State of Tennessee v. David Lassiter

03/28/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2019

STATE OF TENNESSEE v. DAVID LASSITER

Appeal from the Circuit Court for Madison County

Nos. 17-420-423, 17-483-485 Donald H. Allen, Judge

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No. W2018-01020-CCA-R3-CD

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The Defendant, David Lassiter, pled guilty to four counts of theft of property valued at

$2,500 or more and four counts of theft of property valued at more than $1,000. He

received an effective sentence of sixteen years. On appeal, the Defendant challenges the

trial court’s denial of alternative sentencing and the imposition of partial consecutive

sentences. Upon review of the record and applicable law, we affirm the trial court’s

judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

George Googe, District Public Defender; and Gregory D. Gookin, Assistant District

Public Defender, for the Appellant, David Lassiter.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

From April 10, 2017, through June 6, 2017, the Defendant committed eight thefts

in Madison County. During this time, the Defendant took numerous trailers, lawn

equipment, and other tools. His co-defendant in three of the thefts also entered a guilty

plea.

At the plea hearing, the State informed the trial court of the evidence that would

have been presented had the Defendant proceeded to trial. According to the State, from

April 10, 2017, to June 6, 2017, the Defendant committed eight different thefts against

six different victims. The Defendant pled guilty to theft of the following items: a zero-

turn lawn mower valued at $6,000 from Byrd Implement; three trailers, each valued over

$1,000, taken on two separate dates, from Compressors & Tools, Inc.; various pieces of

lawn equipment valued over $2,500 from Mr. Robert Pierce; a trailer valued over $1,000

from Sam’s Club; and a trailer valued over $2,500 from Bob’s Janitorial Service. As part

of the Defendant’s guilty plea, the State dismissed five counts of criminal trespass.

At the sentencing hearing, victims of the thefts testified. Mr. Brian Byrd testified

on behalf of Byrd Implement Company that a zero-turn lawn mower, valued at $6,000,

was taken from his place of business on or about June 5, 2017. The lawn mower was

recovered and returned to Mr. Byrd.

Mr. Timothy Jones, a business manager for Compressors & Tools, Inc., testified

that around May 17, 2017, two trailers with a combined value of $3,250 were taken, and

neither one was returned. Around June 5, 2017, another trailer, valued at over $1,000

was taken and was later returned in a damaged condition. Mr. Jones said the cost of

repairing the trailer was $250.

Mr. Douglas Taylor, the owner of Taylor Construction & Restoration, testified that

various power tools and generators valued at $4,100 were taken and that none of the

items were returned. The State announced that one of the victims, Mr. Robert Pierce,

would not be testifying, but that he did request restitution in the amount of $2,500. The

State notified the trial court that Mr. Pierce’s statement regarding the requested restitution

could be found in the presentence report.

Ms. Paulette Gallagher, a manager at Sam’s Club, testified that a trailer valued at

approximately $1,249 was taken from Sam’s Club on April 10, 2017, and the trailer was

not returned.

Ms. Ida Reeves, the operations manager at Bob’s Janitorial Service, testified that a

trailer valued at $3,500 was taken on June 3, 2017, and that the trailer was later returned

with damage. She testified that the damage was in the amount of $39.

Officer John Foren, an investigator with the Madison County Sheriff’s

Department, testified on behalf of the Defendant. Officer Foren investigated the cases

involving trailer thefts. He interviewed the Defendant, who admitted he was involved in

numerous thefts of trailers and informed him where some of the trailers and the zero-turn

lawn mower could be located.

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Officer Jeff Herndon, an investigator with the Jackson Police Department, also

testified for the Defendant. Officer Herndon conducted a separate interview of the

Defendant, who provided the location of several of the stolen items.

