                                                                                         07/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 30, 2019 Session

          STATE OF TENNESSEE V. JERRY REGINALD BURKES

                 Appeal from the Criminal Court for Greene County
                    No. 14CR180        Alex E. Pearson, Judge
                     ___________________________________

                           No. E2018-01713-CCA-R3-CD
                       ___________________________________


Jerry Reginald Burkes, Defendant, appeals from the order of the trial court that was
entered after the case was remanded for resentencing. Following the resentencing
hearing, the trial court denied Defendant’s request to serve his sentence on community
corrections and ordered Defendant to serve his eighteen-year sentence in incarceration.
Defendant claims the trial court erred by not allowing him to introduce proof at the
resentencing hearing concerning certain out-of-state convictions used by the trial court at
the first sentencing hearing to establish that Defendant was a Range II offender. We
affirm the trial court’s judgment.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Greg W. Eichelman, District Public Defender, and J. Todd Estep, Assistant District
Public Defender, for the appellant, Jerry Reginald Burkes.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Ritchie Collins,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                   Procedural History

       A jury convicted Defendant of one count of money laundering, one count of theft
of property valued at $60,000 or more, and twelve counts of sales tax evasion. The trial
court sentenced Defendant as a Range II offender to an effective term of eighteen years to
be served by five years of confinement with the balance on community corrections. The
trial court also ordered Defendant to pay an $80,000 fine and $132,766.46 in restitution
to be paid in installments of $500 per month following Defendant’s release from
confinement.

                                    First Direct Appeal

        Defendant appealed his convictions and sentences. State v. Jerry Reginald Burkes,
No. E2017-00079-CCA-R3-CD, 2018 WL 2194013, at *6 (Tenn. Crim. App. May 14,
2018), no perm. app. filed. This court affirmed the judgments of conviction. Id. at *1.
Concerning his sentence, Defendant claimed that the trial court erred by imposing a
Range II sentence because “the State had failed to establish beyond a reasonable doubt
that the Connecticut conviction would have been a felony utilizing a ‘factor-to-factor type
comparison.’” Id. at *17. This court undertook an in-depth analysis of Connecticut Code
section 21a–277 and determined that the term “narcotic drug” in the Connecticut statute
was “nearly identical to the definition of narcotic drug in our Code.” Id. at *20-23. This
court concluded:

                Utilizing . . . [D]efendant’s federal conviction for the distribution of
       cocaine, which would have been a Class C felony, and his Connecticut
       conviction for the sale of narcotics, which would also have been at least a
       Class C felony, the State was able to establish beyond a reasonable doubt
       that . . . [D]efendant was a Range II offender. Consequently, the trial court
       did not err by imposing a Range II sentence.

Id. at *23. This court also determined that the trial court did not abuse its discretion in
sentencing Defendant “to a total effective sentence length of 18 years.” Id.

         Defendant also claimed that the split confinement sentence imposed by the trial
court was illegal. Id. at *16, 24. This court first determined that “[t]he record establishes
that . . . [D]efendant was eligible for a community corrections placement, and a period of
incarceration coupled with community corrections placement is an appropriate
combination of sentencing alternatives.” Id. at *26. However, “[b]ecause the five year
term of confinement [imposed by the trial court] [wa]s not authorized,” this court vacated
the sentence and “remand[ed] the case for a new sentencing hearing.” Id.; see also State
v. Adrian Patterson, No. M2001-01991-CCA-R3-CD, 2002 WL 31154597, at *2 (Tenn.
Crim. App. Sept. 23, 2002) (a maximum period of one-year split confinement or shock
incarceration may be imposed as a special condition of a community corrections sentence
in the appropriate case), no perm. app. filed. This court also “vacate[d] the restitution
order and remand[ed] the case for the trial court to impose restitution in a manner that
                                             -2-
complies with Code section 40-35-304.” Jerry Reginald Burkes, 2018 WL 2194013, at
*1.

