State of Tennessee v. Ebony Marshall

05/31/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. EBONY MARSHALL

Appeal from the Criminal Court for Shelby County

Nos. 13-05966, 13-05021 James C. Beasley, Jr., Judge

No. W2015-01835-CCA-R3-CD

The Defendant, Ebony Marshall, was convicted upon his guilty pleas of two counts of

robbery, a Class C felony. He was sentenced to terms of twelve and thirteen years as a

persistent, Range III offender for the offenses. The sentences were imposed to run

consecutively, for an effective sentence of twenty-five years. The Defendant filed a

motion to withdraw his guilty plea, which the trial court denied. On appeal, the

Defendant contends that: (1) the trial court erred in denying his motion to withdraw his

guilty pleas, (2) the trial court erred in imposing consecutive sentences, and (3) he was

denied his rights to due process and self-representation in the trial court proceedings. We

affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Ebony Marshall, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; Jose Leon and Kenya Smith, Assistant

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

OPINION

The Defendant’s convictions relate to robberies that occurred in Shelby County on

May 25, 2013, and September 10, 2013. The record reflects that the Defendant was

represented variously by multiple attorneys, was allowed to proceed pro se at the

Defendant’s request, and was assisted by advisory counsel at different stages of the trial

court proceedings. The Defendant has elected to proceed pro se in this appeal.

On July 6, 2015, the Defendant pleaded guilty to both counts of robbery. The

record reflects that he was represented by counsel. According to the prosecutor’s

recitation of facts at the hearing, the circumstances of the offenses are as follow:

[The defendant] is doing an open plea to Indictment 13-05021 to the

offense of robbery, a Class (C) Felony. . . . The fact pattern on that would

have been that on May the 25th, 2013[,] officers responded to a robbery at

925 Poplar Avenue. Briana Walls (phonetically) the complainant advised

that she was checking out another customer when the defendant jumped

over the counter. He was – she had her hand on the right side of the cash

register.

The victim complained that the defendant grabbed her hand and

pushed it out of the way and grabbed the money, took the money and

jumped off the counter and ran out – out the business what is the westbound

location. Witness Randy (indiscernible) advised that when he turned

around he saw the defendant on the counter grabbing the money so he ran

towards the suspect. A witness, Michael Norfleet, advised he was in the

drive-thru when he heard the commotion. This individual, Michael

Norfleet, chased the defendant down Poplar and Dunlap. He advised that

the suspect took the money out of his pockets and threw it on the ground.

He picked up the money and brought it back with the [defendant] back to

925 Poplar where the offense occurred.

Officer Bernell (phonetically) counted the money and there was a

total of $45. Officer Rector made the [scene]. [The defendant] was

arrested and transported to 201 Poplar. This offense occurred in Shelby

County.

[The defendant] is also doing an open plea to Indictment 13-05966

to the offense of robbery . . . . And should these matters [have] gone to

trial[,] the facts would have been that on September 10th, 2013 at 5:30 p.m.

an individual entered the McDonald’s located at 1389 Poplar where Kiera

Hawkins, Audrey Davis and Felix (indiscernible) were employed. He stood

in line and waited until the cash register was opened by Kiera Hawkins.

When it was open, the male suspect, the defendant, jumped onto the

counter and placed both hands in the drawer. Kiera Hawkins, the witness,

tried to shut up the register but she was forced away by the defendant. He

was able to retrieve $39 in cash from the drawer and flee the business.

Audrey Davis was standing beside Kiera Hawkins when this

occurred and she fell to the ground. On September the 12, Sergeant

Vincent developed [the defendant] as a suspect in this incident. He went to

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the McDonald’s at 1389 Poplar. . . . Felix (indiscernible) and Audrey

Davis were shown [a] photographic lineup by the investigator and they

identified the [defendant] as the individual responsible for the incident.

This occurred here in Shelby County.

The Defendant was sentenced, and judgments were filed on August 11, 2015. He

filed various pro se pleadings, including a notice of appeal on September 3, 2015. His

appointed attorney filed a notice of appeal on September 10, 2015. The Defendant filed a

pro se “notice of withdrawal of guilty plea” in case number 13-05966 on October 1,

2015. On November 3, 2015, the trial court granted the Defendant’s counsel’s motion to

withdraw and appointed an attorney who had represented the Defendant in earlier stages

of the case. The court’s order also purported to stay the appeal pending resolution of the

motion to withdraw the guilty plea. On November 18, 2015, the court admonished in an

order denying a motion for extension of time that the Defendant could not proceed

simultaneously through counsel and pro se and cautioned that future pleadings should be

filed by counsel. On February 2, 2016, the Defendant filed another pro se motion to

withdraw his guilty pleas, which listed case numbers 13-05021 and 13-05966.