Ms. Lauren Wood, the Defendant’s daughter, testified that the Defendant has a

substance abuse problem but that prior to these thefts, she was not aware of the

seriousness of his addiction. She said she hoped the Defendant could receive

rehabilitation. Ms. Lynn Atwill, the Defendant’s mother, testified that she knew that the

Defendant has suffered from an addiction to crack cocaine for the last twenty years. She

said that the Defendant has participated in multiple thirty-day treatment programs in the

past but believed that the Defendant needed a long-term treatment program in order to

overcome his addiction.

Mr. Steve Robinson also testified for the Defendant. He is an employee at

Warrior’s Center, a faith-based, long-term rehabilitation center for men. Warrior’s

Center offers long-term, residential treatment programs. He said the Defendant had been

accepted into this program.

The Defendant elected to testify at the sentencing hearing. He emphasized that he

had admitted his involvement in these thefts when he pled guilty, at the sentencing

hearing, and in his initial interviews with Investigators Foren and Herndon. He

acknowledged that he has similar pending theft charges in Haywood and Weakley

Counties. The Defendant testified that he has had a crack cocaine addiction for the last

twenty years. He was sober for almost seven years after serving a previous sentence that

ended in 2010. In 2016, during a theft that occurred at a convenience store, the

Defendant met his co-defendant, Mr. Thaddeus Ray. The Defendant pled guilty to the

theft that occurred at a convenience store in January 2017 and was on supervised

probation when he committed the thefts that are the bases for the present convictions.

The Defendant stated that he committed the thefts to “fuel a drug habit.” After

taking the trailers, he tried to sell the trailers. In his time in custody, the Defendant

graduated from the Celebrate Recovery drug treatment program and obtained a certificate

in a Bible course. He said he wanted to attend the long-term treatment at the Warrior

Center, and he read a letter apologizing to the victims.

The trial court questioned the Defendant about his criminal history beginning in

1997 and whether he sought drug treatment at that point. The Defendant admitted that he

has had a problem with crack cocaine since 1989. The court asked the Defendant what

he had done in the last twenty years to confront his addiction. The Defendant stated that

he went to a short-term program and was involved in a nine-month treatment program

while previously incarcerated. The Defendant acknowledged that he “never took the

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support that I’m supposed to use after these programs and used it, you know, sponsors

and call people. I never did that. I think that was my downfall.”

The trial court also questioned the Defendant about the numerous times he had

previously violated the terms of his probation and parole. The trial court found that on

ten prior occasions while the Defendant was on probation he violated the terms of his

probation. In 2008, while the Defendant was on parole he received an additional

conviction. This incident occurred after the Defendant had completed the nine-month

drug treatment program. More recently, the Defendant was on supervised probation

when he committed the current offenses.

At the conclusion of the Defendant’s testimony, the State submitted that the

Defendant is a Range II offender based on his prior convictions, which included eight

counts of forgery, multiple theft convictions, and an identity theft conviction. The State

previously filed a notice seeking an enhanced punishment. The State asserted that the

trial court should consider the Defendant’s extensive criminal history in making its

decision regarding both the length of the individual sentences and whether to impose

consecutive sentencing.

The Defendant agreed that he was a Range II offender. He requested that as part

of his sentence, he be required to attend a long-term inpatient drug treatment program.

He asserted that he cooperated with the investigators and that he had never displayed any

type of violent behavior in relation to his prior or current convictions.

The trial court issued its order orally and was very meticulous in articulating its

findings regarding sentencing. The trial court considered the evidence presented during

the guilty plea and sentencing hearings and the presentence report. The court noted that it

considered the “principles of sentencing and the arguments that have been made by

counsel as to sentencing alternatives.” Additionally, it considered the nature and

characteristics of the criminal conduct involved, enhancement and mitigating factors,

statistical information provided by the Administrative Office of the Courts, and the

Defendant’s testimony.

The trial court first determined that the Defendant was a Range II offender. The

court noted that four of the thefts were Class D felony offenses and that the range for a D

felony is four to eight years of incarceration. See T.C.A. § 40-35-111(b)(4). The other

four offenses are Class E felonies and the range for a E felony for a Range II offender is

two to four years incarceration. See T.C.A. § 40-35-111(b)(5).

