        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs June 2, 2015 at Jackson

             STATE OF TENNESSEE v. BILLY JEREMY JONES

                 Appeal from the Circuit Court for Bedford County
                     No. 17894 Forest A. Durard, Jr., Judge


              No. M2014-02362-CCA-R3-CD – Filed September 2, 2015


The Defendant, Billy Jeremy Jones, entered an open guilty plea to felony failure to
appear. The trial court, thereafter, sentenced him to four years, as a Range II, persistent
offender, and ordered that sentence to run consecutively to the eight-year sentence on the
underlying conviction for which the Defendant failed to appear. The sole issue presented
for our review is whether the effective twelve-year sentence is excessive. Discerning no
abuse of discretion, we affirm the sentencing decision of the Bedford County Circuit
Court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing III (plea
acceptance hearing) and Michael J. Collins (plea acceptance hearing, sentencing hearing,
and on appeal), Assistant District Public Defenders, for the appellant, Billy Jeremy Jones.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior
Counsel; Robert James Carter, District Attorney General; and Michael David Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

       The Defendant was charged in case number 17837 with possession of a Schedule
II controlled substance, methamphetamine, with the intent to sell (Count 1) and with
possession of a Schedule II controlled substance, methamphetamine, with the intent to
deliver (Count 2), both Class B felonies. See Tenn. Code Ann. § 39-17-417. He entered
a guilty plea to Count 1 on June 16, 2014, and Count 2 was dismissed. In exchange for
the Defendant’s plea, he received an eight-year sentence as a Range I, standard offender,
to be served in the Department of Correction (“DOC”). He was scheduled to report to the
Bedford County Jail on July 5, 2014, to begin serving this sentence. After failing to
appear at the Bedford County Jail as ordered, the Defendant turned himself in to
authorities several days later on July 10, 2014.

       The Defendant was subsequently indicted in case number 17894 for failure to
appear, a Class E felony. See Tenn. Code Ann. § 39-16-609. He entered an open guilty
plea to this charge on August 18, 2014, and the matter was set for sentencing.

       At the sentencing hearing, the Defendant’s presentence report was admitted into
evidence without objection. The report reflected that the thirty-three-year-old Defendant
had a history of juvenile and adult convictions in Bedford, Robertson, and Rutherford
Counties, including several probation violations, and that he had one Florida conviction.
It was also stated therein that the Defendant had a lengthy record in Henderson, Kentucky
but that the officer had encountered difficulty obtaining those records. The Defendant
also reported frequent use of alcohol, marijuana, cocaine, methamphetamine, and
prescription pain medicine, beginning with his using marijuana at age fourteen and
drinking alcohol at age fifteen. He stated that he began using cocaine in 1999, the same
year he graduated from Shelbyville Central School, but switched to methamphetamine in
2013. The Defendant also reported sporadic employment as a laborer, the longest period
with Shelbyville Insulation from May 2001 to February 2004.

       The State called one witness, Kimberly Goney, the DOC probation and parole
officer who prepared the Defendant’s presentence report. Regarding the Defendant’s
felony convictions, Ms. Goney noted that the Defendant was convicted of vandalism
valued at $500 or more but less than $1,000 on July 3, 2006 and that he received a one-
year sentence at 30% for that conviction, which was suspended to probation. According
to Ms. Goney, the Defendant was also convicted of “grand larceny” valued between $300
and $2,000 in Escambia County, Florida on June 28, 2006; Ms. Goney opined this was
possibly a misdemeanor conviction based upon the sentence imposed. She could only
say for certain that the Defendant had two felony convictions, the 2006 vandalism
conviction and the underlying drug conviction for which he failed to appear.

       Regarding the Defendant’s probationary violations, Ms. Goney testified that the
Defendant pled guilty to driving under the influence (“DUI”) on December 20, 2012.
Ms. Goney detailed that the Defendant’s probation on the DUI charge was revoked on
March 12, 2014 and that he was “sentenced to serve the time[.]” However, according to
Ms. Goney, the Defendant was thereafter reinstated to probation for ten months and two
days on the DUI charge but was ordered to serve the sentence if there was any future
violation of that charge. Also according to Ms. Goney, the Defendant violated his
probation on the 2005 Florida conviction on February 19, 2007, and he was revoked to
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serve his original sentence of eleven months and fifteen days. Ms. Goney further relayed
that the Defendant was convicted of simple possession of marijuana on February 3, 2004,
that his probation on that charge was revoked on January 5, 2005, and that he was
ordered to serve 120 days in lieu of probation. Finally, Ms. Goney said that the
Defendant’s probation was also twice revoked on a May 31, 2001 conviction for
domestic violence.

       We note that the presentence report also shows a May 16, 2006 conviction for
“violation of bond conditions.” The Defendant did not present any proof.

       In imposing sentence upon the Defendant, the trial court found two applicable
enhancement factors and one applicable mitigating factor. It utilized enhancement factor
(1), that the Defendant had a history of criminal convictions or criminal behavior, in
addition to that necessary to establish his range; and factor (13), that the Defendant
committed this offense while on judicially ordered release. See Tenn. Code Ann. § 40-
35-114(1), (13). In mitigation, the trial court applied factor (1), that the Defendant’s
conduct neither threatened nor caused serious bodily injury. See Tenn. Code Ann. § 40-
35-113(1).

