State of Tennessee v. Jeremiah Emery

04/18/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 1, 2022

STATE OF TENNESSEE v. JEREMIAH EMERY

Appeal from the Circuit Court for Madison County

No. 18-566 Donald H. Allen, Judge

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No. W2021-00086-CCA-R3-CD

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Defendant, Jeremiah Emery, entered open guilty pleas to one count of possession of

marijuana with intent to sell (Count 1), one count of possession of marijuana with intent to

deliver (Count 2), one count of possession of drug paraphernalia (Count 3), two counts of

possession of a firearm during the commission of a dangerous felony (Counts 4 and 5), and

one count of unlawful possession of a firearm (Count 6). The trial court sentenced

Defendant to a total effective sentence of five years in confinement. On appeal, Defendant

argues that the trial court abused its discretion by misapplying enhancement factors and

ordering the maximum sentence for Counts 1 and 2, that the trial court erred in denying a

probated sentence for Counts 1 and 2, and that the trial court erred in ordering Defendant

to serve the conviction for possession of a firearm during the commission of a dangerous

felony to be served after Counts 1 and 2. Following our review of the entire record and the

parties’ briefs, we affirm the judgments of the trial court.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Brian D. Wilson, Franklin, Tennessee (on delayed appeal), Gregory D. Gookin, Jackson,

Tennessee (on appeal), and Harold Dorsey, Alamo, Tennessee (at trial), for the appellant,

Jeremiah Emery.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Andrew Craig Coulam, Assistant Attorney General; Jody S. Pickens,

District Attorney General; and Bradley F. Champine and Shaun A. Brown, Assistant

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

OPINION

Factual and Procedural Background

On July 30, 2018, a Madison County Grand Jury indicted Defendant in Count 1 with

possession of marijuana with intent to sell, Count 2 with possession of marijuana with

intent to deliver, Count 3 possession of drug paraphernalia, Counts 4 and 5 with possession

of a firearm with intent to go armed during the commission of a dangerous felony, and

Count 6 with unlawful possession of a firearm. The following statement of facts was

presented at Defendant’s plea hearing:

Your Honor, may it please the Court, the State will show at trial

today that on January the 10th of 2018, that night officers with the

Jackson Police Department’s Street Crimes Unit and Metro

Narcotics Unit and [SWAT] Team executed a search warrant at 1580

North Royal Street, Apartment 901, which is located in Madison

County, Tennessee. Upon arrival, JPD Swat Officers knocked and

announced that they were the police and waited for a reasonable

amount of time and then forced entry into the apartment. Contact

was made with Mr. Jeremiah Emery who is in the back bathroom

and the door open and Mr. Emery was detained.

A search of the apartment revealed several items including an orange

book bag on the living room floor and the book bag contained three

glass jars of marijuana weighing approximately 80.3 grams, 11.3

grams and 10.5 grams. A black digital scale with marijuana residue

was located under the couch close to the book bag. On a small table

by the front door is a silver .22 caliber Phoenix Arms HP-22 handgun

that was loaded with one round in the chamber and seven live rounds

in the inserted magazine. The table also had a small bag of marijuana

that weighed approximately 4.9 grams and an open box of sandwich

bags. Another open box of sandwich bags was located on the living

room TV stand along with another box of .22 caliber ammunition

that contained 92 live rounds.

There was seven other people in the apartment that were detained

with Mr. Emery and everyone was interviewed and gave statements.

Mr. Emery was interviewed by Investigator Arnold with the Metro

Narcotics at which time he was read his rights and did give a

statement where he took responsibility for the marijuana that was

found inside the book bag. He took responsibility for the digital

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scale that was located underneath the couch and also took

responsibility for the handgun. He did admit to Officer Arnold that

he does use marijuana and he began selling marijuana so that he

could pay for the marijuana and not have to buy from other people.

He did admit that he got the gun to protect himself because he had

been recently robbed.

The drugs were sent off for testing to the TBI and Rachel Strandquist

with the TBI prepared a lab report and did confirm that the suspected

marijuana did test positive and was in fact marijuana. The marijuana

came back from one of the glass mason jars from inside the book

bag as a total tested weight of 78.31 grams. The marijuana that came

from the table next to the gun tested at 3.49 grams. Because all of

the statement taken from the individuals were consistent with each

other, only Mr. Emery was charged with possession with intent as

well as possession of the firearm during the commission of a

dangerous felony. The other individuals were given I believe

misdemeanor citations.

