        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs October 25, 2016

           STATE OF TENNESSEE v. JERRY BRANDON PHIFER

                Appeal from the Criminal Court for Davidson County
                  No. 2011-B-1782 Cheryl A. Blackburn, Judge
                     ___________________________________

              No. M2016-00227-CCA-R3-CD – Filed October 28, 2016
                    ___________________________________


On June 17, 2011, a Davidson County grand jury indicted the defendant, Jerry Brandon
Phifer, for twelve crimes against five different victims. The defendant pled guilty to one
count of aggravated burglary (Count 11) and one count of theft of property greater than
$1000 (Count 12) as charged in the original twelve-count indictment. The trial court
sentenced the defendant to thirteen years for aggravated robbery and twelve years for
theft of property to be served consecutively. On appeal, the defendant argues the trial
court improperly enhanced his sentence for aggravated robbery from the minimum of ten
years to thirteen years. The defendant also argues the trial court improperly ordered his
sentences for Counts 11 and 12 to run consecutively. After our review, we affirm the
judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and ROBERT L. HOLLOWAY, JR., JJ., joined.

David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Jerry Brandon Phifer.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn Funk, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                              FACTS

       This case stems from a string of property crimes committed by the defendant
throughout Davidson County in 2011. Police ended the defendant’s crime spree by
connecting him to a burglary through the use of a global positioning system tracking
device on the defendant’s get-away car. A grand jury indicted the defendant for
aggravated robbery (Count 1), aggravated burglary (Counts 2, 5, 7, 9, 11), unlawful
possession of a weapon (Count 3), and theft of property valued over $1000 (Counts 4, 6,
8, 10, 12). The trial court severed the twelve-count indictment, and the State pursued the
defendant’s charges as they related to each victim. Relevant to this appeal are Counts 11
and 12 from the original indictment to which the defendant pled guilty on January 13,
2014.

       First, however, the defendant went to trial on Counts 1-4 of the original
indictment.1 The defendant was convicted at trial, and he appealed. Before this Court
issued an opinion on the defendant’s appeal stemming from convictions on Counts 1-4 of
the original indictment, the defendant pled guilty to Counts 11 and 12. Months after the
defendant entered the guilty pleas, this Court reversed the defendant’s conviction in
Counts 1-4a and remanded his initial case for a new trial. As a result, the defendant
sought post-conviction relief alleging ineffective assistance of counsel as to the guilty
pleas entered for Counts 11 and 12. The post-conviction court summarized the
procedural history of the defendant’s case as follows:

              A trial for Counts 1-4 was set for February 4, 2013. The State
       amended indictment for trial, charging [the defendant] with one count of
       aggravated robbery and one count of burglary. The jury returned its verdict
       finding [the defendant] guilty of Counts 1 and 2 as charged in the amended
       indictment. After a hearing held on April 10, 2013, the [trial court]
       sentenced [the defendant] to 30 years for the aggravated robbery conviction
       to be served at 85% and to 15 years for the theft conviction to be served
       with 45% release eligibility.

              Subsequent to the trial, [the defendant] was declared indigent, and
       [defense counsel] was appointed as counsel for the appeal of the February
       2013 trial. While said appeal was pending, the [trial court] appointed


       1
         The State amended Counts 1-4 of the original indictment and proceeded to trial under one count
of aggravated robbery and one count of burglary.
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[separate defense counsel] to represent [the defendant] on the balance of the
charges (Counts 3-12) . . .

        The trial on the remaining counts, which were renumbered for
purposes of trial, was set for January 13, 2014. On the morning of trial,
[the defendant] entered a guilty plea to Counts 11 (aggravated burglary) and
12 (theft of property) of the original indictment. Pursuant to the plea
agreement, [the defendant] entered an open plea with a sentencing hearing
to determine length, range, and manner of sentence. On [March 5, 2014],
the [trial court] sentenced [the defendant] to 13 years with 45% release
eligibility for Count 11, to be served consecutive to the sentence imposed
on Count 12. For Count 12, the [trial court] imposed a sentence of 12 years
to be served with 60% release eligibility to be served concurrent with the
sentences imposed for Counts 1 and 2. The remaining counts were held in
abeyance until the appeal on [the defendant’s] first trial issued.

