State v. Samuel Carter

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9705-CR-00173
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH 1998 SESSION April 7, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9705-CR-00173 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, SAMUEL MYRON CARTER, JR., ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

THERESA W. DOYLE JOHN KNOX WALKUP 211 Printers Alley Building Attorney General and Reporter Suite 400 Nashville, TN 37201-1414 DARYL J. BRAND Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

JAMES W. MILAM Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant appeals the trial court’s order imposing consecutive

sentences. The issue was previously remanded to the trial court for the limited

purpose of determining the statutory basis for consecutive sentencing. After a

brief hearing, the trial court again imposed consecutive sentences. The

judgment of the trial court is affirmed.

PROCEDURAL HISTORY

The defendant was convicted of two (2) counts of selling .5 grams or more

of cocaine, Class B felonies. The trial court sentenced the defendant as a

Range II, Multiple Offender, to consecutive sixteen (16) year sentences. The

sentences were also ordered to be served consecutively to another sentence for

which the defendant was on parole at the time of the instant offenses.

The defendant appealed as of right to this Court. We affirmed the

convictions, but remanded to the trial court to decide the statutory basis for

consecutive sentencing. State v. Samuel Myron Carter, Jr., C.C.A. No. 01C01-

9412-CR-00411, Davidson County (Tenn. Crim. App. filed May 24, 1996, at

Nashville). Upon remand, the trial court again imposed consecutive sentences.

STANDARD OF REVIEW

This Court’s review of the sentences imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

2 (Tenn. 1997).

CONSECUTIVE SENTENCING

When a defendant is convicted of two (2) or more criminal offenses, the

trial court has the option of ordering the sentences be served consecutively if

statutory criteria are met. See Tenn. Code Ann. § 40-35-115. In the instant

case, the trial court upon remand ruled consecutive sentences were warranted

as it found the defendant an offender whose record of criminal activity was

extensive. Tenn. Code Ann. § 40-35-115 (b)(2).

The trial court noted the numerous prior convictions of the defendant.

These included possession of a controlled substance with intent to sell, grand

theft, theft, a weapons violation, two (2) criminal trespass convictions, and

possession of cocaine. These convictions span a period of approximately ten

years. The defendant’s record of previous convictions is comparable to others

who have received consecutive sentences. See State v. Chrisman, 885 S.W.2d

834, 839 (Tenn. Crim. App. 1994)(finding two (2) drug convictions and two (2)

weapons convictions a sufficient record to support consecutive sentencing). We

find defendant’s record of criminal activity is extensive enough to satisfiy the

statutory provision for ordering consecutive sentences. Tenn. Code Ann. § 40-

35-115 (b)(2).

The defendant raises the issue that he has already received an enhanced

sentence for his prior convictions. This Court has held repeatedly that using the

same convictions for both enhancement and consecutive sentencing purposes is

permissible. State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993);

State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991).

This Court further finds that the terms imposed by the trial court are

reasonably related to the severity of the offenses committed, they are necessary

to protect the public from further criminal acts by the defendant, and they are

congruent with the general principles of sentencing. State v. Wilkerson, 905

3 S.W.2d 933, 938 (Tenn. 1995). These offenses were committed while the

defendant was on parole. The instant offenses involved large sales of cocaine,

twelve (12) grams in one instance and thirteen (13) grams in another. Each sale

was preceded by the buyer paging the defendant. In common language, the

defendant was a drug dealer who practiced his trade while on parole. The

consecutive sentences are appropriate for the defendant.

For the reasons stated above, the judgment of the trial court is

AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________ JOSEPH M. TIPTON, JUDGE

_________________________ DAVID H. WELLES, JUDGE