# State of Tennessee v. Kenneth Lloyd Hill

> Court of Criminal Appeals of Tennessee · April 15, 2020

URL: https://www.frixlaw.com/law-library/cases/4525576

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** April 15, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Norma McGee Ogle
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4525576

## How later opinions describe it (automated extraction)

- applying the standard to alternative sentencing

## Opinion text

04/15/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2019

STATE OF TENNESSEE v. KENNETH LLOYD HILL

Appeal from the Criminal Court for Davidson County
No. 2017-B-1385 Angelita Blackshear Dalton, Judge
___________________________________

No. M2019-00032-CCA-R3-CD
___________________________________

The Appellant, Kenneth Lloyd Hill, was convicted in the Davidson County Criminal
Court of possessing a firearm while having a prior conviction for a felony involving the
use or attempted use of force, violence, or a deadly weapon, a Class C felony, and the
trial court sentenced him as a Range III, persistent offender to fifteen years in
confinement. On appeal, the Appellant contends that the trial court erred by refusing to
sever the offense from the remaining offenses for which he was on trial and that the trial
court committed various sentencing errors. Based upon the record and the parties’ briefs,
we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and J. ROSS DYER, JJ., joined.

Melissa Bourne (on appeal) and Timothy Carter (at trial), Nashville, Tennessee, for the
appellant, Kenneth Lloyd Hill.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Jennifer
Charles and David Jones, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

I. Factual Background

In June 2017, the Davidson County Grand Jury returned a nine-count indictment,
charging the Appellant with the aggravated assaults of Delores Ferguson-Hill, Letikka
Finney, Witness A, and Witness B in counts one through four, respectively1; interfering
with a 911 call in count five; driving under the influence (DUI) in count six; DUI per se
in count seven; possession of a handgun while under the influence in count eight; and
possession of a firearm after having been convicted of a felony involving the use or
attempted use of force, violence, or a deadly weapon in count nine. Before trial, the State
dismissed counts two, three, four, six, seven, and eight and renumbered the remaining
counts. In May 2018, the Appellant went to trial for the aggravated assault of Delores
Ferguson-Hill in count one; interfering with a 911 call in count two; and possession of a
firearm after having been convicted of a felony involving the use or attempted use of
force, violence, or a deadly weapon in count three.

Delores Ferguson-Hill testified that at the time of trial, she and the Appellant had
been married twenty-five years but were in the process of divorcing. In March 2017,
Ferguson-Hill and the Appellant were living in their home on Panorama Drive.
Ferguson-Hill’s thirty-five-year-old daughter, Letikka Finney, and Ferguson-Hill’s two
granddaughters, Witness A and Witness B, who were fourteen and eight years old,
respectively, lived with them. On March 7, Ferguson-Hill went to work about 2:00 p.m.
At that time, the Appellant was at home, Finney was at work, and Witness A and Witness
B were at school. About 8:30 p.m., Ferguson-Hill received a telephone call from one of
her granddaughters and returned home. The Appellant appeared to be intoxicated “a little
bit” and angry, so Ferguson-Hill went into their bedroom to avoid a confrontation with
him. The Appellant came into the room and pushed Ferguson-Hill, so she went into her
granddaughters’ bedroom to get them and leave the residence. The Appellant went into
the living room and put a handgun to his head. Ferguson-Hill said that she had never
seen the gun prior to that night and that she was in “total shock.”

Ferguson-Hill testified that the Appellant came toward her and pointed the gun at
her. Finney grabbed the Appellant’s hand, and the three of them started “wrestling and
tugging” over the gun. They ended up in the children’s bedroom and fell onto Witness
B’s bed. During the melee, Finney tried to call 911 with her cellular telephone, but the
Appellant took the telephone away from her. The three of them continued wrestling, and
the Appellant said, “‘Let me go. I’m not going to hurt anybody in here. I just want to get
out of here.’” Ferguson-Hill said the Appellant “jumped up” and ran out the front door.
Her car was blocking his car, so she moved her car in order for him to drive away.
Ferguson-Hill called 911, and the State played the call for the jury.

