State v. Sluder

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED December 23, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr. Appellate C ourt Clerk ) APPELLEE, ) ) No. 03-C-01-9509-CC-00272 ) ) Morgan County v. ) ) E. Eugene Eblen, Judge ) ) (Sentencing) BENNY SLUDER, ) ) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

Walter B. Johnson, II John Knox Walkup Assistant Public Defender Attorney General & Reporter P.O. Box 334 500 Charlotte Avenue Harriman, TN 37748-0334 Nashville, TN 37243-0497

OF COUNSEL: Eugene J. Honea Assistant Attorney General Joe H. Walker 450 James Robertson Parkway District Public Defender Nashville, TN 37243-0493 P.O. Box 334 Harriman, TN 37748-0334 Charles E. Hawk District Attorney General P.O. Box 703 Kingston, TN 37763-0703

Frank A. Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED:____________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

This court previously rendered an opinion in this case. The opinion was filed in

Knoxville on February 12, 1997. The appellant, Benny Sluder (defendant), filed a Rule 11,

Tennessee Rules of Appellate Procedure, application for permission to appeal in the

supreme court. The application was granted and the cause remanded to this court with

instructions to consider whether the trial court properly ordered the defendant to serve his

sentence consecutively to the sentence he was serving when he committed the offense.

After a thorough examination of the record, the briefs of the parties, and the law governing

the issue presented for review, it is the opinion of this court that the judgment of the trial

court should be affirmed.

The defendant entered a plea of guilty to possessing marijuana while an inmate in

a correctional institution. Tenn. Code Ann. § 39-16-201. When the offense occurred, the

defendant was incarcerated in the Morgan County Regional Correctional Facility. On

January 18, 1992, correctional officers found 27.5 grams of marijuana in the defendant’s

possession. The trial court sentenced the defendant pursuant to a plea agreement. The

parties agreed the defendant was a Range III persistent offender, the sentence to be

imposed was confinement for ten (10) years in the Department of Correction, and the

question of whether the sentence should be served consecutively to the sentence he was

serving when he committed the offense would be submitted to the trial court for

determination. The court ordered the sentence imposed to be served consecutively to the

sentence he was serving.

After a de novo review of this issue pursuant to the mandate of Tenn. Code Ann.

§ 40-35-401(d), this court is of the opinion the trial court did not abuse its discretion by

requiring the two sentences to be served consecutively. The defendant was trafficking in

marijuana inside the prison. Given these circumstances, this court believes the defendant

committed an extremely serious offense. In addition, the defendant had been convicted

of seven prior felonies.

Unfortunately, the defendant is beyond the rehabilitative stage in view of his prior

history of criminal convictions. Confinement in a prison did not deter the defendant from

2 continuing to engage in criminal activity.

This court is of the opinion the defendant qualifies for consecutive sentencing

because he has an extensive record of criminal activity. Tenn. Code Ann. § 40-35-

115(b)(2). Furthermore, the facts in this case meet the criteria set forth in State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995).

____________________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ PAUL G. SUMMERS, JUDGE

______________________________________ DAVID G. HAYES, JUDGE