                                                                                     10/21/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                        Assigned on Briefs October 16, 2019

            STATE OF TENNESSEE v. GEARY N. JACKSON, SR.

                 Appeal from the Criminal Court for Wilson County
                     No. 2018-CR-450 Brody N. Kane, Judge
                     ___________________________________

                          No. M2019-00180-CCA-R3-CD
                      ___________________________________


Defendant, Geary N. Jackson, Sr., pled guilty to three counts of sale of oxymorphone, a
Class C felony. Following a hearing, the trial court sentenced Defendant as a career
offender to consecutive fifteen-year sentences. On appeal, Defendant asserts that his
sentence is excessive and not in conformity with the purposes of the Sentencing Act.
Upon review, we affirm the judgments of the trial court.

 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 JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Taylor M. Durrett, Lebanon, Tennessee, for the appellant, Geary N. Jackson, Sr.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson,
Assistant District Attorney General, for the appellee, State of Tennessee.




                                      OPINION

                         Factual and Procedural Background

      In April 2018, the Wilson County Grand Jury indicted Defendant, in case number
2018-CR-450, for the following offenses:
Count                                     Offense                                     Classification

   1        Sale of oxymorphone, a Schedule II controlled substance                C felony

   2        Sale of oxymorphone, a Schedule II controlled substance                C felony

   3        Sale of oxymorphone, a Schedule II controlled substance                C felony

   4        Sale of oxymorphone, a Schedule II controlled substance                C felony

   5        Possession of oxymorphone, a Schedule II controlled C felony
            substance, with intent to sell or deliver
   6        Possession of .5 grams or more of cocaine with intent to B felony
            sell or deliver
   7        Possession of drug paraphernalia                         A misdemeanor

   8        Possession of a firearm during the commission of a E felony
            dangerous felony
   9        Possession of a firearm during the commission of a E felony
            dangerous felony
  10        Possession of a firearm during the commission of a E felony
            dangerous felony
  11        Possession of a firearm by a convicted felon       C felony

  12        Possession of a firearm by a convicted felon                           C felony

  13        Possession of a firearm by a convicted felon                           C felony


                                  Guilty Plea Submission Hearing

       Defendant entered open guilty pleas to Counts 1-3 and agreed that the trial court
would determine his offender classification and the length, alignment, and manner of
service of his sentences. In exchange for Defendant’s guilty plea, the State agreed to
enter a nolle prosequi in Counts 4-13. The State also agreed to dismiss Defendant’s
charges in Wilson County case numbers 2018-CR-1010; 2017-CR-644; and 2017-CR-
889.1



       1
           It appears from the record that these cases involved drugs and weapons offenses.
                                                   -2-
       At the guilty plea submission hearing, the State presented the following factual
basis for Defendant’s plea:

             [Defendant] is pleading guilty in three counts. The first count that
      he’s pleading guilty to occurred on March 7th of 2017. On that day, a
      confidential informant working with the Lebanon Police Department told
      the agent that he knew that [Defendant] was selling [O]pana, that’s the
      common name. The scientific name is oxymorphone, and that he could
      purchase [O]pana from [Defendant].

              The informant met with the agents and was searched making sure
      that there were no drugs or money on his person. The informant then made
      a recorded call to [Defendant] in which [Defendant] told the informant to
      come over to [Defendant’s] house to complete the purchase.

             The informant was given a video camera and the informant then left
      the presence of the officers, although the informant was monitored by the
      officers as he went to [Defendant’s] home. The officers saw the informant
      go into the house and at that time as they were conducting their surveillance
      they saw [Defendant] leave the residence and shortly thereafter return to the
      residence.

             Once [Defendant] returned to the residence the informant left the
      residence and met back with the agents. The agents reviewed the video
      tape and on the video tape [Defendant] did accept the money from the
      informant. [Defendant] then went to get the pills. He returned to the
      residence and at that time [Defendant] did deliver the pills to the informant
      completing the purchase.