The trial court conducted a hearing on the motion to withdraw the guilty pleas on

February 18, 2016, and the Defendant proceeded through counsel. The Defendant and

the attorney who represented him at the time of the guilty pleas testified. The Defendant

testified that his guilty pleas in the present case had been his first “open” pleas and that

he had not understood he faced up to thirty years due to the possibility of consecutive

sentencing. He acknowledged that he had thirteen to fifteen prior convictions, all of

which had resulted from negotiated guilty pleas, and that the court had sentenced him as a

Range III offender. He said counsel had advised him that he did not qualify for

mandatory consecutive sentences and that “there’s a chance that the Judge would

probably run them concurrent.” He said counsel had no further conversation about

consecutive sentences with him. The Defendant stated that “there is no way [he] would

have” accepted an open plea if he had known he would receive consecutive sentences.

He said that, when he accepted the plea offer, he thought the court would be lenient and

impose an effective fifteen-year sentence. He stated that he thought he would have

prevailed at a trial but had not wanted to wait two to three years for a trial. The

Defendant acknowledged a passage in the transcript of the guilty plea hearing in which

the court advised him that he faced three to fifteen years on each robbery charge. The

Defendant said, though, that he was only scheduled for trial on one of his three then-

pending cases and questioned “why would we talk about [a] consecutive sentence, if I

was going for one case.” He said his attorney did not say anything to him about a

consecutive sentence. The Defendant acknowledged that he had answered negatively

when asked by the court at the guilty plea hearing whether anyone was making him plead

guilty and said that no one made him plead guilty. He said he was “looking for a way

out” and wanted to settle the case in order to get out of jail while he was young. He

reiterated that he thought he would receive a fifteen-year sentence. When asked about his

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statement at the guilty plea hearing that he had been satisfied with counsel and that

counsel had done a good job, the Defendant said, “That was sarcasm.” The Defendant

stated he had filed numerous complaints with the Board of Professional Responsibility

against counsel.

The Defendant’s former attorney testified that he explained the possible

consequences of the plea offer to the Defendant. He said that for “major violators,” he

prepared a “charge exposure offer sheet” that explained count-by-count the sentencing

exposure a defendant faced and the State’s corresponding offer. He said he prepared

such a document for the Defendant. Counsel said he and the Defendant had multiple

conversations about the possibility of consecutive sentencing. Counsel stated that he

advised the Defendant that mandatory consecutive sentencing did not apply to the

Defendant’s cases. Counsel stated that he had written a March 25, 2014 letter to the

Defendant advising that counsel thought it unlikely the prosecutor would agree to the

Defendant’s proposed settlement in another case of five years on probation on two counts

of aggravated assault. Counsel said he also advised the Defendant in the letter that

counsel believed the plea offer was in the Defendant’s best interests because the

Defendant faced up to 120 years. Counsel stated in the letter that even if the Defendant

were not convicted of the robbery charges, the Defendant nevertheless faced up to thirty

years for the two aggravated assault charges, given the likelihood of consecutive

sentencing.

The Defendant’s former attorney testified that the Defendant asked about a

settlement “a number of times” on the day the first case was set for trial. Counsel said he

asked the prosecutor about a “package deal” but that the prosecutor said the only

settlement option was an “open plea.” Counsel said he explained to the Defendant that if

the Defendant accepted an open plea, the trial court had the discretion to impose

consecutive sentencing and that consecutive sentencing was a “very distinct possibility.”

Counsel said he did not “twist [the Defendant’s] arm” in order for the Defendant to plead

guilty. He said the Defendant did not appear to be intoxicated or impaired.

The Defendant’s former attorney testified that he requested that the hearing be

bifurcated because the Defendant wanted to be considered for the Jericho Project. The

attorney said that ultimately, his office received a letter stating that the Defendant was not

eligible for consideration because of another pending case.

