        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               November 10, 2009 Session

                STATE OF TENNESSEE v. DARRYL HUBBARD

              Direct Appeal from the Criminal Court for Shelby County
                   No. 07-03060; 07-01581   Lee V. Coffee, Judge




                 No. W2008-02437-CCA-R3-CD - Filed April 19, 2010


The defendant, Darryl Hubbard, pled guilty in case number 07-01581 to possession of
marijuana, third offense or greater, a Class E felony, and in case number 07-03060 to
possession of more than 0.5 grams of cocaine with intent to sell, a Class B felony, and to
possession of marijuana with intent to sell, a Class E felony. The trial court sentenced the
defendant as a multiple offender to four (4) years for case number 07-01581, to run
consecutively to 07-03060 and to a prior case. The trial court sentenced him as a multiple
offender in case number 07-03060 to four (4) years for the Class E felony, concurrent with
eighteen (18) years for the Class B felony, to be served consecutively to 07-01581 and the
prior case. The defendant’s effective sentence for 07-05181 and 07-03060 is twenty-two (22)
years in the Tennessee Department of Correction, consecutive to a nineteen (19) year
sentence in the prior case. On appeal, the defendant contends that (1) the trial court erred by
imposing consecutive sentences and (2) that his sentences are disproportionate to the
offenses, amounting to cruel and unusual punishment. Following our review, we affirm the
judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J.C. M CL IN, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS and
R OBERT W. W EDEMEYER, JJ., joined.

Larry D. Sims, II, Memphis, Tennessee, for the appellant, Darryl Hubbard.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Stacy McEndree and Brian
Winsett, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
                                        Background

       We initially note that the transcript of the defendant’s guilty plea hearing is not
included in the record. However, the presentence report contains an agency statement
containing the facts underlying the charges. The facts underlying case number 07-03060 are:

              On July 22, 2006, at 2245 hours, [Shelby County Sheriff’s Office]
       narcotics [unit] executed a search warrant at 2396 Saratoga Ave[nue] with a
       M/B known as “Darryl” was named in the warrant [sic]. Detectives knocked,
       announced, and received no answer at the front door of the residence. Officers
       forced entry and secured the residence[,] finding no one inside the residence.
       After securing the residence, K-9 handler C. Grimes and his certified K-9 Lucy
       ran the residence with Lucy giving positive indication for narcotic odor in the
       middle bedroom on a table, on the TV area, and on a pillow on a couch. After
       searching the area[,] Detective McCall recovered a plastic bag with suspected
       crack cocaine, a digital scale with cocaine residue on the table, and a plastic
       bag with suspected cocaine on the TV. Detective Mills recovered a big fake
       puncture seal container with two bags of suspected marijuana, two plastic bags
       of U.S. currency[;] several small bags of suspected marijuana were located
       inside the bags, and a loaded .380 Lorcin pistol was under the pillow of the
       couch.

              No arrest[s] were made on the scene, and all evidence was transported
       to 1080 Madison for paperwork. Detective Grimes weighed and tested all
       evidence with positive results. The weights on the narcotics found are 1.5 g
       tgw crack cocaine, 1.7 g tgw cocaine, and 96.2 g tgw of marijuana. The
       money found totaled $283.00 in U.S. currency. Detective Walton found
       misc[ellaneous] paperwork with the defendant’s name on it and also took a
       photograph of a marriage license with the defendant’s name on it. All
       evidence [was] placed in the M[emphis] P[olice] D[epartment] property room
       and tagged . . . . This did occur in Shelby County, Tennessee . . . .

In March 2007, a Shelby County grand jury indicted the defendant in this case for (1)
possession of more than 0.5 grams of cocaine with intent to sell, (2) possession of more than
0.5 grams of cocaine with intent to deliver, (3) possession of more than one-half ounce of
marijuana with intent to sell, and (4) possession of more than one-half ounce of marijuana
with intent to deliver. The defendant pled guilty to counts one and three on June 3, 2008, and
the state dismissed counts two and four.

