Full Opinion (html_with_citations)

            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs October 21, 2014

             STATE OF TENNESSEE v. LESLIE ALLEN WARE, JR.

                    Appeal from the Criminal Court for Sullivan County
                      Nos. S51538 & S52126     R. Jerry Beck, Judge


                 No. E2013-02855-CCA-R3-CD - Filed December 29, 2014


The defendant, Leslie Allen Ware, Jr., appeals his Sullivan County Criminal Court jury
convictions of conspiracy to possess 26 grams or more of cocaine with intent to sell or
deliver, possession of 26 grams or more of cocaine for sale or delivery, maintaining a
dwelling where controlled substances are used or sold, facilitation of theft, facilitation of
conspiracy to commit robbery, and two counts of criminally negligent homicide. The
defendant received an effective sentence of 36 years. He claims on appeal that the sentences
imposed by the trial court were excessive. Discerning no error, we affirm the judgments of
the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and R OBERT L. H OLLOWAY, J R., JJ., joined.

T. Wood Smith, Greeneville, Tennessee, for the appellant, Leslie Allen Ware, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Barry P. Staubus, District Attorney General1 ; and Joseph Eugene Perrin, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                In December 2005, the Sullivan County Criminal Court grand jury charged the
defendant with one count each of conspiracy to possess 26 grams or more of cocaine with
intent to sell or deliver, possession of over 26 grams or more of cocaine for sale or delivery,


        1
         A significant time elapsed between issuance of the indictments and the trial. H. Greeley Wells, Jr.
was the Sullivan County District Attorney General when the defendant was charged in this case in 2005.
and maintaining a dwelling where controlled substances are used or sold. In May 2006, the
grand jury charged the defendant with two counts of first degree premeditated murder, two
counts of felony murder, and one count each of especially aggravated robbery and
conspiracy to commit aggravated robbery. All charges arose out of the November 18, 2005
drug-related shooting deaths of Jeffrin Nolan and Terrance Alexander and the robbery of Mr.
Nolan. In March 2008, the State filed a notice with the trial court that it was seeking the
death penalty against the defendant, but the State later withdrew that notice prior to trial. The
trial court conducted a two-week jury trial in July 2013.

               The evidence presented by the State at trial established that the defendant, a
New York native, was involved in a cocaine distribution ring headed by O’Sheene Massey,
who was also originally from New York. The defendant, along with his cousin, Clyde Green,
Jr., O’Sheene Massey’s brother, Jawaune Massey, Brian Beco, and Octavia Brooks,2 sold
cocaine for O’Sheene Massey. On November 1, 2005, the group moved into a residence
located at 404 Holly Point in Johnson City that had been leased by Rita Massey, the sister of
O’Sheene and Jawaune Massey. Witnesses described the house as having six bedrooms: on
the top floor, Mr. Beco occupied the first bedroom, Mr. Green had the second bedroom, and
Ms. Brooks resided in the third bedroom, and on the bottom floor, the first bedroom belonged
to Ms. Massey’s infant son, the second bedroom was occupied by Ms. Massey and the
defendant, and the third bedroom was shared by O’Sheene Massey and his girlfriend, Thelma
Gardner.

              O’Sheene Massey purchased his cocaine from both a connection in New York
and Mr. Nolan. Because Mr. Nolan was known to have the best prices, Mr. Massey preferred
to purchase cocaine from him.

               Mr. Nolan’s girlfriend, Ashley Adams, testified that Mr. Nolan opened the Solé
Candle Shop in Kingsport in March 2005 as a front for his cocaine sales operation. Mr.
Nolan sold candles and incense in the front of the shop, and he sold cocaine out of the back
room of the shop. Mr. Nolan kept a handgun inside a drawstring bag inside a box underneath
the cash register in the front room. According to Ms. Adams, customers would telephone
Mr. Nolan with their request for cocaine, and Mr. Nolan would retrieve the requested amount
of cocaine from a drawer located in the back room. For male customers, Mr. Nolan would
keep his handgun on his person during the drug transaction, but he would leave his weapon
inside the box if the customer was female. Mr. Nolan always insisted that his drug customers
purchase an item from the candle shop, and Mr. Nolan would then place the drugs inside the
bag with the customer’s candle purchase.