              Once that was completed the informant then left and went and met
      with the agents and gave those pills to the agents. The agents sent those
      pills to the crime lab and it was in fact [O]pana that was purchased from
      [Defendant] that day. In reviewing the video you do clearly see
      [Defendant] on the video as part of this transaction.

            The second sale occurred on February 23rd. On that day, the same
      informant who was still working with the Wilson County Lebanon Police
      Department Narcotics Unit said that he could again purchase from
      [Defendant]. They made a recorded phone call to [Defendant] and
      [Defendant] advised him to come to what [Defendant] knew as [“]the

                                          -3-
shop.[”] This was the car detailing place that [Defendant] was in business
at with his son, Travis Jackson.

      The informant was given a video camera and the buy money. The
informant was also searched making sure that there were no drugs or
money on his person. The informant then left and went to the car detailing
shop. Once again on video, you can see [Defendant] meet with the
informant.

       The informant gives [Defendant] the money. [Defendant] places the
pills on the counter and then the informant picks up the pills. Once that’s
completed the informant leaves and goes and meets back with the
detectives. The detectives were monitoring the operation as it transpired
and were able to take surveillance photos of the persons coming to and
from that car detailing shop.

        The informant gave the pills that he had purchased from [Defendant]
to the detectives and they sent those to the crime lab and the crime lab, also
in this case, confirmed that it was oxymorphone or [O]pana.

       The last sale that [Defendant] is pleading guilty to occurred on
March 6th of 2017. On that day there was a different informant who was
working with the Lebanon Police Department. This informant knew a
person by the name of Travis Jackson, who is the son of [Defendant], and
said that Travis Jackson was selling [O]pana pills.

       The informant made a recorded phone call to Travis Jackson and
Travis Jackson told the informant to come to [Defendant’s] house. The
informant then went to [Defendant’s] house. The informant was given a
video camera as well as the buy money after being searched and making
sure that there [were] no drugs or money on his person.

       The informant then, when they arrived at [Defendant’s] house, the
informant had a brief conversation with [Defendant] about the whereabouts
of Travis Jackson. Travis Jackson then comes out and gets in the car with
the informant and there in the car there was a hand to hand exchange in
which Mr. Travis Jackson gives the pills to the informant and the informant
pays Travis Jackson.

      The informant then goes to leave at that point in time to go and meet
back with the detectives. The detectives were in surveillance positions and
                                    -4-
       they would testify that they did observe Travis Jackson, once he left the
       vehicle to walk over to [Defendant’s] and did hand [Defendant] the money
       from the sale.

              That would be the proof that the State would put forward at a trial of
       this matter. On that third offense, the March 6th offense, the pills that were
       purchased from Travis Jackson were in fact sent to the crime lab and
       confirmed to be oxymorphone or [O]pana pills . . . .

                                   Sentencing Hearing

        At a subsequent sentencing hearing, Julie Raines, a probation officer with the State
of Tennessee Board of Probation and Parole, testified that she prepared Defendant’s
presentence report. Ms. Raines’ stated that her investigation showed Defendant had a
prior criminal record that consisted of eleven prior felony convictions and several
misdemeanor convictions. Specifically, Defendant was previously convicted of the
following: sale of oxymorphone, a Class C felony; possession of alprazolam with intent
to sell or deliver, a Class D felony; three counts of sale of cocaine 0.5 grams or more, a
Class B felony; possession of a weapon by a convicted felon, a Class E felony; three
counts of sale of cocaine less than 0.5 grams, a Class C felony; and three counts of
conspiracy to sell cocaine, a Class C felony. Ms. Raines testified that Defendant had
three prior parole violations and a prior community corrections violation and that
Defendant had previously participated in substance abuse programs while incarcerated.
Ms. Raines explained that Defendant dropped out of high school in tenth grade and did
not obtain a GED. Defendant, who was sixty-three years old, reported that he was not
employed at the time of his arrest, and he provided no information about his work history
other than to say that he “occasionally worked with his son detailing automobiles[.]”
Defendant told Ms. Raines that he received disability benefits for “an ongoing heart
condition[.]” Ms. Raines stated that she prepared a risk and needs assessment and found
that Defendant was at a “high risk” to re-offend.