       The facts underlying case number 07-01581 are:



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              Officers Stewart and Monistere were attempting a pick-up for a robbery
       suspect known as “Big Jason” [who] was in the area of Grand and Saratoga.
       Officers attempted to detain a suspect matching his description [who] ran
       south on Grand to a corner store where the suspect threw down [nine] small
       bags [of] marijuana. The marijuana was taken out of his right front pocket.
       Officers apprehended the suspect, frisked him, and detained him. Officers
       discovered this was not “Big Jason” but [the defendant]. [The defendant]
       became apologetic after detention. The defendant had no warrants so he was
       issued a misdemeanor citation in lieu of arrest. The marijuana was tested
       positive with a weight of 11.9 g tgw . . . .

In January 2007, a Shelby County grand jury indicted the defendant in case number 07-
01581 for possession of marijuana, third offense or greater. The defendant pled guilty on
June 3, 2008.

       The trial court heard the following evidence at a bifurcated sentencing hearing on July
18, 2008, and September 12, 2008. Michael Burns testified that he is the store manager of
the Firestone store located on Poplar Avenue in Memphis. He authenticated invoices that
indicated that the defendant paid cash for several automotive repairs totaling around $300.
The court admitted the invoices as an exhibit. On cross-examination, Mr. Burns testified that
forty percent of his customers paid in cash.

        Duwayne Smith testified that he rented 2396 Saratoga Avenue to the defendant and
his wife in 2006 for one year. The defendant paid his $350 monthly rent in cash. On cross-
examination, Mr. Smith testified that he never observed the defendant participating in illegal
activity, and he was unaware of any illegal activity until he received a notice from the state.
The court asked Mr. Smith to clarify what type of notice he received, to which Mr. Smith
replied that the state notified him that the defendant was charged with drug-dealing out of
that residence, and Mr. Smith would have to evict him.

        The defense called Lisa Nelson, a friend of the defendant’s wife who knew the
defendant personally. Ms. Nelson testified that the defendant sold drugs to support his
family when he was out of work. She said that she took the defendant job-hunting on
occasion and would sometimes take him to and from work. Ms. Nelson testified that both
the defendant and his wife did not have steady employment but were consistently looking for
work. She attributed the defendant’s inability to hold a job to his criminal record. She said
that the defendant and his wife were homeless for a time because of their lack of
employment. Ms. Nelson asked the court for leniency in sentencing the defendant because
she knew he was already serving a nineteen-year sentence for similar charges, and she felt
that nineteen years was sufficient time to serve for all of the defendant’s charges. On cross-



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examination, Ms. Nelson said that she would not characterize the defendant as a professional
drug dealer.

       The defendant’s wife, Shelta Hubbard, testified that her husband sold drugs to support
his family. They were homeless for a time because Mrs. Hubbard’s mother, with whom she
lived with while the defendant was incarcerated, would not allow them to live there after the
defendant was released. Mrs. Hubbard testified that her husband grew up in a family of drug
users. The defendant also used drugs and was using drugs when the police arrested him on
these charges. She said that he had a history of drug charges and was currently serving
nineteen years on similar charges. They had been married for five years and had a good
marriage.

       On cross-examination, Mrs. Hubbard said that she knew the defendant had sold drugs,
but he was working at the time they got married. The defendant had two children from a
previous relationship, of whom they occasionally had supervision, including the time they
lived at 2396 Saratoga Avenue. Mrs. Hubbard testified that they were not home when the
police executed the search warrant underlying case number 07-03060, but they were home
when the police returned a month later. During that month, the defendant continued to sell
drugs from the residence.

       On re-direct examination, Mrs. Hubbard said that they were home when the police
returned, and the police arrested the defendant at that time. She said that they were just
getting by on the money that the defendant made from drug-dealing and lived “in the hard
part of Orange Mound.” When asked whether the defendant was the only drug dealer in
Orange Mound, Mrs. Hubbard said, “Come on now. We talking [sic] about Orange Mound,
Speedy Corner. Let’s be real.” (IV, 34) On re-cross examination, Mrs. Hubbard said that
she sold their car to pay for the defendant’s bond.