The Defendant’s former attorney testified that he explained the State’s pleadings

related to notification of intent to seek enhanced punishment, consecutive sentencing, and

for application of enhancement factors. Counsel stated that he received a letter from the

Defendant, which was dated the day after the sentencing hearing, in which the Defendant

thanked the attorney for “exceptional effort” on the Defendant’s behalf.

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The Defendant’s former attorney testified that he filed a timely notice of appeal

but that the Defendant had been concerned the notice would not be filed promptly and

filed a pro se notice of appeal. Counsel agreed with the following recollection of the trial

court:

[Y]ou were originally appointed and then [the Defendant] indicated that he

wanted to represent himself. I allowed him to represent himself for an

extensive period of time. Then he asked for assistance, again. I asked you

to [be] elbow counsel and then he wanted you to handle the case for him[.]

Counsel recalled that while acting pro se, the Defendant obtained remands for a

preliminary hearing relative to two indictments, that the Defendant represented himself at

one of the preliminary hearings, and that the attorney represented the Defendant at the

second preliminary hearing. Counsel agreed with the court’s characterization of the

Defendant as “very, very involved in” the Defendant’s cases and “very, very proficient”

at drafting and filing pleadings and making requests. Counsel agreed with the court’s

recollection that the Defendant believed he had committed theft, not robbery, because the

Defendant snatched money but did not employ force and violence. Counsel said that at

times, however, the Defendant took the position that he had not been present for the

offenses. Counsel said he explained to the Defendant that even if the Defendant

prevailed in a couple of the indictments, the Defendant might still receive a sentence

greater than the State’s twenty-year offer at 85%.

The transcript of the guilty plea hearing was received as an exhibit at the hearing

on the motion to withdraw the guilty pleas. This transcript reflects that the trial court

questioned the Defendant about his understanding of the terms of the plea agreement and

his right to a trial. In this examination, the Defendant acknowledged that his attorney had

reviewed and explained the agreement to him. The Defendant expressed his satisfaction

with his attorney and stated the attorney “[d]id a good job.” The Defendant was given

the opportunity to ask questions about pleading guilty but stated he had none. The

Defendant stated that he understood the court would determine his sentence at a later

date, and he said he hoped the court would show mercy to him and stated he would be

“praying every day” until the sentencing hearing.

After hearing the proof, the trial court found that the Defendant “fully understood

his rights” and what he was doing in pleading guilty. The court found that the Defendant

had a lengthy history of criminal convictions and was “well versed in how to work the

system and how to manipulate the system.” The court found that the Defendant thought a

possibility existed that the court would allow him a Community Corrections sentence or

placement in the Jericho Project, that the Defendant’s basis for seeking to withdraw his

guilty pleas was his dissatisfaction with the consecutive, incarcerative sentences he

received, and that the motion to withdraw the guilty pleas was an attempt “strictly to

manipulate the system.” The court also found that the Defendant elected, on the day the

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first case was set for trial, to enter into an open-ended guilty plea because the Defendant

viewed this as the better option. The court found that the Defendant was fully advised of

the consequences of his plea. The court found that the Defendant failed to establish that

manifest injustice existed and denied the motion to withdraw the guilty pleas.

Procedurally, this case is complicated by the Defendant’s persistent pro se filings

while represented by appointed counsel and by his lack of compliance with procedural

rules while proceeding pro se. As such, we must preliminarily determine which, if any,

issues raised in the appeal are properly before this court.

The sentencing hearing was conducted on August 11, 2015, and judgments were

filed on that date. The Defendant was represented by counsel at the sentencing hearing.

The record contains a pro se notice of appeal dated August 31, 2015, but it does not

contain a file stamp. It contains a second pro se notice of appeal, which was filed on

September 3, 2015. The record also contains an undated pro se “Notice of Intent to

Appeal Certified Question of Law” regarding the court’s ruling on a motion to suppress,

which does not contain a file stamp. The record contains a pro se “Motion to [I]nvoke 6th

Amendment Rights” alleging ineffective assistance of trial counsel. This motion contains

a certificate of service dated August 28, 2015, but it does not contain a file stamp. On

September 10, 2015, counsel filed a notice of appeal “from the final judgment.” Due to a

conflict of interests, the trial court appointed a different attorney to represent the

Defendant on September 30, 2015. The Defendant filed his pro se “Notice of Withdrawal

of Guilty Plea” on October 1, 2015.

