State of Tennessee v. Timothy Alan Stephenson

                                                                                             12/26/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 19, 2023

        STATE OF TENNESSEE v. TIMOTHY ALAN STEPHENSON

                   Appeal from the Criminal Court for Knox County
                          No. 121902 G. Scott Green, Judge
                      ___________________________________

                            No. E2023-00241-CCA-R3-CD
                        ___________________________________

Defendant, Timothy Alan Stephenson, was indicted by the Knox County Grand Jury for
(1) possession of 0.5 grams or more of cocaine with intent to sell or deliver; (2) possession
of a firearm during the commission of a dangerous felony; (3) possession of a firearm after
having been convicted of a violent felony; and (4) possession of a firearm by a convicted
felon. He pled guilty to counts one and three of the indictment and agreed to concurrent
ten-year sentences with the trial court to determine the manner of service. Counts two and
four were dismissed pursuant to the agreement. The trial court sentenced Defendant to
serve the ten-year concurrent sentences in confinement. Defendant appeals, arguing that
the trial court abused its discretion in denying probation. Following our review of the
record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial
court but remand for entry of judgment forms for the counts dismissed pursuant to the plea
agreement.

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and TOM GREENHOLTZ, JJ., joined.

Eric Lutton, District Public Defender, Patrick Leonard, Assistant District Public Defender,
(at plea submission hearing); and Jonathan Harwell, Assistant Public Defender (on appeal),
Knoxville, Tennessee, for the appellant, Timothy Alan Stephenson.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Mitchell Eisenberg and
Chris Scruggs, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                        OPINION

                          Factual and Procedural Background

        On June 30, 2022, Defendant was indicted by a Knox County Grand Jury in a four-
count indictment charging Defendant with possession of 0.5 grams or more of cocaine with
intent to sell or deliver (count one); possession of a firearm during the commission of a
dangerous felony (count two); possession of a firearm after having been convicted of a
violent felony (count three); and possession of a firearm by a convicted felon (count four).

       On November 3, 2022, Defendant pled guilty to counts one and three. Pursuant to
the plea agreement, Defendant was to be sentenced as a Range I offender to ten years for
each count to run concurrently, with the manner of service to be determined by the trial
court at a sentencing hearing. Counts two and four were dismissed pursuant to the
agreement. The facts underlying the plea were set out at the plea submission hearing as
follows:

       [O]n April 13th of 2021[,] at approximately 7:14 in the evening, . . . officers
       were dispatched to a domestic disturbance . . . . The complainant . . . stated
       to 911 that [D]efendant . . . was at his residence with her and was refusing to
       let her leave. Affiant and Officer Burt Burrell observed [D]efendant walk
       out [of the apartment] towards the elevators. They entered the elevator with
       [D]efendant and asked if he had any weapons on him. [D]efendant stated he
       had a gun inside of his front waistband of his pants. Officers asked
       [D]efendant if they could remove it from his waistband and he consented.
       The officer then asked [D]efendant if he was a convicted felon to which he
       replied that he [was]. A check of NCIC revealed that he had four prior felony
       convictions for various offenses . . . . [D]efendant was taken into custody.
       Search incident to arrest revealed two black smartphones in his front left
       pants pocket, a clear plastic baggie containing a white rock like substance
       believed to be crack cocaine. The TBI labs confirmed the substance was
       cocaine, had approximately five grams. The officers, based on their
       experience and training, believed that the presence of the currency and two
       cell phones were consistent with possessing the cocaine with intent to sell or
       deliver.

        Defendant acknowledged that he understood the rights he was waiving by pleading
guilty and the sentencing options available to the trial court at sentencing, including that
he could be “ordered to serve this sentence within the Department of Correction[].” The
trial court accepted the plea agreement and found Defendant guilty of possession of 0.5
grams or more of cocaine with intent to sell as charged in count one and possession of a
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firearm after having been convicted of a violent felony as charged in count three. Pursuant
to the agreement, the trial court dismissed counts two and four.

        At the sentencing hearing on February 2, 2023, the State introduced Defendant’s
presentence report (“PSR”) which listed a confirmed affiliation with the Gangster Disciples
as of June 8, 2018. Defendant reported employment beginning in October 2022.
Defendant also reported that he had been diagnosed with “anxiety, bipolar, and
depres[s]ion disorders” but was not receiving treatment. Defendant’s validated risk
assessment resulted in a score of moderate risk to reoffend. Defendant’s criminal history
included convictions from Union and Knox counties in Tennessee, juvenile and out-of-
state convictions, and pending charges in another county from an incident that occurred
April 5, 2020. The PSR also showed several probation revocations. According to the PSR,
Defendant was incarcerated with the Tennessee Department of Correction (“TDOC”) from
February 2009 through December 2010, in September 2011, and again from December
2012 through October 2019. Defendant’s disciplinary history with TDOC showed over
thirty infractions between 2010 and 2016.