        Detective Kenneth Powers with the Lebanon Police Department testified that the
police department had conducted several controlled buys with Defendant. He explained
that one of the controlled buys took place at J & J Auto Detailing—a business owned by
one of Defendant’s sons, Travis Jackson. Detective Powers stated that he learned from
several individuals who were engaged in selling drugs with Defendant that the auto
detailing business “was a complete total front[.]” He explained that police surveillance of
the business revealed that the individuals working at the business were washing their own
cars and that the auto detailing shop had no real customers. Detective Powers learned
that three women—Falon Shelton, Jamie Spurling, and Katie Davenport—were drug
distributors or “runners” for Defendant and Travis Jackson and that they were selling
                                           -5-
prescription pills. Detective Powers testified that officers conducted several other
controlled buys at Defendant’s residence on Cleveland Street. Detective Powers stated
that several search warrants were executed at the residence, resulting in the recovery of
approximately thirty oxymorphone pills and several firearms. Detective Powers said that
another of Defendant’s sons, Geary Jackson, Jr., eventually pled guilty to possessing the
firearms found in the residence.

        Kody Mosby, Defendant’s niece, testified that, when she moved to Tennessee in
2016, Defendant gave her a truck to use for work. She stated that Defendant also helped
her with her three children, taking them to and from school when needed and attending
school functions with them. Ms. Mosby explained that Defendant helped other family
members and friends by paying their bills and taking care of their children. Ms. Mosby
testified that Defendant had heart problems and that he had been admitted to the hospital
three times. Ms. Mosby recalled that Defendant drove a delivery truck for a business for
a while, but she did not know the name of the business.

      Rachel Mayberry testified that she lived on the same street as Defendant. Ms.
Mayberry stated that Defendant babysat her children, mowed her yard, and fixed the
plumbing in her house “no questions asked, no money, no nothing.” She stated that, on
one occasion, Defendant paid for her daughter’s medication. She said that Defendant had
helped many people in their neighborhood in similar ways.

      Defendant then made an allocution statement. He explained that he had “made
mistakes in [his] life” but that he had “finally . . . seen the error of [his] ways[.]”
Defendant said that he was willing to “make all the necessary corrections” to be a
productive member of society “if given the opportunity of probation.”

      At the conclusion of the hearing, the trial court sentenced Defendant to fifteen
years for each offense and ordered the sentences to be served consecutively. In
determining Defendant’s sentence, the trial court stated that it had considered:

      the evidence presented at the sentencing hearing, the presentence report, the
      principles of sentencing and arguments made as to the sentencing
      alternatives, the nature and characteristics of the criminal conduct that is
      involved, the evidence and information offered by the parties on mitigating
      and enhancing factors, and the statistical information provided by the AOC
      at     their      website,     tncourts.gov/administration/judicialresources/
      criminalsentencingstatistics, as well as the Defendant’s statement of
      allocution and the Defendant’s potential for rehabilitation or treatment.



                                          -6-
        The trial court found that Defendant was a career offender, explaining that
Defendant stood convicted of three Class C felonies and that he had six prior Class C
felony convictions. The trial court found that, because Defendant was a career offender,
he should receive the maximum Range III sentence for a Class C felony, which was
fifteen years. The trial court then ordered consecutive sentencing based on two
discretionary consecutive sentencing factors—that Defendant was a professional criminal
and that he had an extensive history of criminal activity—for an effective sentence of
forty-five years in the Department of Correction. This timely appeal follows.

                                         Analysis

        On appeal, Defendant contends that “his sentence was excessive under the
sentencing guidelines and not in compliance with the stated purposes of the sentencing
statute.” Defendant asserts that his age, health, and “lack of prior access to probation and
rehabilitation services all direct towards a lesser sentence.” The State responds that the
trial court properly exercised its discretion in sentencing Defendant. We agree with the
State.