On cross-examination, Ferguson-Hill testified that at the time of the incident, the
Appellant was employed at a Krystal’s restaurant. She said, though, that he had worked

1
It is the policy of this court to refer to minor witnesses by their initials. However, because the
two witnesses have the same initials, we will refer to them as Witness A and Witness B.
-2-
there “90 days, maybe”; that he had not been employed for years prior to obtaining the
job; and that she was the “breadwinner.” After the incident on March 7, 2017, Witness A
had a “breakdown” and went to live at Inner Harbour, a residential treatment facility in
Atlanta. She was still living there at the time of the Appellant’s trial. Ferguson-Hill
acknowledged that the Appellant suffered from diabetes and high blood pressure.

Officer Victor Alexander of the Metropolitan Nashville Police Department
(MNPD) testified that on March 7, 2017, he and his partner responded to a call on
Panorama Drive and arrived at 10:19 p.m. He saw the Appellant’s car and ordered the
Appellant to stop. The Appellant did so, and Officer Alexander handcuffed him through
the driver’s window. The officer said that he got the Appellant out of the car and that the
Appellant was “upset” and “intoxicated.” As the Appellant was getting out of the car, a
handgun fell out of his right front pocket.

Officer Alexander testified that he drove the Appellant to the Appellant’s
residence on Panorama Drive, had the Appellant sign a waiver of rights form, and spoke
with the Appellant. Officer Alexander asked if the gun belonged to the Appellant, and
the Appellant said no. Officer Alexander asked where the Appellant got the gun, and the
Appellant answered, “My house.” The Appellant claimed he did not know who owned
the gun. Officer Alexander asked if the Appellant was a convicted felon, and the
Appellant said yes. At that point in the testimony, the State read a stipulation to the jury
regarding the Appellant’s having a prior conviction for a felony involving the use or
attempted use of force, violence, or a deadly weapon.

On cross-examination, Officer Alexander testified that Ferguson-Hill was “angry”
and had torn clothes. The Appellant smelled of alcohol, and Officer Alexander noted on
the waiver of rights form that the Appellant was intoxicated. Officer Alexander said that
the Appellant was “angry,” “talkative,” and “mostly rambled” but that the Appellant did
not resist arrest. The handgun was loaded and had one round in the chamber.

Officer Nathaniel Myers of the MNPD testified that he responded to the scene
with Officer Alexander and that they “rushed the window” of the Appellant’s car because
dispatch had reported a gun was involved. The officers handcuffed the Appellant through
the window and got him out of the car. As the Appellant was stepping out, a loaded
forty-five-caliber handgun fell onto the floorboard. Officer Myers said that he smelled
alcohol on the Appellant’s breath and that the Appellant was “intoxicated, very upset,
both at us and the legal system in general.”

On cross-examination, Officer Myers testified that he and Officer Alexander
stopped the Appellant “[s]everal houses down” from the Appellant’s residence. Officer
Myers did not talk to anyone else on the scene and did not know what happened inside
-3-
the Appellant’s home. At the conclusion of Officer Myers’s testimony, the State rested
its case.

Witness B testified that she was nine years old, that she was in the third grade, and
that the Appellant was her grandfather. On March 7, 2017, Witness B was living with
her grandmother, Ferguson-Hill; the Appellant; her sister, Witness A; and her aunt,
Finney. That night, Ferguson-Hill was arguing with the Appellant. Witness B said the
Appellant “got his gun” and “just started saying things.” He pointed the gun at his head
and then pointed the gun at Finney. Witness B said that the Appellant was “acting like he
was going to shoot” Finney but that he “really didn’t.” Everyone ended up in Witness
B’s bedroom, and Ferguson-Hill tried to get the gun out of the Appellant’s hand so he
would not harm anyone. The Appellant left the room and got his car keys, and Ferguson-
Hill telephoned the police. Witness B said that everyone was yelling and that she was
scared during the incident.

At the conclusion of the proof, the jury was unable to reach a verdict regarding the
aggravated assault of Ferguson-Hill in count one, and the trial court declared a mistrial as
to that count.2 The jury found the Appellant not guilty of interfering with a 911 call in
count two but convicted him of possessing a firearm while having a prior conviction for a
felony involving the use or attempted use of force, violence, or a deadly weapon in count
three, a Class C felony.3

II. Analysis

A. Motion to Sever

The Appellant contends that the trial court erred by denying his motion to sever
count three from counts one and two. The State argues that the Appellant has failed to
show that he suffered any prejudice from the trial court’s denial of the motion. We agree
with the State.