        On September 23, 2014, the Tennessee Court of Criminal Appeals
issued its opinion on [the defendant’s] aggravated robbery and aggravated
burglary convictions. State v. Jerry Brandon Phifer, No. M2013-01401-
CCA-R3-CD, 2014 WL 4698499 (Tenn. Crim. App. Sept. 23, 2014). The
Court concluded that “the warrantless use of the GPS tracking device
constituted an illegal search, and the evidence obtained therefrom,
including the defendant’s arrest and statements to police, must be
suppressed.” Id. at *1. The Court of Criminal Appeals, therefore, reversed
the trial court’s denial of the suppression motions and remanded the case
for new trial.

       Prior to the mandate issuing, [the defendant] filed his pro se petition
for post-conviction relief on November 21, 2014, as to Counts 11 and 12
only. Said petition was filed prematurely since the appeal process had not
concluded; however, since the parties indicated interest in a status hearing
upon the issuance of the appeal, the [trial court] did not issue a written
order denying the petition as unripe. Once the mandate issued on
December 5, 2014, the [trial court] set the case for a status hearing to
determine how the parties intended to proceed with the matter.

      At the December 18, 2014 status hearing, the State made a motion to
dismiss Counts 1 and 2, with an order to be submitted, and a status hearing
was docketed for February 12, 2015. The State and defense counsel . . .
submitted an agreed order on December 19, 2014, dismissing Counts 1 and

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      2, but the order included language that the “voluntary plea” for Counts 11
      and 12 remained in effect.

             At the February 12, 2015 status hearing, the State agreed to dismiss
      the remaining counts (Counts 3-10), but maintained the plea agreement for
      Counts 11 and 12 remained in effect.


       The defendant’s post-conviction pursuits were denied by the trial court. The court
found “that the [defendant’s] guilty plea was made with an awareness of the
consequences even with evidentiary issues still pending appeal, and, as such, the guilty
plea was voluntarily, intelligently, and knowingly entered.” The court, however, granted
a delayed appeal allowing the defendant to address the sentences imposed for Counts 11
and 12, which provides the basis for this timely appeal.

                                       ANALYSIS

       On appeal, the defendant argues the trial court improperly enhanced his sentence
for aggravated burglary from the minimum ten-year sentence to a thirteen-year sentence
after failing to properly consider his potential for rehabilitation. The State argues the
thirteen-year sentence is within range and complies with the purposes and principles of
sentencing. After our review, we conclude the defendant failed to establish that the
thirteen-year, within-range sentence is improper. Accordingly, we affirm the sentence.

        It is well-settled that this Court reviews within-range sentences imposed by the
trial court under an abuse of discretion standard with a presumption of reasonableness.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The party appealing a sentence bears
the burden of establishing that the sentence was improper. Tenn. Code Ann. § 40–35–
401, Sentencing Comm’n Cmts. A defendant is not entitled to the minimum sentence
within the applicable sentencing range. See State v. Carter, 254 S.W.3d 335, 343 (Tenn.
2008). Rather, once the trial court determines the sentencing range, it “is free to select
any sentence within the applicable range.” Tenn. Code Ann. § 40–35–210 (a), (d);
Carter, 254 S.W.3d at 343.

       The trial court must state on the record the statutory factors it considered and the
reasons for the ordered sentence. Tenn. Code Ann. § 40–35–210 (e); Bise, 380 S.W.3d at
705-06. “Mere inadequacy in the articulation of the reasons for imposing a particular
sentence, however, should not negate the presumption [of reasonableness].” Bise, 380
S.W.3d at 705-06. Thus, a sentence imposed by a trial court “should be upheld so long as
it is within the appropriate range and the record demonstrates that the sentence is

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otherwise in compliance with the purposes and principles listed by statute.” Bise, 380
S.W. 3d at 709-10.