       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 Tennessee Supreme Court has held that the Bise standard applies to
consecutive sentencing determinations “if [the trial court] has provided reasons on the
record establishing at least one of the seven grounds” for discretionary consecutive
sentencing. State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). A trial court “may
order sentences to run consecutively” if it finds that the defendant is “a professional
criminal who has knowingly devoted the defendant’s life to criminal acts as a major
source of livelihood” or is “an offender whose record of criminal activity is extensive.”
Tenn. Code Ann. § 40-35-115(b)(1)-(2) (2019).

        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
                                            -7-
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 (2019); State v. Taylor, 63 S.W.3d
400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or
lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103
(2019).

       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) (2019); Bise, 380 S.W.3d at 706. The party challenging the
sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2019), Sentencing Comm’n Cmts.

       In this case, the trial court considered the factors set out in section 40-35-210 and
stated on the record the reasons for the sentence it imposed. Thus, the trial court’s
sentencing decisions are entitled to a presumption of reasonableness, and we will not
reverse absent an abuse of discretion.

       Although not expressly appealed by Defendant, we conclude as an initial matter
that the trial court properly determined that Defendant is a career offender. As relevant
here, “[a] career offender is a defendant who has received . . . [a]ny combination of six
(6) or more Class A, B or C prior felony convictions, and the defendant’s conviction
offense is a Class A, B or C felony[.]” Tenn. Code Ann. § 40-35-108(a)(1) (2019).
Defendant pled guilty to three counts of sale of oxymorphone, a Schedule II controlled
substance, which is a Class C felony. Tenn. Code Ann. § 39-17-417(c)(2)(A). Moreover,
the trial court’s finding that Defendant had six prior Class C felony convictions is
supported by the record. At the sentencing hearing, the State introduced Defendant’s
presentence report and certified judgments of conviction showing that Defendant was
previously convicted of the following Class C felonies: one count of sale of
oxymorphone; three counts of sale of cocaine less than 0.5 grams; and three counts of
conspiracy to sell cocaine. Accordingly, Defendant is a career offender.

       Based on Defendant’s status as a career offender, the sentence for each of
Defendant’s convictions was statutorily mandated. Tennessee Code Annotated section
40-35-108 provides that career offenders “shall receive the maximum sentence within the
applicable Range III.” Tenn. Code Ann. § 40-35-108(c) (2019). Tennessee Code
Annotated section 40-35-112 provides that a Range III sentence for Class C felonies is
“not less than ten (10) nor more than fifteen (15) years.” Tenn. Code Ann. § 40-35-

                                           -8-
112(c)(3) (2019). The trial court, therefore, properly imposed the statutorily mandated
fifteen-year sentence for each of Defendant’s convictions.

       Further, the trial court properly exercised its discretion in ordering those sentences
to be served consecutively. The trial court found that there was “no doubt that
[Defendant] is a professional criminal” who had “knowingly devoted his life to criminal
acts as a major source of livelihood.” Tenn. Code Ann. § 40-35-115(b)(1) (2019). The
court further found that Defendant was “an offender whose record of criminal activity is
extensive.” Tenn. Code Ann. § 40-35-115(b)(2) (2019). These findings are fully
supported by the record. In addition to the three felony convictions in the instant case,
Defendant had eleven prior felony convictions and several misdemeanor convictions.
Defendant’s convictions span twenty-seven years, dating back to 1991, and most of his
convictions relate to his selling of various controlled substances. Ms. Raines testified
that Defendant was not employed at the time of his arrest, and he reported no prior work
history other than occasionally working at his son’s auto detailing shop. Detective
Powers testified that Defendant’s “work” at the auto detailing shop was a “front” for
selling drugs. Under these circumstances, the trial court properly exercised its discretion,
and Defendant is not entitled to relief.

                                        Conclusion

       For the aforementioned reasons, the judgments of the trial court are affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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