State v. Drexell Ridley

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 28, 1998
• Docket: 01C01-9705-CC-00171
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE, 1998 SESSION August 28, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) No. 01C01-9705-CC-00171 ) Appellee ) ) Lincoln County vs. ) ) Honorable Charles Lee, Judge DREXELL T. RIDLEY ) ) (Forgery and Theft of Property valued at Appellant. ) less than $500)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR. JOHN KNOX WALKUP At trial and on Appeal Attorney General & Reporter 404 James Robertson Parkway Parkway Towers, Suite 2121 Nashville, TN 37219 TIMOTHY F. BEHAN Assistant Attorney General JOHN G. OLIVA Criminal Justice Division On Appeal 425 Fifth Ave. North 601 Woodland St. 2d Floor, Cordell Hull Bldg. Nashville, TN 37201 Nashville, TN 37243-0493

WILLIAM MICHAEL McCOWN District Attorney General 215 E. College St. P. O. Box 878 Fayetteville, TN 37334-0878

WEAKLEY E. BARNARD Assistant District Attorney General P.O. Box 904 Fayetteville, TN 37334

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT JUDGE OPINION

In this direct appeal, the defendant, Drexell T. Ridley,1 challenges the

sentences he received as result of his conviction in the Lincoln County Circuit Court

for two counts of transfer of a forged instrument and one count of theft of property

valued at less than $500.00. The trial court sentenced him to six years and four

years in the custody of the Department of Correction as a Range III, persistent

offender, for the two forgery convictions and to nine months in the county jail for

theft. The jury imposed and the trial court approved fines of $750.00 on each

conviction. The defendant must serve his sentences consecutively. In this appeal,

the defendant complains that the trial court applied non-statutory factors in imposing

consecutive sentences. We affirm the judgment of the trial court.

The state’s proof at trial demonstrates that sometime between

approximately 6:00 p.m. on Friday, November 18, 1994 and 11:00 a.m. on

Saturday, November 19, 1994, the dental office of Dr. Mack Hamilton in Fayetteville,

Tennessee, was burglarized and a checkbook was stolen. Later that Saturday

afternoon, the defendant cashed two checks in Fayetteville grocery stores. Both

checks bear the signature of Dr. Hamilton as payor, and the defendant is named as

payee. The defendant presented his driver’s license as identification at both stores

and received $375.00 in cash from one store and $375.00 in cash and merchandise

from the other. The grand jury returned two indictments charging the defendant with

burglary, theft of property valued at less than $500, two counts of forging a writing,

and two counts of transferring a forged instrument. The cases were consolidated

for trial, and the jury acquitted the defendant of burglary but found him guilty on the

other five counts. The trial court merged the two counts of forging a writing into the

two counts of transferring a forged instrument and sentenced the defendant to an

effective sentence of ten years, 9 months on the three remaining convictions. The

1 The grand jury returned two indictments against the defendant. In #008-95, his name is given as “Drexell Ridley;” #036-95 names the defendant as “Drexell T. Ridley.” Other documents in the record spell the defendant’s first name as “Drexel.” We have used the name given in #036-95, “Drexell T. Ridley,” throughout this opinion.

2 defendant challenges neither the validity of his convictions nor the length of the

individual sentences but contends that the trial court failed to make the findings

required to impose consecutive sentences.

When an accused challenges the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In conducting our review, we must consider all the evidence, the

presentence report, the sentencing principles, the enhancing and mitigating factors,

counsels’ arguments, the appellant’s statements, the nature and character of the

offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-

103(5), -210(b) (1997); State v. Ashby, 823 S.W.2d at 169. The defendant has the

burden of demonstrating that the sentence is improper. Id. In the event the record

fails to demonstrate the appropriate consideration by the trial court, appellate review

of the sentence is purely de novo. Id. If our review reflects that the trial court

properly considered all relevant factors and the record adequately supports its

findings of fact, this court must affirm the sentence even if we would have preferred

a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the sentencing range, the specific

sentence, and the propriety of imposing a sentence involving an alternative to total

confinement. The trial court must consider (1) any evidence presented at trial and

the sentencing hearing, (2) the presentence report, (3) the sentencing principles. (4)

the arguments of counsel, (5) any statements the defendant has made to the court,

(6) the nature and characteristics of the offense, (7) any mitigating and

enhancement factors, and (8) the defendant’s amenability to rehabilitation. Tenn.

3 Code Ann. §§ 40-35-103(5), and 40-35-210(a), (b) (1997); State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993). The trial court must begin with a

presumptive minimum sentence. Tenn. Code Ann. § 40-35-210(c) (1997). The

sentence may then be increased by any applicable enhancement factors and

reduced in the light of any applicable mitigating factors. Tenn. Code Ann. § 40-35-

210(d),(e) (1997). The trial court may, in its discretion, impose consecutive

sentencing if it determines that one or more of the criteria found in Tennessee Code

Annotated section 40-35-1152 exist and if the consecutive sentences are in accord

with the general purposes and principles of the Sentencing Reform Act of 1989.

