State of Tennessee v. Adarion C. Morris

12/05/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 16, 2019

STATE OF TENNESSEE v. ADARION C. MORRIS

Appeal from the Criminal Court for Davidson County

Nos. 2016-C-1500, 2016-C-1501, 2016-C-2181 Angelita Blackshear Dalton, Judge

No. M2018-02034-CCA-R3-CD

The defendant, Adarion C. Morris, appeals the 48-year sentence imposed following the

revocation of his community corrections placement, arguing that the trial court was

without jurisdiction to impose the new sentence and that the sentence is excessive.

Discerning no error, we affirm the revocation of the defendant’s community corrections

placement and the sentences imposed following the resentencing.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

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

Lonnie Maze III, Nolensville, Tennessee, for the appellant, Adarion C. Morris.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Samantha Dotson,

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

OPINION

In case number 2016-C-1500, the Davidson County Grand Jury charged the

defendant with one count of the possession with intent to sell or deliver .5 grams or more

of cocaine and one count of the simple possession or casual exchange of marijuana. In

case number 2016-C-1501, the same grand jury charged the defendant with two counts of

aggravated assault, one count of felony evading arrest, and one count of second or

subsequent offense of driving on a revoked license. In case number 2016-C-2181, the

defendant was charged with one count of aggravated assault. On April 27, 2018, the

defendant pleaded guilty as charged in case numbers 2016-C-1501 and 2016-C-2181 and

count two of case number 2016-C-1500. He also pleaded guilty to the lesser included

offense of the attempted possession with intent to sell or deliver .5 grams or more of

cocaine in count one of case number 2016-C-1500. Pursuant to a plea agreement with the

State, the defendant received a total effective sentence of six years to be served in a

community corrections placement in exchange for his pleas of guilty.

Less than two months later, on June 20, 2018, a community corrections

violation warrant issued alleging that the defendant had violated the terms of his

community corrections placement by failing to report. An amended violation warrant

issued on July 25, 2018, alleging that the defendant had violated the terms of his

community corrections placement by garnering new charges of vandalism, assault, and

aggravated assault. A second amended violation warrant issued on August 1, 2018,

alleging that the defendant violated the terms of his community corrections placement by

garnering yet another charge of aggravated assault.

At the October 17, 2018 hearing, Davidson County Community Corrections

case officer Lisa Baden testified that the defendant began reporting in April 2018 and

stopped reporting on June 5, 2018. Ms. Baden later learned that the defendant had been

arrested on charges of vandalism, assault, and aggravated assault with a deadly weapon.

Metropolitan Nashville Police Department Detective Gary Shannon

testified that he investigated three separate incidents in which the defendant was

suspected of the aggravated assault of three different victims. He explained,

One of the incidents was here in Davidson County [on

July 18, 2018,] at 3203 Lagrange Drive. . . . There was a

couple of people, Tina Yarbrough and Antoinisha Shepherd

were inside of that residence when they heard gunfire outside.

The house was hit multiple times. As a matter of fact, we

collected nine shell casings from that location outside.

A witness that was in the house in a different bedroom

that was not hit, Ms. Irving, she ran outside, and she could see

[the defendant] running away from the residence. And then,

he got into a dark colored vehicle. She could see something

in his hand. She couldn’t make out what it was. And she

knew that [the defendant] had just been in a bad breakup with

Shaniqua Shepard.

Antoinisha Shepard was apparently the daughter of the defendant and Shaniqua Shepard.

Another incident occurred on July 10, 2018, at 144 Hodge Court. On that

occasion, Thomas McKissick

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was outside, he heard gunshots. He could see the flashes

from the gunshots, and he could hear the bullets striking

around him. . . . . He could see . . . what he thought was [the

defendant], shooting at him. We collected seven shell

casings from that residence as well. And shortly after that

incident, Shaniqua Shepard received a call from [the

defendant], and he had told her that he had just shot at her

uncle, Mr. McKissick.