The trial court thoroughly discussed the Defendant’s criminal history in its

decision to deny alternative sentencing as well as its decision to impose partially

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consecutive sentences. Importantly, the trial court noted that prior to the Defendant’s

current convictions, he had thirteen prior felony convictions. Several of the Defendant’s

prior convictions were committed within a twenty-four-hour time period and accordingly

did not increase his offender classification. See T.C.A. § 40-35-106(b)(4). The

Defendant’s criminal history consists of over eight forgeries, multiple felony theft

convictions, and numerous misdemeanor convictions, including identity theft and

attempted forgery.

The trial court applied four enhancement factors pursuant to Tennessee Code

Annotated section 40-35-114. First, the trial court found “the defendant has a previous

history of criminal convictions or criminal behavior, in addition to those necessary to

establish the appropriate range.” T.C.A. § 40-35-114(1). The trial court found that in

addition to the Defendant’s history of criminal convictions he also had a history of

criminal behavior, his self-reported drug use. Second, the trial court found that the

Defendant “was a leader in the commission of an offense involving two (2) or more

criminal actors.” T.C.A. § 40-35-114(2). Third, the trial court found that the Defendant

“before trial or sentencing in this case has failed to comply with the conditions of a

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

trial court found that the Defendant committed eight felony thefts while he was

“[r]eleased on probation.” T.C.A. § 40-35-114(13)(C). The trial court gave great weight

to the Defendant’s criminal history, the fact that he committed these offenses while on

probation, and his history of failing to comply with conditions involving release into the

community. The trial court gave moderate weight to the Defendant’s role as the leader in

the thefts.

The trial court applied the following mitigating factors pursuant to Tennessee

Code Annotated section 40-35-113. First, the court found that the Defendant’s “criminal

conduct neither caused nor threatened serious bodily injury.” T.C.A. § 40-35-113(1).

Next, the trial court found the Defendant “did assist the authorities in locating and

recovering some of the property that was taken.” The trial court gave slight weight to the

fact that the Defendant’s conduct “neither caused nor threatened serious bodily injury.”

The trial court also gave very slight weight to the Defendant’s assistance in recovering

some of the stolen property. Additionally, the trial court noted that it gave “consideration

to the fact that he has pled guilty and he has accepted responsibility for his actions in this

case.” The trial court indicated that it awarded moderate weight to the Defendant’s

participation in rehabilitative programs while incarcerated.

The trial court spent a great deal of time discussing the Defendant’s “inability to

comply with the conditions of release into the community.” The trial court discussed

each of the ten times the Defendant had previously violated the terms of his probation,

dating back to 1996. The trial court found that the Defendant has “had multiple chances

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to be on probation. He gets out on probation and then he doesn’t report. He absconds.”

In deciding whether to impose an alternative sentence, the trial court determined that “it

appears to me that he would not abide by the terms of probation or any type of release

program.” The trial court determined that the Defendant should receive the maximum

sentence for each of his convictions within his range. The court imposed an eight-year

sentence on each of the convictions of theft of property valued at $2,500 or more and a

four-year sentence for each of the convictions of theft of property value at over $1,000.

The trial court found that consecutive sentences were warranted based on the

Defendant’s extensive criminal history. The trial court structured the sentences into two

different groups. The sentences within each group run concurrently to each other and

consecutively to the other group. The trial court ordered the sentences for the D felony

theft committed against Byrd Implement, one of the E felonies committed against

Compressors & Tools, Inc., and the D felony committed against Bob’s Janitorial Service

run concurrently with each other but consecutively to the remaining counts. It ordered

the sentences for the D felony committed against Taylor Construction, the two E felonies

committed against Compressors & Tools, Inc., the D felony committed against Mr.

Pierce, and the D felony committed against Sam’s Club run consecutively to each to

other but concurrently to the remaining sentences. The trial court entered an effective

sentence of sixteen years.