       In determining the defendant’s sentences, the trial court stated that it considered the
presentence report, the principles of sentencing, the evidence and arguments presented by
each party, the circumstances of the offenses, the statistical data on similar cases, and the
statements made by the defendant, his wife, and their friend. The trial court found that the
defendant was a Range II, multiple offender, because he had at least two prior felony
convictions. The court found that enhancement factor one applied to the defendant because
he had a “previous history of criminal convictions and behavior in addition to those
necessary to establish the appropriate range.” The court found that he had a total of four
felony convictions and numerous misdemeanor convictions. The court further found that
enhancement factor sixteen applied because “the defendant has been adjudicated to have
committed delinquent acts as a juvenile that would constitute a felony if committed by an
adult.” The court found that the defendant committed the offense underlying case number
07-01581 while on bond for case number 07-03060; thus, enhancement factor thirteen

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applied. The court found that enhancement factor eight applied - the defendant failed to
comply with a sentence involving release into the community - and that factor nine applied -
“the defendant was in possession of a pistol at th[e] residence when th[e] warrant was
executed.” The court gave great weight to each of the enhancement factors. The court found
that the defendant committed the offenses to provide for his family but gave little weight to
that mitigating factor. The court determined that the offenses involved more than a small
amount of drugs, so that mitigating factor was inapplicable. The court additionally found
that confinement was necessary to protect the community, to avoid depreciating the
seriousness of the offense, and to provide an effective deterrence to others. The court
determined that consecutive sentences were proper because the defendant was a professional
criminal with an extensive record. Additionally, the court found that “consecutive sentences
reasonably related to the severity of the offenses committed by the defendant and that
consecutive sentences are necessary in order to protect this public, this community, from .
. . future criminal acts committed by [the defendant]. [The defendant] is a dangerous
person.”

        The trial court sentenced the defendant to eighteen years for the Class B felony and
four years for each Class E felony. The court determined that the sentences for 07-03060
would run concurrently, for an effective eighteen-year sentence to be served in the Tennessee
Department of Correction. Based on the court’s finding that the defendant committed the
offense underlying 07-01581 while on bond, the court ordered that the sentences for 07-
03060 would be consecutive to the four-year sentence for 07-01581. Because the court
found the defendant to be a professional criminal with an extensive criminal history, the
court ordered that the effective twenty-two-year sentence for case numbers 07-01581 and 07-
03060 would run consecutive to the sentence in case number 06-09390. The defendant then
filed this timely appeal.

                                           Analysis

                                     I. Consecutive Sentences
        The defendant argues that the trial court erred in ordering that the defendant serve the
twenty-two-year sentence for cases 07-01581 and 07-03060 consecutively to the nineteen-
year sentence in case 06-09390. Specifically, the defendant contends that the trial court
abused its discretion by not applying the general sentencing principles, namely, that the
sentence must be justly deserved in relation to the offenses and that unjust disparities
between defendants must be eliminated. The defendant has not argued that the trial court
erred in imposing consecutive sentences for cases 07-01581 and 07-03060 nor does he
contest the length, range, or manner of serving his sentences. The state responds that this
court should presume that the trial court’s sentencing determinations were correct because
the defendant did not include the guilty plea transcript in the appellate record. Alternatively,
the state argues that trial court followed statutory procedure in sentencing the defendant, and

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the record supports the trial court’s determinations. We find that the defendant’s argument
is without merit.

        The record before this court does not contain a transcript of the guilty plea. In order
to conduct an effective appellate review of sentencing, a transcript of the guilty plea hearing
is necessary. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript
of the guilty plea is usually necessary in order for this court to ascertain the facts and
circumstances surrounding the offense. Indeed, the guilty plea hearing is the equivalent of
a trial. Id. at 843. In the absence of a transcript of a guilty plea, this court must generally
conclude that the sentence imposed by the trial court was correct. Id. at 844. However, the
record in this matter is sufficient to determine the issues presented by the defendant.

       A defendant who challenges his or her sentence has the burden of proving the
sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s
duty to conduct a de novo review of the record with a presumption that the trial court’s
determinations are correct when a defendant appeals the length, range, or manner of service
of his or her sentence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness
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. Pettus, 986 S.W.2d
540, 543-44 (Tenn. 1999).

