        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 16, 2011

      STATE OF TENNESSEE v. MAREASE ANTONIO CRAWFORD

                     Appeal from the Circuit Court for Bedford County
                              No. 17047 Lee Russell, Judge



                 No. M2010-02658-CCA-R3-CD - Filed December 5, 2011


Marease Antonio Crawford, Appellant, was indicted by the Bedford County Grand Jury in
July 2010 in a multi-count indictment. Appellant entered an open plea to the indictment with
sentencing to be determined by the trial court. After a sentencing hearing, the trial court
sentenced Appellant to an effective sentence of twelve years. Appellant appeals the
imposition of consecutive sentences and the failure of the trial court to merge two of the
convictions. After a review of the record, we determine that Appellant did not waive the
issue of double jeopardy by virtue of his guilty plea but that double jeopardy does not bar the
convictions for Count Three, sale of marijuana, and Count Seven, possession of marijuana
for resale. However, we conclude that double jeopardy bars Appellant’s convictions for both
simple possession and possession of marijuana for resale where the offenses arose out of one
incident of possession. We affirm the trial court’s imposition of consecutive sentencing on
the basis that Appellant had an extensive criminal history. Accordingly, we vacate
Appellant’s conviction for simple possession. Appellant’s remaining convictions and
sentences are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Vacated
                    in Part, Affirmed in Part, and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
R OBERT W. W EDEMEYER, J. , joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Marease Antonio Crawford.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Charles Crawford, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellant, State of Tennessee.
                                          OPINION

                                     Factual Background


       In July of 2010, Appellant was indicted by the Bedford County Grand Jury in a multi-
count indictment. Appellant was indicted for the sale of more than .5 ounces of marijuana
in Count One; the delivery of more than .5 ounces of marijuana in Count Two; the sale of
more than .5 ounces of marijuana in Count Three; the delivery of more than .5 ounces of
marijuana in Count Four; driving on a suspended license, fifth offense, in Count Five; simple
possession of marijuana in Count Six; and possession of marijuana for resale in Count Seven.

        On September 17, 2010, Appellant entered an open guilty plea to the indictment. At
the guilty plea acceptance hearing, the factual basis for the convictions was given.
According to the State, two separate controlled buys were performed by a confidential
informant, one on May 6, 2010, and one on May 14, 2010. On both occasions, a confidential
informant went to a residence and exchanged money with Appellant in return for marijuana.
On the first occasion, the amount of marijuana was 20.7 grams. On the second occasion, the
amount of marijuana was 14.4 grams. After the second occasion, the Drug Task Force
maintained surveillance on Appellant at the residence. Appellant was seen leaving the
residence in a vehicle. A traffic stop was initiated, and Appellant was arrested for the
controlled buy that had occurred on May 6, 2010. During the arrest, officers discovered that
Appellant had a suspended driver’s license. In addition, officers noticed Appellant had a
plastic bag sticking out of his mouth that contained a small amount of marijuana, weighing
1.7 grams.

       After the arrest, officers executed a search warrant at the residence where officers
discovered $865 in cash, some of which had been used in the controlled buys. In addition,
the search warrant also netted the discovery of a set of digital scales and more marijuana,
weighing 17.4 grams.

       Appellant pled guilty to the charges in the indictment, leaving the length and manner
of service of the sentence to the trial court. The trial court held a separate sentencing hearing
at which the trial court merged Counts One and Three and Counts Two and Four, resulting
in two convictions for the sale of more than .5 ounces of marijuana, both Class E felonies.
The trial court sentenced Appellant to four years for each of these convictions. The trial
court sentenced Appellant to eleven months and twenty-nine days for driving on a suspended
license in Count Five and simple possession in Count Six. The trial court sentenced


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Appellant to four years for Count Seven, possession of marijuana for resale. The trial court
ordered Count Three to be served consecutively to Count One; Count Five to be served
concurrently with Count One; Count Six to be served concurrently with Count Seven but
consecutively to Counts One, Three, and Five; and Count Seven to be served concurrently
with Count Six but consecutively to Counts One, Three, and Five, for a total effective
sentence of twelve years as a Range II, multiple offender. Appellant appeals the imposition
of consecutive sentencing.