Defendant agreed with the prosecutor’s description of the facts but argued that he was

smoking the marijuana, not selling it. The prosecutor then read the statement Defendant

had given to law enforcement:

The bag of marijuana that was laying on the table with the gun is

mine. I had just bagged it up for my personal smoke sta[sh]. The

three glass jars that were in the backpack in the living room belonged

to me. The big jar had regular weed in it and the small jars had gas

or high grade marijuana. The digital scale found in the living room

floor is mine and I use it to weight out and buy bags of marijuana. I

sell marijuana and have been selling marijuana for a couple of

months. I started selling marijuana because I got tired of buying it

for everyone else to smoke. I started selling so I could smoke for

free. The two boxes of sandwich bags found in the living room are

mine and I use them to bag up the marijuana that I sell. I sell regular

marijuana for $5 a gram and sell gas or high grade marijuana for $15

a gram.

Defendant admitted that he made the above statement. Defendant pled guilty to all charges

and acknowledged that he understood his trial and appellate rights, that he was waiving

those rights, and that he could not withdraw his plea. The trial court reviewed the

sentencing range and fines Defendant faced for each of his convictions. Defendant

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acknowledged that he understood the possible sentences for each of his convictions. The

trial court explained that it would have to consider the length of each of Defendant’s

sentences, whether to impose an alternative sentence, and whether to align the sentences

concurrently or consecutively. Defendant affirmed that he understood. After reviewing

the facts as described above, the trial court accepted Defendant’s pleas.

Sentencing Hearing

At the sentencing hearing, the only evidence offered by the State was the

presentence report. The State argued that, although Defendant was a Range I offender, he

should serve all sentences in confinement without probation based on his prior

misdemeanor convictions for simple possession of marijuana, driving on a suspended

license, and for committing these crimes while being on unsupervised probation for other

sentences. Therefore, the State recommended that Defendant serve three years at 100

percent for possession of a firearm during the commission of a dangerous felony as

required by law to run consecutively to a one-year, eight-month sentence at thirty percent

for possession of marijuana with intent to sell and deliver plus a $2,000 fine for Counts 1

and 2 which would merge. Finally, the State suggested a concurrent, eleven-month,

twenty-nine-day sentence for possession of drug paraphernalia with a $150 fine, and a

concurrent eleven-month, twenty-nine-day sentence at seventy-five percent for unlawful

possession of a firearm.

Defendant entered into evidence his certificate of completion from the trial court’s

“Life’s Healing Choices” course which he had completed while incarcerated. Defendant

offered no other evidence. Defendant argued in favor of an alternative sentence of

probation for all charges, except for the mandatory three-year sentence at 100 percent for

the conviction of possession of a firearm during the commission of a dangerous felony

conviction. Defendant suggested that he was fit for probation based on his completion of

the trial court’s drug class, his personal development since being incarcerated, and the fact

that the instant charges were his first felony convictions.

The trial court considered the evidence presented when Defendant entered his guilty

pleas, the presentence report, the principles of sentencing, the arguments of counsel, the

nature and characteristics of the criminal conduct, and the evidence offered by the parties,

including Defendant’s statement set out in the presentence report, in which Defendant said

the following: “The marijuana in my possession at the time of my arrest was for personal

use. I was in possession of scales and baggies to weigh and bag marijuana purchased from

other people. I wanted to double check the weight. I have not used illegal drugs since my

arrest.”

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The trial court found the above statement by the Defendant not credible, stating, “I

don’t really give it a lot of credibility because I don’t think it’s true.” The trial court also

considered Defendant’s potential for rehabilitation and treatment finding that Defendant’s

completion of the Life’s Healing Choices course suggested that he had “some type of

potential for rehabilitation” which the trial court gave “very very slight weight.”

The trial court then considered and applied three enhancement factors: (1) that

Defendant had a previous history of criminal convictions or criminal behavior, in addition

to those necessary to establish the appropriate range; (2) that defendant, before trial or

sentencing, failed to comply with the conditions of a sentence involving release into the

community; and (3) that at the time the felony was committed, defendant was released on

probation. T.C.A. §40-35-114 (1), (8), and (13)(C). Regarding Enhancement Factor 1, the

trial court found that Defendant’s prior criminal record of his August 2017 conviction for

possession of marijuana and his December 2017 conviction for driving on a suspended

license warranted great weight. The trial court allocated “very slight weight” to

Defendant’s six minor traffic offenses. The trial court also considered Defendant’s

admitted criminal conduct of marijuana and alcohol usage as a minor and gave “great

weight” to that “criminal behavior.” The trial court also considered and applied

Enhancement Factors 8 and 13(c)1 based on information in the presentence report that

Defendant had committed the instant offenses while he was on probation for two cases

arising out of Jackson City Court, and his conviction for driving on a suspended license

occurred while he was on probation for his conviction of simple possession of marijuana.

