Court of Criminal Appeals of Tennessee, Knoxville
Session: May 30, 2019
from the Criminal Court for Greene County No. 14CR180 Alex E.
Reginald Burkes, Defendant, appeals from the order of the
trial court that was entered after the case was remanded for
resentencing. Following the resentencing hearing, the trial
court denied Defendant's request to serve his sentence on
community corrections and ordered Defendant to serve his
eighteen-year sentence in incarceration. Defendant claims the
trial court erred by not allowing him to introduce proof at
the resentencing hearing concerning certain out-of-state
convictions used by the trial court at the first sentencing
hearing to establish that Defendant was a Range II offender.
We affirm the trial court's judgment.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
W. Eichelman, District Public Defender, and J. Todd Estep,
Assistant District Public Defender, for the appellant, Jerry
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Dan E.
Armstrong, District Attorney General; and Ritchie Collins,
Assistant District Attorney General, for the appellee, State
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams, P.J., and Robert W. Wedemeyer,
L. Holloway, Jr., Judge.
convicted Defendant of one count of money laundering, one
count of theft of property valued at $60, 000 or more, and
twelve counts of sales tax evasion. The trial court sentenced
Defendant as a Range II offender to an effective term of
eighteen years to be served by five years of confinement with
the balance on community corrections. The trial court also
ordered Defendant to pay an $80, 000 fine and $132, 766.46 in
restitution to be paid in installments of $500 per month
following Defendant's release from confinement.
appealed his convictions and sentences. State v. Jerry
Reginald Burkes, No. E2017-00079-CCA-R3-CD, 2018 WL
2194013, at *6 (Tenn. Crim. App. May 14, 2018), no perm.
app. filed. This court affirmed the judgments of
conviction. Id. at *1. Concerning his sentence,
Defendant claimed that the trial court erred by imposing a
Range II sentence because "the State had failed to
establish beyond a reasonable doubt that the Connecticut
conviction would have been a felony utilizing a
'factor-to-factor type comparison.'"
Id. at *17. This court undertook an in-depth
analysis of Connecticut Code section 21a-277 and determined
that the term "narcotic drug" in the Connecticut
statute was "nearly identical to the definition of
narcotic drug in our Code." Id. at *20-23. This
Utilizing . . . [D]efendant's federal conviction for the
distribution of cocaine, which would have been a Class C
felony, and his Connecticut conviction for the sale of
narcotics, which would also have been at least a Class C
felony, the State was able to establish beyond a reasonable
doubt that . . . [D]efendant was a Range II offender.
Consequently, the trial court did not err by imposing a Range
Id. at *23. This court also determined that the
trial court did not abuse its discretion in sentencing
Defendant "to a total effective sentence length of 18
also claimed that the split confinement sentence imposed by
the trial court was illegal. Id. at *16,
24. This court first determined that "[t]he
record establishes that . . . [D]efendant was eligible for a
community corrections placement, and a period of
incarceration coupled with community corrections placement is
an appropriate combination of sentencing alternatives."
Id. at *26. However, "[b]ecause the five year
term of confinement [imposed by the trial court] [wa]s not
authorized," this court vacated the sentence and
"remand[ed] the case for a new sentencing hearing."
Id.; see also State v. Adrian Patterson,
No. M2001-01991-CCA-R3-CD, 2002 WL 31154597, at *2 (Tenn.
Crim. App. Sept. 23, 2002) (a maximum period of one-year
split confinement or shock incarceration may be imposed as a
special condition of a community corrections sentence in the
appropriate case), no perm. app. filed. This court
also "vacate[d] the restitution order and remand[ed] the
case for the trial court to impose restitution in a manner
that complies with Code section 40-35-304." Jerry
Reginald Burkes, 2018 WL 2194013, at *1.
outset of the August 1, 2018, resentencing hearing, the trial
court announced that it would not hear proof pertaining to
the sentence range and denied Defendant's "Motion to
Exclude Use of Connecticut Forms" that had been used by
the court to initially establish that Defendant was a Range
proffered for the record copies of several Connecticut
judgments and Connecticut statutes. Defendant also proffered
a letter from his Connecticut attorney and a copy of a
"Motion for Modification" of two judgments from the
Superior Court of Connecticut in which Defendant was
"sentenced to a definite term of more than three
years" for sale of narcotics and possession of narcotics
with intent to sell. The motion asked the Connecticut court
to modify the sentence by "suspending execution of the
unexecuted portion of the jail sentence." The
trial court admitted the proffered document as exhibits but
held that the letter and motion were not relevant based on
this court's direct appeal opinion.
who was fifty-four years old at the time of the sentencing
hearing, read from a typed statement. He stated that
"[i]t would be in the best interest of the State"
to allow him "the opportunity to remain out in the
community." He claimed his behavior since arrest, home
environment, emotional stability, current employment, marital
stability, and family responsibility supported service of his
sentence on community corrections. He said that, after his
conviction, he had "found secure employment" with
All Star roofing company where he worked as a project manager
at military bases in Colorado and North
Carolina. He testified that he "bring[s] home
$2, 400.00 a week, $115, 000.00 a year" and that, if he
is allowed to serve his sentence in the community, he would
be able to pay the restitution.
counsel argued that Defendant could fully pay the amount of
restitution over the term of the eighteen-year sentence in
monthly installments of $614.66 but that, if he was required
to serve thirty-five percent of his sentence, his ability to
pay would be severely limited. Counsel introduced five
documents obtained from www.tn.gov/revenue/news showing that
defendants in other jurisdictions across Tennessee had been
granted alternative sentences for crimes involving
substantial amounts of restitution. These documents were also
admitted as evidence.
argument, the trial court continued the sentencing hearing
until August 24. On August 14, Defendant filed a "Motion
to Include Additional Defense Proof Not Available at Last
Hearing." The additional proof consisted of twenty
certified judgments from the Criminal Court of Greene County
in which a defendant, who pled guilty to facilitation of
forgery, facilitation of theft, and sales tax evasion, was
sentenced to six years' probation and ordered to pay $35,
000 as restitution and a newspaper article concerning a
criminal case in Carter County in which a defendant was
granted probation on a six-year sentence and ordered to pay
$248, 847.91 restitution to her former employer.
hearing on August 24, the trial court granted the State's
objection to the "additional proof" submitted with
the August 14 motion, finding that "you could go across
this entire state, and there's no telling what kind of
cases that we could come up with that might have unique or
underlying factual issues or disputes or proof
problems." The court also noted that the
"additional proof" involved cases where the