State of Tennessee v. Bobby Lewis Parks

07/29/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 25, 2019

STATE OF TENNESSEE v. BOBBY LEWIS PARKS

Appeal from the Circuit Court for Madison County

No. 17-491, 17-192, 17-193 Donald H. Allen, Judge

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No. W2018-01761-CCA-R3-CD

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The defendant, Bobby Lewis Parks, entered an open plea to two counts of sale of 0.5

grams or more of cocaine, two counts of delivery of 0.5 grams or more of cocaine, one

count of sale of less than 0.5 grams of cocaine, and one count of delivery of less than 0.5

grams of cocaine. The trial court sentenced the defendant to an effective sentence of

thirty years’ incarceration in the Tennessee Department of Correction. On appeal, the

defendant argues the sentence imposed by the trial court was excessive. After reviewing

the record and considering the applicable law, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ROBERT H. MONTGOMERY, JR., JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Bobby Lewis Parks.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, 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

The defendant was charged with two counts of sale of 0.5 grams or more of

cocaine, two counts of delivery of 0.5 grams or more of cocaine, one count of sale of less

than 0.5 grams of cocaine, and one count of delivery of less than 0.5 grams of cocaine.

The defendant subsequently agreed to an open plea with sentencing to be determined by

the trial court. As part of the plea, the State and the defendant agreed the defendant’s

sentences would be served concurrently. A sentencing hearing was held on September

13, 2018.

During the sentencing hearing, the State introduced into evidence the presentence

report. The defendant also made a statement, apologizing to his family for “lying to them

about this whole situation.” He stated he began selling drugs again in 2015 after learning

he had “five years to live.” The defendant needed money for medical bills and “to have

money for [his] son.”

In sentencing the defendant, the trial court stated it considered the evidence

presented during the guilty plea hearing and the sentencing hearing including, the

presentence report, the defendant’s statement, and the arguments of counsel. In

reviewing the appropriate and applicable enhancement factors, the trial court found

enhancement factors (1), the defendant has a previous history of criminal convictions or

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

the defendant, before trial or sentencing, failed to comply with the conditions of a

sentence involving release into the community; (13), at the time the felonies were

committed, the defendant was released on parole; and (16), the 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), (16). The trial court

also applied mitigating factor (1), the defendant’s criminal conduct neither caused nor

threatened serious bodily injury. Id. § 40-35-113(1). The trial court gave this factor

“some slight weight.” The trial court also considered the defendant’s willingness to plead

guilty and accept responsibility for his actions. In finding the defendant a career

offender, the trial court noted he had eight prior felony convictions. At the conclusion of

the sentencing hearing, the defendant was sentenced as a Range III, career offender as

follows:

Case Offense Sentence

17-491 Count 1: Sale of 0.5 grams or more of cocaine 30 years

Count 2: Delivery of 0.5 grams or more of

cocaine 30 years

17-492 Count 1: Sale of 0.5 grams or more of cocaine 30 years

Count 2: Delivery of 0.5 grams or more of

cocaine 30 years

17-493 Count 1: Sale of less than 0.5 grams of 15 years

cocaine

Count 2: Delivery of less than 0.5 grams of 15 years

cocaine

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In each case, the trial court merged Count 2 into Count 1 and ordered the sentences to run

concurrently, for an effective sentence of thirty years. This timely appeal followed.

Analysis

On appeal, the defendant argues the trial court erred in imposing an excessive

sentence. The State contends the defendant has waived this issue for failing to support

his argument with legal authority. The State further contends the trial court properly

sentenced the defendant. We agree with the State.

In determining an appropriate sentence, a trial court must 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 mitigating and enhancement 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 the defendant

makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed

should be the least severe measure necessary to achieve the purposes for which the

sentence is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See Id.

§§ 40-35-114, -210(c). Although the application of the factors is advisory, a court shall

consider “[e]vidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5).

The trial court must also place on the record “what enhancement or mitigating factors

were considered, if any, as well as the reasons for the sentence, in order to ensure fair and

consistent sentencing.” Id. § 40-35-210(e).

When an accused challenges the length and manner of service of a sentence, this

Court reviews the trial court’s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). If a trial court misapplies an enhancement or mitigating factor in

passing sentence, said error will not remove the presumption of reasonableness from its

sentencing determination. Id. at 709. This Court will uphold the trial court’s sentencing

decision “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.” Id. at 709-10. Moreover, under such circumstances, appellate courts may not

disturb the sentence even if we had preferred a different result. See State v. Carter, 254

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S.W.3d 335, 346 (Tenn. 2008). The party challenging the sentence imposed by the trial

court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §

40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

We must first address the State’s contention that the defendant waived this issue

by failing to cite to legal authority in support of his argument. Tennessee Rule of

Appellate Procedure 27(a)(7) provides that a brief shall contain “[a]n argument . . .

setting forth the contentions of the appellant with respect to the issues presented, and the

reasons therefor, including the reasons why the contentions require appellate relief, with

citations to the authorities and appropriate references to the record . . . relied on[.]”

Tennessee Court of Criminal Appeals Rule 10(b) states that “[i]ssues which are not

supported by argument, citation to authorities, or appropriate references to the record will

be treated as waived in this court.” See State v. Sanders, 842 S.W.2d 257, 259 (Tenn.

Crim. App. 1992) (holding an issue was waived where the defendant cited no authority to

support his claim).

Here, although the defendant cited to the proper standard of review as required by

Tennessee Rule of Appellate Procedure 27(a)(7)(B), he failed to support his argument

with citation to appropriate authorities. Additionally, the defendant failed to provide any

reasoning as to why he is entitled to appellate relief. Instead, in a single sentence, the

defendant simply states “the [t]rial [c]ourt considered both mitigating and enhancement

factors, yet still imposed essentially the harshest sentence available.” The defendant’s

argument has been waived.

Despite waiver, the defendant’s argument is without merit. The defendant pled

guilty to two counts of sale of 0.5 grams or more of cocaine, a Class B felony, two counts

of delivery of 0.5 grams or more of cocaine, a Class B felony, one count of sale of less

than 0.5 grams of cocaine, a Class C felony, and one count of delivery of less than 0.5

grams of cocaine, a Class C felony. The trial court determined the defendant was a career

offender based on his prior criminal record, and the defendant does not challenge this

finding on appeal. “A defendant who is found by the court beyond a reasonable doubt to

be a career offender shall receive the maximum sentence within the applicable Range

III.” Tenn. Code Ann. § 40-35-108(c). The maximum sentence for a Class B felony in

Range III is thirty years. Id. § 40-35-112(c)(2). The maximum sentence for a Class C

felony in Range III is fifteen years. Id. § 40-35-112(c)(3). Therefore, the trial court

properly sentenced the defendant to thirty years for each count of sale and delivery of 0.5

grams or more of cocaine and fifteen years for each count of sale and delivery of less

than 0.5 grams of cocaine, resulting in an effective sentence of thirty years. The

defendant is not entitled to relief.

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Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgments of the

trial court.

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J. ROSS DYER, JUDGE

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