The trial court reasoned:

Now, I also find as an enhancement factor 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. I

show that on at least two different dates that being December 27th,

2017 and then also January 10th, 2018 that he committed violations

of the law while he was already on probation for other violations of

the law. So, I do give great weight to that factors (sic).

Finally as an enhancement factor under the statute, I do find Factor

No. 14 (sic) that at the time that he committed these felony drug

offenses and at the time that he committed this felony handgun

offense plus committed possession of drug paraphernalia, all of that

on January the 10th of 2018, he was actually on probation out of

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The trial court stated that it was applying Enhancement Factor 14, but in its analysis, clearly

applied Enhancement Factors 8 and 13(c). Enhancement Factor 14 deals with a position of public or private

trust which was not an issue in this case.

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Jackson City court in two different cases. He was on probation out

of Jackson City Court for an 11 months and 29 day sentence

involving possession of marijuana. He was also on probation out of

Jackson City Court for a six month sentence involving driving on a

suspended license. Two separate cases for which he had been

granted probation and then while on probation committed these new

offenses. So I do give great weight to each of these three different

enhancement factors.

The trial court did not find any mitigating factors applicable but did give “some

slight weight” to the fact that Defendant was twenty-three years old at the time of

sentencing and “still young” for purposes of mitigation. However, the trial court believed

that Defendant was “old enough to know better than to commit these offenses.” The trial

court also gave “slight consideration” to the fact that Defendant had been incarcerated since

January 2018 and had completed the Life’s Healing Choices program.

Prior to Defendant’s sentencing hearing, the parties agreed that Defendant was a

Range I Offender. The trial court merged Counts 4 and 5, possession of a firearm during

the commission of a dangerous felony and ordered Defendant to serve three years in

confinement at 100 percent as required by law. The trial court also merged Counts 1 and

2, the two felony marijuana convictions, and ordered Defendant to serve the maximum of

two years. Finally, the trial court ordered Defendant to serve an eleven-month, twenty-

nine-day sentence for possession of drug paraphernalia and a six-month sentence for

unlawful possession of a firearm. The trial court ordered the two-year sentence for the

felony marijuana conviction to run consecutively to the three-year sentence for the felony

firearm conviction and the misdemeanor convictions to run concurrently with the other

convictions for a total effective sentence of five years. The trial court found that Defendant

was not a suitable candidate for probation and ordered all sentences to be served in

confinement. Defendant did not file an immediate appeal. We view this petition as one

for post-conviction relief pursuant to the Post-Conviction Procedure Act. As such, the

post-conviction court had jurisdiction to grant a delayed appeal pursuant to Tennessee

Code Annotated section 40-30-113, and that court entered an order granting delayed appeal

on January 12, 2021. This appeal followed.

Analysis

On appeal, Defendant contends that the trial court erred in imposing the maximum

sentences for his felony marijuana conviction as a result of misapplication of enhancement

factors, that the trial court erred in denying probation, and that the trial court erred in

ordering Defendant to serve the mandatory three-year conviction for possession of a

firearm during the commission of a dangerous felony after serving the felony marijuana

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sentence. The State argues that the trial court correctly applied multiple enhancement

factors and considered Defendant’s suitability for probation and did not abuse its discretion

in sentencing Defendant. We agree with the State.

When an accused challenges the length of a sentence, this court reviews the trial

court’s sentencing determinations under an abuse of discretion standard accompanied by a

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “This

abuse of discretion standard, accompanied by a presumption of reasonableness, applies to

within-range sentences that reflect a decision based upon the purposes and principles of

sentencing.” State v. Caudle, 388 S.W.3d 273, 278 (Tenn. 2012). A finding of abuse of

discretion indicates the “trial court’s logic and reasoning was improper when viewed in

light of the factual circumstances and relevant legal principles involved in a particular

case.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). A trial court has not abused its

discretion unless “the record [is] void of any substantial evidence that would support the

trial court’s decision.” Id.

In making sentencing decisions, trial courts must consider the following: (1) the

evidence 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 conduct involved; (5) evidence and information offered by the parties

regarding the statutory mitigation and enhancement factors set out in Tennessee Code

Annotated sections 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 his own behalf; and (8) the

result of the validated risk and needs assessment conducted by the department and

contained in the presentence report. See T.C.A. § 40-35-210(b).