The other incident occurred on July 11, 2018, at 917 14th Avenue North.

On that occasion, “Lamonte Ayers was outside of his residence and he heard

approximately two gunshots, one bullet struck near the ground near him. He didn’t see a

shooter and we weren’t able to recover any shell casings on that incident.” Shortly after

the shooting, however, the defendant “called Shaniqua Shepard . . . and said that he had

just shot at her cousin on 14th Avenue North.”

Detective Shannon testified that charges related to each of the three

incidents had been bound over to the Davidson County Grand Jury following a lengthy

preliminary hearing. The State exhibited the recording of that preliminary hearing to

Detective Shannon’s testimony.

During cross-examination, Detective Shannon testified that, although he

was not involved in the investigation, he was aware of a July 10, 2018 incident during

which the defendant choked Shaniqua Shepard and pointed a gun at her. He said that the

charges stemming from that incident had also been bound over to the grand jury

following the same preliminary hearing. Detective Shannon acknowledged that neither

Ms. Irving nor Mr. McKissick was completely sure in their identification of the defendant

as the shooter. Detective Shannon said that he did not interview the defendant and that

the defendant had not provided any statement following his arrest.

During redirect examination, Detective Shannon testified that forensic

testing had matched the shell casings collected during the investigation to a 9mm

handgun recovered during the defendant’s arrest.

Following this testimony, the State rested, and the defendant elected to

present no proof. The State asked the trial court to revoke the defendant’s community

corrections placement and to exercise its discretion to resentence the defendant. To this

end, the State exhibited to the hearing a resentencing report. The State asked the trial

court to increase the individual sentences and to order consecutive service of the

sentences. The defendant admitted “that he has violated his community corrections.

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That’s obvious.” Nevertheless, he asked the court not to increase the sentence and

instead order the existing six-year sentence into service. The trial court took the case

under advisement.

In a written order, the trial court found by a preponderance of the evidence

that the defendant had violated the terms of his community corrections placement

“[b]ased on proof presented regarding the events that are alleged to have occurred on July

10, 11 and 18, 2018,” as well as the defendant’s failure to report. The court also

concluded that resentencing rather than execution of the original agreed sentence was

warranted under the circumstances of this case.1

The court determined that, based upon his criminal record, the defendant

was a Range II offender. The court applied enhancement factors (1), that the defendant

had a history of criminal convictions or criminal behavior in addition to that necessary to

establish the appropriate range, and (8), that the defendant previously failed to comply

with a sentence involving release into the community, to all of the defendant’s

convictions. See T.C.A. § 40-35-114(1), (8). The court applied factors (3), that the

offenses involved more than one victim, and (19), that the victim of the aggravated

assault was a law enforcement officer, to the defendant’s convictions in case number

2016-C-1501. See id. § 40-35-114(3), (19). The court applied enhancement factors (10),

that the defendant had no hesitation about committing a crime when the risk to human

life was high, and (12), that the offenses involved the threat of death or serious bodily

injury, to the defendant’s convictions in case numbers 2016-C-1501 and 2016-C-2181.

See id. § 40-35-114(10), (12). The court noted that it was “extremely disturbed by the

[d]efendant’s history of criminal behavior, including convictions for domestic violence

related and other violent offenses, especially considering that one of the instant cases

involved a domestic violence related offense.” The court observed that the charges that

resulted in the revocation of the defendant’s community corrections sentence were “based

on the allegations of seriously violent offenses . . . including additional allegations of

domestic violence committed in the presence of children, and the use of a handgun

against the family of the [d]efendant’s former girlfriend.” The court expressed “great

trepidation about the [d]efendant’s total disregard for authority and his lack of an

appreciation for his accountability for his actions and the impact of his criminal behavior

on others.” Based upon these findings, the trial court imposed a sentence of 10 years’

incarceration for each of the defendant’s three convictions of aggravated assault, a

sentence of 10 years’ incarceration for the defendant’s conviction of attempted

possession of cocaine, and a sentence of eight years’ incarceration for the defendant’s

conviction of felony evading arrest.