On November 3, 2015, this court granted the Defendant’s appointed attorney’s

motion to withdraw due to a conflict of interests and appointed an attorney who

represented the Defendant at an earlier stage of the case. This court’s order stated that

the Defendant’s appeal of the judgments was stayed pending resolution of the motion to

withdraw the guilty plea and that if the Defendant appealed following any denial of the

motion by the trial court, the appeal “shall” be consolidated with the already-pending

appeal. On November 18, 2015, this court denied the Defendant’s pro se motion for an

extension of time to file a brief and directed that all future pleadings should be filed

through counsel.

On February 2, 2016, the Defendant filed a second pro se document in the trial

court seeking to withdraw his guilty pleas. The hearing on the motion to withdraw the

guilty pleas, at which the Defendant was represented by his appointed counsel, occurred

on February 18, 2016, and the court denied the motion by written order on February 19,

2016. In a March 10, 2016 order, the court granted the Defendant’s motion to proceed

pro se on appeal and, in a March 11, 2016 order, the court appointed advisory counsel to

assist the Defendant. A notice of appeal was filed on March 11, 2016 by the attorney

who was permitted to withdraw by the court’s March 10 order. The notice stated that the

appeal was “from the final judgment entered after defendant’s petition to withdraw his

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guilty plea on February 19, 2016.” The Defendant filed a pro se notice of appeal on

March 21, 2016. The notice specified that the Defendant was appealing from the court’s

order denying the motion to withdraw the guilty plea.

Against this background, we conclude that the Defendant, through counsel, filed a

timely notice of appeal from the trial court’s judgments and that the appeal was stayed by

this court, pending the outcome of the motion to withdraw the guilty plea. The internal

records of this court reflect, as well, that upon the filing of the notice of appeal from the

denial of the motion to withdraw the guilty pleas, this case and the pending appeal, the

latter of which had been stayed, were consolidated. Thus, we conclude that the issues

related to the appeal following the sentencing and entry of judgments and to the appeal

from the denial of the motion to withdraw the guilty pleas are properly before this court.

Regarding the State’s argument that we should not consider the Defendant’s

appeal because his brief was untimely, we note that the State has calculated the

Defendant’s brief’s due date by reference to the date of the September 10, 2015 notice of

appeal, which appeal was stayed by this court’s November 3, 2015 order. The record of

this court reflects that once the notice of appeal from the denial of the motion to withdraw

the guilty plea was filed, the Defendant filed various motions related to supplementation

of the record, that this court ordered the trial court to resolve an issue regarding whether

certain transcripts of pretrial proceedings were needed for resolution of the appeal, and

that once the question of the state of the record was resolved, the Defendant filed his brief

promptly. We, therefore, reject the State’s argument that we should not consider the

merits of the Defendant’s appeal due to an untimely brief.

I

Denial of Motion to Withdraw Guilty Pleas

As we have stated, the Defendant filed a pro se notice of appeal from the trial

court’s denial of the motion to withdraw the guilty pleas. The State contends the

Defendant has abandoned any argument that the trial court erred in denying the motion to

withdraw the guilty pleas because the Defendant did not address the issue in his brief.

We acknowledge that the Defendant’s pro se brief falls short of addressing alleged errors

in the court’s ruling on the motion to withdraw the guilty plea, though it does allege that

the court refused to rule on offers of proof submitted in support of the motion to

withdraw the guilty plea. We will consider the issue, but we caution the Defendant that

he proceeds pro se at his own peril relative to the adequacy of his brief, and we remind

him that compliance with the Tennessee Rules of Appellate Procedure is expected from

both represented and pro se litigants. See T.R.A.P. 27 (content of briefs).

Tennessee Criminal Procedure Rule 32(f) permits a defendant to withdraw a guilty

plea after a sentence is imposed but before a judgment becomes final only to “correct [a]

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manifest injustice.” Tenn. R. Crim. P. 32(f)(2). A defendant has the burden of

establishing a guilty plea should be withdrawn to correct a manifest injustice. State v.

Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The standard of review on

appeal relative to a trial court’s decision whether to grant a motion to withdraw is abuse

of discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App.1 986); see

Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947). Although manifest injustice is not

defined by procedural rules or statute, this court has stated it must be determined on a

case-by-case basis. Turner, 919 S.W.2d at 355. A trial court may permit a defendant to

withdraw his guilty plea to prevent a manifest injustice, in relevant part, when a guilty

plea was involuntarily and unknowingly entered and when a defendant received the

ineffective assistance of counsel in connection with the entry of the plea. State v. Crowe,

168 S.W.3d 731, 742 (Tenn. 2005). A defendant, though, is not permitted to withdraw a

guilty plea simply because he has a change of heart or is dissatisfied with the sentence

imposed. Turner, 919 S.W.2d at 355.