        In its application of enhancement factor (1), the trial court noted that the
Defendant had a rather “extensive history” of misdemeanor convictions, consisting of “at
least seven A misdemeanors and [nineteen] C misdemeanors[,]” that were in addition to
the two felonies used to enhance his range classification, and that he had five probation
violations. Acknowledging that the Defendant’s convictions in addition to the felonies
used to establish his range consisted of only misdemeanors, the trial court stated that it
was placing emphasis on his seven Class A misdemeanors, which included domestic
assault and several thefts, and the multiple probation violations as being “past
performance . . . indicative of future conduct[.]” Regarding factor (13), the trial court
observed, “I allowed him, graciously, to have a report date, and I generally don’t have
trouble with people reporting when I tell them to report[.]” The trial court further stated,
“He has had bite after bite after bite of the apple, and he has not apparently learned very
much from it. What is troubling to the [c]ourt is I told him to do something and then he
didn’t do it.” The trial court sentenced the Defendant as a Range II, multiple offender to
four years at 35% for the Class E felony failure to appear. Therefore, the Defendant
received the maximum sentence in his range. See Tenn. Code Ann. § 40-35-112(b)(5).

       In determining whether the sentences would be served concurrently or
consecutively, the trial court noted that it had “some discretion” under the failure to
appear statute in this regard. See Tenn. Code Ann. § 39-16-609(f) (“Any sentence
received for a violation of this section may be ordered to be served consecutively to any
sentence received for the offense for which the defendant failed to appear.”) (Emphasis
added)); see also State v. James Christopher Rainey, No. 01C01-9311-CC-00391, 1994
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WL 390416, at *2 (Tenn. Crim. App. July 28, 1994) (holding that the trial judge is vested
with discretion to order a sentence for failure to appear to be served either concurrently or
consecutively). The trial court then concluded that the Defendant was an offender with a
record of extensive criminal activity, see Tennessee Code Annotated section 40-35-
115(b)(2), and ordered that the four-year sentence be served consecutively to the
Defendant’s prior eight-year sentence for which he failed to appear.1 This appeal
followed.

                                          ANALYSIS

       On appeal, the Defendant argues that the trial court imposed an excessive
sentence. He contends that “[a] more appropriate sentence . . . would have been either a
two-year [sentence] at thirty-five percent to be served consecutively or a sentence ran
concurrently with his prior sentence.” The State responds that the trial court imposed an
effective sentence consistent with the purposes and principles of the Sentencing Act and
that the Defendant has failed to overcome the presumption of reasonableness afforded
that decision or show that the trial court abused its discretion. We agree with the State.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to sentencing
alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating
factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any
statistical information provided by the Administrative Office of the Courts as to
Tennessee sentencing practices for similar offenses; and (g) any statement the defendant
wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-
35-210(b). When an accused challenges the length and manner of service of a sentence,
this court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). Moreover, appellate courts may not disturb the sentence even if
we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2007). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).


1
  The trial court also found consecutive sentencing to be mandated by the provisions of Tennessee Code
Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C) because the
Defendant was on bail when he committed this felony. However, this court in Rainey, applying
principles of statutory construction, placed discretion with the trial court despite these provisions due to
the language of Tennessee Code Annotated section 39-16-609(f). See 1994 WL 390416, at *1-2.
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        In accordance with the broad discretion now afforded a trial court’s sentencing
decision, “misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Bise, 380 S.W.3d at 706. This court will uphold the trial court’s sentencing
decision “so long as it is within the appropriate range and the record demonstrates that
the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Id. at 709-10. Those purposes and principles include “the imposition of a
sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code
Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote
respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration
of a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code
Annotated section 40-35-103(5). Carter, 254 S.W.3d at 344.

       Furthermore, our supreme court has held “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to consecutive sentencing
determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). A trial court may
order multiple offenses to be served consecutively if it finds by a preponderance of the
evidence that a defendant fits into at least one of the seven categories in section 40-35-
115(b). Tenn. Code Ann. § 40-35-115(b). This court must give “deference to the trial
court’s exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b).” Pollard, 432 S.W.3d at 861.
Moreover, “[a]ny one of these grounds is a sufficient basis for the imposition of
consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.
2013)). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will
be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing
Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive
sentences, the court must still consider the general sentencing principles that each
sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”
“no greater than that deserved for the offense committed,” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.
§§ 40-35-102(1), -103(2), -103(4); State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

       In asserting that his sentence is excessive, the Defendant does not contest the trial
court’s application of any one of the enhancement factors or the criterion used to support
consecutive sentencing. Instead, the Defendant claims that the trial court failed to
consider the sentencing principles and purposes codified at Tennessee Code Annotated
sections 40-35-102 and 40-35-103, asserting that “the punishment imposed does not fit
the crime or the offender.” He further argues that having him serve twelve years in
confinement is a waste of the State’s financial resources.
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        To the contrary, our review of the sentencing hearing transcript indicates that the
trial court carefully considered the evidence, the enhancement and mitigating factors, and
the purposes and principles of sentencing prior to imposing a consecutive, within-range
sentence of confinement in this case. The Defendant’s record of criminal convictions and
behavior was indeed extensive as shown by the presentence report and Ms. Goney’s
testimony. As for the Defendant’s argument about the cost of his incarceration, it neither
overcomes the presumption of reasonableness nor demonstrates an abuse of the trial
court’s discretion. Therefore, the Defendant has failed to establish that the trial court
abused its discretion in imposing an effective twelve-year sentence, and he is not entitled
to relief.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the sentencing
decision of the Bedford County Circuit is affirmed.




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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