        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs January 6, 2015 at Jackson

       STATE OF TENNESSEE v. JEREMIAH THOMAS SULLIVAN

                   Appeal from the Circuit Court for Bedford County
                    No. 2013-CR-17684     Forest Durard, Judge


                No. M2014-00568-CCA-R3-CD – Filed May 14, 2015


The defendant, Jeremiah Thomas Sullivan, pled guilty in the Bedford County Circuit
Court to one count of aggravated sexual exploitation of a minor involving one to twenty-
four images, a Class C felony; eight counts of aggravated sexual exploitation of a minor
involving twenty-five or more images, a Class B felony; one count of sexual exploitation
of a minor involving 100 or more images, a Class B felony; and two counts of solicitation
of a minor, a Class B felony. Following a sentencing hearing, the trial court used a
combination of concurrent and consecutive sentencing to sentence him to an effective
term of twenty-eight years in the Department of Correction. On appeal, the defendant
argues that the trial court erred by not merging the multiple convictions for aggravated
sexual exploitation of a minor involving twenty-five or more images into a single offense
and by imposing an excessive sentence. Following our review, we affirm the judgments
of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROGER A. PAGE, JJ., joined.

Michael J. Collins, Assistant Public Defender, for the Defendant-Appellant, Jeremiah
Thomas Sullivan.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Robert James Carter, District Attorney General; and Michael D.
Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                        FACTS
      At the guilty plea hearing, the prosecutor recited the facts upon which the State
would have relied had the case proceeded to trial:

      The factual basis is that in the early morning hours of March 5th of this
      year, a [woman] contacted the Sheriff‟s Department because she had been
      receiving text messages from what was then an unknown person, but the
      known cell phone number and text messages were mentioning that the
      sender wanted to have sex with [the woman] and her daughter who – and I
      believe even her son – and the daughter was seven years of age.

             The son is also a minor.

             The sender also requested that [the woman] send nude photographs
      of her children.

             ....

             The sender also asked if [the woman] would be interested in
      receiving nude photographs of persons who the sender identified as his
      niece and his daughter.

            [The woman] came to the Sheriff‟s Department and showed what
      was on her phone.

             The sender did send three photographs, two depicted young females,
      possibly as young as three or four years of age, in a state of nudity, with
      their genitals exposed. One was a girl, who appeared to be a teen, but was
      clothed.

             ....

             And the sender actually asked if [the woman] and her daughter
      would come to the residence and the 7-year-old girl could perform oral sex
      on the sender, while [the woman] watched.

             The person gave his address[.]

             ....

             The next day, on March 6, [the woman] indicated she was still
      getting text messages from this individual. And it was about possibly
      meeting at a local hotel, again, for the purpose of having some sort of
      sexual contact with the daughter while the mother watched.
                                              2
              The Sheriff‟s Department personnel had [the woman] go ahead and
      set it up. But . . . they were, of course, in close proximity in an adjoining
      room and such.

            So the defendant did appear. He came into the room. [The woman]
      was there. There was a code phrase that [the woman] was to give and when
      she gave that code phrase various members of the Sheriff‟s Department
      descended upon the room and took the defendant into custody.

             ....

             The defendant was interviewed, and he did admit that he had done
      those things: Sent the pictures and made the request. He also indicated he
      had a phone at home that had a large number of pornographic images on it
      and agreed to give permission for the deputies to retrieve it and examine it.

             They got the phone. They examined it and, indeed, there were
      several hundred pornographic images, many of which clearly depicted
      small children.

             They also examined his text logs. And it appeared that the defendant
      did quite a bit of soliciting and trading of images in that he clearly had
      conversations with a number of individuals seeking to obtain child
      pornography from them or see if they were interested in seeing some of the
      child pornography that he had. Again, the phone had, I believe 449 photos
      and videos, many of which depicted young children.

       At the sentencing hearing, the defendant made an allocution to the court in which
he apologized for his actions. The prosecutor introduced the defendant‟s presentence
report, which reflected that the twenty-two-year-old defendant had dropped out of school
in the eighth grade, had a history of misdemeanor convictions and probation violations,
and had a very limited work history. The State also introduced the defendant‟s
psychosexual evaluation, which revealed that the defendant was evaluated as having a
moderate to high risk to reoffend.

