                                                                                       11/01/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                          Assigned on Briefs June 25, 2019

                STATE OF TENNESSEE v. RONALD TURNER

                 Appeal from the Criminal Court for Knox County
               Nos. 105481, 105636     Steven Wayne Sword, Judge
                      ___________________________________

                          No. E2018-01642-CCA-R3-CD
                      ___________________________________

The Appellant, Ronald Turner, appeals the Knox County Criminal Court’s imposing a
ten-year sentence for possession of one-half gram or more of cocaine with intent to
deliver in case number 105636 and a twelve-year sentence for attempted second degree
murder in case number 105481. On appeal, he contends that the trial court erred by not
sentencing him to the minimum punishment in the range, eight years, for the offenses,
Class B felonies. Based upon the record and the parties’ briefs, we affirm the sentences
but remand the case to the trial court for correction of judgments of conviction.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

J. Liddell Kirk (on appeal and at resentencing) and Michael A. Graves (at trial),
Knoxville, Tennessee, for the appellant, Ronald Turner.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Monette
Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       On December 10, 2014, the Appellant fired a gun through a glass door toward
three people: his three-year-old son; the child’s mother, Jahdaiah Cody; and the mother’s
roommate, Bredaisha Walden. State v. Ronald Turner, No. E2016-00651-CCA-R3-CD,
2017 WL 1830106, at *1 (Tenn. Crim. App. at Knoxville, May 5, 2017), perm. app.
denied, (Tenn. Apr. 19, 2018). On January 3, 2015, a police officer began following a
Ford Crown Victoria in which the Appellant was a passenger. State v. Ronald Turner,
No. E2016-00790-CCA-R3-CD, 2017 WL 1379999, at *1 (Tenn. Crim. App. at
Knoxville, Apr. 13, 2017), perm. app. denied, (Tenn. Apr. 18, 2018). 1 The car passed by
a preschool, and the officer stopped the driver for speeding. Id. at *1, 2. During the stop,
a backup officer arrived and found a loaded nine-millimeter semiautomatic handgun and
.87 grams of crack cocaine base on the Appellant’s person. Id.

        In May 2015, the Knox County Grand Jury indicted the Appellant in case number
105481 for the attempted first degree premeditated murders of Ms. Cody (count one), the
Appellant’s son (count three), and Ms. Walden (count five); three corresponding counts
of employing a firearm during the commission of a dangerous felony (counts two, four,
and six); and one count of unlawful possession of a handgun while at a public place
(count nine). The grand jury also indicted the Appellant under the gang enhancement
statute for the three counts of attempted first degree murder and the unlawful possession
of a handgun. In June 2015, the grand jury indicted the Appellant in case number 105636
for one count of possession of one-half gram or more of cocaine with intent to deliver
within 1,000 feet of a preschool (count one), one count of possession of one-half gram or
more of cocaine with intent to sell within 1,000 feet of a preschool (count two), two
corresponding counts of possession of a firearm during the commission of a dangerous
felony (counts three and four), one count of theft of property valued $500 or less (count
five), and one count of unlawful possession of a handgun while at a public place (count
six). The grand jury also indicted the Appellant under the gang enhancement statute for
the two drug charges and the unlawful possession of a handgun.

       The Appellant was tried first in case number 105636, and the jury found him
guilty of the two drug charges and the three weapons charges but not guilty of the theft
charge. During the second phase of the trial, the State presented evidence that the
Appellant was a member of the Vice Lords gang, and the jury found that the gang
enhancement applied to the three underlying offenses. Id. at *2.

       At the Appellant’s January 2016 sentencing hearing in case number 105636, the
State introduced the Appellant’s presentence report into evidence. According to the
report, the Appellant was nineteen years old and left Austin-East High School in 2014 for
“disciplinary” reasons. The Appellant claimed in the report that he obtained his high
school diploma while incarcerated at Mountain View Youth Development Center, but the
investigating officer was unable to verify the claim. In the report, the Appellant
       1
           We note that both of this court’s opinions have been designated “Not for Citation” by our
supreme court. Therefore, they have no precedential value. Tenn. Sup. Ct. R. 4(E)(1). However, we can
cite to the opinions because they are relevant to this opinion, which involves the same defendant. See
Tenn. Sup. Ct. R. 4(E)(2).
                                                -2-
described his mental health as “fair” and said that he was taking medication for anxiety
and depression. He described his physical health as “excellent” and did not report any
medical issues. The Appellant said in the report that he began “heavy” use of alcohol
when he was sixteen years old, that he began “heavy” use of marijuana when he was
thirteen, and that he smoked eight “blunts” per day. The report showed that he worked at
Red Lobster as a dishwasher for two months in 2014, that he quit the job due to
transportation problems, and that he did not have any other employment. The report did
not show any adult criminal history for the Appellant. However, as a juvenile, he was
adjudicated delinquent of disorderly conduct, resisting arrest, possession of a weapon
with the intent to go armed, and reckless endangerment.