See Tenn. Code Ann. §§ 40-35-102, -103 (1997). Consecutive sentences,

however, should not be routinely imposed even for the offender whose record of

2 (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

4 criminal activity is extensive. Tenn. Code Ann. § 40-35-115, Sentencing Comm’n

Comments; State v. Taylor, 739 S.W.2d 227, 230 (Tenn. Crim. App. 1987). Lengthy

consecutive sentences may be imposed when such confinement is necessary to

protect the public from a defendant with a lengthy history of criminal conduct, Tenn.

Code Ann. § 40-35-102(1) (1997), and if the sentence is justly deserved in relation

to the seriousness of the offense. Tenn. Code Ann. § 40-35-102(1) (1997) ; see

also State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995) (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).

In this instance, the trial court gave due consideration to the evidence,

applied mitigating and enhancing factors, explained why confinement was

necessary and addressed the reasons for imposing consecutive sentences.

Therefore we review the defendant’s sentences with the presumption that the trial

court’s findings are correct.

At the conclusion of the sentencing hearing, the trial judge found that

the defendant’s record included at least five prior felony convictions and sentenced

him as a Range III, persistent offender. See Tenn. Code Ann. § 40-35-107(a)(1)

(1997). He also found three enhancement factors: (1) the defendant had a previous

history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range, Tenn. Code Ann. § 40-35-114(1) (1997); (2) the

defendant has a previous history of unwillingness to comply with the conditions of

a sentence involving release into the community, Tenn. Code Ann. § 40-35-114(8)

(1997); and (3) the felony was committed while on parole from a prior felony

conviction. Tenn. Code Ann. § 40-35-114(13)(B) (1997). As a mitigating factor, the

trial judge found that the defendant’s conduct neither caused nor threatened serious

bodily injury. Tenn. Code Ann. § 40-35-113(1) (1997).

5 The trial court held that confinement was necessary in this instance

to restrain a defendant who has a long history of criminal conduct and that

measures less restrictive than confinement have been frequently and recently

applied unsuccessfully to this defendant. Tenn. Code Ann. § 40-35-103 (1)(A), (C)

(1997). With respect to consecutive sentencing, the trial court found that criminal

activity had been a major source of the defendant’s livelihood and that the

defendant was an offender whose record of criminal activity is extensive. See Tenn.

Code Ann. § 40-35-115(a)(1), (2) (1997). Moreover, the trial court found that the

aggregate sentence bore “a rational relationship to the provisions of the 1989

Sentencing Act.”

The record before us overwhelmingly supports the trial court’s

findings. The defendant’s record contains nine felony convictions including several

for burglary. His juvenile record extends back to 1971 when he was thirteen years

old. His parole has been revoked due to new arrests and convictions at least twice

prior to these offenses. His employment record is spotty, and although the record

indicates that he has made some effort to improve his job skills, he did not complete

the programs in which he enrolled. The defendant argues that the trial court applied

non-statutory enhancement factors and considerations in determining his sentence.

Apparently, he is referring to the trial court’s statement that the defendant had spent

his life “living off the hard work of other people by stealing from them.” This remark

was made in reference to the trial court’s determination that the defendant was a

professional criminal who knowingly devoted his life to criminal acts as a major

source of livelihood pursuant to Tennessee Code Annotated section 40-35-115(1).

The record overwhelmingly supports this conclusion as well as the court’s

determination that the defendant is an offender whose record of criminal activity is

extensive. Tenn. Code Ann. § 40-35-115(2). Moreover, the trial judge also found

that lengthy confinement was necessary to protect the public from this defendant’s

criminal activity and that the overall sentence of ten years and nine months is

rationally related to the principles and purposes of the Sentencing Reform Act.

6 Our de novo review of the record indicates that although the trial

judge’s findings did not always track the precise language of the statutes, he

thoroughly and carefully considered the applicable principles and made the findings

required by Tennessee law. 3 Those findings are supported by the record. The trial

court did not err in ordering the defendant to serve his sentences consecutively.

We affirm the defendant’s sentences as imposed by the trial court.

__________________________ CURWOOD W ITT, Judge CONCUR:

______________________________ JOE G. RILEY, Judge

______________________________ R. LEE MOORE, Special Judge

3 We are unable to follow the defendant’s argument concerning State v. Marshall, 888 S.W.2d 786 (Tenn. Crim. App. 1994), to which the trial court referred during sentencing. The trial court appropriately relied on Marshall to explain the different sentences he was imposing in the two forgery convictions, not to justify consecutive sentencing. See Marshall, 888 S.W.2d at 789.