                                     Resentencing Hearing

       At the outset of the August 1, 2018, resentencing hearing, the trial court
announced that it would not hear proof pertaining to the sentence range and denied
Defendant’s “Motion to Exclude Use of Connecticut Forms” that had been used by the
court to initially establish that Defendant was a Range II offender.

        Defendant proffered for the record copies of several Connecticut judgments and
Connecticut statutes. Defendant also proffered a letter from his Connecticut attorney and
a copy of a “Motion for Modification” of two judgments from the Superior Court of
Connecticut in which Defendant was “sentenced to a definite term of more than three
years” for sale of narcotics and possession of narcotics with intent to sell. The motion
asked the Connecticut court to modify the sentence by “suspending execution of the
unexecuted portion of the jail sentence.” The trial court admitted the proffered document
as exhibits but held that the letter and motion were not relevant based on this court’s
direct appeal opinion.

        Defendant, who was fifty-four years old at the time of the sentencing hearing, read
from a typed statement. He stated that “[i]t would be in the best interest of the State” to
allow him “the opportunity to remain out in the community.” He claimed his behavior
since arrest, home environment, emotional stability, current employment, marital
stability, and family responsibility supported service of his sentence on community
corrections. He said that, after his conviction, he had “found secure employment” with
All Star roofing company where he worked as a project manager at military bases in
Colorado and North Carolina.1 He testified that he “bring[s] home $2,400.00 a week,
$115,000.00 a year” and that, if he is allowed to serve his sentence in the community, he
would be able to pay the restitution.

       Defense counsel argued that Defendant could fully pay the amount of restitution
over the term of the eighteen-year sentence in monthly installments of $614.66 but that, if
he was required to serve thirty-five percent of his sentence, his ability to pay would be
severely limited.          Counsel introduced five documents obtained from
www.tn.gov/revenue/news showing that defendants in other jurisdictions across
Tennessee had been granted alternative sentences for crimes involving substantial
amounts of restitution. These documents were also admitted as evidence.

       1
          The trial court approved Defendant to travel outside of Tennessee during the pendency of his
direct appeal.
                                                -3-
        After argument, the trial court continued the sentencing hearing until August 24.
On August 14, Defendant filed a “Motion to Include Additional Defense Proof Not
Available at Last Hearing.” The additional proof consisted of twenty certified judgments
from the Criminal Court of Greene County in which a defendant, who pled guilty to
facilitation of forgery, facilitation of theft, and sales tax evasion, was sentenced to six
years’ probation and ordered to pay $35,000 as restitution and a newspaper article
concerning a criminal case in Carter County in which a defendant was granted probation
on a six-year sentence and ordered to pay $248,847.91 restitution to her former employer.

       At the hearing on August 24, the trial court granted the State’s objection to the
“additional proof” submitted with the August 14 motion, finding that “you could go
across this entire state, and there’s no telling what kind of cases that we could come up
with that might have unique or underlying factual issues or disputes or proof problems.”
The court also noted that the “additional proof” involved cases where the sentences were
the result of a plea agreement, whereas Defendant was convicted by a jury.

       In pronouncing the sentence, the trial court found that Defendant was not eligible
for probation pursuant to Tennessee Code Annotated section 40-35-303 because his
sentence was greater than ten years. The trial court then stated:

       And so then we look at the Community Corrections under . . . [Tennessee
       Code Annotated section] 40-36-302(b):

              These options set out in this subsection may be used in
              conjunction with a period of shock incarceration or in
              conjunction with a period or time of probation and/or a time
              of split confinement or a periodic confinement as provided in
              Chapter 35 of this title,

       which was what the Court attempted to do last time.

       So if you look . . . at 40-36-302 and you look at 40-35-303, there’s just not
       much I can do, [Defendant]. I mean, I -- I attempted to sentence you to
       something lesser previously . . . .

       Your case is an interesting case because I don’t necessarily like the
       outcome of what I have to sentence you to. I’ve -- I attempted to sentence
       you to less, but that-- the court of appeals cut that off. [Of c]ourse, you
       may have thought that was too much, but you certainly have the right to
       think what you think. But I sentenced you at that point in time to a split
                                           -4-
      confinement sentence that I thought was appropriate given the
      consideration of your prior history and given . . . .

