                                                                                       03/27/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 6, 2016

                STATE OF TENNESSEE v. ANDREW BOYKIN

                 Appeal from the Circuit Court for Madison County
                      No. 16-48 Roy B. Morgan, Jr., Judge
                     ___________________________________

                           No. W2016-01055-CCA-R3-CD
                       ___________________________________

The Appellant, Andrew Boykin, pled guilty in the Madison County Circuit Court to
possession of one-half gram or more of cocaine with intent to sell, possession of one-half
gram or more of cocaine with intent to deliver, possession of drug paraphernalia, criminal
impersonation, and evading arrest. The trial court merged the convictions for possession
of cocaine, and the Appellant received an effective ten-year sentence. On appeal, he
contends that his sentence is excessive and that the trial court should have ordered
alternative sentencing. Based upon the record and the parties’ briefs, we affirm the
judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Jeremy B. Epperson, Jackson, Tennessee, for the appellant, Andrew Boykin.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Jerry G. Woodall, District Attorney General; and Jody Pickens, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      In February 2016, the Madison County Grand Jury indicted the Appellant for
possession of one-half gram or more of cocaine with intent to sell, a Class B felony;
possession of one-half gram or more of cocaine with intent to deliver, a Class B felony;
possession of drug paraphernalia, a Class A misdemeanor; evading arrest, a Class A
misdemeanor; and criminal impersonation, a Class B misdemeanor. On April 20, 2016,
the Appellant entered a “blind plea” to the charges.

       At the guilty plea hearing, the State gave the following factual account of the
crimes: On the night of August 29, 2015, Officers White and Cozart of the Jackson
Police Department stopped a vehicle on Old Hickory Boulevard because its headlights
were not turned on. Officer White approached the vehicle and spoke with the front-seat
passenger, who was the Appellant. The Appellant told the officer that his name was
Chris Cooper and gave a date of birth and social security number. The Appellant was
placed in a patrol car while Officer White attempted to verify his identity. The Appellant
was in possession of a brown bag. As officers were searching the bag, the Appellant ran
from the scene. The officers gave chase and apprehended him shortly thereafter. The
brown bag contained a digital scale, 4.1 grams of powder cocaine, and a photograph of
the Appellant. The officers also found $240 on the Appellant’s person.

       The trial court held a sentencing hearing on May 16, 2016. No witnesses testified
at the hearing, but the State introduced the Appellant’s presentence report into evidence.
According to the report, the then thirty-year-old Appellant dropped out of high school in
the ninth grade but later entered the Job Corps in Harpers Ferry, West Virginia, and
obtained his GED. In the report, the Appellant denied a problem with alcohol but
admitted using cocaine and marijuana daily. He stated that he had never obtained drug
treatment. The report showed that at the time of the Appellant’s arrest in this case, he
was working at “‘Nu to U’” as a deliveryman. He had worked there eight months, but his
employment ended when he was arrested. The report showed that the Appellant also
worked at Carlisle as a forklift driver and assembly line worker from 2012 to 2014,
Pinnacle Foods as an assembly line worker from 2009 to 2012, and Delta Construction as
an unskilled laborer from 2005 to 2009. According to the report, the Appellant had a
prior felony conviction for introducing a communication device into a penal institution.
The report showed that the Appellant was on probation for marijuana possession in Texas
when he was convicted of introducing a communication device into a penal institution
and when he committed the crimes in the instant case. The report also showed that the
Appellant was adjudicated delinquent for possessing marijuana on school property,
burglary of a vehicle, possession of burglary tools, aggravated burglary, and felony theft.
Defense counsel requested that the trial court not give great weight to the juvenile
adjudications due to “the time that has passed” and that the trial court order “significant
long-term treatment” for the Appellant’s drug addiction in lieu of incarceration.