The trial court found that the Defendant’s motion to withdraw the guilty pleas was

an effort to manipulate the criminal justice system due to the Defendant’s dissatisfaction

with the sentence he received. The court found that the Defendant understood the terms

of the plea agreement and entered into the agreement voluntarily. The court found that

the Defendant failed to show a manifest injustice which needed correction by allowing

the Defendant to withdraw the guilty pleas. Upon review, we conclude that the trial court

did not abuse its discretion in denying the motion to withdraw the guilty pleas.

We have noted the Defendant’s argument that the trial court refused to rule on

“offers of proof submitted in motion to withdraw guilty plea,” and we have reviewed the

portions of the appellate record cited in support of the Defendant’s argument. The record

does not support a conclusion that the Defendant attempted to make an offer of proof

pursuant to Tennessee Rule of Evidence 103(a)(2) and that such offer was rejected by the

court. The Defendant’s argument appears to be merely an alternative couching of his

complaint that the court did not rule in his favor on the motion to withdraw the guilty

pleas.

Likewise, we have not overlooked the Defendant’s argument that the trial court

failed to adhere to the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and State

v. Mackey, 553 S.W.2d 337 (Tenn. 1977), relative to a trial court’s obligation to inquire

and determine that a criminal defendant’s guilty plea voluntarily and knowingly

relinquishes or abandons constitutional rights of which the defendant is aware. The

Defendant contends, specifically, that the court failed to advise him of the rights he

waived by pleading guilty and of the possibility of consecutive sentencing. We note that

the rights of which Boykin and Mackey require a defendant to be advised do not include,

specifically, any right to be advised that he faces the possibility of consecutive

sentencing. See Boykin, 395 U.S. at 244; Mackey, 553 S.W.2d at 341. The State

contends that the right to appeal from a guilty plea is limited to situations which fit in the

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narrow guidelines of Tennessee Rule of Criminal Procedure 37(b) and Tennessee Rule of

Appellate Procedure 3(b), and that this court should decline to address the Defendant’s

issue relative to the knowing and voluntary character of his plea. See State v. Wilson, 31

S.W.3d 189, 193 (Tenn. 2000) (noting that “whether a defendant knowingly and

voluntarily entered a guilty plea will rarely, if ever, be apparent from a record of the

‘proceedings already had . . . .’” (citing Tenn. R. Crim. P. 37(b)(2)(iii); T.R.A.P.

3(b)(2))).

To the extent that the State construes the Defendant’s argument, which we

acknowledge is not a model of clarity, to be a constitutional challenge to the knowing and

voluntary character of his guilty pleas, we agree that the issue is not properly before the

court. See Tenn. R. Crim. P. 37(b); T.R.A.P. 3(b); Wilson, 31 S.W.3d at 192-94. To the

extent, however, that the Defendant’s argument regarding the alleged inadequacy of the

advice he received at the guilty plea hearing may be construed as a component of his

appeal from the trial court’s denial of his motion to withdraw the guilty pleas, we have

considered it. In denying the motion to withdraw the guilty pleas, the court found, after

receiving the proof, that the Defendant was advised of his rights by counsel and by the

court at the guilty plea hearing, that the Defendant knowingly and voluntarily

relinquished his rights, and that as a result, no manifest injustice existed which required

that the Defendant be allowed to withdraw his pleas. The Defendant is not entitled to

relief on this basis.

II

Sentencing

The Defendant contends that the trial court erred in sentencing him more harshly

than he deserved for the offenses. The State contends that the trial court did not abuse its

discretion. We agree with the State.

This court reviews challenges to the length of a sentence within the appropriate

sentence range ‘under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must

consider any evidence received at the trial and sentencing hearing, the presentence report,

the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature

and characteristics of the criminal conduct, any mitigating or statutory enhancement

factors, statistical information provided by the Administrative Office of the Courts as to

sentencing practices for similar offenses in Tennessee, any statement that the defendant

made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,

823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);

State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919

(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

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Likewise, a trial court’s application of enhancement and mitigating factors is

reviewed for an abuse of discretion with “a presumption of reasonableness to within-

range sentencing decisions that reflect a proper application of the purposes and principles

of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of

an enhancement or mitigating factor does not invalidate the sentence imposed unless the

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long

as there are other reasons consistent with the purposes and principles of sentencing, as

provided by statute, a sentence imposed . . . within the appropriate range” will be upheld

on appeal. Id.