1

The defendant received sentences of “time served” for his convictions of simple possession and

driving on a revoked license. Consequently, those counts are not at issue in this case.

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The trial court also ordered that the all of the sentences be served

consecutively, for a total effective sentence of 48 years’ incarceration. Relative to

sentence alignment, the court found that the defendant had an extensive record of

criminal activity and that he qualified as a dangerous offender. See id. § 40-35-115(b)(2),

(4). The court also concluded “that consecutive sentencing is appropriate and necessary

to protect the public against further criminal conduct by the [d]efendant and relates to the

severity of the offenses committed.”

The court determined that confinement was necessary to protect society

from further criminal conduct by the defendant and to avoid depreciating the seriousness

of the offenses. See id. § 40-35-103(A), (B). Finally, the court found that measures less

restrictive than confinement had frequently and recently been applied unsuccessfully to

the defendant. See id. § 40-35-103(C).

In this timely appeal, the defendant does not challenge the revocation of his

community corrections placement but asserts that the trial court erred by electing to

resentence him instead of ordering execution of the original six-year agreed sentence.

Specifically, he contends that, because he was statutorily ineligible for community

corrections in the first place, the trial court lacked the authority to resentence him under

the terms of Code section 40-36-106. He also argues that, assuming that the trial court

had the authority to resentence him, the new sentence is excessive given that he had not

yet been convicted of the new offenses that led to the revocation of his community

corrections placement.

Propriety of Original Sentence

The defendant first asserts that, because he was statutorily ineligible for

community corrections placement for his convictions of aggravated assault, the trial court

was without the authority to resentence him following the revocation of that placement.

He claims that the court was only authorized to order service of the original sentence.

As a general rule, “[i]ssues raised for the first time on appeal are considered

waived.” State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996). As the State

correctly points out, the defendant did not challenge the legality of the original six-year

community corrections placement prior to or at the revocation and resentencing hearing.

Additionally, although “a trial judge may correct an illegal, as opposed to a merely

erroneous, sentence at any time, even if it has become final,” State v. Brown, 479 S.W.3d

200, 206 (Tenn. 2015) (quoting State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)),

the original six-year community corrections placement was not, as the defendant

contends, an illegal sentence. An illegal sentence is one “that is not authorized by the

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applicable statutes or that directly contravenes an applicable statute.” Tenn. R. Crim. P.

36.1; see also State v. Wooden, 478 S.W.3d 585, 594-95 (Tenn. 2015). The defendant is

correct that he was not eligible for community corrections placement for his aggravated

assault convictions under the terms of Code section 40-36-106(a), which excludes from

eligibility those felony offenders convicted of offenses “involving crimes against the

person as provided in title 39, chapter 13, parts 1-5.” T.C.A. § 40-36-106(a)(1)(B)

(emphasis added). Code section 40-36-106(c), however, provides an exception to that

general exclusion:

Felony offenders not otherwise eligible under subsection (a),

and who would be usually considered unfit for probation due

to histories of chronic alcohol or drug abuse or mental health

problems, but whose special needs are treatable and could be

served best in the community rather than in a correctional

institution, may be considered eligible for punishment in the

community under this chapter.

Id. § 40-36-106(c). Because a community corrections placement was among the

statutorily available sentences, the defendant cannot establish that his original six-year

community corrections sentence was illegal.

Propriety of Resentencing

As indicated, the defendant does not challenge the factual basis supporting

the revocation of his community corrections placement but argues that the sentence

imposed by the trial court following his resentencing is excessive. He asserts that the

trial court failed to “consider the fact that” he had not yet been convicted of any new

offenses at the time of the resentencing hearing. He also claims that the trial court should

have considered in mitigation the fact that “Ms. Shepard had first denied being abused . .

. and did not call the police until almost three weeks after the alleged incident.”