      And perhaps it’s true that you got too much of a sentence in your prior case.
      I certainly -- I don’t know all the ins-and-outs of that case, but I certainly
      have seen several people involved in the illegal narcotics trade in this area .
      . . that did not get a sentence of that magnitude.

      But the bottom line is, is that is the sentence you received, and they are
      convictions that I have to use for the purposes of enhancement, and those
      made you Range 2. And I already made a finding on that, and that’s been
      up to the court of appeals, and the court of appeals affirmed my finding that
      you’re Range 2.

      And so given all those factors and considerations, [Defendant], I have no
      choice but to sentence you to 18 years to serve. I’m going to impose the
      same fine that I previously imposed.

      ....

      I mean, I presume you’ve had an opportunity to review that appeal, the
      decision of the court of appeals, and they say I can’t give you split
      confinement of that length. And I’ve done about all I can do.

       Based on the length of the incarceration, the trial court did not order Defendant to
pay restitution.

      Defendant now timely appeals.

                                        Analysis

        On appeal, Defendant claims that the trial court abused its discretion by not
allowing him to introduce evidence concerning the Connecticut convictions used by the
trial court to enhance his sentence range in the initial sentencing hearing. Defendant
claims that such proof would have enabled him to show that he was actually a Range I
offender. Defendant also asks this court to adopt a rule requiring “certified copies of
judgments from the court of conviction” for range determination. Finally, Defendant
claims that his sentence “does not comport with the purposes and principles of the
sentencing act and does not promote justice.” The State argues that the trial court
properly refused to revisit the offender classification on resentencing and, alternatively,
that there was sufficient proof to establish Defendant was a Range II offender. The State
                                           -5-
also claims that the trial court did not abuse its discretion in ordering Defendant to serve
the within range sentence.

                                   Range Classification

       This court’s opinion on direct appeal affirmed Defendant’s convictions, the trial
court’s determination that Defendant was a Range II offender, and the length of the
sentence imposed by the trial court. Jerry Reginald Burkes, 2018 WL 2194013, at *1.
The State argues that the “law of the case doctrine” precluded Defendant from relitigating
offender classification. We agree with the State. Our supreme court described the
doctrine as follows:

               The phrase “law of the case” refers to a legal doctrine which
       generally prohibits reconsideration of issues that have already been decided
       in a prior appeal of the same case. In other words, under the law of the case
       doctrine, an appellate court’s decision on an issue of law is binding in later
       trials and appeals of the same case if the facts on the second trial or appeal
       are substantially the same as the facts in the first trial or appeal. The
       doctrine applies to issues that were actually before the appellate court in the
       first appeal and to issues that were necessarily decided by implication. The
       doctrine does not apply to dicta.

               The law of the case doctrine is n[either] a constitutional mandate nor
       a limitation on the power of a court. Rather, it is a longstanding
       discretionary rule of judicial practice which is based on the common sense
       recognition that issues previously litigated and decided by a court of
       competent jurisdiction ordinarily need not be revisited. This rule promotes
       the finality and efficiency of the judicial process, avoids indefinite
       relitigation of the same issue, fosters consistent results in the same
       litigation, and assures the obedience of lower courts to the decisions of
       appellate courts.

               Therefore, when an initial appeal results in a remand to the trial
       court, the decision of the appellate court establishes the law of the case
       which generally must be followed upon remand by the trial court, and by an
       appellate court if a second appeal is taken from the judgment of the trial
       court entered after remand. There are limited circumstances which may
       justify reconsideration of an issue which was [an] issue decided in a prior
       appeal: (1) the evidence offered at a trial or hearing after remand was
       substantially different from the evidence in the initial proceeding; (2) the
       prior ruling was clearly erroneous and would result in a manifest injustice if
                                            -6-
       allowed to stand; or (3) the prior decision is contrary to a change in the
       controlling law which has occurred between the first and second appeal.

Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998) (internal citations omitted). The doctrine is equally applicable to
criminal cases and has been applied in a case where the conviction was affirmed, the
sentence was vacated, and the case remanded for resentencing. See State v. Jefferson, 31
S.W.3d 558, 561-62 (Tenn. 2000).

       We determine that none of the three exceptions to the doctrine listed above apply.
The evidence offered at the sentencing hearing after remand was not substantially
different from the evidence in the initial proceeding, the prior ruling finding Defendant a
Range II offender was not clearly erroneous and does not lead to manifest injustice, and
there has been no change in the sentencing law governing sentence range during the
pendency of this case.

      The trial court properly limited resentencing to the manner of service of the
sentence and restitution. Defendant is not entitled to relief on this issue.

                       Certified Copies of Judgments of Conviction

       Defendant asks this court to adopt the “Taylor Rule,” which Defendant claims
requires trial courts to enter certified copies of judgments of conviction from other
jurisdictions to prove prior convictions. See Taylor v. United States, 495 U.S. 575
(1990). The State argues that Taylor does not require certified copies of judgments of
conviction for range determination. We agree with the State.

       In Taylor, the United States Supreme Court held “that an offense constitutes
‘burglary’ for purposes of [18 United States Code section] 924(e) sentence enhancement
if either its statutory definition substantially corresponds to ‘generic’ burglary, or the
charging paper and jury instructions actually required the jury to find all the elements of
generic burglary in order to convict the defendant.” Id. at 602. The United States
Supreme Court did not say or imply that certified copies of judgments of conviction are
required for a trial court’s range determination.

       In Tennessee, reliable hearsay can be used for sentencing provided “the opposing
party [is] afforded a fair opportunity to rebut any hearsay admitted in evidence” and
provided there is “an indicia of reliability[.]” State v. Taylor, 744 S.W.2d 919, 921
(Tenn. Crim. App. 1987); see also Tenn. Code Ann. § 40-35-209(b). “This court has
consistently held that the presentence report is reliable hearsay.” State v. Leon Booker,
No. M2014-00840-CCA-R3-CD, 2015 WL 395264, at *3 (Tenn. Crim. App. Jan. 30,
                                           -7-
2015), perm. app. denied (Tenn. May 14, 2015). “[C]ertified copies of convictions are
not necessary to prove a prior criminal history; thus, courts can rely upon the presentence
report.” State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000) (citing State v.
Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993)).

        Based on well-established precedent, we will not adopt a rule requiring certified
copies of judgments of convictions for sentencing hearings. Defendant is not entitled to
relief on this issue.

         Purposes and Principles of the Sentencing Act and Promotion of Justice

        Defendant claims that the sentence imposed in the resentencing hearing “does not
comport with the purposes and principles of the sentencing act and does not promote
justice.” We will not address the sentencing range or the length of the sentence, both of
which were affirmed by this court on direct appeal. See Jerry Reginald Burkes, 2018 WL
2194013, at *3. We will address the trial court’s denial of a community corrections
sentence and imposition of a sentence of confinement.

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). The
supreme court expanded its holding in Bise to trial courts’ decisions regarding alternative
sentencing, holding “that the abuse of discretion standard, accompanied by a presumption
of reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2018); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party appealing the
sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401
(2018), Sent’g Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

                                            -8-
       In recognition of the limited resources of the state prisons, “convicted felons
committing the most severe offenses, possessing criminal histories evincing a clear
disregard for the laws and morals of society[,] and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving incarceration[.]”
Tenn. Code Ann. § 40-35-102(5) (2018).

       Tennessee Code Annotated section 40-35-103(1) states that the trial court may
order confinement when:

             (A) Confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the seriousness
       of the offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1) (2018).

        In determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2018); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court should also consider the
potential or lack of potential for rehabilitation or treatment of a defendant in determining
the sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-
103(5) (2018).