The abuse of discretion with a presumption of reasonableness standard also

applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859

(Tenn. 2013). A trial court has broad discretion in determining whether to impose

consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a

preponderance of the evidence that one criterion is satisfied in Tennessee Code

Annotated section 40-35-115(b)(1)-(7) (2014). In determining whether to impose

consecutive sentences, though, a trial court must ensure the sentence is “no greater than

that deserved for the offense committed” and is “the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4)

(2014); see State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

At the Defendant’s sentencing hearing, trial counsel acknowledged that the

Defendant was a Range III offender with fifteen prior felony convictions. Counsel

requested initially that the hearing be bifurcated because the Defendant intended to

submit an application for the Jericho Project. Counsel stated if the application were

approved, the defense requested that the hearing be reconvened for the trial court to

consider whether the Defendant would be allowed to participate as a component of a

Community Corrections sentence. At the end of the hearing, however, counsel stated that

the Defendant had changed his mind about being considered for the Jericho Project and

wanted to move forward with the appeal process, and the Defendant acknowledged his

agreement with his counsel’s statement.

Neither party called any witnesses at the hearing, although the Defendant

addressed the court in an allocution. He disputed a statement in the presentence report

that he was a gang member. Regarding the prosecutor’s argument that the Defendant had

never been gainfully employed, the Defendant stated that he had held three full-time jobs

in his life, the last being about seven years ago. He stated that most of his criminal

history was from his younger days and that he had only received two felony convictions

in the past ten years.

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The presentence report was received, which reflects that the then-forty-two-year-

old Defendant committed the offenses by jumping on the counter at two fast food

restaurants and grabbing money from the cash registers. In both instances, the Defendant

physically kept the cashiers from the cash registers. The Defendant had a tenth grade

education and a GED he earned during prior incarceration. His criminal history spanned

his entire adult life. He reported fair mental health, daily alcohol and cocaine use until

his arrest, past marijuana use, and past substance abuse treatment. He reported work

though temporary employment agencies for the previous seven years.

Defense counsel argued that the Defendant had not employed a weapon in the

offenses, that the offenses occurred as a result of the Defendant’s drug addiction and

unspecified mental health issues, and that the Defendant did not attempt to nor had any

intent to harm anyone. The State argued that the Defendant was able to work but instead

relied upon criminal activity to support himself, that he had an extensive record of

criminal activity throughout his adult life, that the victims were lucky not to have been

seriously injured, that the offenses took place in crowded businesses, that the Defendant

had been given numerous opportunities for reform through both probationary and

incarcerative sentences for past offenses, and that enhanced, consecutive sentences were

appropriate.

The trial court stated that it had considered the purposes of sentencing and the

sentencing considerations as stated in the Sentencing Reform Act, the presentence report,

and the arguments of counsel. The court found that the Defendant was a Range III

offender. The court found that the Defendant’s sentences should be enhanced based upon

the Defendant’s history of criminal convictions and behavior in addition to those used to

establish his eligibility for Range III classification. See T.C.A. § 40-35-114(a) (2014)

(amended 2016) (“The defendant has a previous history of criminal convictions or

criminal behavior, in addition to those necessary to establish the appropriate range[.]”).

The court rejected the defense’s argument that the sentences should be mitigated based

upon the criminal conduct neither causing nor threatening serious bodily injury. See id. §

40-35-113(1) (“The defendant’s criminal conduct neither caused nor threatened serious

bodily injury[.]”). The court stated, “I think the conduct involved in both of these snatch

and grab type robberies . . . do threaten serious bodily injury. Obviously there are all

types of things that could occur as a result of somebody forcefully stealing money and the

manner in which [the Defendant] did so.” The court noted, as well, the potential for

injury in light of citizens’ having chased down the Defendant in both robberies. The

court also rejected the defense’s argument for mitigation based upon the Defendant’s

committing the offenses in order to provide necessity for himself or his family, which the

defense proposed based upon the Defendant’s drug addiction. See id. § 40-35-113(7)

(“The defendant was motivated by a desire to provide necessities for the defendant’s

family or the defendant’s self.”). The court allowed mitigation pursuant to the “catch-all

factor,” however, based upon the Defendant’s drug addiction. See id. § 40-35-113(13)

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(providing for mitigation pursuant to “[a]ny other factor consistent with the purposes of

this chapter”).