Before trial, the Appellant filed a motion to sever the charge of possessing a
firearm while having a prior conviction for a felony involving the use or attempted use of
force, violence, or a deadly weapon from the remaining charges. In the motion, the
Appellant acknowledged that “separation of [the] issues would be complicated for the
jury” but argued that he would be prejudiced by the jury’s hearing about his criminal
history. At a hearing on the motion, the State advised the trial court that joinder of the

2
The State later dismissed count one.
3
The offense is now a Class B felony. See Tenn. Code Ann. § 39-17-1307(b)(1)(a), (b)(2)
(2018).
-4-
offenses was mandatory. The State also advised the trial court that it was opposed to
bifurcation of the trial as to count three and that the Appellant had two choices: (1)
stipulate to having a prior qualifying felony conviction or (2) the State would introduce
certified copies of judgments of conviction for armed robbery into evidence at trial.
Defense counsel responded that the Appellant was not willing to stipulate to the
qualifying felony conviction at that time. The trial court denied the motion to sever
without any explanation and did not rule on the bifurcation issue.

Before jury selection on the first day of trial, the State asked defense counsel if the
Appellant was going to stipulate to having a prior qualifying felony conviction. The
State noted that the Appellant did not have to stipulate. The trial court stated that the
stipulation would be “beneficial” to the Appellant, but defense counsel responded that the
stipulation would be prejudicial “on its face.” The record reflects that defense counsel
conferred briefly with the Appellant. Thereafter, defense counsel advised the trial court
that the Appellant would agree to the stipulation, and the trial court noted that the
stipulation “makes the motion to preclude bifurcation moot.” During the trial, the State
read the following stipulation to the jury: “Defendant in this case, Kenneth L. Hill, has
[a] prior qualifying felony conviction involving the use [or] attempted use of force,
violence or a deadly weapon.”

Tennessee Rule of Criminal Procedure 8(a)(1) provides as follows:

Two or more offenses shall be joined in the same indictment, presentment,
or information, with each offense stated in a separate count, or the offenses
consolidated pursuant to Rule 13, if the offenses are:

(A) based on the same conduct or arise from the same
criminal episode;

(B) within the jurisdiction of a single court; and

(C) known to the appropriate prosecuting official at
the time of the return of the indictment(s), presentment(s), or
information(s).

The Advisory Commission Comments to the Rule explain that “[t]his rule is designed to
encourage the disposition in a single trial of multiple offenses arising from the same
conduct and from the same criminal episode, and should therefore promote efficiency and
economy.” Tenn. R. Crim. P. 8, Advisory Comm’n Cmts. Nevertheless, if the offenses
were mandatorily joined, the State or the defendant may move for a severance before
trial, and the trial court must grant the motion if “the court finds a severance appropriate
-5-
to promote a fair determination of the defendant’s guilt or innocence of each offense.”
Tenn. R. Crim. P. 14(b)(2)(A). A trial court’s rulings regarding consolidation or
severance under Tennessee Rules of Criminal Procedure 8(b) and Rule 14 are reviewed
for an abuse of discretion. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

In this case, all three of the charges resulted from the same criminal episode, i.e.,
the incident inside the house. In its closing argument, the State asserted that the proof
supported a conviction for count three, in part, because Ferguson-Hill and Witness B
testified that they saw the Appellant in possession of the gun during his altercation with
Ferguson-Hill and Finney. On appeal, the Appellant acknowledges that the three charges
were part of the same criminal episode. Accordingly, joinder of the offenses was
mandatory.

A trial court’s denial of a motion to sever filed pursuant to Rule 14(b)(2)(A) “will
not be reversed unless the [defendant] was prejudiced by the decision to try the charges
together.” State v. Thompson, 88 S.W.3d 611, 614 (Tenn. Crim. App. 2000). The
Appellant contends that although he was not prejudiced by the trial court’s failure to
grant his severance motion as to counts one and two because the jury did not convict him
of those offenses, he was prejudiced as to count three because the trial court’s failure to
grant the motion forced him to stipulate to an essential element of the offense. We
disagree with the Appellant.