                                          Analysis

       On appeal, Appellant argues that the trial court improperly ordered consecutive
sentencing. Specifically, Appellant contends that the trial court “erred in running Counts III
[possession of more than .5 grams of cocaine with the intent to sell] and VII [possession of
marijuana for resale] consecutively because both counts stem from a single intent/single
transaction.” The State insists that the trial court properly ordered consecutive sentencing
where Appellant’s criminal history was “excessive.”

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that:


       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;

       (2) The defendant is an offender whose record of criminal activity is extensive;

       (3) The 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;

       (4) The 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; . . . .



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T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

      Appellant herein pled guilty to two counts of the sale of more than .5 ounces of
marijuana, both Class E felonies. Additionally, Appellant pled guilty to driving on a
suspended license, simple possession, and possession of marijuana for resale. In total, the
judgment sheets reflect convictions for three Class E felonies and two Class A
misdemeanors.

       In this case, the trial court based the imposition of consecutive sentencing on
Tennessee Code Annotated section 40-35-115(b)(2), the defendant is an offender whose
record of criminal activity is extensive. After making it clear that the trial court had
considered the evidence at trial and sentencing as well as the presentence report, the
principles of sentencing, the nature and characteristics of the criminal conduct involved, the
mitigating factors, sentencing practices in Tennessee, the Appellant’s statements on his
presentence report and the potential for rehabilitation, the trial court made the following
statement with regard to consecutive sentencing:

       The next issue to be decided is whether [Appellant] should receive concurrent
       or consecutive sentencing. There is a presumption in favor of concurrent
       sentencing unless one of seven factors is present. One of those factors is
       whether a defendant has an extensive criminal record. It is found in fact
       [Appellant] does have an extensive criminal record of seven felony convictions
       (all but one of which is clustered on either August 16, 2004, or March 31,
       2004) and eight misdemeanor convictions. The presumption in favor of
       concurrent sentencing is overcome to this extent: Counts 1. and 3. and 7. will
       be consecutive to one another; Count 5. will be concurrent with Count 1.;
       Count 6. will be concurrent with Count 7.; and the total effective sentence will
       be twelve years at thirty-five percent.

       In our review, the record shows that Appellant has indeed had at least sixteen prior
convictions, including seven felony convictions. We conclude that Appellant’s criminal
history is sufficiently extensive to support the imposition of consecutive sentences pursuant
to Tennessee Code Annotated section 40-35-115(b)(2). Therefore, this issue is without
merit.




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                                         Merger of Convictions

        Appellant also insists that “Counts III and VII1 should merge as a single conviction
for sentencing purposes.” Appellant argues that the failure to merge the cases is a violation
of State v. Henretta, 325 S.W.3d 112 (Tenn. 2010), and State v. Anthony, 817 S.W.2d 299
(Tenn. 1991). The State, on the other hand, argues that the trial court “did not err by failing
to sua sponte merge two of [Appellant’s] convictions.” As support for its argument, the State
points to the fact that Appellant did not raise the issue as a certified question of law and, by
pleading guilty, effectively waived consideration of “all non-jurisdictional defects and
constitutional infirmities” on appeal. Additionally, the State insists that the factual basis at
trial proves that the conviction for the sale of marijuana and conviction for possession of
marijuana for resale resulted from separate quantities of marijuana and could, thus, result in
two separate convictions.

        First of all, we disagree that the cases cited by Appellant, State v. Henretta, 325
S.W.3d 112 (Tenn. 2010), and State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), support his
argument, whether it be a merger for sentencing purposes or a substantive merger of his
convictions.
        Secondly, we have discovered that this Court appears to have divergent opinions on
whether, as the State insists, a guilty plea can effectively waive a double jeopardy claim. In
the context of a guilty plea, in State v. Rhodes, 917 S.W.2d 708 (Tenn. Crim. App. 1995), this
Court relied upon the supreme court decision of Menna v. New York, 423 U.S. 61, 62 (1975),
to determine that a guilty plea does not automatically waive a double jeopardy claim when
it is apparent from the record that the claim was raised before the trial court. 917 S.W.2d at
711. Two months later, in State v. Franklin, 919 S.W.2d 362, 368 (Tenn. Crim. App. 1995),
this Court held essentially the opposite of Rhodes; that a guilty plea waives a claim of
merger. 919 S.W.2d at 368. The Court in Franklin held that Rule 37(b)(2) of the Tennessee
Rules of Criminal Procedure required a defendant to explicitly reserve a claim of merger
prior to pleading guilty. Id.; see also Cecil Eugene Brannan v. State, No. M2002-00628-
CCA-R3-CD, 2003 WL 1868648, at *3 (Tenn. Crim. App., at Nashville, Apr. 11, 2003).