The trial court observed:

In imposing sentence, the Court finds that weighing the extensive

record of [the Defendant] . . . versus the addiction to drugs that he suffers

under and apparently has for a number of years, the Court finds in

reviewing his history that[:]

Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct.

[The Defendant] has a long history of criminal conduct. Whether all

of that is related to drugs, or not, he has been violating the law and the

morals of society for the last twenty five years.

Confinement is necessary to avoid depreciating the seriousness of

the offense, or confinement is particularly suited to [provide] a deterrent to

others likely to commit similar offenses.

Again, I am aware of the problems and addictions that being

addicted to drugs causes.

However, these types of offenses, involving the robbery of

businesses, with patrons present and clerks and other people who are

simply there trying to do their job, being frightened. I can only imagine the

type of fear, because they don’t know, even if they recognize that [the

Defendant] may be addicted to drugs, that may be all the more reason to be

frightened and afraid when somebody leaps up on the counter, in the

manner in which he is and snatches money out of the tray and don’t know

what to anticipate, or what to expect.

I think those types of offenses are very serious and the Court feels

that confinement is necessary to avoid depreciating how serious that is and

also to provide a deterrent to others whom even though may be addicted to

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drugs, but choose to make a livelihood using that type of modus operandi to

rob and steal from people.

I do note that there have been, at least, on several occasions it

appears in the past when [the Defendant] has been placed on probation and

those efforts obviously have failed, because he has continued to break the

law multiple times since those efforts were made, that the sentence imposed

should be no greater than that deserved for the offense committed.

I have taken all those factors into account and the Court feels that the

appropriate sentence in indictment 13-05021 should be a sentence of twelve

years as a range three persistent offender and that will be the sentence that I

will impose, taking into account the fact that once [the Defendant], for legal

reasons, I forgot now, I believe there was [an] allegation that the victim

wasn’t able to come . . . to the preliminary hearing. There was some

reason, but [the Defendant] was released from custody and just a week, or

two later, in indictment 13-05966, did the same thing, again.

The Court, again, finds, that the enhancement factor of his lengthy

[history of] criminal conviction[s] and criminal behavior weighed against

his drug addiction and for the reasons considered under 40-35-103[,] the

Court will impose a sentence of thirteen years as a range three persistent

offender in that particular case.

In determining whether the sentences would be served concurrently or

consecutively, the trial court found that the Defendant was an offender with an extensive

record of criminal activity and that he was a professional criminal. See id. §§ 40-35-

115(b)(1) (2014) (permitting consecutive sentencing upon a finding that “[t]he defendant is

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

a major source of livelihood), 40-35-115(b)(2) (permitting imposition of consecutive

sentencing if the trial court finds that “[t]he defendant is an offender whose record of

criminal activity is extensive”). The court stated, “There are multiple thefts, there are

multiple other offenses that [cause] the Court a great deal of concern[.]” The court also

stated that the Defendant’s “twenty-five years of committing offenses in this community

justify an extensive sentence” and imposed consecutive sentences on that basis.

For his Class C felony convictions, the Defendant faced sentences of ten to fifteen

years as a Range III offender for each offense. See id. § 40-35-112(c)(3) (2014). The

trial court imposed mid-range sentences of twelve and thirteen years. On appeal, the

Defendant complains that the court failed to specify its reasons for enhancing his

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sentences above the statutory minimum. The Defendant’s complaint is unfounded in

view of the court’s detailed findings of fact relative to the applicable enhancement and

mitigating factors. The enhancement factor for previous history of criminal convictions

and criminal behavior in addition to those used to establish the range is supported by the

record, as is the court’s allowance of mitigation for the Defendant’s drug addiction. The

Defendant has not shown that the court abused its discretion in setting the length of the

Defendant’s sentences at twelve and thirteen years based upon the presence of these

factors.

