State of Tennessee v. Donald Biggs, Alias

482 S.W.3d 923, 2015 WL 5813068, 2015 Tenn. Crim. App. LEXIS 795
Court of Criminal Appeals of Tennessee·Decided September 30, 2015·No. E2014-01650-CCA-R3-CD·Published·Cited by 14 cases

Opinions

OPINION

D. Kelly Thomas, Jr., J.,

delivered the opinion of the court,

in which Camille R. McMullen, J., joined. Thomas T. Woodall, P.J., filed a separate dissenting opinion.

The Defendant, Donald Biggs, alias, appeals as of right from his guilty-pleaded convictions for four counts of aggravated robbery, two counts of theft by shoplifting, and one count of attempted aggravated robbery. See. Tenn.Code Ann. §§ 39-12-101, -13-402, -14-103, -14-105, -14-146. Following a sentencing hearing, the’ trial court sentenced the Defendant to twenty-two years each on two aggravated robbery convictions. The trial court ordered that the Defendant serve these two senténces consecutively. The Defendant’s remaining sentences were ordered to be served concurrently, resulting in a total effective sentence of forty-four years. The sole issue presented for our review is whether the trial court erred when it imposed partial consecutive sentences. Following our review, we -conclude that' the trial court abused its discretion when it imposed partial consecutive sentences, and the judgments of 'the trial court are, -therefore, reversed.

FACTUAL BACKGROUND

The Defendant’s convictions arose from a string of robberies arid thefts that occurred in Knox County in September 2013. The factual bases underlying these convictions were presented over the course of three guilty plea submission hearings, as detailed below.

7. April 21, 20H Guilty Plea Submission Hearing

On April 21, 2014, the Defendant pled guilty to two counts of aggravated robbery in case number 102471. The trial court reserved sentencing pending the resolution of the Defendant’s remairiing cases. The State provided the following factual accounts underlying the offenses.

Ori’September 11, 2013, the Defendant entered Confectionistá’s Kitchen on Chapman Highway, where Emily Herndon was working. The Defendant approached the counter and ordered a cookie. As Ms. Herndon was “ringing him up,” the Defendant pulled out what Ms. Herndon believed to be a gun and demanded money. Ms. Herndon gave the Defendant money, and he fled the scene. Ms. Herndon called 911 and was able to provide a description of the Defendant to the police.

On September 12, 2013, Amanda Laud-erdale was working at Lee’s Market when the Defendant entered the store. The Defendant purchased a pack of gum with a $20 bill. After Ms. Lauderdale-gave the Defendant his change, the Defendant told Ms. Lauderdale that she “shorted [him] $10.” Believing him, Ms. Lauderdale reopened the cash drawer and gave the Defendant $10. Later that day, Ms. Lauder-dale realized that she had not in fact shorted the Defendant money but that he had tricked her into giving him an additional $10.

Shortly thereafter, the Defendant- returned to -Lee’s Market where he again purchased a small item. After receiving his change, he again stated that Ms. Laud-erdale had shorted him, but this time Ms-. Lauderdale asserted that she had given him the appropriate amount of change, and he left the store.

The Defendant returned to Lee’s Market for a third time later that day. The Defendant placed an item for purchase on the counter, and when Ms. Laudei’dale opened the cash drawer, the Defendant pulled out a weapon, which she believed to [925] be a gun, pointed it at her, and demanded money. The Defendant took the money and left the store. Ms. Lauderdale called 911 and was able to provide a description of the Defendant to the police.

II. May 14, 2014 Guilty Plea ■ Submission Hearing

On May 14, 2014, the Defendant pled guilty to aggravated robbery in casé number 102554. In support of that charge, the State asserted that on September 13, 2013, the Defendant entered Spring Hill Market, where he placed a pack of gum on the counter for purchase. At that point, the Defendant pulled out a gun, pointed it at the cashier, Ciara Mitchell, and .demanded money. After taking approximately $100, he fled. Ms. Mitchell was able to look out the store’s window and get the Defendant’s license plate number, which she provided to the police.

III. June 23, 2014 Guilty Plea Submission Hearing

The trial court convened again on June 23, 2014, and the Defendant entered guilty pleas in his remaining four cases. In case number 102792, the Defendant pled guilty to misdemeanor theft. The State gave the following factual account for the offense: The Defendant- entered a Wal-Mart garden center on May 15, 2013, loaded several bags of potting soil onto his truck, and drove away without paying. The items were valued at $428.

In case number 102551, the Defendant pled guilty to misdemeanor theft. Pursuant to that charge, the State alleged that the Defendant entered an Exxon gas station on September 10, 2013, waited for an employee to step away from the counter, opened the cash register, and stole $225 directly from the cash drawer.

The Defendant also pled guilty to attempted aggravated robbery in case number 102553 for events that took place on September 14, 2013. On that date, the Defendant entered a “Marathon Favorite Market” and took two - pieces of candy to the counter for purchase. When the cashier opened the cash register to- complete the sale, the Defendant reached across the counter and attempted to take money from the drawer. The cashier closed the draw-er on the Defendant’s -hand, and the Defendant then pulled out what, the cashier described as a handgun. The cashier grabbed for the handgun, a brief struggle ensued, and the handle of the gun broke apart. The Defendant immediately fled the scene. The “handgun” was recovered and was determined to be a plastic toy gun, which the Defendant had also used in each of the previous robberies.

Finally, .in case number 102552, the Defendant pled guilty to aggravated robbery. On September 14, 2013, the Defendant entered a Subway restaurant and ordered a cookie. When the cashier opened the cash register to complete the sale, the Defendant reached over the counter and attempted to take money from the cash drawer, while simultaneously using his other hand to pull a handgun1 from his waistband. The cashier closed the drawer on . the Defendant’s hand, and the Defendant told the cashier “to give, him the money or he would f~king kill [him].” The Defendant took $80 from the drawer and fled the business.

IV.June 30, 2014 Sentencing Hearing

After classifying the Defendant as a Range III, persistent offender, see Ten[926] nessee Code Annotated section 40-35-107, the trial court sentenced the Defendant to twenty-two years in case number 102471, to be served at eighty-five percent. In case number 102552, the trial court sentenced the Defendant to an additional twenty-two years and ordered that sentence be served consecutively to the sentence in case number 102471. The. trial court ordered the Defendant’s remaining sentences be served concurrently to case number 102471, resulting in a total effective sentence of forty-four years to -be served at eighty-five percent.

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State of Tennessee v. Donald Biggs, Alias, 482 S.W.3d 923, 2015 WL 5813068, 2015 Tenn. Crim. App. LEXIS 795 (Tenn. Ct. App. 2015).

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