          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                         SEPTEMBER 1998 SESSION
                                                       FILED
                                                      November 10, 1998

                                                       Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )                Appe llate Court C lerk
                                      )   NO. 02C01-9802-CC-00048
      Appellee,                       )
                                      )   CHESTER COUNTY
VS.                                   )
                                      )   HON. FRANKLIN MURCHISON,
MICHAEL S. HOLMES,                    )   JUDGE
                                      )
      Appellant.                      )   (Aggravated Robbery, Aggravated
                                          Assault, Aggravated Kidnapping,
                                          Felony Escape, Theft of Property)



FOR THE APPELLANT:                        FOR THE APPELLEE:

C. MICHAEL ROBBINS (on appeal)            JOHN KNOX WALKUP
46 North Third Street, Suite 719          Attorney General and Reporter
Memphis, TN 38103
                                          ELIZABETH T. RYAN
GEORGE MORTON GOOGE (at trial)            Assistant Attorney General
District Public Defender                  Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
MICHAEL D. RASNAKE (at trial)             Nashville, TN 37243-0493
DANIEL J. TAYLOR
Assistant District Public Defenders       JAMES G. (JERRY) WOODALL
227 West Baltimore Street                 District Attorney General
Jackson, TN 38301-6137
                                          DONALD H. ALLEN
                                          Assistant District Attorney General
                                          P.O. Box 2825
                                          Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                         OPINION



       On March 5, 1997, a Chester County jury found defendant guilty of

Aggravated Robbery, Aggravated Assault, Aggravated Kidnapping, Felony Escape,

Burglary of a Vehicle, and Theft of Property Over $1,000.1 The trial court sentenced

the defendant to an effective twenty-year sentence on the subject charges, to run

consecutively to both a prior Shelby County sentence and a thirty-year federal

sentence. The defendant raises three issues on appeal:

       (1)     the defendant’s multiple convictions for aggravated
               robbery, aggravated assault, aggravated kidnapping,
               escape and theft of property violate double jeopardy;

       (2)     the State of Tennessee lacked jurisdiction to try the
               defendant for escape from the Chester County Jail
               since he was being held there on federal charges; and

       (3)     the defendant’s sentence is excessive.


This court concludes there is no double jeopardy violation; the State of Tennessee

properly prosecuted defendant for escape; and the sentence is proper. The

judgment and sentence imposed by the trial court is AFFIRMED.




                                          FACTS



       Defendant, Michael S. Holmes, was a federal prisoner housed at the Chester

County jail pursuant to a contract with the United States Marshal Service. He was

convicted on federal drug charges in February of 1995 and was awaiting sentencing

on those charges. At approximately 12:15 a.m. on January 4, 1996, he and another

prisoner, Sherman Sanders, executed an escape plan.

       The jailer, Shane Hesselrode, was lured into the hallway near defendant’s

cell to assist a maximum security prisoner who allegedly needed medical attention.


       1
        A charge of attempted first degree murder was dismissed pre-trial by the state. The
vehicular burglary charge was dismissed by the trial court at the hearing of defendant’s motion
for new trial.

                                              2
Hesselrode opened the door to the entry hall and observed defendant and Sanders

exit their cells. Sanders placed a home-made knife, described as a “shank,” at the

jailer’s back and ordered him to enter the cell and drop his keys.

       Simultaneously, defendant went to the dispatcher’s office where Barbara

Paulman was on duty. He rushed at her and threw her out of her chair onto the

concrete floor. She struggled with defendant as he dragged her along the floor to

the jail cell while jabbing at her with a “shank.” By the time they reached the cell,

her blouse and bra were completely torn, and the zipper was ripped out of her

pants. The dispatcher suffered bruising, a large knot on her head, and a serious

shoulder injury as a result of defendant’s actions.

       After locking Hesselrode and Paulman in the jail cell, defendant and Sanders

made their way out of the jail area and out of the building. It was later discovered

they took Paulman’s keys from her purse and absconded with her car.

       Defendant was convicted of aggravated robbery of Hesselrode’s jail keys,

aggravated assault and aggravated kidnapping of Paulman, felony escape, and

theft of Paulman’s vehicle.