        In this case, the defendant is challenging the imposition of consecutive sentencing,
rather than the length, range, or manner of serving his sentence. Generally, it is within the
discretion of the trial court to impose consecutive sentences if it finds by a preponderance
of the evidence that at least one of following statutory criteria apply:
              (1) [t]he defendant is a professional criminal who has knowingly
              devoted such defendant’s life to criminal acts as a major source
              of livelihood;

              (2) [t]he defendant is an offender whose record of criminal
              activity is extensive;

              (3) [t]he 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;



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              (4) [t]he 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) [t]he 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) [t]he defendant is sentenced for an offense committed while
              on probation; or

              (7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).


        If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to
applying general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
First, it must find an extended sentence is necessary to protect the public from further
criminal conduct by the defendant, and, second, it must find consecutive sentencing to be
reasonably related to the severity of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). However, such specific factual findings are unnecessary for the other
categories of Tennessee Code Annotated section 40-35-115(b). State v. Lane, 3 S.W.3d 456,
461 (Tenn. 1999).


        The trial court imposed consecutive sentencing on the bases that the defendant met
the qualification under Tennessee Code Annotated section 40-35-115(b)(1), that the
defendant is a professional criminal; under subdivision (2), that the defendant has an
extensive criminal record; and under subdivision (4), that the defendant is a dangerous
offender. As for subdivision (1), the defendant’s witnesses at the sentencing hearing testified
that the defendant sold drugs to support his family and rarely held a job, thus supporting that
the defendant sold drugs as a source of livelihood. The record also reveals that the defendant
had four prior felony convictions, an extensive list of misdemeanors, and a juvenile record
beginning at age twelve. The defendant clearly has an extensive criminal record, which
alone would be sufficient to impose consecutive sentencing. The trial court also determined


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that the defendant was a dangerous offender. In support of its findings that the imposition
of consecutive sentencing reasonably relates to the severity of the offenses and is necessary
to protect the community, the court specifically stated:
       [E]verytime he [sells] dope in this community and goes out and continues to
       [sell] drugs in this community, every rock of cocaine that Mr. Hubbard [sells]
       is in fact a dangerous act in which people absolutely can and often are killed
       by drugs that are sold in this community. And this Court finds that
       consecutive sentences in this case are absolutely necessary to protect this
       community and they are reasonably related to the severity of these offenses.
       A person who has been committing crimes for 23 years, gets arrested, makes
       bond, goes out and continues to [sell] dope, continues to [sell] everybody [sic]
       in his neighborhood - - tell everyone in that neighborhood that I will [sell] as
       many, as much drugs that I want and there is nothing that judges will do about
       this because I’ve been getting away with this stuff for 22 years [sic].
We conclude that the trial court made sufficient findings of fact to support the imposition of
consecutive sentencing. To the extent that the defendant argues that the trial court did not
consider whether the sentence was justly deserved in relation to the offenses, the court’s
findings in its discussion of the Wilkerson factors demonstrate that the court gave proper
consideration to that sentencing principle. Thus, the defendant is without relief on this issue.


       The defendant further argues that consecutive sentences violates the principle that
unjustified disparities in sentencing should be eliminated. The defendant claims that “[t]he
disparity in the present case is clearly evident because if every defendant who had a criminal
record were sentenced to 19 years and then sentenced again in addition to that, running the
sentences concurrent or consecutive there would be a great amount of inconsistent
punishment violative of justice.” The defendant presented no authority in support of his
claim. This issue is waived as the defendant has failed to cite authority to support his
argument. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn.
Crim. App. 1997).


                             II. Cruel and Unusual Punishment
        The defendant contends that the imposition of consecutive sentences, amounting to
forty-one years, violates constitutional prohibitions on cruel and unusual punishment. The
state responds that his sentence is not grossly disproportionate to his offenses and, therefore,
does not constitute cruel and unusual punishment. We agree with the state.