“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 sentencing

statutes. Bise, 380 S.W.3d at 706. A sentence within the appropriate range will be upheld

“so long as there are other reasons consistent with the purposes and principles of

sentencing, as provided by statute.” Id.

Enhancement Factors

Defendant argues that the trial court abused its discretion by imposing the maximum

sentence for his felony marijuana conviction and misapplied all enhancement factors. The

trial court found that Defendant had a prior criminal history at the time of his sentencing.

See T.C.A. § 40-35-114(1). “The defendant has a previous history of criminal convictions

or criminal behavior, in addition to those necessary to establish the appropriate range.” Id.

(emphasis added). This court has recognized that a trial judge may find evidence of

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criminal behavior even though there has been no conviction. State v. Ward, 138 S.W.3d

245, 282 (Tenn. Crim. App. 2003) (citing State v. Massey, 757 S.W.2d 350, 352 (Tenn.

Crim. App. 1988)). A trial court may even apply enhancement factor based on facts

underlying an offense for which the defendant has been acquitted, so long as the facts have

been established in the record by a preponderance of the evidence. Id. (citing State v.

Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)). In applying this enhancement factor, the trial

court afforded “great weight” to Defendant’s convictions for simple possession of

marijuana and driving on a suspended license and gave “very slight weight” to Defendant’s

six other traffic incidents documented in the presentence report. The trial court also gave

“great weight” to Defendant’s admitted criminal behavior of underage use of alcohol and

marijuana. Defendant contends that this factor was misapplied because Defendant’s

convictions were not severe. Defendant also argues that Tennessee courts have not

provided a specific definition for “criminal behavior” within the context of application of

this enhancement factor. The record is clear that Defendant had prior criminal convictions

at the time of his sentencing and admitted criminal behavior sufficient for the trial court to

have applied Enhancement Factor 12.

Defendant next argues that the trial court misapplied Enhancement Factor 8, which

provides for sentence enhancement when a defendant, “before trial or sentencing, failed to

comply with the conditions of a sentence involving release into the community[.]” T.C.A.

§ 40-35-114(8). Defendant argues that this factor does not apply when the defendant’s

failure to comply occurred through the commission of the offense at issue in the sentencing

hearing. The record is clear that Defendant violated his August 2017 probated sentence

for simple possession of marijuana when he was charged with and convicted of driving on

a suspended license in December 2017. Then while serving a sentence of probation for

driving on a suspended license, Defendant was charged and convicted of the instant

offenses. Defendant argues that the Jackson City Court did not issue a probation violation

warrant. However, Tennessee Code Annotated section 40-35-114(8) requires only that the

sentencing court find that Defendant “failed to comply with the conditions of a sentence

involving release into the community.” A finding of a violation of the terms of probation

is not required. The trial court did not abuse its discretion in applying Enhancement Factor

8, having found that Defendant failed to comply with the conditions of a sentence involving

release into the community before trial or sentencing.

Defendant also contests the trial court’s analysis of Enhancement Factor “14,”

arguing that it does not appear to align with the actual language of the enhancement factor

when a defendant abuses a position or public or private trust. Based on the record, the trial

2

As noted in Defendant’s reply brief, we are aware that State v. Quinton Devon Perry, No. W2019-

01553-SC-R11-CD (Tenn. Nov. 18, 2021) is pending before the Supreme Court. However, the issue raised

in Perry relates to what constitutes prior criminal activity for the purposes of consecutive sentencing, not

for purposes of enhancement, and are therefore not relevant to Defendant’s appeal.

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simply court misspoke when it referenced factor 14 because in its analysis, the trial court

explained that it found enhancement necessary based on the fact that Defendant was “on

probation out of Jackson City Court in two different cases” when he committed the offenses

in this case. Enhancement Factor 13(c) provides that “[a]t the time the felony was

committed, one (1) of the following classification was applicable to the defendant: . . . (c)

Released on probation.” T.C.A. § 40-35-114(13)(c). The trial court’s misstatement of the

specific number of the enhancement factor it applied does not invalidate Defendant’s

sentence. The record supports the application of Enhancement Factor 13(c) to Defendant’s

sentence. Defendant is not entitled to relief on his claims that the trial court misapplied all

enhancement factors.

Defendant also complains that the trial court did not reference its consideration of

any information from the Administrative Office of the Courts regarding sentencing

practices. See T.C.A. § 40-35-210(b)(6). However, Defendant fails to provide any

evidence that his within-range sentence was inconsistent with the sentencing practices for

similar offenses in Tennessee. The burden is on the challenging party to prove the

impropriety of the sentence imposed. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

Defendant failed to meet his burden of proving that his sentence was improper in light of

the sentencing practices for similar offenses in Tennessee.