       The trial court found no mitigating factors but three enhancement factors
applicable: the defendant‟s history of criminal behavior and criminal convictions in
addition to those necessary to establish his range; the defendant‟s failure to comply with
the conditions of a sentence involving release into the community; and the defendant‟s
having been adjudicated to have committed a delinquent act as a juvenile that would
constitute a felony if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (8),
(16) (2014). The trial court, therefore, sentenced the defendant as a Range I offender
                                            3
with 30% release eligibility to four years for the Class C felony in count one, and as a
Range I offender with 100% release eligibility to nine years for the Class B felony in
count two, ten years for the Class B felony in count three, eleven years for the Class B
felony in count four, and twelve years each for the Class B felonies in counts five through
twelve.

        With respect to consecutive sentencing, the trial court found two criteria
applicable: the defendant was an offender whose record of criminal activity was
extensive and was a defendant who had been convicted of two or more statutory offenses
involving sexual abuse of a minor with consideration of aggravating circumstances
arising from the relationship between the defendant and victim[s], the time span of the
defendant‟s undetected sexual activity, the nature and scope of the sexual acts and the
extent of the residual, physical and mental damage to the victim[s]. See Tenn. Code
Ann. § 40-35-115(b)(2), (5). The court, consequently, ordered that the defendant serve
the sentences for counts two through six concurrently to each other but consecutively to
the four-year sentence in count one and the sentences for counts seven through twelve
concurrently to each other but consecutively to the sentences in counts two through six,
for a total effective sentence of twenty-eight years.

                                       ANALYSIS

                                  I. Merger of Offenses

       The defendant contends that his multiple convictions for aggravated sexual
exploitation of a minor should have been merged into a single conviction “to prevent any
double jeopardy issues.” The State responds by arguing that the defendant has waived
the issue by not raising it in the trial court. The State also argues that the defendant
cannot show that he is entitled to plain error relief. We agree with the State.

        As the State points out, the defendant did not raise the merger issue at the guilty
plea hearing, at sentencing, or in a motion for new trial. Accordingly, the defendant has
waived appellate review of this issue, absent plain error. See Tenn. R. App. P. 36(a). In
order for us to find plain error: (a) the record must clearly establish what occurred in the
trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the accused did
not waive the issue for tactical reasons; and (e) consideration of the error is “„necessary
to do substantial justice.‟” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The presence of
all five factors must be established by the record before we will recognize the existence
of plain error, and complete consideration of all the factors is not necessary when it is
clear from the record that at least one factor cannot be established. Id. at 283.


                                             4
       We agree with the State that the defendant cannot show any plain error in this
case. Because the defendant did not raise the issue in the lower court, the State never had
an opportunity to present the specific evidence in support of each charge, including on
which of the 449 photos and videos it was relying for each separate count of the
indictment. We conclude, therefore, that the defendant is not entitled to relief on the
basis of this issue.

                                     II. Sentencing

        The defendant contends that the total effective sentence of twenty-eight years is
excessive given the facts and circumstances of his case. The State disagrees, arguing that
trial court considered the relevant factors and imposed a sentence consistent with the
purposes and principles of the Sentencing Act. We, again, agree with the State.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant‟s sentence and the appropriate combination of
sentencing alternatives:

      (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 §§ 40-35-113 and 40-35-114;

      (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 wishes to make in the defendant‟s own
      behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Additionally, the trial court may order
                                            5
multiple sentences to run consecutively if it finds by a preponderance of evidence that
any one or more of seven different factors apply, including the two found by the trial
court in this case. See Tenn. Code Ann. § 40-35-115(b)(2), (5). We, therefore, review
the trial court‟s sentencing determinations for an abuse of discretion with a presumption
of reasonableness afforded to the trial court‟s decision. See Bise, 380 S.W.3d at 706;
State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

       The record reflects that the trial court imposed the within-range sentences after
proper consideration of the purposes and principles of our sentencing act, the defendant‟s
presentence report and psychosexual evaluation, any enhancement and mitigating factors,
and the criteria involved for the imposition of consecutive sentences. We conclude,
therefore, that the trial court did not abuse its discretion in sentencing the defendant.

                                    CONCLUSION

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


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




                                            6