       2
           By the time of trial, Octavia Brooks was married, and she gave her married name as Octavia Wilson.

                                                      -2-
               Ms. Adams testified that Mr. Nolan typically sold approximately four ounces
of crack cocaine each day and that the drugs were packaged in plastic bags. Mr. Nolan
would keep the cash from the cocaine sales in his pocket, and he kept approximately $132
in the cash register for customers who came to purchase candles. Although Mr. Nolan did
not usually allow customers to accompany him into the back room, he made an exception for
Ms. Brooks because, according to Ms. Adams, Mr. Nolan “knew her on a different level than
drug dealing, so it was different with her.”

              Mr. Beco, Mr. Green, and Ms. Gardner all testified that they overheard
O’Sheene Massey, Jawaune Massey, and the defendant in the Holly Point residence
discussing plans to rob Mr. Nolan. According to Mr. Beco, the three men also discussed
whether they should kill Mr. Nolan, and they ultimately decided that “he should die.” At
some point prior to November 16, 2005, Mr. Green accompanied O’Sheene Massey and Ms.
Brooks to the candle shop to purchase cocaine. After they gave Mr. Nolan their money, Mr.
Nolan proceeded alone to the back room and returned with the cocaine; Mr. Green noticed
that Mr. Nolan had a handgun in his back pocket. Mr. Nolan then told Mr. Massey that he
would have to purchase a candle. As the group was leaving the shop, Mr. Massey remarked
to Mr. Green that Mr. Nolan was “a snitch.”

               On November 16, 2005, O’Sheene Massey, Jawaune Massey, Mr. Green, and
the defendant returned to the candle shop. According to Mr. Green, he learned while en
route to the shop that the group intended to rob Mr. Nolan. Ms. Adams was at the candle
shop that day, and she saw O’Sheene Massey and a man she later identified as the defendant
inside the shop. Ms. Adams testified that the two men stayed at the shop for a short time
before leaving. O’Sheene Massey apparently decided to abort the robbery because other
customers were present in the shop.

              On November 18, Mr. Green, who had spent the night elsewhere, returned to
the Holly Point residence around 8:00 a.m. and encountered O’Sheene Massey and the
defendant in the driveway of the residence discussing obtaining drugs from Mr. Nolan. Mr.
Green drove the defendant and O’Sheene Massey in an older model grey Lincoln to pick up
Jawaune Massey from another location, and the four men drove to Kingsport. While en
route, O’Sheene Massey contacted Mr. Nolan to place his order for crack cocaine. The men
in the Lincoln also discussed sending Ms. Brooks into the shop first as a decoy.

              Meanwhile, Ms. Adams arrived at the candle shop around 3:30 p.m. and stayed
for approximately ten minutes. Terrance Alexander, one of Mr. Nolan’s regular drug
customers, was present in the shop while she was there. Ms. Adams delivered 4 ounces of
crack cocaine and $400 cash to Mr. Nolan before she left. Ms. Adams testified that she was
certain Mr. Nolan was wearing a necklace and a pinky ring that day.

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               Sometime after Ms. Adams left the candle shop, Casey Chambers, who lived
across the street from the shop, saw an older model grey vehicle park on the street near her
house. A short time later, she saw a black Toyota 4Runner park behind the grey car. Mr.
Beco was driving the 4Runner, in which his girlfriend, Crystal Arnold, and Ms. Brooks were
passengers. Mr. Green was driving the grey Lincoln; O’Sheene Massey was seated in the
front passenger seat; Jawaune Massey was seated on the left side of the back seat; and the
defendant was seated on the passenger side of the back seat. Ms. Chambers identified at trial
all four of the men from the Lincoln as well as Ms. Brooks.

              Ms. Chambers watched the defendant walk to the 4Runner and get into the
backseat. According to Mr. Beco, O’Sheene Massey called his cellular telephone when Mr.
Beco parked behind the Lincoln and told Mr. Beco that the group was planning to rob Mr.
Nolan. When the defendant entered Mr. Beco’s vehicle, the defendant stated that they
planned to “stick” Mr. Nolan, which Mr. Beco interpreted to mean that the group intended
to rob Mr. Nolan. When the defendant returned to the Lincoln, he told the occupants that
Ms. Brooks would enter the shop first and that the defendant and Jawaune Massey would
follow her inside. Ms. Chambers testified that Ms. Brooks walked to the candle shop,
followed by the defendant and Jawaune Massey.