Importantly, the preponderance of the evidence adduced at the revocation

hearing established that the defendant committed the offenses that led to the revocation of

his community corrections placement. Consequently, the trial court did not err by

revoking the community corrections placement. See T.C.A. § 40-35-311(e)(1) (“If the

trial judge finds that the defendant has violated the conditions of probation and

suspension by a preponderance of the evidence, the trial judge shall have the right by

order duly entered upon the minutes of the court to revoke the probation and suspension

of sentence . . . .”); State v. Harkins, 811 S.W.2d 79, 83 (Tenn. 1991) (“Given the similar

nature of a community corrections sentence and a sentence of probation, we hold that the

same principles are applicable in deciding whether a community corrections sentence

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revocation was proper.”).

Code section 40-36-106 provides that, following the revocation of a

community corrections placement, a trial court “may resentence the defendant to any

appropriate sentencing alternative, including incarceration, for any period of time up to

the maximum sentence provided for the offense committed,” provided that “[t]he

resentencing [is] conducted in compliance with § 40-35-210.” T.C.A. § 40-36-106(d)(4).

“The purpose of this statute is to permit a trial court to impose a new sentence if the

nature, circumstances, and frequency of the accused’s violations warrant a different type

of alternative sentence or incarceration.” State v. Ervin, 939 S.W.2d 581, 583 (Tenn.

Crim. App. 1996). “A sentence imposed pursuant to this statute may exceed the length of

the sentence initially imposed by the trial court,” id., and may include the consecutive

alignment of sentences that were originally aligned concurrently, see State v. Samuels, 44

S.W.3d 489, 496 (Tenn. 2001).

Our supreme court has adopted an abuse of discretion standard of review

for sentencing and has prescribed “a presumption of reasonableness to within-range

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

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of

the purposes and principles of sentencing involves a consideration of “[t]he potential or

lack of potential for the 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(5). Trial

courts are “required under the 2005 amendments to ‘place on the record, either orally or

in writing, 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.’” Bise 380

S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The standard of review adopted in

Bise “applies similarly” to the imposition of consecutive sentences, “giving deference to

the trial court’s exercise of its discretionary authority to impose consecutive sentences if

it has provided reasons on the record establishing at least one of the seven grounds listed

in Tennessee Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851,

861 (Tenn. 2013).

In State v. Wilkerson, the supreme court held that the trial court must find

that consecutive sentences are reasonably related to the severity of the offenses

committed and are necessary to protect the public from further criminal conduct before

utilizing the “dangerous offender” category to impose consecutive sentencing, see State

v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), and “[t]he adoption of the abuse of

discretion standard with the presumption of reasonableness has not eliminated this

requirement,” Pollard, 432 S.W.3d at 863.

In this case, the trial court conducted a resentencing hearing, and its

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resentencing order complied with the terms of Code section 40-35-210. The trial court

considered the enhancement and mitigating factors when imposing the new sentences,

and, although the court arguably misapplied some of the enhancement factors, the

remaining factors supported the length of the individual sentences. The record also

supports the trial court’s conclusion that consecutive sentences were warranted based

upon the defendant’s extensive criminal record and his status as a dangerous offender.

The court, noting the level of violence involved in the conviction offenses as well as the

defendant’s pattern of violent behavior in his prior convictions and in the offenses that

led to the revocation of his community corrections placement, made the necessary

findings under Wilkerson. The resentencing report indicates that the defendant had prior

convictions of voluntary manslaughter, aggravated assault, attempted aggravated assault,

assault (two counts), and violating an order of protection (two counts). The

preponderance of the evidence established that, less than two months after being granted

a community corrections placement, the defendant not only possessed a deadly weapon

but used it to terrorize his ex-girlfriend and members of her family. In our view, “the

nature, circumstances, and frequency of” the defendant’s violent behavior warranted the

new sentence imposed by the trial court. See Ervin, 939 S.W.2d at 583.

Accordingly, we affirm the judgments of the trial court.

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JAMES CURWOOD WITT, JR., JUDGE

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