        In Rhodes, the defendant had claimed in the trial court that dual convictions for
vehicular assault and driving under the influence constituted double jeopardy. 917 S.W.2d
at 711. The defendant later pled guilty to both offenses, failing to preserve the double
jeopardy issue pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure as
a certified question. Id. at 710. The defendant appealed, readvancing the argument that the
convictions were prohibited by double jeopardy. Id. at 711. This Court held that “the


        1
         Count Three stem m ed from the sale of marijuana to the confidential informant on May 14. Count Seven
stemmed from the discovery of marijuana at Appellant’s residence after the execution of the search warrant.

                                                     -5-
question of whether the Double Jeopardy Clause of either the state or federal constitution [is
implicated] was not waived by the defendant’s entry of or the trial court’s acceptance of the
guilty pleas.” Id.

        In Rhodes, this Court relied on Menna, in which the United States Supreme Court
reversed, per curiam, a state court decision that a guilty plea waived a double jeopardy claim
and United States v. Broce, 488 U.S. 563 (1989), a case in which the Supreme Court clarified
that although a double jeopardy claim may be waived, a guilty plea does not automatically
constitute a waiver when the claim is apparent from the face of the record. In Rhodes, the
court ultimately determined “given how and when the double jeopardy issue developed in
the trial court,” in other words, that the “issues [were] apparent from the record of the
proceedings,” the issue was not waived and properly before the court on appeal. 917 S.W.2d
at 711.

       The decision in Rhodes has been followed by several other decisions from this Court.
See State v. Ronald Woods, Jr., No. W2009-02580-CCA-R3-CD, 2010 WL 4117165, at *4-5
(Tenn. Crim. App., at Jackson, Oct. 20, 2010); State v. Walter Jude Dec, No. M2009-01141-
CCA-R3-CD, 2010 WL 2977875, at *3-4 (Tenn. Crim. App., at Nashville, Jul. 30, 2010);
Sean Earl Jones v. State, No. M2006-00664-CCA-R3-PC, 2007 WL 1174899, at *6-7 (Tenn.
Crim. App., at Nashville, Apr. 20, 2007); Dexter P. Jones v. State, No. M2003-01229-CCA-
R3-PC, 2004 WL 404496 (Tenn. Crim. App., at Nashville, Mar. 4, 2004); State v. Milton
Spears, Jr., No. C.C.A. 02C01-9606-CR-00197, 1997 WL 381569, at *1 (Tenn. Crim. App.,
at Jackson, Jul. 10, 1007).

        Although Ronald Woods, Jr., and Walter Jude Dec acknowledged that Rhodes
provided the correct path for double jeopardy issues on appeal in guilty plea cases, this
court mistakenly viewed Rhodes to require double jeopardy to be raised by the defendant
in the trial court. It did not. As indicated above, if the double jeopardy violation is
apparent in the record on appeal, the issue may be considered regardless of whether it was
raised in the trial court.

       We believe that the better reasoning is in the Rhodes case and its progeny. Thus,
in order to determine if Appellant waived his double jeopardy claim, we must determine
whether the claim is apparent from the face of the record. Upon our review, we note that
during the sentencing hearing, counsel for Appellant argued that the simple possession
charge “would merge with the possession of schedule six for resale because those
[convictions] have the same offense dates.” We were unable to find a reference to the
merger of Count Three and Count Seven or any discussion of whether double jeopardy
barred the dual convictions for the sale of marijuana and the possession of marijuana for
resale. The only other reference in the record that speaks to a similar issue appears in an

                                             -6-
order issued after the sentencing hearing wherein the trial court placed its “Findings on
Sentencing” on the record, concluding that while “[t]he offense date for Counts 6. and 7.
is the same, and the drug is the same, . . . the two convictions are separate because the
drugs were at different locations, one at a house and the other in a vehicle.” Despite the
lack of overt mention of the merging of the Count Three and Count Seven convictions in
the record, we conclude that the facts of the case make the issue of double jeopardy
apparent in the record.