       The State argued that Defendant should be ordered to serve his ten-year concurrent
sentences in confinement based on his extensive criminal history, prior probation
violations, and numerous disciplinary infractions while in the custody of TDOC. Counsel
for Defendant argued for probation because “the probation report lists [Defendant] as a
moderate risk” and “he’s ready to get this behind him and get things right.” Defendant
gave a brief statement:

      I’ve been working the same job for a while now. All I do is work and go
      home and try to keep myself out of trouble. I don’t really have a lot of
      involvement with anybody anymore. I’m trying. That’s all I can really - -

       The trial court stated, “Your good record helps you. Your bad record hurts you.
Because that’s the only way that we can make a decision on what the appropriate outcome
of a case should be. And your record is just not good.”

       The trial court observed that Defendant had “received several significant breaks
already in this case,” noting that the State had been lenient “by permitting [Defendant] to
plead guilty as a Range I rather than a Range II offender which is clearly what you are.”
Without the leniency, Defendant’s range of punishment would have been twelve to twenty
years, “and we wouldn’t even be discussing probation because it would not have been an
option.” Next, the trial court noted that Defendant would have qualified for consecutive
sentencing based on his criminal record. Finally, “[a]nd most significantly, the State has



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thrown away as a part of this plea agreement what’s called a 13241 conviction where it
would’ve been a mandatory five years at one hundred percent day-for-day on [count two].”
The trial court concluded, “[W]hen I look at your [criminal] history, I’m left with not really
much choice here[,]” and ordered Defendant to serve his sentences in confinement.

        Judgment forms for counts one and three were entered on February 2, 2023,
reflecting concurrent ten-year sentences to serve with TDOC. The original judgment for
count three indicated a standard Range I sentence; however underneath was a hand-written
note showing “39-17-1307 85%[.]” Following a motion to correct the judgment, the trial
court entered a corrected judgment for count three to reflect a Range I, thirty percent
sentence. The trial court found that at the time of the offense, Tennessee Code Annotated
section 39-17-1307 did not require an eighty-five percent service rate.

        Defendant filed a timely appeal, now properly before this court.

                                               Analysis

       Defendant asserts that the trial court abused its discretion when it relied on
Defendant’s “bad record” and the State’s leniency in the plea agreement and denied
probation. The State argues that the trial court properly exercised its discretion in
sentencing Defendant to confinement. We agree with the State.

       On appeal, the party challenging the sentence bears the burden of establishing that
the sentence is improper. State v. Branham, 

 (Tenn. Crim. App. 2016).
The “abuse of discretion standard, accompanied by a presumption of reasonableness,
applies to within-range sentences that reflect a decision based upon the purposes and
principles of sentencing, including the questions related to probation or any other
alternative sentence.” State v. Caudle, 

 (Tenn. 2012); see State v.
Bise, 

 (Tenn. 2012).

        A defendant is eligible for alternative sentencing if the sentence imposed is ten years
or less. T.C.A. § 40-35-303(a). However, a defendant eligible for an alternative sentence
must establish suitability for probation by demonstrating that probation will “subserve the
ends of justice and the best interest of both the public and the defendant.” State v. Souder,

 (Tenn. Crim. App. 2002); T.C.A. § 40-35-303(b). “A sentence is
based upon ‘the nature of the offense and the totality of the circumstances,’ including a
defendant’s background.” State v. Clark, No. E2022-00667-CCA-R3-CD, 

          A sentence imposed for possession of a firearm with the intent to go armed during the commission
of or attempt to commit a dangerous felony shall be served consecutively to any other sentence the person
is sentenced to serve for conviction of the underlying dangerous felony and is subject to a mandatory
minimum sentence. T.C.A. § 39-17-1324(e)(1), (h)(1) and (2).
                                                  -4-
6442974, at *4 (Tenn. Crim. App. Oct. 3, 2023) no perm. app. filed (quoting State v. Ashby,

 (Tenn. 1991)). In considering whether to impose probation a trial
court should look at: “(1) the defendant’s amenability to correction; (2) the circumstances
of the offense; (3) the defendant’s criminal record; (4) the defendant’s social history; (5)
the defendant’s physical and mental health; and (6) special and general deterrence value.”
State v. Trent, 

 (Tenn. 2017). A sentence of incarceration should
reflect consideration of “[t]he potential or lack of potential for rehabilitation or treatment
of the defendant,” in addition to whether:

       (A) Confinement is necessary to protect society by restraining a defendant
           who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
           offense or confinement is particularly suited to provide an effective
           deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
           been applied unsuccessfully to the defendant[.]

       T.C.A. §§ 40-35-103(5), (1)(A)-(C). While a trial court must place its reasoning for
imposing a specific sentence into the record to allow appellate review, “there is no
requirement that such reasoning be particularly lengthy or detailed.” Bise, 

.