                According to Ms. Brooks, she entered the candle shop, gave Mr. Nolan her
money, and sat down in the front room to wait for the drugs. Mr. Nolan proceeded to the
back room. The defendant and Jawaune Massey then entered the shop, both armed with
handguns. Ms. Brooks recalled that one of the men told Mr. Alexander, “‘You know what
this is,’” and they instructed Ms. Brooks to leave the shop. As she was leaving, she passed
Mr. Green entering the shop. Mr. Green saw no one in the front room. He entered the back
room, where he saw Mr. Nolan and Mr. Alexander lying face down on the floor. Mr. Green
observed Jawaune Massey standing in the doorway holding two guns, one of which belonged
to Mr. Nolan, and he saw the defendant pointing a gun at Mr. Nolan’s head. Mr. Nolan was
insisting that “he didn’t have no more drugs and they got everything.” According to Mr.
Green, the defendant fired the first shot at Mr. Nolan. As Mr. Green was leaving the candle
shop, he heard two more gunshots, but he did not see who fired those shots. Mr. Beco, Mr.
Green, Ms. Brooks, and Ms. Chambers all testified similarly to the manner in which the three
men exited the candle shop and the way in which the group sped away in the two vehicles.

              Law enforcement officers who were dispatched to the candle shop shortly after
the shooting discovered the victims lying face down and side by side in a large pool of blood.
Mr. Nolan was deceased, and Mr. Alexander died a few hours later at the hospital. The
autopsy of Mr. Nolan revealed that he sustained two gunshot wounds to the back of the head
with “extensive damage to the skull and the brain.” Mr. Alexander’s autopsy revealed that
he sustained a single gunshot wound to the back of the head. The manner of death for both

                                             -4-
victims was ruled as homicide. Kingsport Police Department Detective David Joe Cole
discovered an empty drawstring bag inside a white cardboard box beneath the candle shop’s
cash register; $174.36 inside the cash register; and a set of digital scales in the back room of
the candle shop. A drawer that had been pulled out in the back room contained no cash or
cocaine, and no cocaine or cash was found on Mr. Nolan’s body. In addition, officers found
no weapons anywhere in the shop.

                Meanwhile, the defendant and the others returned to the Holly Point residence.
The group gathered in the bedroom shared by the defendant and Ms. Massey where,
according to Mr. Green, the defendant threw cash and bags of crack cocaine onto the bed.
According to Ms. Gardner, who had been home all day, there were four “balls” of crack
cocaine and $4,100 in cash. Both Mr. Green and Mr. Beco testified that the defendant argued
with O’Sheene and Jawaune Massey over the division of the money and drugs. Mr. Green
testified that the defendant wanted “half” because “he did most of the work.”

              Later that night, Mr. Beco drove the defendant, O’Sheene Massey, and Ms.
Brooks to Virginia, where the defendant and Ms. Brooks bought bus tickets to New York.
Mr. Beco noticed that the defendant was wearing “a rose gold chain with a cross on it” and
“a ring,” and Ms. Brooks testified that the chain and ring belonged to Mr. Nolan.

              Ms. Chambers identified O’Sheene Massey and Ms. Brooks from photographic
lineups, which eventually led officers to the Holly Point residence, where they located the
grey Lincoln and the black 4Runner. A search of the residence revealed, among other things,
numerous firearms, plastic bags containing an “off-white substance,” and $2,028 in cash
located between a mattress and box springs. Special Agent and forensic scientist Glen Jay
Glenn with the Tennessee Bureau of Investigation testified that he examined the cocaine
recovered from the Holly Point residence and that it weighed over 45 grams. In February
2007, the defendant was arrested in New York City and extradited to Sullivan County.

             With this evidence, the State rested. Following the trial court’s denial of the
defendant’s motion for judgments of acquittal and a Momon3 colloquy, the defendant elected
to testify.

