        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               November 13, 2013 Session

            STATE OF TENNESSEE v. DANIEL ANTONIO PAYNE

               Direct Appeal from the Circuit Court for Tipton County
                     Nos. 6994, 7515 Joseph H. Walker, Judge




               No. W2013-00308-CCA-R3-CD - Filed February 6, 2014


In case number 6994, the Defendant, Daniel Antonio Payne, who was on bond pending the
resolution of his charges, pled guilty to one count of driving while license suspended, one
count of felony evading arrest, and two counts of theft over $1000.00. The trial court
sentenced the Defendant to concurrent sentences of ten years for each of the theft
convictions, six years for the felony evading arrest conviction, and six months for the driving
while license suspended conviction. At the conclusion of the sentencing hearing, the trial
court revoked the Defendant’s bond in case number 6994. As the Defendant was being taken
into custody, he was found in possession of marijuana, which resulted in the charges in case
number 7515. Subsequently, in case number 7515, the Defendant pled guilty to felony
possession of marijuana. The trial court sentenced the Defendant to six years, to be served
concurrently with his sentence in case number 6994. On appeal, the State contends that the
trial court erred in not imposing mandatory consecutive sentences for case numbers 6994 and
7515. After a thorough review of the record and applicable authorities, we conclude that
consecutive sentencing was mandatory. We reverse the trial court’s judgment in case number
7515 and remand for sentencing consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
                                  and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN,
and R OGER A. P AGE, JJ., joined.

Charles A. Brasfield and Lyle A. Jones, Covington, Tennessee, for the Appellee, Daniel
Antonio Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Mike
Dunavant, District Attorney General; James Walter Freeland, Jr., Assistant District Attorney
General, for the Appellant, State of Tennessee.

                                             OPINION
                                     I. Facts and Background

                                       A. Case Number 6994

        This case arises from the Defendant’s driving with a revoked license, theft of items
from a Dollar General store, and failing to stop his vehicle when told to do so by law
enforcement. For these offenses, a Davidson County grand jury indicted the Defendant for
one count of driving while license suspended, cancelled, or revoked; one count of felony
evading arrest; and two counts of theft over $1,000.00. The Defendant was placed on bond
in the amount of $10,000.00, pending the outcome of these charges.

       On May 7, 2012, the Defendant pled guilty to the four charges. The trial court
sentenced the Defendant as a persistent offender to concurrent sentences of ten years for each
of his Class D felony convictions for theft of property valued at more than $1,000.00; as a
career offender to six years for his Class E felony conviction for evading arrest; and six
months for his Class B misdemeanor conviction for driving while license suspended.1

        At the sentencing hearing, the trial court ordered that the Defendant’s bond be revoked
as a result of his convictions. According to the transcript and the briefs, after having pled
guilty, the trial court ordered the Defendant to be taken into custody, at which point the
Defendant threw a pack of cigarettes onto the floor next to counsel table in the courtroom.
Inside the cigarette pack was a “blunt,” which later tested positive for marijuana.

                                       B. Case Number 7515

        This arises from the Defendant’s throwing a marijuana “blunt” on the floor of the
courtroom. For this offense, the Defendant was indicted in case number 7515 for felony
simple possession of marijuana and simple possession of marijuana. The Defendant pled
guilty to one count of felony simple possession of marijuana. At the plea hearing, the State
argued that the Defendant was out on bond at the time he committed the offense in case
number 7515, and thus, pursuant to Tennessee Rule of Criminal Procedure 32(c)(3), his
sentence in case number 7515 was mandated to be consecutive to his sentence in case
number 6994. The trial court found that the Defendant was a career offender and sentenced


        1
         In the Defendant’s brief, he recites driving while license revoked as the conviction; however, the
judgment form shows handwritten, “Driving while license suspended.” We use the conviction provided on
the judgment form.

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him to a six-year sentence for his felony simple possession of marijuana conviction.