        Next, we must determine if the dual convictions for the sale of marijuana in Count
Three and possession for resale of marijuana in Count Seven violate double jeopardy.
The double jeopardy clause of the Fifth Amendment to the United States Constitution
provides that no person shall “be subject for the same offense to be twice put in jeopardy
of life or limb . . . .” Article 1, sec. 10 of the Tennessee Constitution contains a similar
provision. As our supreme court has noted many times, the three fundamental principles
underlying double jeopardy provide protections against (1) a second prosecution after an
acquittal; (2) a second prosecution after conviction; and (3) multiple punishments for the
same offense. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); see also North
Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part by Alabama v. Smith, 490
U.S. 794 (1989).

       Multiplicity of charges or convictions arises in cases where prosecutors divide
conduct into separate, discrete offenses, “creating several offenses out of a single
offense.” State v. Charles L. Williams, No. M2005-00836-CCA-R3-CD, 2006 WL
3431920, at *29 (Tenn. Crim. App., at Nashville, Nov. 29, 2006) (quoting State v.
Phillips, 924 S.W.2d 662, 665 (Tenn. 1996)). Whether the acts of a defendant constitute
separate offenses or one single crime must be determined by the facts and circumstances
of each case. State v. Pickett, 211 S.W.3d 696, 706 (Tenn. 2007).

        In State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), a sex-offense case, the
Tennessee Supreme Court set forth the double-jeopardy analysis of multiple count, same
statute crimes. Although the inquiry in Phillips is specific to sex-related crimes, “[i]ts
principles . . . have been adapted for other types of crimes, [specifically drug crimes] as
well.” State v. Easterly, 77 S.W.3d 226, 231 (Tenn. Crim. App. 2001) (citing generally
State v. Epps, 989 S.W.2d 742, 745 (Tenn. Crim. App. 1998)). Specifically, the
principles and analysis in Phillips were utlized in State v. Easterly, 77 S.W.3d 226 (Tenn.
Crim. App. 2001), a case involving dual convictions for possession with intent to sell or
deliver one-half gram of cocaine and possession with intent to sell and deliver more than
300 grams of cocaine. This Court listed those principles as:




                                             -7-
       1. A single offense may not be divided into separate parts; generally, a
       single wrongful act may not furnish the basis for more than one criminal
       prosecution;

       2. If each offense charged requires proof of a fact not required in proving
       the other, the offenses are not multiplicitous; and

       3. Where time and location separate and distinguish the commission of the
       offenses, the offenses cannot be said to have arisen out of a single wrongful
       act.

Id. at 231 (citing Epps, 989 S.W.2d at 745, and Phillips, 924 S.W.2d at 665). “Other
matters to be considered are “the nature of the act; the time elapsed between the alleged
conduct; the intent of the accused, i.e., was a new intent formed; and cumulative
punishment . . . .” Id. at 231-32. “None of these factors other than the nature of the act is
determinative.” Id. at 232.

        In Easterly, the defendant sold cocaine to an undercover agent from his car in
Sevier County, Tennessee. 77 S.W.3d at 229. The defendant was detained and refused to
allow a search of his Knox County, Tennessee home. Id. The authorities obtained a
search warrant and discovered cocaine at his residence. Id. The defendant was arrested
and pled guilty to the Sevier County charge. The defendant was later indicted by
presentment in Knox County. Id. at 230. Counsel moved to dismiss the Knox County
charge on the basis of double jeopardy. In an interlocutory appeal, this Court determined
that the dual convictions violated double jeopardy. Id. This Court noted that:

       [T]he two offenses [are] not identical, but the Knox and Sevier Counties
       offenses appear very much to be a division of a single wrongful act. The
       defendant possessed a large amount of contraband, which he stored in his
       home. Although he separated part of it for the purpose of selling it in
       Sevier County, the State induced him to do so and has now attempted to
       prosecute him separately for the cocaine he possessed in one location until
       the State’s inducement. The nature of the act for which the defendant was
       prosecuted in both cases-that is, possession-is the same for both offenses.
       The defendant was simultaneously in possession of the cocaine he kept in
       his home in Knox County and the subdivided portion he took to Sevier
       County, and the locations were different only because of the State’s
       involvement. The defendant’s intent was the same for both offenses.

