit Court for Madison County

No. 16-48 Roy B. Morgan, Jr., Judge

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No. W2016-01055-CCA-R3-CD

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The Appellant, Andrew Boykin, pled guilty in the Madison County Circuit Court to

possession of one-half gram or more of cocaine with intent to sell, possession of one-half

gram or more of cocaine with intent to deliver, possession of drug paraphernalia, criminal

impersonation, and evading arrest. The trial court merged the convictions for possession

of cocaine, and the Appellant received an effective ten-year sentence. On appeal, he

contends that his sentence is excessive and that the trial court should have ordered

alternative sentencing. Based upon 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 Circuit Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jeremy B. Epperson, Jackson, Tennessee, for the appellant, Andrew Boykin.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior

Counsel; Jerry G. Woodall, District Attorney General; and Jody Pickens, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In February 2016, the Madison County Grand Jury indicted the Appellant for

possession of one-half gram or more of cocaine with intent to sell, a Class B felony;

possession of one-half gram or more of cocaine with intent to deliver, a Class B felony;

possession of drug paraphernalia, a Class A misdemeanor; evading arrest, a Class A

misdemeanor; and criminal impersonation, a Class B misdemeanor. On April 20, 2016,

the Appellant entered a “blind plea” to the charges.

At the guilty plea hearing, the State gave the following factual account of the

crimes: On the night of August 29, 2015, Officers White and Cozart of the Jackson

Police Department stopped a vehicle on Old Hickory Boulevard because its headlights

were not turned on. Officer White approached the vehicle and spoke with the front-seat

passenger, who was the Appellant. The Appellant told the officer that his name was

Chris Cooper and gave a date of birth and social security number. The Appellant was

placed in a patrol car while Officer White attempted to verify his identity. The Appellant

was in possession of a brown bag. As officers were searching the bag, the Appellant ran

from the scene. The officers gave chase and apprehended him shortly thereafter. The

brown bag contained a digital scale, 4.1 grams of powder cocaine, and a photograph of

the Appellant. The officers also found $240 on the Appellant’s person.

The trial court held a sentencing hearing on May 16, 2016. No witnesses testified

at the hearing, but the State introduced the Appellant’s presentence report into evidence.

According to the report, the then thirty-year-old Appellant dropped out of high school in

the ninth grade but later entered the Job Corps in Harpers Ferry, West Virginia, and

obtained his GED. In the report, the Appellant denied a problem with alcohol but

admitted using cocaine and marijuana daily. He stated that he had never obtained drug

treatment. The report showed that at the time of the Appellant’s arrest in this case, he

was working at “‘Nu to U’” as a deliveryman. He had worked there eight months, but his

employment ended when he was arrested. The report showed that the Appellant also

worked at Carlisle as a forklift driver and assembly line worker from 2012 to 2014,

Pinnacle Foods as an assembly line worker from 2009 to 2012, and Delta Construction as

an unskilled laborer from 2005 to 2009. According to the report, the Appellant had a

prior felony conviction for introducing a communication device into a penal institution.

The report showed that the Appellant was on probation for marijuana possession in Texas

when he was convicted of introducing a communication device into a penal institution

and when he committed the crimes in the instant case. The report also showed that the

Appellant was adjudicated delinquent for possessing marijuana on school property,

burglary of a vehicle, possession of burglary tools, aggravated burglary, and felony theft.

Defense counsel requested that the trial court not give great weight to the juvenile

adjudications due to “the time that has passed” and that the trial court order “significant

long-term treatment” for the Appellant’s drug addiction in lieu of incarceration.

The trial court applied the following enhancement factors to the Appellant’s

sentences: (1), that “[t]he defendant has a previous history of criminal convictions or

criminal behavior, in addition to those necessary to establish the appropriate range”; (8),

that “[t]he defendant, before trial or sentencing, failed to comply with the conditions of a

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sentence involving release into the community”; (13), that the defendant was on

probation when he committed the felonies in this case; and (16), that “[t]he defendant

was adjudicated to have committed a delinquent act or acts as a juvenile that would

constitute a felony if committed by an adult.” Tenn. Code Ann. § 40-35-114(1), (8),

(13)(C), (16). In mitigation, the trial court applied factors (1), that “[t]he defendant’s

criminal conduct neither caused nor threatened serious bodily injury,” and (13), the

catchall provision, for his employment history. Tenn. Code Ann. § 40-35-113(1), (13).

