State v. Timothy Jason Solomon

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 27, 2000
• Docket: E1999-00991-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED January 27, 2000 DECEMBER 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) Appellee, ) No. E1999-00991-CCA-R3-CD ) ) Knox County v. ) ) Honorable Richard R. Baumgartner, Judge ) TIMOTHY JASON SOLOMON, ) (Sentencing) ) Appellant. )

For the Appellant: For the Appellee: Mark E. Stephens Paul G. Summers District Public Defender Attorney General of Tennessee and and R. Scott Carpenter Patricia C. Kussmann Assistant Public Defender Assistant Attorney General of Tennessee 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37902 Nashville, TN 37243

Randall E. Nichols District Attorney General and Marsha L. K. Selecman Assistant District Attorney Post Office Box 1468 Knoxville, TN 37901-1468

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge

OPINION

The defendant, Timothy Jason Solomon, appeals as of right from the

Knox County Criminal Court’s imposition of consecutive sentences. Upon his guilty pleas, the defendant was convicted of seven counts of burglary, a Class D felony. He

received three-year sentences on each count with three counts to be served

consecutively to the other four, constituting an effective sentence of six years in the custody of the Department of Correction. He contends that the trial court cannot use

the present offenses to find that he has an extensive record of criminal activity as is

required for consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(2).1 We affirm the trial court.

The record reflects that the defendant burglarized the same Spur station four times and the same Pilot Oil station three times, stealing cash, beer, and

cigarettes. Thirty-four years old at the time of sentencing, the defendant had a long

history of drug and alcohol abuse. His criminal record began at age nineteen and includes multiple convictions for public intoxication, driving under the influence of an

intoxicant, driving on a revoked or suspended license, disorderly conduct, and assault.

He also has been previously convicted of burglary and possession of marijuana. The

defendant essentially admitted that he committed the burglaries in order to get drunk

and to get money for drugs.

The trial court enhanced the defendant’s sentences based upon his

criminal history and his history of unsuccessful attempts at release into the community for prior offenses. See Tenn. Code Ann. § 40-35-114(1), (8). In imposing consecutive

sentences, the trial court found that the defendant had an extensive criminal history,

which included the present burglary offenses; was a danger to the public; and needed to be imprisoned.

The defendant contends that the trial court erred in relying on his present offenses to impose consecutive sentences as an offender with an extensive criminal

history as that phrase is used in Tenn. Code Ann. § 40-35-115(b)(2). He argues that

-115(b)(2) only applies to an offender’s past record and does not include the offenses

for which the consecutive sentences are being considered. He states that there is a

1 (b)The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that: . . . (2) The defendant is an offender whose record of criminal activity is extensive. Tenn. Code Ann. § 40-35-115(b)(2)

2 conflict in opinions interpreting -115(b)(2) and that the proper interpretation limits

application of -115(b)(2) to an offender’s past history. We disagree.

Initially, we note that the trial court’s consecutive sentencing decision was

not based solely upon the defendant’s present offenses. It expressly found that the

defendant’s previous offenses constituted an extensive criminal record. In fact, given the defendant’s motives for the present burglaries, we believe that the defendant’s prior

criminal history, largely related to drug and alcohol abuse, justifies consecutive

sentencing.

Furthermore, the defendant misapprehends the import of the opinions

which he claims have conflicting interpretations. In State v. Rickey Crawford, No.

02C01-9806-CR-00169, Shelby County (Tenn. Crim. App. May 12, 1999), a majority of

the court holds that -115(b)(2) applies regardless of whether the extensive criminal

record relates to conduct before the present offenses or relates to conduct that includes

the offenses for which sentencing is occurring. Accord State v. Rodney D. Palmer, No.

02C01-9804-CR-00111, Shelby County (Tenn. Crim. App. July 8, 1999), app. denied

(Tenn. Jan. 3, 2000). Judge Hayes’ separate opinion in Crawford regarding this issue

states that -115(b)(2) should be limited to conduct involving the present offenses.

Thus, the Crawford panel agreed that a defendant could receive consecutive sentences based upon extensive criminal conduct that comprises the offenses for which the

defendant is being sentenced.

The defendant also notes that the Tennessee Supreme Court has

sustained consecutive sentencing based upon a criminal record that existed before the

commission of the offenses for which the sentences were being imposed. See State v.

Pettus, 986 S.W.2d 540, 545 (Tenn. 1999). He argues that the opinion supports his

interpretation of -115(b)(2). We disagree. The holding in Pettus in no way indicates

that consecutive sentencing cannot be based upon the present offenses. Moreover, at

the time of his sentencing, the defendant’s “record of criminal activity” included the criminal activity for which he was being sentenced.

3 In consideration of the foregoing and on the record as a whole, we affirm

the judgments of conviction.

_______________________________ Joseph M. Tipton, Judge

CONCUR:

_________________________________ David H. Welles, Judge

_________________________________ Jerry L. Smith, Judge