                                                                                        06/27/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                   Assigned on Briefs April 26, 2017 at Knoxville

          STATE OF TENNESSEE v. TERRY CHARLES JORDAN

                 Appeal from the Circuit Court for Bedford County
                    No. 18065     Forest A. Durard, Jr., Judge


                            No. M2016-01067-CCA-R3-CD


Following the Defendant’s, Terry Charles Jordan’s, guilty-pleaded conviction for felony
failure to appear, the trial court imposed a sentence of four years’ incarceration. The
Defendant appeals, arguing that the trial court erred in enhancing his sentencing term to
the maximum within the range because several of his felony convictions should have
been merged. Following our review of the record, we affirm the judgment of the trial
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 L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Terry Charles Jordan.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                   OPINION
                             FACTUAL BACKGROUND

       On February 18, 2016, the Defendant entered an “open” guilty plea to failure to
appear, a Class E felony. See Tenn. Code Ann. § 39-16-609. The State offered the
following recitation of facts supporting the Defendant’s plea:

      [B]ack in March of 2015 the [D]efendant entered pleas of guilty to several
      meth related charges and possession of a firearm during a dangerous felony
       charge. There was an agreed-to sentence of [eight] years, a portion of it at
       [one hundred percent]. A portion of it at [thirty] percent.

             I believe he was initially given a report date of April 20, 2015.
       Report to jail to begin serving the sentence or what he was supposed to do
       was come to court and turn himself in.

             I believe he came to court that day and requested an additional day
       because he had a social security disability hearing that next day.

             The [c]ourt granted him that relief and so put down an order that he
       was to report the next day on April 21, 2015, to jail to begin serving his
       sentence. He didn’t report. It was several months later before he was
       apprehended.

The matter was set for sentencing.

        At the outset of the sentencing hearing, the parties agreed that the Defendant was a
Range II, multiple offender, subjecting him to a sentencing range of two to four years.
See Tenn. Code Ann. § 40-35-112(b)(5). Other than admission of the pre-sentence
report, neither side offered any proof.

       The pre-sentence report reflected numerous convictions and probation violations.
One indictment resulted in four felony convictions for the Defendant: “Schedule II
Drugs: Meth” with a three-year sentence (offense date February 20, 2014); possession of
firearm during the commission of dangerous felony with a five-year sentence (offense
date February 20, 2014); “Schedule II Drugs: Meth” with a three-year sentence (offense
date May 2, 2013); and “Schedule II Drugs: Meth” with a three-year sentence (offense
date May 2, 2013). In 2006, he was convicted of another felony, “Schedule I Drugs,” and
sentenced to eight years in the Department of Correction; he entered into “boot camp” in
2008, which he completed; and his sentence expired on February 24, 2014.

       The Defendant also had several misdemeanor drug convictions. He was convicted
in 2013 of “Schedule II Drugs” (offense date November 9, 2012), for which he received
an eleven-month and twenty-nine-day probationary sentence. He violated that probation
on July 9, 2014, was ordered to serve thirty days, and his probation was extended.
Probation for this offense was ultimately terminated after another violation on November
16, 2015. In 2003, he was convicted of “unlawful drug paraphernalia” and sentenced to
eleven months and twenty-nine days on probation; a sentence that he violated and was
ordered to serve on June 11, 2003. He had a conviction in 2002 for “marijuana
possession.” This eleven-month and twenty-nine-day suspended sentence was revoked
following a probation violation, and he was ordered to serve forty-five days in jail. He
                                            -2-
was returned to probation but was ordered to serve an additional 120 days when he
violated the conditions of his sentence again. After yet a third violation, the sentence was
revoked “in full.”

       The Defendant was also convicted of several driving-related offenses. He was
convicted of driving under the influence and driving while his license was suspended on
February 11, 2005, and his eleven-month and twenty-nine-day probationary sentence for
those convictions was “revoked in full” on April 21, 2006. In 2004, he was convicted of
driving while impaired. He was convicted of driving while his license was suspended on
September 18, 2002, and again on October 10, 2002; he received a probationary sentence
of six months for each of those convictions; and after twice violating those sentences, he
was ordered to serve eleven months and twenty-nine days in jail.

       The Defendant also had some criminal history as a minor. In 1998, at the age of
fourteen, he was found in possession of drug paraphernalia and marijuana and was placed
on supervised probation and instructed to attend “The Reality Program.” In 1999, he was
adjudicated delinquent for “use of coercion for urine on a minor who would not give him
a urine specimen”; he was again placed on supervised probation. In February 2000, he
was found in possession of a half-ounce bag of marijuana in a drug-free school zone. On
September 23, 2000, the Defendant, along with several adults, was charged with theft
over $1000 and aggravated burglary after breaking into a residence and stealing
numerous items. The Defendant was then placed in the custody of the Department of
Children’s Services (“DCS”). He admitted, while in DCS custody, to frequent drug and
alcohol use beginning at age 10.