At the time of the offense, Tennessee Code Annotated section 39-17-
1307(b)(1)(A) (2014) provided that it was unlawful for a person to possess a firearm if
the person “[h]ad been convicted of a felony involving the use or attempted use of force,
violence, or a deadly weapon[.]” Therefore, the State was required to prove that the
Appellant had a prior conviction for a qualifying felony and could have introduced
evidence of the Appellant’s prior convictions of armed robbery. Instead, the State
offered to allow the Appellant to stipulate to the qualifying felony conviction so that the
jury would not learn the specific conviction. A stipulation is an agreement “which is
entered into mutually and voluntarily by the parties.” Overstreet v. Shoney’s, Inc., 4
S.W.3d 694, 701 (Tenn. Ct. App. 1999). We note that “when the sole purpose of
introducing evidence of a defendant’s prior convictions is to prove the status element of
the offense, and when the defendant offers to stipulate his status as a felon, the probative
value of the evidence is, as a matter of law, outweighed by the risk of unfair prejudice.”
State v. James, 81 S.W.3d 751, 762 (Tenn. 2002). Here, the Appellant voluntarily agreed
to the stipulation so that the jury would not hear about his prior convictions of armed
robbery. Therefore, we agree with the State that the Appellant has failed to demonstrate
that he was prejudiced by the mandatory joinder of the offenses.

B. Sentencing
-6-
The Appellant raises various sentencing issues regarding the length and manner of
service of his sentence. The State argues that the trial court properly sentenced the
Appellant. We agree with the State.

At the Appellant’s sentencing hearing, Phelisha Morris testified that the Appellant
was her uncle, that he used to work at the Krystal’s restaurant in Goodlettsville, and that
he had a “really good” relationship with Witness A and Witness B. Morris
acknowledged that Witness A had “some issues” and was “difficult to get along with at
times.” Nevertheless, the Appellant “still loved” Witness A. Morris said that the
Appellant was a “great” grandfather and that he “would do the world” for his
granddaughters. The Appellant was a Jehovah’s Witness and attended meetings on a
weekly basis.

On cross-examination, Morris acknowledged that Witness A was still living in
Atlanta at the time of the sentencing hearing but said that she did not think Witness A
was in Atlanta as a result of the incident on March 7, 2017. On redirect examination,
Morris acknowledged that Witness A had “significant behavioral issues” prior to March
7, 2017.

The sixty-six-year-old Appellant testified that he had had “a whole lot of traumatic
experiences” in his life. In 1973, the Appellant’s sister was fatally shot at work by her
husband. The Appellant’s father was shot by his roommate while he was sleeping, and
the Appellant’s nephew was shot and killed while he was sitting in a car. The Appellant
said that the death of his sister in 1973 “changed some things” about him and that he
ended up in prison.

The Appellant testified that while he was in prison, his wife began a relationship
with another man. The Appellant said that the man had killed two people and that he and
the man “crossed paths” in prison. At the time of the incident in this case, the
Appellant’s wife was still seeing the man, and the man would come to the Appellant’s
house. The Appellant said he possessed the handgun on March 7, 2017, because he was
afraid of the man.

The Appellant testified that Witness A had been experiencing some “emotional
things” prior to March 7, 2017, and that the incident on March 7 “caused her to have a
setback.” He said that his relationship with Witness A was good but that “other family
members tried to make it not be good.” He said that Witness B loved him and that he
took his granddaughters to church with him sometimes.

-7-
The Appellant testified that he was treated at the “V.A.” for mental health issues.
He also had prostate cancer and rheumatoid arthritis and needed hip replacement surgery.
On cross-examination, the Appellant acknowledged that he was on parole when he
committed the offense in this case.

The State introduced the Appellant’s presentence report into evidence. According
to the report, the Appellant served two years in the Navy during the Vietnam War and
received an honorable discharge. He obtained his GED in 2002 and received some
college credits. In an addendum to the presentence report, the Appellant described his
physical health as “between fair and poor,” said that he had been physically disabled
since 2011, and said that he suffered from prostate cancer and rheumatoid arthritis. He
stated that he received treatment at the “V. SA. Nashville Campus” from 2015 to 2017
because family members said he was delusional and that he was discharged when he was
arrested in this case. The Appellant said he received treatment at the V.A. Mental Health
Hospital in Murfreesboro in March and April 2016 because his wife said he was
hallucinating about people trying to kill him. He also received mental health treatment at
Centennial Mental Health Ward. The Appellant stated, though, that he had never been
mentally disabled and that his mental issues were the result of “‘man-made problems.’”
The Appellant reported that he had worked at Honey Baked Ham, R&M Sealing, Labor
Smart, Goodwill Industries, and Krystal, but the investigating officer did not verify his
employment.