       Prior to the trial on these state charges, defendant pled guilty in federal court

to the offense of escape arising from these incidents.




              I. MULTIPLE CONVICTIONS / DOUBLE JEOPARDY



        Defendant asserts that the aggravated robbery, aggravated assault,

aggravated kidnapping, escape and theft should be viewed as a single criminal

episode with a single criminal intent: the intent to escape. As such, the defendant

argues the multiple convictions violate the principle of double jeopardy.

       State v. Denton, 938 S.W.2d 373 (Tenn. 1996), outlines the proper test for

evaluating a double jeopardy claim. To determine whether multiple convictions are

permitted we must: (1) conduct a Blockburger analysis of the statutory offenses; (2)

analyze the evidence used to prove the offenses; (3) consider whether there were

                                           3
multiple victims or discrete acts; and (4) compare the purposes of the respective

statutes. Denton, 938 S.W.2d at 381.

       Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.

306 (1932), one must determine whether each offense requires proof of an

additional fact which the other does not. All five of the subject offenses require

proof of additional facts not included in each of the other offenses.

       The same evidence was not used to establish each offense. Hesselrode was

the victim of the aggravated robbery and Paulman was the victim of the aggravated

assault, aggravated kidnapping and theft. Distinct acts were committed in the

course of each offense.

       Finally, a comparison of the statutes’ purposes shows that each offense

protects a different interest. Theft is a property offense; escape, an offense against

the administration of government. Aggravated robbery, aggravated assault, and

aggravated kidnapping are all offenses against the person; however, they too have

elements that distinguish them from one another. Further, they are in different

parts of the criminal code which reflects a legislative intent that they be considered

distinct offenses.

       If this court were to accredit the defendant’s argument, we would reach an

untenable result. Effectively, Tennessee would be prohibited from prosecuting any

criminal act, no matter how heinous, committed in the course of an inmate’s escape

other than the escape itself.

       Defendant’s multiple convictions do not violate double jeopardy under

Denton. The multiple convictions are proper.




                       II. JURISDICTION OVER ESCAPE



       Defendant was housed in the Chester County jail pursuant to a contract with

                                          4
the U.S. Marshal while he awaited sentencing in federal court. Defendant argues

that because of his status as a federal prisoner, the State of Tennessee lacked

jurisdiction to prosecute him for escape from the Chester County jail. In support of

this argument, defendant cites a number of federal cases. 2 He contends these

cases hold that a federal prisoner, on escape from a state facility, cannot be tried

in state court for escape. The rationale, defendant argues, is that he is in the U.S.

Attorney General’s custody and not state custody.



                                 A. Double Jeopardy



       The facts and legal posture of the instant case are distinguishable from those

cases relied upon by the defendant. The issue in the federal cases was whether

a defendant could be prosecuted under the federal escape statute. The cases did

not specifically address the state’s right to prosecute those prisoners under its own

laws pursuant to the principle of dual sovereignty.

       The long-standing doctrine regarding prosecution by dual sovereignties is

expressed in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d

303 (1978). “[A] federal prosecution does not bar a subsequent state prosecution

of the same person for the same acts, and a state prosecution does not bar a

federal one . . . [P]rosecutions under the laws of separate sovereigns do not . . .

subject [the defendant] for the same offence to be twice put in jeopardy.’” United

States v. Wheeler, 435 U.S. at 317, 98 S.Ct. at 1082-83, 55 L.Ed.2d at 308-9.

Tennessee courts specifically uphold and adhere to this doctrine. See, e.g., Lavon

v. State, 586 S.W.2d 112, 113-14 (Tenn. 1979); State v. Crabtree, 655 S.W.2d 173,

177 (Tenn. Crim. App. 1983).

       Both the United States and the State of Tennessee have established the

criminal offense of “escape.” As the United States and the State of Tennessee are


       2
        United States v. Depew, 977 F.2d 1412 (10th Cir. 1992); United States v. Eaglin, 571
F.2d 1069 (9th Cir. 1977); United States v. Stead, 528 F.2d 257 (8th Cir. 1975); United States
v. Hobson, 519 F.2d 765 (9th Cir. 1975); Credille v. United States, 354 F.2d 652 (10th Cir.
1965).