       The trial court made the following findings:

              [The Defendant] has a history of multiple convictions as shown by the
       presentence report that’s admitted by stipulation in [case number 6994]. There
       are several pages of both misdemeanor and felony convictions; been on
       probation, revoked several times; been released twice on parole, revoked
       twice. [The Defendant has] been tried on both probation and community
       corrections. He couldn’t obey the rules of community corrections, was
       revoked from that. He’s expired several sentences.

               [The Defendant] was on probation at the time of the commission of the
       theft in [case number 6994]. He came to court for sentencing in [case number
       6994] with illegal drugs on his person, which resulted in the conviction in
       [case number 7515].

              The court finds that confinement is necessary to avoid deprecating the
       serious of these offenses, that measures less restrictive than confinement have
       been applied unsuccessfully, and that neither probation nor alternative
       sentencing is appropriate in this case.

               With regard to [Tennessee Rule of Criminal Procedure 32], that is an
       interesting argument made on both sides. The Court believes that the criminal
       action really took place after the bond was revoked. Only after the
       [D]efendant realized he was being taken into custody was the criminal act –
       that’s when the criminal act really occurred. So [the Defendant] really wasn’t
       on bond, and mandatory [sentencing] is not required.

             The Court therefore sentences the [D]efendant to the six years
       concurrent with the ten years; that is, the six years in [case number 7515]
       concurrent with the ten years in [case number 6994].

       It is from this judgment that the State now appeals.

                                        II. Analysis

       On appeal, the State contends that the trial court erred in imposing concurrent
sentences for the Defendant’s convictions in case numbers 6994 and 7515. The State
contends that the trial court erred in finding that the Defendant was not on bond at the time

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he committed the offense in case number 7515, and therefore, pursuant to Tennessee Code
Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3), the trial
court did not have discretion about whether the Defendant’s sentences should be served
consecutively or concurrently. The State argues that these provisions mandate consecutive
sentencing in this case. The Defendant responds that the trial court correctly found that the
Defendant was not on bond at time he committed the felony simple possession of marijuana,
and therefore, the trial court had the discretion to sentence him to concurrent sentences rather
than consecutive sentences. We agree with the State.

       Tennessee Code Annotated section 40-20-11(b) addresses mandatory consecutive
sentencing as follows:

       In any case in which a defendant commits a felony while the defendant was
       released on bail in accordance with chapter 11, part 1 of this title, and the
       defendant is convicted of both offenses, the trial judge shall not have
       discretion as to whether the sentences shall run concurrently or cumulatively,
       but shall order that the sentences be served cumulatively.

Tennessee Rule of Criminal Procedure 32(c)(3)(C) also addresses mandatory consecutive
sentencing:

       (3) Mandatory Consecutive Sentences. When a defendant is convicted of
       multiple offenses from one trial or when the defendant has additional
       sentences not yet fully served as the result of convictions in the same or other
       courts and the law requires consecutive sentences, the sentence shall be
       consecutive whether the judgment explicitly so orders or not. This rule shall
       apply:

           ....

           (C) to a sentence for a felony committed while the defendant was released
           on bail and the defendant is convicted of both offenses[.]


       In this case, the felony offense was possession of marijuana. The Defendant’s
possession of the marijuana was a criminal offense from the time he first possessed the
marijuana and not just at the moment of his arrest. In a case such as this, the trial court is
required by statute to order the offenses to run consecutively. Therefore, the trial court erred
when it did not order the sentence in case number 7515 to run consecutively to case number
6994.

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        Accordingly, we reverse the trial court’s judgment in case number 7515 and remand
this case for sentencing consistent with this opinion.

                                     II. Conclusion

        After a thorough review of the record and the applicable law, we conclude that the
trial court erred when it failed to impose consecutive sentences as required by statute. We
reverse the trial court’s judgment in case number 7515 and remand the case for sentencing
consistent with this opinion.


                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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