The State introduced certified copies of the Appellant’s judgments of conviction
into evidence. The judgments reflected four convictions in Tennessee for armed robbery,
two convictions in Kentucky for armed robbery, one conviction in Tennessee for being a
felon in possession of a weapon, and two convictions in Kentucky for escape. The State
argued that based on the convictions, the Appellant qualified as a career offender.

The Appellant introduced several exhibits into evidence, including a letter from
the General Manager at the Krystal restaurant in Goodlettsville, stating that the Appellant
was “a very good and responsible employee,” and reports from forensic psychologists Dr.
Kimberly Brown and Dr. Julie Gallagher. According to Dr. Brown’s April 5, 2017
report, she performed a pretrial court-ordered psychiatric evaluation of the Appellant and
diagnosed him with delusional disorder and alcohol use disorder. However, she
concluded that the evidence did not show he was unable to appreciate the nature or
wrongfulness of his conduct due to mental illness at the time of the offenses. She also
concluded that he understood the charges against him and the potential penalties, could
communicate with his attorney, and had the ability to assist with his defense.
Accordingly, she concluded that he was competent to stand trial and that his mental state
at the time of the alleged offenses did not support an insanity defense.

-8-
According to Dr. Gallagher’s May 11, 2018 report, she conducted a pretrial
evaluation of the Appellant at defense counsel’s request to determine if the Appellant was
competent to proceed with trial and to determine if any mental health factors were present
that could be relevant at sentencing. In the report, she noted that the Appellant’s medical
records showed that he was admitted to Parthenon Pavilion at Centennial Medical Center
in June 2014 and diagnosed with “Psychotic Disorder, Not Otherwise Specified.” In
March 2016, he was admitted to a psychiatric unit “at the VA” and diagnosed with
“Unspecified Schizophrenia Spectrum and Other Psychotic Disorder.” The Appellant
continued to receive outpatient psychiatric treatment and was diagnosed with Delusional
Disorder when he was last seen at the V.A. in 2018. Dr. Gallagher administered
psychological tests to the Appellant. She concluded that he experienced paranoid
delusions but that the evidence did not show his delusional beliefs interfered with his
ability to understand the legal system or communicate with defense counsel. She said she
had “no concerns” about his competency at that time. Relevant to sentencing, Dr.
Gallagher concluded that the Appellant had had “significant mental health problems since
2014” and that his most appropriate diagnosis was Delusional Disorder. She concluded
that at the time of the offenses, the Appellant was suffering from the delusional belief that
his life was in danger from gang members, which caused him to carry a firearm, and that
he was “experiencing significant emotional turmoil regarding his relationship with his
wife and stepdaughter.”

In a written sentencing order, the trial court agreed with the State that the
Appellant qualified as a career offender. The trial court did not address enhancement or
mitigating factors but sentenced him to fifteen years, the maximum punishment in the
range for a Class C felony. Regarding the manner of service of the sentence, the trial
court stated that the Appellant “has faced more than his fair share of hardships in life, and
the Court is not without sympathy as to those hardships and how those circumstances
impacted [his] life.” However, the trial court concluded that due to his extensive criminal
history, confinement was necessary to protect society by restraining a defendant who has
a long history of criminal conduct. The trial court also concluded that the facts of this
case were “egregious” and, therefore, that confinement was necessary to avoid
depreciating the seriousness of the offense and particularly suited to provide an effective
deterrence to others likely to commit similar offenses. Finally, the trial court noted that
measures less restrictive than confinement had been unsuccessfully applied to the
Appellant. Therefore, the trial court ordered that he serve his fifteen-year sentence in the
Tennessee Department of Correction.