The Defendant contends that the trial court abused its discretion in ordering

consecutive sentences because the record fails to show the court considered relevant

statutory sentencing considerations and principles of sentencing. He also contends that

he was deprived of due process because the court failed to state on the record its reasons

for imposing consecutive sentences. As we have stated, the court made detailed findings

regarding the applicability of two statutory factors upon which consecutive sentencing

may be based. It also made detailed findings relative to its consideration of the statutory

sentencing considerations and principles of sentencing. Relative to the court’s order of

consecutive sentencing, it noted the Defendant’s long history of criminal convictions and

behavior in the community. The record reflects that the court relied more heavily on the

Defendant’s extensive record of criminal activity in imposing consecutive sentences.

Although the court also relied on the professional criminal factor as a basis for

consecutive sentencing, we note that despite the Defendant’s lengthy criminal history,

many of the offenses involved theft of relatively small amounts or involved criminal

conduct which was unrelated to theft. We conclude that the record supports the trial

court’s findings relative to the consecutive sentencing factor for an extensive record of

criminal activity but that it does not support its finding that the Defendant was a

professional criminal who knowingly devoted his life to criminal activity as a major

source of his livelihood. In any event, based upon the presence of the extensive criminal

activity factor, the Defendant has not shown that the court abused its discretion in

imposing consecutive sentences. He is not entitled to relief on this basis.

III

Denial of Rights to Due Process and Self-Representation

The Defendant contends that he was denied his rights to due process and self-

representation in the trial court proceedings and that, as a result, he had no choice but to

plead guilty. He complains that the court failed to rule on his “Motion to Suppress

Evidence” and “Motion to Dismiss/Lesser Offense.” The record reflects that these

motions pertain to the adequacy of the affidavit of complaint in case number 13-05966

and the sufficiency of the allegations of indictment number 13-05021. He also complains

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that the court issued an order denying his motion to supplement the appellate record with

the “transcript and judgement [sic] sheets of hearing on motion dismiss remand T.R.C.P.

Rule 5(e).”

As a preliminary matter, we note that in this court, the Defendant filed various

motions to supplement the record that are relevant to this issue. The Defendant filed a

motion requesting that the appellate record be supplemented with the trial court’s order

relative to a motion to dismiss, a motion to suppress, and the transcript of the hearing on

the motion to dismiss. In response, the trial court clerk provided a certified statement that

these documents were not in the clerk’s file. This court then ordered the trial court to

determine whether the requested proceedings should be transcribed and included in the

appellate record. In its “Order Denying Request for Transcripts to Supplement Appellate

Record,” the trial court recounted relevant procedural history as follows:

This cause came on to be heard on an Order from the Court of

Criminal Appeals for this Court to determine whether requested

proceedings should be transcribed at the State’s expense to supplement the

defendant’s appellate record for his Motion to Withdraw his Guilty Plea.

The requested proceedings dealt with the defendant’s request for a Court

ordered preliminary hearing after indictment. He is requesting transcripts

of a hearing on a Motion to Dismiss for failure to grant a proper

preliminary hearing pre indictment. The Court granted the motion and the

defendant was afforded a delayed preliminary hearing. Subsequently he

entered into a guilty plea on his trial date. He entered an open ended plea.

....

After reviewing the files in this case the Court finds no justification

for preparing at State expense transcripts for hearings and proceedings

which have no bearing on the issue before the Court of Criminal Appeals.

The issues in question dealt with pretrial matters that were favorably ruled

in the defendant’s favor. At the time of those rulings the defendant was

representing himself.

(Emphasis added.)

Thus, the record reflects that the Defendant was permitted to proceed pro se on the

motions he identified in his appellate brief, that he was afforded a hearing, and that the

trial court granted his requested relief. Discussions on the record at the hearing on the

motion to withdraw the guilty pleas reflect, as well, that the Defendant was afforded a

hearing on the motions to dismiss and suppress, that he was permitted to represent

himself, that the trial court granted his request for preliminary hearings on the

indictments, and that those hearings occurred. To the extent that the Defendant now

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complains that he was not allowed to proceed pro se and that the trial court failed to rule

on his motions, the record does not support his allegations.

Insofar as the Defendant complains that he had no choice but to plead guilty due to

the trial court’s manner of conducting the proceedings, we decline to address the issue.

This question is one which is more appropriately resolved in post-conviction proceedings.

See Wilson, 31 S.W.3d at 195. Because the issue is not appropriate for review at this

stage, the court appropriately ruled that the transcripts of the motions hearings were not

necessary supplements to the appellate record.

In consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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