                                             5
clearly separate sovereigns, each has a right to prosecute an individual whose

actions constitute “escape” under its definition. The fact that a defendant is

prosecuted and convicted under both such laws is of no consequence with regard

to double jeopardy. See Bartkus v. Illinois, 359 U.S. 121, 131-32, 79 S.Ct. 676,

682, 3 L.Ed.2d 684, 691-92 (1959).



                            B. Tennessee Escape Statute



       Having disposed of any double jeopardy claim, we must evaluate the scope

of the Tennessee escape statute. Particularly, we must determine whether the

legislature intended it to encompass the escape of a federal prisoner held in a state

institution solely on federal charges.

       In evaluating the statute, it “must be construed so as to ascertain and give

effect to the intent and purpose of the legislation considering the statute as a whole

and giving words their common meaning. The Court should assume that the

legislature used each word in the statute purposely and that the use of these words

conveyed some intent.” State v. Levandowski, 955 S.W.2d 603, 604 (Tenn.

1997)(citations omitted).

       To this end, we look to the natural and ordinary language of the Tennessee

escape statute which provides that “[i]t is unlawful for any person arrested for,

charged with, or convicted of an offense to escape from a penal institution.” Tenn.

Code Ann. § 39-16-605(a). Stemming from this provision, we note the following

definitions:

       (1)     “Penal institution” is defined as “any institution or facility used to house
               or detain a person . . . convicted of a crime.” Tenn. Code Ann. § 39-
               16-601(4)(A);

       (2)     “Escape” is defined as “unauthorized departure from
               custody.” Tenn. Code Ann. § 39-16-601(3); and

       (3)      “Custody” is defined as “under arrest by a law
               enforcement officer or under restraint by a public
               servant pursuant to an order of a court.” Tenn. Code
               Ann. § 39-16-601(2).

       It is noteworthy that nowhere within the statute is there an explicit

                                            6
requirement that custody be for a state offense. Nor is there any indication that a

prisoner’s status should be relevant to the escape inquiry. In fact, the statute is

phrased in generic terms which tend to negate that very suggestion.               It

encompasses a person convicted of “an offense,” not “a state offense.” It requires

custody to be pursuant to the order of “a court,” not “a state court.”

       Defendant was convicted in February 1995 on drug charges in U.S. District

Court, Western District of Tennessee. He was held in the Chester County jail to

await sentencing on that case. On January 4, 1996, he departed from the restraint

of the Chester County jailer without authorization to do so.

       In sum, defendant was a person convicted of an offense who escaped from

a penal institution pursuant to Tenn. Code Ann. §39-16-605. He was subject to the

jurisdiction of the Tennessee courts, and his prosecution and conviction in

accordance with that section was entirely proper.

       This issue has no merit.




                                  III. SENTENCING



       The trial court sentenced defendant to a total of twenty years on these

charges. It ran the first three sentences (consisting of the aggravated robbery,

aggravated assault and aggravated kidnapping) concurrent; the remaining

sentences (consisting of the escape and theft) concurrent; and each set

consecutive to the other. The trial court additionally ordered the effective twenty-

year sentence in this case served consecutively to both a prior Shelby County

conviction and defendant’s thirty-year federal sentence.

       Defendant makes no specific assignments of error with regard to the trial

court’s findings in reaching this decision. Nevertheless, he maintains the twenty-

year sentence imposed in this case is excessive. Defendant bases this assertion

on the fact that his federal sentence was enhanced as a result of the Chester




                                          7
County misconduct.3

         Our review of the sentence imposed by the trial court is de novo, with a

presumption that the determinations of the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d); State v. Byrd, 861S.W.2d377, 379(T nn C m. App 1993). The presum of correctness
                                                  e . ri      .                 ption

whch attaches to the trial court's action is conditioned upon an affirmative showing in the record that the trial court
  i

consideredthesentencingprinciplesandall relevantfactsandcircumstances. Statev. Ashby,823S.W.2d166,169(Tenn

1991).