                                              -8-
       The Eighth Amendment of the United States Constitution forbids cruel and unusual
punishment, and the United States Supreme Court has interpreted this provision to mean that
a sentence must be proportional to the underlying offense. State v. Harris, 844 S.W.2d 601,
602 (Tenn. 1992) (citing Weems v. United States, 217 U.S. 349, 347 (1910)). The Tennessee
Supreme Court has said that the similarity in language between the federal constitution and
Article I, section 16, of the state constitution “does not foreclose a more expansive
interpretation of the Tennessee constitutional provision.” Id. at 603. The state supreme court
also noted that “because reviewing courts should grant substantial deference to the broad
authority legislatures possess in determining punishments for particular crimes, ‘[o]utside
the context of capital punishment, successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.’” Id. at 602 (quoting Solem v. Helm, 463 U.S. 277,
289-90 (1983) (emphasis in original)).           The methodology when examining the
proportionality of a noncapital sentence is:
       [T]he sentence imposed is initially compared with the crime committed.
       Unless this threshold comparison leads to an inference of gross
       disproportionality, the inquiry ends-the sentence is constitutional. In those rare
       cases where this inference does arise, the analysis proceeds by comparing (1)
       the sentences imposed on other criminals in the same jurisdiction, and (2) the
       sentences imposed for commission of the same crime in other jurisdictions.
Id. at 603. When making the initial comparison between the offense and the sentence, this
court has held the following factors to be relevant:
       (1) the nature of the crime, including whether society views the crime as
       serious or relatively minor and whether the crime is violent or non-violent; (2)
       the circumstances of the crime, including the culpability of the offender, as
       reflected by his intent and motive, and the magnitude of the crime; and (3) the
       existence and nature of any prior felonies if used to enhance the defendant’s
       penalty.
State v. Smith, 48 S.W.3d 159, 171 (Tenn. Crim. App. 2000) (citing Solem, 463 U.S. at 290-
91). “Factors relevant to the harshness of a penalty include the type of penalty imposed and,
if a term of imprisonment, the length of the term and the availability of parole or other forms
of early release.” Id. (citing Solem, 463 U.S. at 297).


       In this case, the trial court followed statutory procedure in sentencing the defendant
to twenty-two years for cases 07-01581 and 07-03060. For the Class B felony, the minimum
sentence for a Range II offender is twelve years. The court applied enhancement factors,
which the defendant has not challenged, to increase the sentence to eighteen years. For the
two Class E felonies, the minimum sentence is two years. After applying the enhancement
factors, the trial court sentenced the defendant to four years, the maximum sentence. The
sentencing statutes mandated that the trial court run the offenses in 07-01581 consecutively

                                              -9-
to 07-03060 because the defendant committed one while on bond for the other. The release
eligibility for a Range II, multiple offender, is thirty-five percent. Because the trial court
followed statutory procedure in determining the defendant’s sentences for 07-01581 and 07-
03060, we give deference to the legislative determination of the punishment for the offenses
and hold that the sentences for 07-01581 and 07-03060 are not grossly disproportionate to
the offenses. The sentence for 06-09390 is not before this court; we, therefore, draw no
conclusion as to whether that sentence is proportional. The remaining question, then, is
whether ordering the defendant to serve the twenty-two year sentence consecutive to the
nineteen-year sentence amounts to cruel and unusual punishment.


        The state concedes that the amount of drugs involved in 07-01581 and 07-03060 are
relatively small; however, the defendant has numerous prior convictions, several for drug
dealing. The defendant’s own witnesses admitted that he sells drugs to make a living. The
legislature determined that consecutive sentences are appropriate, though not mandated,
when defendants have extensive criminal histories and are professional criminals. As we
previously determined, the trial court followed the statutory procedure and made sufficient
findings to support the imposition of consecutive sentences. Giving deference to the
legislative determination of punishment, after finding that the trial court did not abuse its
discretion, we conclude that forty-one years, with release eligibility beginning after the
defendant serves thirty-five percent of his sentence, is not grossly disproportionate to the
offenses, especially considering the defendant’s history. Therefore, we hold that the
imposition of consecutive sentences does not amount to cruel and unusual punishment. The
defendant is without relief on this issue.


                                        Conclusion


       Based on the foregoing reasons, we affirm the judgments of the trial court.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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