ANALYSIS

I. Alternative Sentencing

The Defendant argues that the trial court erred in denying alternative sentencing.

However, he “concedes that the trial court did not err in its application of various

enhancement factors against him.” The State maintains that the trial court did not abuse

its discretion in denying the Defendant alternative sentencing.

This court reviews a trial court’s denial of alternative sentencing under an abuse of

standard review with the presumption of reasonableness to sentences that fall within the

correct range. State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012) (citing State v. Bise,

380 S.W.3d 682, 707 (Tenn. 2012)). In Caudle, the court stated that the abuse of

discretion standard articulated in Bise also applies to “questions related to probation or

any other alternative sentence.” Id. at 278-79. Appellate courts should affirm a 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.

Trial courts are required to consider the following when imposing a sentence:

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(1) The evidence, if any, received at 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;

(7) Any statement the defendant wishes to make on the defendant’s own

behalf about sentencing; and

(8) The result of the validated risk and needs assessment conducted by the

department and contained in the presentence report.

T.C.A. § 40-35-210(b). The trial court is required to consider the Defendant’s potential

for rehabilitation or treatment in determining whether to impose an alternative sentence.

T.C.A. § 40-35-103(6). A defendant who possesses a “criminal histor[y] 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.”

T.C.A. § 40-35-102(5).

The trial court did not abuse its discretion in declining to impose alternative

sentencing. The trial court sentenced the Defendant as a Range II offender and as such

he is not considered to be a favorable candidate for alternative sentencing. State v. Rabon

D. Gibson, No. M2011-01377-CCA-R3-CD, 2012 WL 830177, at *3 (Tenn. Crim. App.

Mar. 12, 2012) (citing T.C.A. § 40-35-102(6)). The trial court articulated specific

findings regarding each of the factors enumerated in Tennessee Code Annotated sections

40-35-210(b) and 40-35-103 in denying alternative sentencing. Importantly, the trial

court found that the Defendant has previously failed to comply with the terms of

probation and parole. The Defendant has an extensive criminal history encompassing

thirteen prior felony convictions. The record supports the trial court’s determination that

confinement is necessary based on the Defendant’s criminal history and the fact that he

committed the current offenses while on probation. In rendering its order, the trial court

devoted a significant discussion to the Defendant’s addiction problems but ultimately

decided that the Defendant had had numerous opportunities to seek long-term treatment

and declined to seek help. Further, the Defendant does not dispute the trial court’s

application of various enhancement factors. Accordingly, the Defendant has not shown

how the trial court abused its discretion when declining to impose an alternative sentence.

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II. Consecutive Sentencing

The trial court has the sound discretion to determine whether a sentence should be

served concurrently or consecutively. State v. Pollard, 432 S.W.3d 851, 860 (Tenn.

2013). A trial court’s decision to impose consecutive sentencing is reviewed under an

abuse of discretion standard with a presumption of reasonableness. Id. A trial court

abuses its discretion when it “applies incorrect legal standards, reaches an illogical

conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies

reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d

436, 443 (Tenn. 2010). This court will affirm a 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.

A trial court is permitted to impose consecutive sentences when it provides

reasons on the record that establish one of the seven factors enumerated in Tennessee

Code Annotated section 40-35-115(b). The trial court applied two of these factors in

imposing partially consecutive sentences. The trial court found that the Defendant “is an

offender whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). The

trial court also found that the Defendant was sentenced in the current offenses while he

was on probation. T.C.A. § 40-35-115(b)(6) (“The court may order sentences run

consecutively if the court finds by a preponderance of the evidence that . . . [t]he

defendant is sentenced for an offense committed while on probation.”). It is clear from

the record that the trial court thoroughly discussed the Defendant’s prior criminal history,

including each of his prior thirteen felony convictions and the fact that the Defendant was

on probation when he committed the current felonies. We conclude that the trial court

did not err in imposing partial consecutive sentences.

CONCLUSION

Based on the foregoing analysis, we affirm the judgments of the trial court.

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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