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State v. Burkes

Court of Criminal Appeals of Tennessee, Knoxville

July 12, 2019

STATE OF TENNESSEE
v.
JERRY REGINALD BURKES

          Session: May 30, 2019

          Appeal from the Criminal Court for Greene County No. 14CR180 Alex E. Pearson, Judge.

         Jerry 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.

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

          Greg W. Eichelman, District Public Defender, and J. Todd Estep, Assistant District Public Defender, for the appellant, Jerry Reginald Burkes.

          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 of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          Robert L. Holloway, Jr., Judge.

         Procedural History

         A jury 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.

         First Direct Appeal

         Defendant 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 court concluded:

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 II sentence.

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 years." Id.

         Defendant 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.

         Resentencing Hearing

         At the 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 II offender.

         Defendant 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.

         Defendant, 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.[1] 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.

         Defense 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.

         After 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.

         At the 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 ...


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