       At the time of resentencing, the trial court could: (1) sentence Defendant to
eighteen years’ continuous confinement in the Department of Correction pursuant to
Tennessee Code Annotated section 40-35-104(c)(8); (2) place Defendant on community
corrections for eighteen years pursuant to Tennessee Code Annotated section 40-35-
104(c)(9); or (3) sentence Defendant to serve up to one year of his sentence in continuous
confinement (shock incarceration) in the local jail or workhouse pursuant to Tennessee
                                            -9-
Code Annotated section 40-36-302(b) followed by placement in community corrections
for the balance of the sentence.

        In determining the manner of service following remand from this court, the trial
court was not limited to the evidence introduced at the resentencing hearing. The trial
court could also consider the evidence received at the trial and at the initial sentencing
hearing, including the presentence report. The initial sentencing hearing occurred on July
29, 2016, and the transcript of that hearing was included in the appellate record in the
initial direct appeal and was referenced by this court in its opinion. See Jerry Reginald
Burkes, 2018 WL 2194013, at *1. We take judicial notice of the record of Defendant’s
direct appeal. State ex rel. Brown v. Newell, 391 S.W.2d 667, 669 (1965).

       Concerning the trial court’s original sentencing decision, this court in its direct
appeal opinion stated:

      When considering the appropriate manner of service of [D]efendant’s
      sentence, the trial court found that “the deterrence factor is one primary
      consideration” and that “efforts have been attempted to rehabilitate
      [Defendant], and they’ve not been successful because he was on probation
      and then he commits serious felonies again.” The court concluded that
      these factors as well as the need to avoid “depreciating the seriousness of
      the offense” justified a period of confinement. The trial court stated:

             Now, consider whether that should be all incarceration or
             whether I should consider some type of alternative split
             sentence because as I’ve already stated, I don’t think that
             putting you on community corrections, at least, initially—I do
             think that would depreciate the seriousness of the offense and
             would not sufficiently serve as a deterrent factor to you and
             others.


      The trial court also expressed an opinion that a sentence of full
      incarceration was not appropriate in this case. Ultimately, the court
      sentenced the defendant to “eighteen years, split confinement, five years.
      The rest will be on community corrections.”

Jerry Reginald Burkes, 2018 WL 2194013, at *15.




                                          - 10 -
       The trial court determined in the first sentencing hearing that placement of
Defendant on community corrections for the entire eighteen-year sentence was not
appropriate based on three factors: deterrence, failed efforts at rehabilitation, and not
depreciating the seriousness of the offenses. The same factors support the trial court’s
decision to sentence Defendant to eighteen years’ continuous confinement in the
Department of Correction rather than up to one year shock incarceration followed by
community corrections placement. Although it may have been clearer if the trial court
had made new findings at resentencing concerning the factors it was utilizing to impose
continuous confinement in the Department of Correction, the failure to do so does not
mean that the trial court failed to make its sentencing decision based upon the purposes
and principles of sentencing. The trial court’s sentencing decision is entitled to the
presumption of reasonableness. Bise, 380 S.W.3d at 707. Defendant has failed to prove
“that the trial court’s logic and reasoning was improper when viewed in light of the
factual circumstances and relevant legal principles involved in a particular case’”
Shaffer, 45 S.W.3d at 555 (quoting Moore, 6 S.W.3d at 242), and has therefore failed to
overcome the presumption of reasonableness.

                                        Restitution

       Tennessee Code Annotated section 40-35-304(a) allows a trial court, in its
discretion, to order restitution as a condition of probation. “The terms of a community
corrections sentence” can also include a provision requiring payment of restitution. State
v. Blake Austin Weaver, No. E2016-01774-CCA-R3-CD, 2017 WL 2103182, at *1
(Tenn. Crim. App. May 15, 2017). The length of incarceration is a factor the court can
use in establishing restitution. The trial court did not abuse it discretion in not requiring
Defendant to pay restitution.

                                        Conclusion

       The sentence imposed by the trial court is affirmed.



                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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