        The trial court applied the following enhancement factors to the Appellant’s
sentences: (1), that “[t]he defendant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range”; (8),
that “[t]he defendant, before trial or sentencing, failed to comply with the conditions of a
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sentence involving release into the community”; (13), that the defendant was on
probation when he committed the felonies in this case; and (16), that “[t]he defendant
was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult.” Tenn. Code Ann. § 40-35-114(1), (8),
(13)(C), (16). In mitigation, the trial court applied factors (1), that “[t]he defendant’s
criminal conduct neither caused nor threatened serious bodily injury,” and (13), the
catchall provision, for his employment history. Tenn. Code Ann. § 40-35-113(1), (13).
The court sentenced the Appellant as a Range I, standard offender to ten years for each
possession of cocaine conviction and merged the convictions. The court sentenced him
to eleven months, twenty-nine days for possession of drug paraphernalia and evading
arrest and six months for criminal impersonation. The court ordered that the Appellant
serve the sentences concurrently and denied his request for alternative sentencing.

                                       II. Analysis

       The Appellant contends that his ten-year sentence for possession of cocaine is
excessive because “the record did not support a sentence over the minimum of eight
years” and that the trial court should have suspended the sentence “coupled with long
term inpatient rehabilitation for substance abuse.” The State argues that the trial court
properly sentenced the Appellant. We agree with the State.

       Appellate review of the length, range, and manner of service of a sentence
imposed by the trial court is to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see
also State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to
alternative sentencing). In sentencing a defendant, the trial court shall consider the
following factors: (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 enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by a defendant in his own behalf; and (8) the potential for rehabilitation or treatment. See
Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991). The burden is on the Appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:



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                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because
              the general assembly set the minimum length of sentence for
              each felony class to reflect the relative seriousness of each
              criminal offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in § 40-35-113
              and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343. Appellate courts are “bound by a trial court’s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Id. at 346.

        An appellant is eligible for alternative sentencing if the sentence actually imposed
is ten years or less. See Tenn. Code Ann. § 40-35-303(a). Moreover, an appellant who is
an especially mitigated or standard offender convicted of a Class C, D, or E felony should
be considered a favorable candidate for alternative sentencing absent evidence to the
contrary. See Tenn. Code Ann. § 40-35-102(6). Tennessee Code Annotated section 40-
35-103(1) sets forth the following sentencing considerations which are utilized in
determining the appropriateness of alternative sentencing:

                      (A) Confinement is necessary to protect society by
              restraining a defendant who has a long history of criminal
              conduct;

                     (B) Confinement is necessary to avoid depreciating
              the seriousness of the offense or confinement is particularly
              suited to provide an effective deterrence to others likely to
              commit similar offenses; or
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                     (C) Measures less restrictive than confinement have
               frequently or recently been applied unsuccessfully to the
               defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally,
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” Tenn. Code Ann. § 40-35-103(5). A defendant with a long history of criminal
conduct and “evincing failure of past efforts at rehabilitation” is presumed unsuitable for
alternative sentencing. Tenn. Code Ann. § 40-35-102(5).

       Regarding the Appellant’s claim that the ten-year sentence is excessive, the
Appellant does not contest the applicability of any of the four enhancement or two
mitigating factors found by the trial court. Furthermore, the 2005 amendments to the
1989 Sentencing Act “deleted as grounds for appeal a claim that the trial court did not
weigh properly the enhancement and mitigating factors.” State v. Carter, 254 S.W.3d
335, 345 (Tenn. 2008).

       As to the trial court’s denial of alternative sentencing, the Appellant is eligible for
alternative sentencing because his sentence was ten years or less. However, he is not
considered a favorable candidate for alternative sentencing because he was convicted of a
Class B felony. In denying alternative sentencing, the trial court stated as follows:

                      Considering the entire record in this cause again which
               takes into consideration the mitigating and enhancing factors,
               the Defendant’s prior criminal record, noting again the
               Defendant was on probation at the time the offense occurred,
               the Court finds it would be appropriate on the 10-year
               sentence that the Defendant serve that in Tennessee
               Department of Corrections.

We also note that despite the Appellant’s daily use of cocaine and marijuana, he never
sought treatment for his drug addiction. Thus, his potential for rehabilitation is poor.
Accordingly, we conclude that the trial court did not abuse its discretion by denying
alternative sentencing.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.
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      _________________________________
      NORMA MCGEE OGLE, JUDGE




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