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State v. Lindsey

Court of Criminal Appeals of Tennessee, Knoxville

June 20, 2018

STATE OF TENNESSEE
v.
KENTRELL LEBRON LINDSEY

          Session May 22, 2018

          Appeal from the Criminal Court for Bradley County No. 16-CR-371 Sandra Donaghy, Judge

         The Defendant, Kentrell Lebron Lindsey, appeals the trial court's order requiring him to serve in confinement his effective six-year sentence for his guilty-pleaded convictions of possession of dihydrocodeinone, a Schedule III controlled substance, with the intent to sell or deliver; possession of oxycodone, a Schedule II controlled substance, with the intent to sell or deliver; and possession of a firearm with the intent to go armed during the commission of a dangerous felony. The trial court found that Tennessee Code Annotated section 39-17-1324(e), which required that the Defendant serve his three-year sentence for the firearm conviction in confinement and consecutively to his sentences for the drug convictions, rendered the Defendant statutorily ineligible for probation for his drug convictions. We conclude, and the State concedes, that the trial court erred in finding the Defendant statutorily ineligible for probation for his drug convictions. Accordingly, we reverse the trial court's denial of probation for the drug convictions and remand the case for the trial court to consider the Defendant's suitability for probation on his three-year sentences for the drug convictions. The trial court's judgments are otherwise affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Reversed in Part, and Remanded

          Philip L. Duval, Chattanooga, Tennessee, for the appellant, Kentrell Lebron Lindsey.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Stephen D. Crump, District Attorney General; and Andrew Watts, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant was charged with possession of dihydrocodeinone with the intent to sell or deliver, possession of oxycodone with the intent to sell or deliver, possession of a firearm with the intent to go armed during the commission of a dangerous felony, possession of less than one-half ounce of marijuana, driving on a cancelled, suspended, or revoked license, and speeding. The Defendant entered into a plea agreement whereby he pleaded guilty to the dihydrocodeinone, oxycodone, and firearm charges, and the remaining charges were dismissed. Pursuant to the plea agreement, the Defendant received a three-year sentence as a Range I offender for each conviction, and his sentences for the drug convictions were to run concurrently with each other and consecutively to his sentence for the firearm conviction. The trial court was to determine the manner of service of the sentences. The trial court entered an order accepting the Defendant's guilty plea.

         The transcript of the plea hearing is not included in the appellate record. According to the affidavit of complaint, a deputy with the Bradley County Sheriff's Department conducted a traffic stop after the Defendant was traveling thirty-nine miles per hour in a thirty-mile-per-hour zone. The deputy checked the Defendant's driver's license and learned that it was suspended. While speaking to the Defendant, the deputy smelled what he believed to be marijuana coming from the Defendant's vehicle. The Defendant granted the deputy consent to search the vehicle. The deputy asked the Defendant whether he had any drugs on his person, and the Defendant told the deputy that he had marijuana in his pocket. The deputy patted the Defendant down and found a baggie containing thirty-seven hydrocodone pills, nine oxycodone pills, a small baggie of marijuana, and cigarillos in the front pocket of the Defendant's cargo shorts. While searching the Defendant's vehicle, the deputy found a .380 firearm and an additional magazine in the center console. The deputy advised the Defendant of his rights and asked the Defendant what he was planning to do with the pills. The Defendant admitted that he planned to sell the pills.

         During the sentencing hearing, the State entered the Defendant's presentence report into evidence, and the witnesses who testified included the Defendant, his mother, and a probation officer. At the conclusion of the sentencing hearing, the trial court made extensive findings based upon the nature and circumstances of the offenses, the Defendant's education, his employment history, his social history, his criminal history, his potential for rehabilitation, and the applicable enhancement and mitigating factors. The trial court recognized that the Defendant's three-year sentence for the firearm conviction was the mandatory minimum sentence and that he was not eligible for probation for that conviction. See T.C.A. § 39-17-1324(a), (e)(2), (g)(1). The trial court also recognized that Tennessee Code Annotated section 39-17-1324(e)(1) required that the Defendant serve his sentence for the firearm conviction consecutively to his sentences for the drug convictions, which were the underlying dangerous felonies upon which the firearm conviction was based. The trial court stated that it was initially inclined to grant the Defendant probation for the drug convictions. However, the trial court found that it was prohibited from doing so based upon its reading of section 39-17-1324(e). Accordingly, the trial court ordered the Defendant to serve his effective six-year sentence in confinement.

         ANALYSIS

         The Defendant contends that the trial court erred in finding that it did not have the authority to order him to serve his sentences for the drug convictions on ...


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