              The defendant admitted selling crack cocaine for O’Sheene Massey, but he
categorically denied any involvement in the November 18, 2005 robbery and murders at the
candle shop. According to the defendant, he never resided at the Holly Point residence.
Instead, he claimed that he lived with his girlfriend, Mary Dennis, and that he would
occasionally spend the night with his other girlfriend, Ms. Massey, at Holly Point. The

       3
           See Momon v. State,
18 S.W.3d 152, 161-62
 (Tenn. 1999).

                                                  -5-
defendant estimated that he spent five nights at Holly Point with Ms. Massey between
November 1 and November 18, 2005, and he testified that he kept no clothing or personal
items at Holly Point. The defendant stated that, on November 18, he spent the day at the
Holly Point residence with Ms. Massey and her young son and Ms. Gardner and her young
daughter.

              Based on this evidence, the jury convicted the defendant as charged of
conspiracy to possess 26 grams or more of cocaine with intent to sell or deliver; possession
of 26 grams or more of cocaine for sale or delivery; and maintaining a dwelling where
controlled substances are used or sold. In addition, the jury convicted the defendant of the
lesser included offenses of facilitation of theft of property valued at $1,000 or more but less
than $10,000, facilitation of conspiracy to commit robbery, and four counts of criminally
negligent homicide.

               The trial court conducted a sentencing hearing on November 22, 2013. The
State entered into evidence the defendant’s presentence report, which established that the
defendant had prior convictions of robbery, petit larceny, criminal impersonation, and
assault. In addition, the report indicated that the defendant, as a juvenile in New York, had
been charged with the felony offense of criminal possession of a weapon that had been
defaced for concealment purposes and that he had received a sentence of one to three years.
The defendant also violated the terms of his probation in New York due to marijuana usage
and was placed in a juvenile detention center. The trial court made note of the fact that the
defendant, in both his trial testimony and sentencing hearing testimony, “stuck by his saying
that all he did while he was here in Tennessee was basically sell drugs . . . in addition to
selling drugs before he came to Tennessee in the city of New York.”

               In determining the defendant’s sentence, the trial court found that four
enhancement factors were applicable: the defendant had a previous history of criminal
convictions; the defendant had previously failed to comply with sentencing conditions
involving release into the community; the defendant possessed or employed a firearm during
the commission of the offense; and the defendant had been adjudicated to have committed
a delinquent act as a juvenile that would constitute a felony if committed by an adult. See
T.C.A. § 40-35-114(1), (8), (9), (16). The trial court then found “that the appropriate
sentence . . . would be the maximum sentence allowed by law.” With respect to sentence
alignment, the court found the defendant to be “a professional criminal who has notably
devoted himself to . . . criminal acts as a major source of livelihood”; that the defendant “is
an offender whose record of criminal activity is extensive”; and that the defendant “is a
dangerous offender whose behavior indicate[s] little or no regard for human life and no
hesitation about committing a crime in which the risk to human life was high.” See T.C.A.
§ 40-35-115(b)(1), (2), (4). The trial court merged the alternate counts of criminally

                                              -6-
negligent homicide into two counts, ordered that all sentences be served consecutively to one
another, and sentenced the defendant as a standard offender to 12 years each for conspiracy
to possess 26 grams or more of cocaine and possession of 26 grams or more of cocaine for
resale; four years for maintaining a dwelling where controlled substances are used or sold;
and two years each for facilitation of theft of property valued at $1,000 or more but less than
$10,000, facilitation of conspiracy to commit robbery, and both counts of criminally
negligent homicide, for a total effective sentence of 36 years.

                Following the denial of his timely motion for new trial, the defendant filed a
timely notice of appeal. In this appeal, the defendant raises no issues pertaining to his
convictions, arguing only that the sentences imposed by the trial court were excessive.
Specifically, the defendant contends that the trial court improperly imposed top-of-the-range
sentences for each conviction and that the trial court abused its discretion by ordering
consecutive service of all sentences. The State counters that the record fully supports the
trial court’s sentencing decision in this case.

                Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise,
380 S.W.3d 682, 707
 (Tenn. 2012). The application of the purposes and
principles of sentencing involves a consideration of “[t]he potential or lack of potential for
the rehabilitation or treatment of the defendant . . . in determining the sentence alternative
or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under
the 2005 amendments to ‘place on the record, either orally or in writing, what enhancement
or mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).
Under the holding in Bise, “[a] sentence should be upheld 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.