        The trial court found that the Appellant was a Range I, standard offender. The
court noted that the Appellant did not have any prior convictions but that he had “a rather
lengthy juvenile delinquent history.” In mitigation, the trial court found that the
Appellant was entitled to some consideration for his youth, because the drug offenses did
not involve “a huge amount of drugs,” and because the drug offenses in the school zone
“occurred passing through in a car.” See Tenn. Code Ann. § 40-35-113(13). The trial
court stated that it did not think there was “any reason” to sentence the Appellant above
the minimum punishment in the range for the Class A felonies. Accordingly, the trial
court sentenced him to fifteen years for the convictions of possession of cocaine with
intent to deliver and sell, which were elevated from Class B to Class A felonies pursuant
to the preschool zone and the gang enhancements, and merged the convictions. The trial
court sentenced him to four years for the convictions of possession of a firearm during
the commission of a dangerous felony, Class D felonies, and merged the convictions.
Finally, the court sentenced him to one year for unlawful possession of a handgun, a
Class A misdemeanor that was elevated to a Class E felony pursuant to the gang
enhancement. The trial court ordered that the Appellant serve the fifteen-year and one-
year sentences concurrently but that he serve the four-year sentence consecutive to the
fifteen-year sentence by statute for a total effective sentence of nineteen years.

       The Appellant was tried in February 2016 in case number 105481. At trial, Ms.
Walden testified that while she and the Appellant’s son were standing at the glass door in
the kitchen, the Appellant, who was outside, made eye contact with her, raised his gun,
and shot toward her and his son. Ronald Turner, No. E2016-00651-CCA-R3-CD, 2017
WL 1830106, at *1. She also stated that Ms. Cody was standing behind them in another
room and that the bullet hit a microwave but would have traveled toward Ms. Cody if the
microwave had not stopped it. Id. The jury convicted the Appellant of three counts of
attempted second degree murder as a lesser-included offense of attempted first degree
murder and the four weapons charges. Id. at *3. During the second phase of the trial, the
State presented evidence that the Appellant was a member of the Vice Lords gang, and

                                           -3-
the jury found that the gang enhancement applied to the convictions of attempted second
degree murder and unlawful possession of a handgun. See id. at *3-5.

        At the Appellant’s March 2016 sentencing hearing in case number 105481, the
trial court found that the Appellant was a Range I, standard offender and stated that he
had “a lengthy involvement with Juvenile court.” Regarding enhancement, the trial court
said, “I don’t think there’s anything that really carries a whole [lot] of weight with the
Court other than the fact that he had this juvenile history and has used Marijuana most of
his life.” In mitigation, the trial court determined that the Appellant’s was entitled to
“some” mitigation for his young age but concluded that “it’s not quite as great as
somebody who hadn’t had the history that [the Appellant] had already built up in his
young life.” The trial court stated that it did not think there was “any need” to sentence
the Appellant above the minimum punishment in the range for the Class A felonies.
Thus, the trial court sentenced him to fifteen years for each conviction of attempted
second degree murder, which was elevated from Class B to a Class A felony pursuant to
the gang enhancement; six years for each corresponding conviction of employing a
firearm during the commission of a dangerous felony, a Class C felony; and one year for
unlawful possession of a handgun, which was elevated from a Class A misdemeanor to a
Class E felony pursuant to the gang enhancement. See id. at *5 & n.1. The trial court
ordered that the Appellant serve the fifteen-year and one-year sentences concurrently and
that he serve the six-year sentences concurrently with each other but consecutive to the
underlying felonies by statute for an effective sentence of twenty-one years. Id. The trial
court also ordered that the Appellant serve the effective twenty-one-year sentence
consecutive to the effective nineteen-year sentence in case number 105636 for a total
effective sentence of forty years.