The court sentenced the Appellant as a Range I, standard offender to ten years for each

possession of cocaine conviction and merged the convictions. The court sentenced him

to eleven months, twenty-nine days for possession of drug paraphernalia and evading

arrest and six months for criminal impersonation. The court ordered that the Appellant

serve the sentences concurrently and denied his request for alternative sentencing.

II. Analysis

The Appellant contends that his ten-year sentence for possession of cocaine is

excessive because “the record did not support a sentence over the minimum of eight

years” and that the trial court should have suspended the sentence “coupled with long

term inpatient rehabilitation for substance abuse.” The State argues that the trial court

properly sentenced the Appellant. We agree with the State.

Appellate review of the length, range, and manner of service of a sentence

imposed by the trial court is to be reviewed under an abuse of discretion standard with a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see

also State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to

alternative sentencing). In sentencing a defendant, the trial court shall consider the

following factors: (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 statistical information provided by the administrative office of

the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement

by a defendant in his own behalf; and (8) the potential for rehabilitation or treatment. See

Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168

(Tenn. 1991). The burden is on the Appellant to demonstrate the impropriety of his

sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court

should consider, but is not bound by, the following advisory guidelines:

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(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because

the general assembly set the minimum length of sentence for

each felony class to reflect the relative seriousness of each

criminal offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

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

and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see

also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our

supreme court has stated that “a trial court’s weighing of various mitigating and

enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at

345. In other words, “the trial court is free to select any sentence within the applicable

range so long as the length of the sentence is ‘consistent with the purposes and principles

of [the Sentencing Act].’” Id. at 343. Appellate courts are “bound by a trial court’s

decision as to the length of the sentence imposed so long as it is imposed in a manner

consistent with the purposes and principles set out in sections -102 and -103 of the

Sentencing Act.” Id. at 346.

An appellant is eligible for alternative sentencing if the sentence actually imposed

is ten years or less. See Tenn. Code Ann. § 40-35-303(a). Moreover, an appellant who is

an especially mitigated or standard offender convicted of a Class C, D, or E felony should

be considered a favorable candidate for alternative sentencing absent evidence to the

contrary. See Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-

35-103(1) sets forth the following sentencing considerations which are utilized in

determining the appropriateness of alternative sentencing:

(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

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(C) Measures less restrictive than confinement have

frequently or recently been applied unsuccessfully to the

defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,

“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant

should be considered in determining the sentence alternative or length of a term to be

imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal

conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for

alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

Regarding the Appellant’s claim that the ten-year sentence is excessive, the

Appellant does not contest the applicability of any of the four enhancement or two

mitigating factors found by the trial court. Furthermore, the 2005 amendments to the

1989 Sentencing Act “deleted as grounds for appeal a claim that the trial court did not

weigh properly the enhancement and mitigating factors.” State v. Carter, 254 S.W.3d

335, 345 (Tenn. 2008).

As to the trial court’s denial of alternative sentencing, the Appellant is eligible for

alternative sentencing because his sentence was ten years or less. However, he is not

considered a favorable candidate for alternative sentencing because he was convicted of a

Class B felony. In denying alternative sentencing, the trial court stated as follows:

Considering the entire record in this cause again which

takes into consideration the mitigating and enhancing factors,

the Defendant’s prior criminal record, noting again the

Defendant was on probation at the time the offense occurred,

the Court finds it would be appropriate on the 10-year

sentence that the Defendant serve that in Tennessee

Department of Corrections.

We also note that despite the Appellant’s daily use of cocaine and marijuana, he never

sought treatment for his drug addiction. Thus, his potential for rehabilitation is poor.

Accordingly, we conclude that the trial court did not abuse its discretion by denying

alternative sentencing.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgments of the trial

court.

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NORMA MCGEE OGLE, JUDGE

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