       The pre-sentence report also reflects that the Defendant obtained his GED in 2001,
was separated from his wife, and was paying child support for his two children. The
Defendant claimed that he had “worked at R.A.M. Concrete in Murfreesboro, which
[was] owned by his uncle, Randy Morton, on and off since he was [thirteen] or [fourteen]
years old.” He also reported employment with “Tyson” and “Tennex/Pillsbury.”
Regarding his physical health, the Defendant stated that “his right ankle ha[d] screws, a
plate and a rod, which ma[de] it difficult to walk some days,” and that he applied for
disability just prior to being incarcerated. The Defendant also admitted to frequent use of
drugs and alcohol starting at an early age. Prior to being imprisoned, he “used marijuana,
roxycodone, opana[,] and meth on a daily basis.” According to the Defendant, his drug
problem was “killing [him]” and “took [him] away from family.” The Defendant
requested help with his drug addiction.

       In issuing the Defendant’s sentence, the trial court found three 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; factor (8) that the Defendant, before trial
                                             -3-
or sentencing, failed to comply with the conditions of a sentence involving release into
the community; and factor (16), that the Defendant was adjudicated to have committed a
delinquent act or acts as a juvenile that would constitute a felony if committed by an
adult. See Tenn. Code Ann. § 40-35-114(1), (8), (16). 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). Applying all of those factors, the
trial court ordered the Defendant to serve the maximum sentence in his range of four
years. This appeal followed.

                                            ANALYSIS

        On appeal, the Defendant argues that his four-year sentence is excessive and
“should be adjusted” to the minimum sentence of two years. Specifically, he argues that
trial court “failed to accurately consider [his] prior felony record” because some of his
felony convictions merged. The State argues that the trial court did not abuse its
discretion when it sentenced the Defendant to four years for his felony failure to appear
conviction. 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).1 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
   Citing Tennessee Code Annotated section 40-35-401(d), the Defendant states that our review “is de
novo on the record with a presumption that the trial court’s determinations are correct.” However, our
supreme court in Bise specifically stated, “[A]lthough the statutory language continues to describe
appellate review as de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act
“effectively abrogated the de novo standard of appellate review.” 380 S.W.3d at 707.
                                                  -4-
        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.

        In asserting that his sentence is excessive, the Defendant claims that the trial court
failed to properly consider his felony record because several of those convictions merged.
The Defendant was sentenced as a Range II, multiple offender. A defendant is classified
as a Range II, multiple offender when the defendant has received “[a] minimum of two
(2) but not more than four (4) prior felony convictions within the conviction class, a
higher class, or within the next two (2) lower felony classes, where applicable[.]” Tenn.
Code Ann. § 40-35-106(a)(1). Additionally, the statute provides,

       Except for convictions for which the statutory elements include serious
       bodily injury, bodily injury, threatened serious bodily injury or threatened
       bodily injury to the victim or victims, or convictions for the offense of
       aggravated burglary under § 39-14-403, convictions for multiple felonies
       committed within the same twenty-four-hour period constitute one (1)
       conviction for the purpose of determining prior convictions[.]

Tenn. Code Ann. § 40-35-106(b)(4). This is commonly known as the twenty-four-hour
merger rule.

       Although not specific, the trial court indicated in its sentencing ruling that “some”
of the Defendant’s felony convictions merged, stating, “[The Defendant] has got five
felonies, prior felonies. Of course as I mentioned, there is some merger with those.”
Applying the twenty-four-hour merger rule, the Defendant’s convictions for “Schedule II
Drugs: Meth” and possession of firearm during the commission of dangerous felony both
have the same offense date of February 20, 2014, and would therefore merge. Likewise,
the Defendant’s two convictions for “Schedule II Drugs: Meth” with the same offense
date of May 2, 2013, would merge. Only two felony convictions were needed to
establish the Defendant’s Range II status; a status to which the parties agreed. However,
“the ‘24-hour merger rule exception’ applies only to the use of prior convictions to
determine a defendant’s range, not to determine the application of enhancement factor
                                             -5-
(1).” State v. Lawrence Hailey, No. W2009-00759-CCA-R3-CD, 2010 WL 2219574, at
*11 (Tenn. Crim. App. May 24, 2010). Thus, the trial court was free to consider two of
the four of these convictions under enhancement factor (1), that the Defendant had a
history of criminal convictions or criminal behavior, in addition to that necessary to
establish his range. See Tenn. Code Ann. § 40-35-114(1).

        Moreover, the Defendant has a 2006 felony conviction for “Schedule I Drugs”
where he received an eight-year incarcerative sentence, and the Defendant seemingly
ignores his eight misdemeanor convictions for various offenses, all further lending
support to the application of enhancement factor (1). Additionally, the pre-sentence
report is replete with instances to support the trial court’s usage of enhancement factors
(8), that the Defendant, before trial or sentencing, failed to comply with the conditions of
a sentence involving release into the community, and (16), that the Defendant was
adjudicated to have committed a delinquent act or acts as a juvenile that would constitute
a felony if committed by an adult. See Tenn. Code Ann. § 40-35-114(8), (16). The trial
court accurately and appropriately considered the Defendant’s prior criminal history.

       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 within-range sentence of
confinement in this case. Therefore, the Defendant has failed to establish that the trial
court abused its discretion in imposing the maximum four-year sentence for his failure to
appear conviction, 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 Court is affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




                                            -6-