       Here, the defendant argues the trial court improperly enhanced his sentence for
aggravated burglary from the minimum ten-year sentence to a thirteen-year sentence.
Specifically, he claims the trial court failed to properly consider that “he was remorseful
and therefore has a potential for rehabilitation.” The defendant cites his post-arrest
statements, his decision to plead guilty, and “his credibility and candor” in support of his
request for the minimum, ten-year sentence for aggravated burglary. After our review of
the record, we do not find the defendant’s arguments persuasive.

       At the sentencing hearing, the trial court determined the statutory range for
aggravated burglary, a Class C felony, to be ten to fifteen to years for the defendant, a
Range III, persistent offender. Tenn. Code Ann. § 39–14–403(b). Upon setting the
range, the trial court considered the presentence report, the principles of sentencing, the
nature and characteristics of the charged offenses, statistical information, and the
defendant’s statement to police. See Tenn. Code Ann. § 40–35–210(e); Bise, 380 S.W.3d
at 705-06. The court then specifically addressed on the record the applicable
enhancement and mitigating factors related to the defendant.

       The court found three enhancement factors applied to the defendant’s sentence for
aggravated burglary pursuant to the sentencing statutes. Accordingly, the court
considered the defendant’s criminal history, the defendant’s failure to comply with
conditions of a sentence involving release into the community, and the defendant’s
probation status at the time of the present offenses. Tenn. Code Ann. § 40-35-114 (1),
(8), (13). Turning to the applicable mitigating factors, the court acknowledged the
defendant’s conduct in Counts 11 and 12 neither caused nor threatened serious bodily
injury. Tenn. Code Ann. § 40-35-113 (1). Additionally, the court considered the
defendant’s guilty plea and his “lengthy statement” that allowed police “to close out a lot
of cases.”2 Tenn. Code Ann. § 40-35-113 (13). The record reflects the court then
weighed the relevant enhancement factors against the applicable mitigating factors before
imposing the thirteen-year, within-range sentence.

       As articulated by the trial court when ordering the sentence, the court reviewed the
presentence report, considered the requisite enhancement and mitigating factors, weighed
the defendant’s prior criminal history, and compared the defendant’s post-arrest efforts to

        2
         After his arrest, “[t]he defendant confessed to a total of forty-three burglaries: twenty-six where
property was not recovered and seventeen where property was recovered.” Jerry Brandon Phifer, No.
M2013-01401-CCA-R3CD, 2014 WL 4698499, at *10.


                                                   -5-
the offense charged. Based upon these statutory considerations, the trial court imposed a
thirteen-year sentence for the defendant’s aggravated burglary conviction. The record
reflects the trial court properly considered the relevant purposes and principles of
Tennessee’s sentencing statutes and imposed a sentence within the applicable range for
the defendant’s Class C felony offense of aggravated burglary.

       Next on appeal, the defendant asserts the trial court erred by ordering the thirteen-
year sentence for aggravated burglary and the twelve-year sentence for theft of property
be served consecutively. The defendant asserts the effective twenty-five-year sentence is
“far greater than that deserved” for the crimes committed. We, again, disagree.

        It is well-settled the trial court “may order sentences to run consecutively if it finds
by a preponderance of the evidence that one or more of the statutory criteria exists.”
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Here, the court found two
statutory criteria existed in the record to warrant consecutive sentencing. Specifically,
the court found “[t]he defendant is an offender whose record of criminal activity is
extensive” and “[t]he defendant is sentenced for an offense committed while on
probation.” Tenn. Code Ann. § 40-35-115 (2), (6). Both criteria are explicit in the record
and support the trial court’s consecutive sentencing as to the defendant’s aggravated
burglary and theft of property convictions. The trial court did not abuse its discretion in
imposing consecutive sentences for the convicted offenses and the defendant is not
entitled to relief as to this issue. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

                                      CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.


                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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