The Appellant filed a motion to correct an illegal sentence pursuant to Tennessee
Rule of Criminal Procedure 36.1, arguing that one of the prior convictions the State relied
on to argue he was a career offender, namely a 1977 Kentucky conviction for armed
robbery, was overturned by the Court of Appeals of Kentucky. In a written order, the
-9-
trial court agreed with the Appellant and resentenced him a Range III, persistent offender.
The trial court found the following enhancement factors applicable to the Appellant’s
sentence: (1) “[t]he defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range”; (3) “[t]he
offense involved more than one (1) victim”; (8) “[t]he defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community”; (10) “[t]he defendant had no hesitation about committing a crime when the
risk to human life was high”; and (13) at the time the felony was committed, the
defendant was on parole. Tenn. Code Ann. § 40-35-114(1), (3), (10), (8), (13)(B). The
trial court stated that it found no mitigating factors applicable. The trial court said that it
was “extremely concerned about the serious nature of the offense” and found that the
circumstances of the offense were “egregious” because the Appellant possessed a firearm
while he was intoxicated and while he was involved in a domestic violence dispute. The
trial court again sentenced the Appellant to fifteen years in confinement.

This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to alternative
sentencing). In determining a defendant’s sentence, the trial court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the defendant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the Appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sent’g Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

- 10 -
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)).
Appellate courts are “bound by a trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles
set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

First, the Appellant contends that the trial court erred by applying enhancement
factor (3), that the offense involved more than one victim, because none of his family
members were a “victim” as this court has defined the term. In support of his argument,
he relies on State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994), in which this
court stated that a “victim” as used in enhancement factor (3) “is limited in scope to a
person or entity that is injured, killed, had property stolen, or had property destroyed by
the perpetrator of the crime.” He also contends that there is no “victim” in the crime of
possession of a weapon by a convicted felon because the crime is classified as an offense
against public health, safety, and welfare. The State argues that even if the trial court
erred, the court’s proper application of the other enhancement factors supports the
Appellant’s fifteen-year sentence. We agree with the State. A trial court’s
“misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed . . . . So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Bise, 380 S.W.3d at 706. The Appellant
does not contest the trial court’s application of the other four enhancement factors.
Therefore, even if the trial court erred, the remaining enhancement factors justify the
Appellant’s fifteen-year sentence

The Appellant also contends that the trial court erred by failing to consider any
mitigating factors. He asserts that while the trial court made the “perfunctory statement”
that it found no mitigating factors applicable, the trial court did not mention which factors
it considered or explain why they did not apply. The Appellant argues that the trial court
- 11 -
should have applied mitigating factor (8), that he was suffering from a mental condition
that significantly reduced his culpability for the offense, because the record demonstrates
that he has an extensive history of mental illness and was under significant duress at the
time of the crime. In support of his argument, he refers to Dr. Gallagher’s report.
However, Dr. Brown’s report contradicted Dr. Gallagher’s report in that Dr. Brown
concluded as follows:

By available accounts, Mr. Hill was drinking that day and noted to be
intoxicated by both his wife and the arresting officer. Mr. Hill attempted to
attribute blame to his wife by stating she first pointed a gun at him. He
indicated during the evaluation that his actions were a plea for validation,
as he was concerned that his family did not care about him. While he has a
history of delusional beliefs, these did not appear to lead to the alleged
offenses or impair his appreciation of the wrongfulness of his alleged
actions.

We note that the voluntary use of intoxicants does not fall within the purview of factor
(8). See Tenn. Code Ann. § 40-35-114(8). Therefore, we cannot conclude that the trial
court erred by failing to apply the mitigating factor.

Next, the Appellant contends that the trial court erred by denying his request for
an alternative sentence because the trial court failed to consider his potential for
rehabilitation and incorrectly applied the factors of seriousness of the offense and
deterrence. He asserts that while the State may argue that he was ineligible for
alternative sentencing because the offense involved possession of a weapon, the trial
court could have considered alternative sentencing under the special needs exception.

A defendant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). Moreover, a defendant who is
an especially mitigated or standard offender convicted of a Class C, D, or E felony should
be considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6). In this case, the Appellant was
convicted of a Class C felony, but his sentence was fifteen years. Therefore, he was
ineligible for probation. See Tenn. Code Ann. § 40-35-303(a).

