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State v. Boykin

Court of Criminal Appeals of Tennessee, Jackson

March 27, 2017

STATE OF TENNESSEE
v.
ANDREW BOYKIN

          Assigned on Briefs December 6, 2016.

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

         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

          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.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION.

          NORMA MCGEE OGLE, JUDGE.

         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 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. ...


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