       Additionally, “[a] sentencing court may consider a defendant’s enjoyment of
leniency in the selection of a particular conviction offense in awarding or rejecting
alternative sentencing options.” State v. Harper, No. E2008-02133-CCA-R3-CD, 

 (Tenn. Crim. App. Aug. 17, 2009) (quoting State v. Dixon, No. E2007-02237-
CCA-R3-CD, 

, at *6 (Tenn. Crim. App. Aug. 26, 2008)). “When
determining whether probation is appropriate it is proper ‘to look behind the plea bargain
and consider the true nature of the offenses committed.’” State v. Pierce, 

 (Tenn. 2004) (quoting State v. Hollingsworth, 

 (Tenn. 1983)).
Finally, a trial court’s denial of probation “will not be invalidated unless the trial court
wholly departed from the relevant statutory considerations in reaching its determination.”
State v. Sihapanya, 

 (Tenn. 2014); see T.C.A. § 40-35-210(b)(1)-(7).

       First, Defendant argues that although the trial court made factual findings of
Defendant’s “long history of criminal conduct,” it did not specifically find that
“confinement is necessary to protect society” from Defendant. See T.C.A. § 40-35-
103(1)(A). The trial court noted that Defendant was “clearly” a Range II offender and that,
without the plea agreement, he would have qualified for consecutive sentencing based on
                                            -5-
his record. The trial court then found, based on evidence presented at the plea submission
and sentencing hearings, that Defendant’s record was “just not good.” As reflected in the
PSR, Defendant’s criminal conduct spanned his entire adult life. Defendant asserts that his
most recent significant criminal “issues” were in 2013; however, his argument does not
acknowledge that he was incarcerated from December 2012 until October 2019.
Additionally, Defendant’s TDOC disciplinary record shows at least fourteen infractions
after 2013. As the trial court found, Defendant has a “long history of criminal conduct,”
and he failed to meet his burden of establishing suitability for probation considering his
criminal history. The trial court did not abuse its discretion when it considered the totality
of the circumstances before denying Defendant probation. See Clark, 

,
at *4.

        Defendant concedes that a lenient plea agreement may be considered as a factor
during sentencing, but contends that “there was no proof that the State had actually been
lenient” in dismissing count two, possession of a firearm during the commission of a
dangerous felony. Defendant claims that the “likely reason that the State offered this plea
deal was because it had concerns about its ability to prevail on the charges as brought in
the indictment” and that there was no direct evidence identified by the State in its factual
recitation at the plea hearing that Defendant was involved in the sale of crack cocaine, the
underlying felony offense for count two. The State argues that the trial court properly
considered the dismissal of count two a “break” because a conviction for count two would
have resulted in a mandatory sentence in confinement.2 The State further argues that
Defendant’s claim is “pure speculation.”

        At the plea submission hearing, the State presented facts that if proven at trial, would
support Defendant’s guilty plea to unlawful possession of 0.5 grams or more of cocaine
with intent to sell. Consistent with possession of cocaine with intent to sell or deliver,
Defendant was in possession of a substance that tested positive as cocaine, currency, and
two cell phones. See T.C.A § 39-17-419 (“It may be inferred from the amount of a
controlled substance . . . along with other relevant facts surrounding the arrest, that the
controlled substance or substances were possessed with the purpose of selling or otherwise
dispensing.”). Further, Defendant agreed with the facts as presented by the State, agreed
that those facts were sufficient to support a conviction for possession of cocaine with intent
to sell, and in fact pled guilty to the felony as charged.

        2
          While it does not affect this court’s analysis, we note that the trial court stated that Defendant, if
convicted of count two, would have served a “mandatory five years at one hundred percent day-for-day.”
However, as the State notes, if convicted, Defendant would have been required to serve a minimum fifteen-
year sentence based on Defendant’s criminal history. See T.C.A. § 39-17-1324(j) (“Any person convicted
under this section who has a prior conviction under this section shall be sentenced to incarceration with the
department of correction for not less than fifteen (15) years. A person sentenced under this subsection (j)
shall serve one hundred percent (100%) of the sentence imposed.”).
                                                     -6-
       The trial court did not abuse its discretion when it “looked behind the plea deal” to
find that a conviction for count two would have resulted in Defendant’s mandatory
incarceration. As pointed out by the trial court, without the leniency of the negotiated plea,
Defendant’s sentence would have been significantly increased, removing the possibility of
probation. See id. § 40-35-303(a). Defendant offered little evidence to prove that probation
would subserve the ends of justice and the best interest of both the public and Defendant.
He offered an allocution that he had held employment for a while and he wanted to work
and stay out of trouble. While the trial court did not make lengthy or detailed findings, the
record clearly shows that the court considered Defendant’s lengthy criminal history,
including violent crimes and a record of unsuccessful probation, as well as the leniency of
the plea agreement in its denial of probation. The trial court did not abuse its discretion.
Defendant is not entitled to relief.

                                      CONCLUSION

       We affirm the judgments of the trial court. However, we note that there are no
judgment forms in the record for the dismissal of counts two and four. A trial court must
enter judgment “[i]f the defendant is found not guilty or for any other reason is entitled to
be discharged.” Tenn. R. Crim. P. 32(e)(3); State v. Campbell, No. W2022-01039-CCA-
R3-CD, 

, at *3 (Tenn. Crim. App. Apr. 17, 2023) no perm. app. filed.
Therefore, we remand for entry of judgment forms reflecting the dismissal of counts two
and four.



                                              ____________________________________
                                               JILL BARTEE AYERS, JUDGE




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