                                         A. Length of Sentence



         The trial court in this instance made a careful, studied evaluation of the

circumstances surrounding these convictions. It appropriately considered: (1)

evidence at the trial and the sentencing hearing; (2) the pre-sentence report and

addendums; (3) principles of sentencing and arguments for alternatives; (4) the

nature and characteristics of the crime; (5) aggravating or mitigating factors; and (6)

the statement of the defendant. See Tenn. Code Ann. § 40-35-210.

         After establishing the proper sentencing range for each conviction, the trial

judge identified, articulated, and applied multiple enhancement factors. He found

no mitigating factors applicable. As a result, a maximum sentence was set for each

offense.

         Without any assignment of error by the defendant regarding the manner or

results of these findings, we see no need to disturb the length of these sentences.

                                     B. Consecutive Sentencing



         A court may order multiple sentences to run consecutively if the court finds

by a preponderance of the evidence that the defendant is a professional criminal,

an offender whose record of criminal activity is extensive, a dangerous offender with

little or no regard for human life, or sentenced for an offense committed while on


         3
        At sentencing in U.S. District Court, defendant’s mandatory minimum sentence
under federal guidelines was enhanced from 262 months to 360 months.

                                                          8
probation. Tenn. Code Ann. § 40-35-115(b)(1), (2), (4), (6); see also State v. Black,

924 S.W.2d 912 (Tenn. Crim. App. 1995). Furthermore, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. Crim. App. 1995).



                                   1. T.C.A. / Wilkerson



        The trial court in this case made clear and careful findings in the course of

deciding which of defendant’s terms would be concurrent and which consecutive.

Specifically, it found the existence of four statutory factors that weighed in favor of

running defendant’s sentences consecutively: (1) defendant is a professional

criminal who has knowingly devoted his life to criminal acts as a major source of

livelihood; (2) defendant has an extensive record of criminal activity; (3) 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;

and (4) defendant was sentenced for an offense committed while on probation.4

See Tenn. Code Ann. § 40-35-115 (1),(2),(4),(6).

        Although the court did not specifically identify the Wilkerson considerations

in its decision, our de novo review indicates that the consecutive sentences are, in

fact, reasonably related to the severity of the offenses and serve to protect the

public from further criminal conduct by this defendant. An effective sentence of twenty

years for aggravated robbery, aggravated assault, aggravated kidnapping, escape, and theft of

property also comports with the general principles of sentencing. Accordingly, the consecutive

sentences were properly imposed by the trial court.




        4
        Defendant was technically on probation at the time of these offenses but, obviously,
not on release in the community. Nevertheless, the misapplication of this factor does not
invalidate consecutive sentencing in view of the other factors.

                                                9
                        2. Rules of Criminal Procedure



       The trial court noted Tennessee Rule of Criminal Procedure 32 in the course

of its sentencing determinations.       Rule 32(c)(3)(B) states that mandatory

consecutive sentencing applies “to a sentence for escape or for a felony committed

while on escape.” This was a proper consideration in this case.

       Our review of this issue reveals that T.R.Cr.P. 32(c)(2) is also relevant. “If

the defendant has additional sentences or portions thereof to serve, as the result

of conviction in other states or in federal court, the sentence imposed shall be

consecutive thereto unless the court shall determine in the exercise of its discretion

that good cause exists to run the sentences concurrently and explicitly so orders.”

T.R.Cr.P. 32(c)(2). There has been no such showing of good cause which would

dictate that the sentences in this case run concurrently with the federal sentence.

The trial judge did not find any, nor do we. The consecutive sentencing, both with

respect to the state and federal convictions, is proper and shall not be disturbed.




                                   CONCLUSION



       Based upon the foregoing, the judgment of the trial court is affirmed.




                                                ____________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:

                                         10
____________________________
PAUL G. SUMMERS, JUDGE




____________________________
DAVID H. WELLES, JUDGE




                               11