       On direct appeal of his convictions in case number 105636, this court found that
the gang enhancement was imposed pursuant to an unconstitutional statutory provision
and vacated the gang enhancement that was applied to three of the Appellant’s
convictions. Ronald Turner, No. E2016-00790-CCA-R3-CD, 2017 WL 1379999, at *9.
Additionally, this court noted that while the Drug-Free School Zone Act required serving
the minimum sentence in the range at one hundred percent, the requirement of
“‘additional incarceration’” did not apply to preschools. Id. Thus, this court remanded
the case to the trial court for resentencing for the Appellant’s convictions of possession of
cocaine with intent to deliver, possession of cocaine with intent to sell, and unlawful
possession of a handgun. Id. at *10.

      On direct appeal of his convictions in case number 105481, this court affirmed the
conviction for the attempted second degree murder of Ms. Walden but concluded that the
evidence was insufficient to support the convictions for the attempted second degree
murders of the Appellant’s son and Ms. Cody. Ronald Turner, No. E2016-00651-CCA-
                                            -4-
R3-CD, 2017 WL 1830106, at *10. Accordingly, this court reversed those two
convictions and their corresponding weapons offenses. Id. This court also found that the
version of the gang enhancement statute in effect at the time of the Appellant’s
convictions was unconstitutional and remanded the case to the trial court for resentencing
for the Appellant’s convictions of attempted second degree murder of Ms. Walden and
unlawful possession of a handgun. See id. at *5 n.1, 19.

       The trial court held a resentencing hearing in both cases on August 10, 2018. At
the outset of the hearing, defense counsel argued that because the trial court previously
sentenced the Appellant to fifteen years, the minimum punishment in the range, for the
Class A felonies, the trial court should resentence him to eight years, the minimum
punishment in the range, for the Class B felonies.

        Regarding case number 105636, the trial court stated that due to “his prior history,
nature of offenses, I don’t think maximum sentence is warranted, but I do think
something above the minimum is appropriate.” The trial court sentenced the Appellant to
ten years, the midpoint in the range, for his convictions of possession of cocaine with
intent to deliver and sell, Class B felonies, and merged the convictions. The trial court
noted that the Appellant’s new effective sentence in case number 105636 would be
fourteen years.

        Regarding case number 105481, the trial court found that enhancement factor (10),
that “[t]he defendant had no hesitation about committing a crime when the risk to human
life was high,” applied to the Appellant’s remaining conviction of attempted second
degree murder because two people involved in the shooting were no longer named
victims. Tenn. Code Ann. § 40-35-114(10). The trial court found that the maximum
punishment in the range, twelve years, was “warranted” due to the nature of the offense.
In explaining why the trial court sentenced the Appellant to the minimum punishment for
the Class A felonies previously, the trial court stated that “one of the things that I was
concerned about if I gave him above the minimum on that and ran it consecutive to
[105636] that it would be just too long of a sentence for somebody of his young age.”
The trial court noted that the new effective sentence in case number 105481 would be
eighteen years and ordered that the Appellant serve the sentence consecutive to the
fourteen-year sentence for a total effective sentence of thirty-two years.2

                                             II. Analysis


        2
          The trial court did not address resentencing the Appellant for unlawful possession of a handgun
in case number 105481 or case number 105636. However, amended judgments of conviction for the two
offenses, dated August 10, 2018, are in the technical record and reflect sentences of eleven months,
twenty-nine days for the Class A misdemeanors.
                                                  -5-
        On appeal, the Appellant contends that the trial court erred by not resentencing
him to eight years, the minimum punishment in the range, for the Class B felonies of
possession of cocaine with intent to deliver and attempted second degree murder because
the trial court originally sentenced him to fifteen years, the minimum punishment in the
range, when the offenses were Class A felonies. The State argues that the trial court did
not abuse its discretion by sentencing the Appellant to the midpoint and the maximum
punishments in the range for the convictions. We agree with the State.