As for community corrections, we note that the Community Corrections Act of
1985 was enacted to provide an alternative means of punishment for “selected,
nonviolent felony offenders in front-end community based alternatives to incarceration.”
Tenn. Code Ann. § 40-36-103(1). Tennessee Code Annotated section 40-36-106(a)(1)
provides that an offender who meets all of the following minimum criteria shall be
considered eligible for community corrections:
- 12 -
(A) Persons who, without this option, would be incarcerated in a
correctional institution;

(B) Persons who are convicted of property-related, or drug- or
alcohol-related felony offenses or other felony offenses not involving
crimes against the person as provided in title 39, chapter 13, parts 1-5;

(C) Persons who are convicted of nonviolent felony offenses;

(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;

(E) Persons who do not demonstrate a present or past pattern of
behavior indicating violence;

(F) Persons who do not demonstrate a pattern of committing violent
offenses.

When determining a defendant’s suitability for alternative sentencing, courts
should consider whether the following sentencing considerations, set forth in Tennessee
Code Annotated section 40-35-103(1), are applicable:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a
term to be imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history
of criminal conduct and “evincing failure of past efforts at rehabilitation” is presumed
unsuitable for alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

In its first sentencing order, the trial court specifically addressed the sentencing
considerations in Tennessee Code Annotated section 40-35-103(1) and found that all
- 13 -
three of them were applicable. Moreover, the Appellant was convicted of a felony
offense in which the possession of a weapon was involved, and he has numerous prior
convictions for armed robbery, demonstrating a past pattern of behavior indicating
violence. Therefore, he does not meet the minimum criteria for community corrections
under Tennessee Code Annotated section 40-36-106(a)(1).

When a defendant does not meet the minimum criteria for community corrections
under Tennessee Code Annotated section 40-36-106(a)(1), the defendant may still be
eligible for community corrections under Tennessee Code Annotated section 40-36-
106(c), the “special needs” exception. The special needs exception allows a defendant
“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” to be eligible for community corrections. Tenn. Code
Ann. § 40-36-106(c). However, this court has previously concluded that a defendant
must be eligible for probation to qualify for community corrections under the special
needs provision of subsection (c). State v. Grigsby, 957 S.W.2d 541, 546 (Tenn. Crim.
App. 1997). Because the Appellant’s fifteen-year sentence renders him ineligible for
probation, he is not eligible for community corrections.

Finally, the Appellant contends that the trial court erred by concluding that it had
no authority to influence his serving his sentence in a special needs prison. At the
hearing on the Appellant’s motion for new trial, defense counsel requested that the
Appellant not be returned to the prison where he was currently housed because he feared
for his safety. The trial court responded, “And I have actually looked into this on another
matter and the Court has no authority to address matters of housing with the Department
of Corrections. That is just beyond my authority.” As noted by the Appellant, trial
courts have recommended that a defendant serve his or her sentence in a special needs
prison. See State v. Nathaniel A. Rhodes, No. M2018-00136-CCA-R3-CD, 2019 WL
4052535, at *7 (Tenn. Crim. App. at Nashville, Aug. 28, 2019); Timothy Richard
Singleton v. State, No. M2015-02319-CCA-R3-PC, 2016 WL 6069231, at *1 (Tenn.
Crim. App. at Nashville, Oct. 17, 2016); Clarence Tyrone Pruitt v. State, No. W2015-
02133-CCA-R3-PC, 2016 WL 5667509, at *1 (Tenn. Crim. App. at Jackson, Sept. 30,
2016); State v. Mandricuss Lashon Robertson, No. M2015-01935-CCA-R3-CD, 2016
WL 4202862, at *5 (Tenn. Crim. App. at Nashville, Aug. 9, 2016). As noted by the
State, though, “The commissioner of correction has the discretion to determine the
institutional location of inmates within the various security classifications.” Tenn. Code
Ann. § 41-1-403. Therefore, we agree with the State that while the trial court may have
made a recommendation that the Appellant serve his sentence in a special needs prison,
the trial court did not have the authority to order that he do so. Accordingly, he has failed
to demonstrate prejudice.

- 14 -
III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

_________________________________
NORMA MCGEE OGLE, JUDGE

- 15 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4525576. Public record. Not legal advice.