State v. Jones

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 25, 1998
• Docket: 03C01-9701-CR-00016
• Status: Published

Opinion

IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION February 25, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9701-CR-00016 ) vs. ) Hamilton County ) AMOS LEWIS JONES, ) Hon. Douglas A. Meyer, Judge ) Appellant. ) (Aggravated robbery; aggravated ) rape; especially aggravated ) kidnaping; theft) )

FOR THE APPELLANT: FOR THE APPELLEE:

CLAYTON M. WHITTAKER JOHN KNOX WALKUP 515 Pioneer Bank Building Attorney General & Reporter 801 Broad Street Chattanooga, TN 37402 SANDY C. PATRICK Asst. Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

WILLIAM H. COX, III District Attorney General

C. LELAND DAVIS Asst. District Attorney General Suite 300, Courts Building Chattanooga, TN 37402

OPINION FILED: _____________

AFFIRMED

CURWOOD WITT, JUDGE OPINION

The defendant, Amos Lewis Jones, appeals from the sentencing

judgment of the Hamilton County Criminal Court. The defendant’s six convictions

resulted from guilty pleas. The trial court sentenced the defendant to maximum

Range I terms of four years for theft, twelve years for each of two counts of

aggravated robbery, and 25 years each for one count of especially aggravated

kidnapping and two counts of aggravated rape. The three twenty-five year

sentences were plea-bargained to run concurrently to each other, but the trial court

set the sentences for theft and aggravated robbery to run consecutively to each

other and consecutively to the twenty-five year aggregate sentence for the

kidnapping and rape charges, yielding a total effective sentence of 53 years. The

defendant appeals only the consecutive sentencing aspect of the trial court’s

judgment. Upon our review of the case, we affirm the judgment of the trial court.

The defendant was sixteen years of age when the underlying offenses

were committed on September 30 and October 1, 1994.1 He had spent a major

portion of his teenage years in the custody of the Department of Youth

Development. His prior criminal record consisted of fifteen juvenile court

adjudications, including convictions for assault, evading arrest, escape, possession

of a weapon on school grounds, two first-degree burglaries, two unauthorized uses

of vehicles, and six thefts.2 The defendant, a sixth-grade dropout, had never

submitted a job application and had never been employed, although he had been

released from the Department of Youth Development on one occasion for as long

as five months and had acquired some carpentry and masonry skills while in

department custody.

The record shows that the crimes were committed during a two-day

1 The defendant reached the age of seventeen on December 24, 1994. His cases were transferred to criminal court from juvenile court. 2 A fifteenth adjudication was for an unspecified offense.

2 period in which the defendant was attempting to demonstrate his criminal prowess

in order to be promoted, or “get [his] ranks built up,” as a member of a street gang

known as the “Crips.” During this test, the defendant, armed with his twelve-gauge

shotgun and accompanied by the gang leader, undertook a crime spree that

resulted in the armed robbery of two individuals and the abduction and multiple

rapes of the second of the robbery victims, a female. At one point, this victim was

raped simultaneously by the defendant and his accomplice. Afterward she jumped

or was thrown from the assailants’ car, and the car ran over her foot as the

defendant’s accomplice drove away.

The trial court sentenced the defendant to the maximum sentences

allowed within Range I for each offense.3 The court found three bases to support

consecutive sentencing. It found (1) that the defendant was a professional

criminal, “knowingly devot[ing his] life to criminal acts as a major source of

livelihood,” (2) that he had an extensive record of criminal activity, and (3) that he

was 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.” Tenn. Code Ann. § 40-35-115(b)(1) (1997).

When there is a challenge to the length, range, or manner of service

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

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). “The burden of showing that the sentence is improper is

upon the appellant.” Id. In the event the record fails to demonstrate the required

consideration by the trial court, review of the sentence is purely de novo. Id. If

3 The court found these sentences were justified by the presence of seven enhancement factors. See Tenn. Code Ann. § 40-35-114(1), (5), (7), (8), (9), (10), and (21) (1997) (the court applying factor (9), that a firearm was used, only with respect to the rape and theft convictions).

3 appellate review reflects the trial court properly considered all relevant factors and

its findings of fact are adequately supported by the record, 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).

Upon our review of the record, we find that the trial judge’s sentencing

determinations merit the presumption of correctness, and further we find that the

record supports the trial court’s decision with respect to all three consecutive-

sentencing bases. The finding of professional criminality under section 40-35-

115(b)(1) is supported by the proof that this defendant, although young, had never

been employed and had never applied for a job despite having quit school in the

sixth grade. He indicated that he and his unemployed girlfriend lived together,

supported only by help from well-meaning friends. The lack of a work record,

together with an “extensive criminal record, including several theft related offenses,

lead[s] the court to believe that the Defendant has turned to crime for a major

source of his livelihood.” State v. Jason Morin, No. 02C01-9512-CR-00370, slip op.

at 11 (Tenn. Crim. App., Jackson, June 2, 1997). Furthermore, an extensive

criminal record has been demonstrated in support of the trial court’s finding under

section 40-35-115(b)(2). See Jason Morin, slip op. at 11; see also State v. Jason

L. Broadnax, No. 01C01-9702-CC-00044, slip op. at 4 (Tenn. Crim. App., Nashville,

Jan. 16, 1998). The defendant has failed to overcome the presumption of the

correctness of the trial court’s finding as to these two bases for consecutive

sentencing.

As to the third ground, that the defendant is a dangerous offender,

Tenn. Code Ann. § 40-35-115(b)(4)(1997), we agree with the defendant that the trial

court did not announce all of the findings that were required by our supreme court

in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In Wilkerson, the supreme

court held that the imposition of consecutive sentencing upon a defendant found to

be a dangerous offender requires, “in addition to the application of general

4 principles of sentencing, the finding that an extended sentence is necessary to

protect the public against further criminal conduct by the defendant and that the

consecutive sentences must reasonably relate to the severity of the offenses

committed.” Wilkerson, 905 S.W.2d at 939. The trial court’s omission in this regard

notwithstanding, we find that the record affords cogent evidence that a lengthy

sentence is necessary to protect the public from this defendant who, after spending

much time in the custody of the Department of Youth Development, not only

continued to reoffend, but who escalated his offending into more serious crimes.

In this regard, we take note of escape and aggravated assault charges that were

pending against the defendant at the time of his sentencing in the present case.

The proof showed that the defendant, armed with a gun, escaped from the custody

of the Department of Youth Development and assaulted an officer in the process.

Although this conduct may not be part of a record of criminal activity under section

40-35-115(b)(2), it is probative on the question of whether the public should be

protected from this defendant under section 40-35-115(b)(4) and Wilkerson. Finally,

we conclude that the record supports a conclusion that the period of confinement

is reasonably related to the severity of the crimes committed. The severity of the

defendant’s crimes in this case speaks for itself.

We agonize over the plight of this young man. His father was

imprisoned when the defendant was ten years of age, and the defendant dropped

out of school in the sixth grade. Many of his few years have been spent in custody.

Yet, no one has successfully intervened to stem his criminal behavior, and with the

substantial sentence imposed him, the defendant has tragically brought his life to

the brink of ruin. Nevertheless, our role as an appellate court is limited. If the

record reflects that the trial court properly considered all relevant factors and its

findings are adequately supported by the record, as they are in this present case,

we must defer to the judgment of the trial court. Fletcher, 805 S.W.2d at 789.

For the reasons explained above, we affirm the judgment of the trial

5 court.

_________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ JOE B. JONES, PRESIDING JUDGE

_______________________________ PAUL G. SUMMERS, JUDGE