       This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In sentencing a
defendant, the trial court shall consider the following factors: (1) the evidence, if any,
received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on an
appellant to demonstrate the impropriety of the sentence. See Tenn. Code Ann. § 40-35-
401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                    (1) The minimum sentence within the range of
             punishment is the sentence that should be imposed, because
             the general assembly set the minimum length of sentence for
             each felony class to reflect the relative seriousness of each
             criminal offense in the felony classifications; and

                    (2) The sentence length within the range should be
             adjusted, as appropriate, by the presence or absence of
             mitigating and enhancement factors set out in §§ 40-35-113
             and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
                                          -6-
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343. Appellate courts are “bound by a trial court’s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.

        Turning to the instant case, the range of punishment for a Range I, standard
offender convicted of a Class B felony is eight to twelve years. See Tenn. Code Ann. §
40-35-112(a)(2). The trial court enhanced the Appellant’s sentences for possession of
cocaine with intent to deliver and sell in case number 105636 based on his “prior history,
nature of offenses.” The record reflects that the Appellant began using marijuana when
he was thirteen years old and that he smoked eight “blunts” per day. The trial court even
referred to his use of the drug “most of his life” in a previous sentencing hearing. Thus,
the trial court did not err in considering the Appellant’s admitted marijuana use. See
Tenn. Code Ann. § 40-35-114(1); State v. James Harding Dalton, No. M2012-01575-
CCA-R3-CD, 2013 WL 3754838, at *4 (Tenn. Crim. App. July 18, 2013); State v.
Derrick Lamont Parrish, No. M2010-02589-CCA-R3-CD, 2011 WL 6147016, at *4
(Tenn. Crim. App. at Nashville, Dec. 7, 2011). The trial court enhanced the Appellant’s
sentence for attempted second degree murder in case number 105481 based on its
application of factor (10), that “[t]he defendant had no hesitation about committing a
crime when the risk to human life was high.” The trial court also did not err by applying
that factor because the Appellant shot at Ms. Walden while his son and Ms. Cody were
nearby. State v. Reid, 91 S.W.3d 247, 312 (Tenn. 2002) (stating that “enhancement
factor (10) may be applied where the defendant creates a high risk to the life of a person
other than the named victim”).

       The Appellant does not contest the finding of enhancement factors by the trial
court. Instead, his sole argument is that the trial court should have sentenced him to the
minimum punishment in the range because the trial court did so in the previous
sentencing hearings. However, the trial court has “broad discretion to impose a sentence
anywhere within the applicable range, regardless of the presence or absence of
enhancement or mitigating factors.” State v. Jack Austin, No. W2017-02042-CCA-R3-
CD, 2018 WL 4846366, at *4 (Tenn. Crim. App. at Jackson, Oct. 4, 2018). The trial
court found that the minimum punishment of eight years for the Class B felony offenses
was not appropriate in this case, and we conclude that the trial court did not err by
sentencing the Appellant to the midpoint and the maximum punishments in the range.

                                           -7-
       Nevertheless, we must remand the case to the trial court due to numerous errors on
the amended judgments of conviction. First, the trial court mistakenly resentenced the
Appellant for count one in case number 105481. However, that count related to the
attempted second degree murder Ms. Cody, which this court reversed and dismissed, not
the second degree murder of Ms. Walden, which this court affirmed and remanded for
resentencing. Therefore, the trial court must correct the amended judgments to reflect
that count one and its corresponding conviction of employing a firearm during the
commission of a dangerous felony in count two were dismissed and that the Appellant
received a twelve-year sentence for attempted second degree murder in count five and a
six-year sentence for the corresponding conviction of employing a firearm during the
commission of a dangerous felony in count six. Furthermore, in case number 105636, the
amended judgment of conviction for count one reflects that the Appellant was charged
and convicted of possession of cocaine with intent to sell within 1,000 feet of a
preschool. However, he was charged and convicted of possession of cocaine with intent
to deliver within 1,000 feet of a preschool in count one. Similarly, the amended
judgment of conviction for count two reflects that the Appellant was charged and
convicted of possession of cocaine with intent to deliver within 1,000 feet of a preschool
when he was charged and convicted of possession of cocaine with intent to sell within
1,000 feet of a preschool. Therefore, the trial court also must correct those judgments.

                                    III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the sentences imposed but
remand the case to the trial court for correction of the judgments.

                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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