Id. at 232-33.

                                             -8-
        The case herein is distinguishable from Easterly. Appellant sold marijuana to a
confidential informant at his residence. The police maintained surveillance on the
residence and saw Appellant leaving in a vehicle. A traffic stop was initiated, during
which police discovered that Appellant was driving on a revoked license. Appellant was
arrested for the transaction with the confidential informant. A subsequent search of
Appellant’s residence netted the discovery of 17.4 grams of marijuana. The two offenses
herein, i.e. the sale of marijuana to the confidential informant and the possession of
marijuana for resale, involved two separate, identifiable quantities of marijuana. In other
words, the marijuana found in the house is distinguishable from the marijuana sold to the
confidential informant. Additionally, the conviction for the sale of marijuana and the
conviction for possession for resale “require proof of a fact not required in proving the
other.” Easterly, 77 S.W.3d at 731. The conviction for the sale of marijuana necessarily
requires a sale. See T.C.A. § 39-17-417(a)(3). Further, Appellant had to “knowingly”
sell the marijuana. Id. In contrast, the elements of the offense of possession of marijuana
for resale are (1) that the defendant possessed the marijuana with the intent to sell and (2)
the defendant acted knowingly. T.C.A. § 39-17-417(a)(4). Moreover, the offenses violate
separate paragraphs of Tennessee Code Annotated section 39-17-417. In our view, the
separate provisions indicate a clear legislative intent to allow separate convictions for
these separate acts. State v. Jones, No. 02C01-9307-CR-00155 (Tenn. Crim. App. at
Jackson, Aug. 24, 1994), perm. app. denied, (Tenn. Jan. 3, 1995). The Sentencing
Commission Comments to Tennessee Code Annotated section 39-17-417 state that “[t]he
commission wished to make it clear that each of these acts is a separate offense and
therefore listed the manufacture, delivery, sale, or possession with intent to manufacture,
deliver or sell each as a separate subsection.” Finally, this case concerns a conviction for
a sale and a conviction for a possession, unlike Easterly, which involved dual convictions
for possessory offenses. Consequently, we determine that Appellant’s convictions in
Count Three and Count Seven do not violate double jeopardy. See State v. Chitwood, 735
S.W.2d 471 (Tenn. Crim. App. 1987) (holding that convictions for sale of cocaine and for
possession of cocaine stored in defendant’s house do not constitute double jeopardy);
State v. Jose D. Holmes, No. 02C01-9411-CR-00251, 1995 WL 695127 (Tenn. Crim.
App., at Jackson, Nov. 22, 1995), perm. app. denied, (Tenn. Apr. 8, 1996) (holding that
sale of cocaine to confidential informant and conviction for possession of cocaine with
intent to sell found during subsequent search of vehicle did not violate double jeopardy);
State v. Walter Jones, No. 02C01-9307-CR-00155, 1994 WL 456347 (Tenn. Crim. App,
at Jackson, Aug. 24, 1994), perm. app. denied, (Tenn. Jan. 3, 1995) (determining that
convictions for sale of cocaine and possession of cocaine intent to sell did not violate
double jeopardy). Appellant is not entitled to relief on this issue.

       Lastly, while not specifically raised by either party, we note that Appellant’s
conviction for the simple possession of marijuana found in the car cannot sustain a
separate conviction from the simultaneous possession of marijuana in the house. See

                                             -9-
State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991) (prohibiting dual convictions
for cocaine possession, showing possession at different locations). Accordingly, we
vacate Appellant’s conviction for simple possession of marijuana.

                                       Conclusion

        For the foregoing reasons, Appellant’s conviction for simple possession in Count
Six is vacated, and the case is remanded to the trial court for any further proceedings
which may be necessary. The remaining judgments and sentences imposed by the trial
court are affirmed.




                                         ___________________________________
                                         JERRY L. SMITH, JUDGE




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