Probation

While conceding that his conviction for possession of a firearm during commission

of a dangerous felony is required to be served in confinement, Defendant argues that the

trial court erred in denying an alternative sentence for his felony marijuana conviction.

When a trial court denies probation or any other alternative sentence to an eligible

defendant and states on the record reasons in accordance with the purposes and principles

of sentencing, the court’s decision is reviewed under an abuse of discretion standard,

accompanied by a presumption of reasonableness. Caudle, 388 S.W.3d at 278-79; Bise,

380 S.W.3d at 707. We will reverse the trial court’s decision for abuse of discretion “only

when the court applied an incorrect legal standard, or reached a decision which is against

logic or reasoning that caused an injustice to the pay complaining.” State v. Gilliland, 22

S.W.3d 266, 270 (Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

Tennessee Code Annotated section 40-35-103, requires the trial court to consider the

following factors to determine whether a sentence of confinement is appropriate:

A. Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal confinement.

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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.

T.C.A. § 40-35-103(1)(A)-(C). When Defendant committed the crimes in this case, he was

serving other sentences on probation and had violated the terms of his probation by

committing new crimes. In addition to considering Defendant’s lack of success with

probation, the trial court announced that it had considered Defendant’s physical and mental

condition, the facts and circumstances of the offense, and Defendant’s criminal history.

The trial court was troubled by Defendant’s pattern of violating the terms of his probation

and found that less restrictive measures than confinement had been applied recently and

were unsuccessful. The trial court also found Defendant not to be credible in his statement

to the presentence report investigator that all of the marijuana was for personal use and that

he used scales and baggies to weigh and bag marijuana he purchased from other people.

See State v. Sharp, 327 S.W.3d 704, 716 (Tenn. Crim. App. 2010) (“The trial court may

consider a defendant’s untruthfulness and lack of candor as they relate to the potential for

rehabilitation”). The trial court considered Defendant’s history of criminal conduct

resulting in sentences where measures less restrictive than confinement were unsuccessful.

See T.C.A. § 40-35-103(1)(C). Defendant is not entitled to relief on this issue.

Alignment of Sentences

We first note that Defendant does not challenge the consecutive nature of his

sentences, but only the order of the sentences. Defendant argues that the trial court erred

when it ordered his sentence for possession of a firearm during the commission of a

dangerous felony to be served consecutively to the felony marijuana sentence because it

must be served 100 percent before release eligibility, and he will be eligible for release on

his felony marijuana sentence after thirty percent. The applicable statutes provide that “it

is an offense to possess a firearm or antique firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony.” T.C.A. § 39-17-1324(a). “A

sentence imposed for a violation of subsection (a) or (b) shall be served consecutive to any

other sentence the person is serving at the time of the offense or is sentenced to serve for

conviction of the underlying dangerous felony.” Id. § 39-17-1324(e)(1). “A violation of

subsection (a) is a Class D felony, punishable by a mandatory minimum three-year

sentence to the department of correction.” Id. § 39-17-1324(g)(1). “There shall be no

release eligibility for a person committing a violation of § 39-17-1324(a) or (b) on or after

January 1, 2008, until the person has served one hundred percent (100%) of the minimum

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mandatory sentence established in § 39-17-1324(g) or (h) and imposed by the court less

sentence credits earned and retained[.]” T.C.A. § 40-35-501(j).

In this case, the trial court ordered Defendant’s sentence for possession of a firearm

during the commission of a dangerous felony to run consecutively to the underlying felony

marijuana conviction as set out in the statute. Defendant cites to no cases that suggest that

his firearm sentence must run first, nor has our review yielded any caselaw to suggest the

same. Defendant raises concerns regarding calculation of his eligibility for release based

on the alignment of the sentences; however, such concerns are outside the purview of this

court and are handled by the Tennessee Department of Correction (TDOC). TDOC

possesses the authority to determine the release eligibility and sentence expiration of

defendants “regardless of where they are housed.” Yates v. Parker, 371 S.W.3d 152, 155

(Tenn. Crim. App. 2012); see also T.C.A. § 40-35-501(r). The trial court’s order was not

inconsistent with the statute and is therefore presumptively reasonable. Defendant is not

entitled to relief on this issue.

Conclusion

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

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JILL BARTEE AYERS, JUDGE

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