               In the instant case, the record reflects that the trial court, in sentencing the
defendant, considered all appropriate principles set forth in Code section 40-35-210(b). The
court orally placed on the record the enhancement factors it considered when determining the
defendant’s sentence. In imposing the maximum sentence for each conviction, the trial court
was not required to find the presence of any statutory enhancement factors. See T.C.A. § 40-
35-210(c)-(e); Bise,
380 S.W.3d 698
. It did, however, find that four enhancement factors
were applicable, none of which the defendant challenges on appeal and all of which are
supported by the evidence. As such, we find no abuse of discretion in the trial court’s
decision to sentence the defendant to the statutory maximum for each conviction.



                                              -7-
               With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court’s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).” State
v. Pollard,
432 S.W.3d 851, 861
 (Tenn. 2013). In State v. Wilkerson,
905 S.W.2d 933
 (Tenn.
1995), the supreme court imposed two additional requirements for consecutive sentencing
when the “dangerous offender” category is used: the court must find that consecutive
sentences are reasonably related to the severity of the offenses committed and are necessary
to protect the public from further criminal conduct.
Id. at 937-39
; see State v. Imfeld,
70 S.W.3d 698,707-08
 (Tenn. 2002).

                Here, the trial court based its decision to order consecutive sentencing on
findings that the defendant was a professional criminal who had chosen to devote his life to
criminal acts in order to support himself, that the defendant had an extensive history of
criminal activity, and that the defendant was a dangerous offender. See T.C.A. § 40-35-
115(b)(1), (2), (4). The trial court noted that the defendant, through his own admissions at
trial and at the sentencing hearing, supported himself solely by selling drugs during his time
in Tennessee and that he had sold drugs during his time in New York as well. The
presentence report established that the defendant, who was 35 years of age at the time of trial,
had an extensive criminal history that spanned nearly 20 years. Although the trial court
failed to make the requisite Wilkerson findings in relying on the dangerous offender category,
the trial court’s additional findings that the defendant was a professional criminal with an
extensive criminal history, are amply supported by the record and are sufficient to warrant
the imposition of consecutive sentences. See State v. Adams,
973 S.W.2d 224, 231
 (Tenn.
Crim. App. 1997).

               The defendant argues that the trial court’s failure to specify the standard on
which it based its decision to order consecutive sentencing constitutes an abuse of discretion.
We disagree. Without question, the record supports a finding by a preponderance of the
evidence that the defendant had an extensive criminal history and had knowingly devoted his
life to crime as his primary means of support, and we find no abuse of discretion in the trial
court’s decision to impose consecutive sentencing.

               The defendant also contends that the trial court’s decision to order consecutive
service of “each and every drug charge sentence” amounts to “judicial vindictiveness.” The
defendant’s reliance on the principle of judicial vindictiveness, however, is misplaced
because it is only applicable when a more severe sentence has been imposed upon retrial
following a successful appeal. See North Carolina v. Pearce,
295 U.S. 711, 725-26
 (1969);
State v. Gilliam,
901 S.W.2d 385
 (Tenn. Crim. App. 1995). Because this case does not

                                              -8-
involve a retrial, judicial vindictiveness does not apply.

              Finally, the defendant argues that, because the convictions of conspiracy to
possess 26 grams or more of cocaine with intent to sell or deliver, possession of 26 grams or
more of cocaine for sale or delivery, and maintaining a dwelling where controlled substances
are used or sold “were so closely intertwined that the imposition of a total of 28 years in
prison is unconscionable” and that the three sentences should therefore be served
concurrently. Our supreme court, however, has held as follows:

              We reject petitioner’s argument that in determining whether to
              sentence a defendant to consecutive sentences, the trial judge is
              required to take into consideration the fact that all of the
              offenses arose out of one single criminal episode or were
              inspired by the same general intent and minutely limited in both
              time and space.

Gray v. State,
538 S.W.2d 391, 393
 (Tenn. 1976) (citations omitted). The trial court’s
decision to impose consecutive sentences for the defendant’s three drug-related convictions
was not improper.

             Because we find no abuse of discretion attendant to the trial court’s sentencing
determinations in this case, the judgments of the trial court are affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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