State of Tennessee v. Vernon Lee Ivey

Knoxville, TN - Criminal defense attorney represented Vernon Lee Ivey with aggravated burglary; theft of property valued over $2,500, burglary, two counts of theft of property valued over $1,000 but less than $2,500, one count of automobile burglary, and four counts of theft of property valued $1,000 or less charges.

On October 11, 2017, the Campbell County Grand Jury returned a seventeen-count

indictment charging the Defendant with two counts of aggravated burglary, three counts of

forgery, seven counts of theft of property valued at $1,000 or less, two counts of theft of

property valued over $1,000 but less than $2,500, one count of theft of property valued at

$2,500 but less than $10,000, one count of burglary, and one count of automobile burglary.

On September 3, 2019, the Defendant pled guilty to four counts of theft of property

valued $1,000 or less, a Class A misdemeanor; two counts of theft of property valued over

$1,000 but less than $2,500, a Class E felony; one count of theft of property valued over

$2,500, a Class D felony; one count of aggravated burglary, a Class C felony; one count of

burglary, a Class D felony; and one count of automobile burglary, a Class E felony.

Pursuant to the terms of his negotiated plea agreement, the remaining counts of the

indictment were dismissed, and the sentencing was left to the trial court's determination.

The Defendant's convictions arose from his actions in August 2017 when he broke into the

buildings and vehicles of several different individuals and stole expensive tools and other

equipment.

At the December 9, 2019 sentencing hearing, the State introduced the Defendant's

presentence report, which reflected that the forty-three-year-old Defendant had a lengthy

criminal history dating from the age of nineteen, with numerous prior theft and forgery

convictions, as well as a few drug- and driving-related convictions. The Defendant

reported that he had attended school through the eleventh grade but had not graduated or

obtained his GED, that he had been diagnosed with bipolar disorder several years earlier

but was not under a physician's care and was not taking any medication, that he had worked

for several years off and on in construction, and that he had a history of opiate abuse but

had never been to a treatment program. The Defendant reported his primary source of

income was "work.” Included in the presentence report was information presumably

provided by the Defendant that he had spent approximately one month in late December

1992 through January 1993 at a mental health treatment facility in Knoxville. There is no

indication in the report that the information was verified.

The presentence report further reflected that the Defendant had been on parole at

the time he committed the instant offenses and that he pled guilty on September 3, 2019,

to additional theft and burglary offenses that he had committed while released on bond in

the instant case. Prior to the sentencing hearing in the instant case, the Defendant received

an effective six-year sentence for those convictions.

One of the victims in the instant case, Roger Miller, testified that the Defendant cut

the lock on his shed and took three top-of-the-line chainsaws, a weed eater, and a drill. He - 3 -

estimated that it would cost him approximately $3,000 to $4,000 to replace his tools and

expressed his hope that the Defendant would receive the maximum sentence under the law.

Without objection from defense counsel, the prosecutor read aloud from the victim

impact statement of a second victim, Keith McCarty. Mr. McCarty described how the

Defendant stole various tools, including an "Earthquake auger,” from his property. He

stated the auger was eventually returned to him after the man to whom the Defendant

attempted to sell it recognized it as stolen property and contacted the police. He stated he

was still seeking $500 restitution for the tools that had not been recovered. Finally, he

expressed his frustration at the fact that someone with a criminal history of repeated thefts

continued to victimize hard-working individuals such as himself, and he requested that the

trial court sentence the Defendant to the maximum punishment allowed by law.

In nine exhibits, the State introduced certified copies of the Defendant's prior felony

convictions in nine separate cases, many of which involved multiple counts. In a tenth

exhibit, the State introduced certified copies of the Defendant's misdemeanor convictions

in two cases. Included in "Exhibit 5,” which contained certified copies of the Defendant's

three convictions in one case (possession of a Schedule II drug with intent to sell,

possession of drug paraphernalia, driving on a suspended license) were three convictions

for "Mary B. Ivey,” with the same case number and the same offense date, for possession

of a schedule IV drug with the intent to sell, public intoxication, and felony possession of

drug paraphernalia.

The prosecutor argued that the Defendant should be sentenced as a career offender

for the Class D and E felony convictions and as a persistent offender for the Class C felony

conviction. The trial court agreed, finding that the Defendant had the requisite prior

convictions to be sentenced as a career offender for the Class D and E felonies and as a

persistent offender for the Class C felony of aggravated burglary. The trial court found the

following enhancement factors applicable to the offenses and entitled to some weight: the

Defendant's previous history of criminal convictions or behavior in addition to those

necessary to establish the appropriate range; the offenses occurred over a series of days

and involved more than one victim; and the Defendant was released on parole at the time

he committed the offenses. Tenn. Code Ann. § 40-35-114(1), (3), (13)(B). The court

assigned some weight in mitigation to the fact that the offenses did not threaten or cause

serious bodily injury. Tenn. Code Ann. § 40-35-113(1).

Based on the mandatory sentencing required for a career offender, the trial court

sentenced the Defendant to twelve years at 60% for the Class D burglary conviction, twelve

years at 60% for the Class D theft of property conviction, six years at 60% for each of the

Class E felony theft convictions, and six years at 60% for the Class E automobile burglary

conviction. See Tenn. Code Ann. § 40-35-108(b), (c). The court sentenced the Defendant - 4 -

as a persistent offender to twelve years, less than the midpoint in the range, for the Class C

aggravated burglary conviction.

The trial court noted that the Defendant's sentences were statutorily required to be

served consecutively to the six-year effective sentence he had received for the convictions

committed while on bond in the instant case. With respect to discretionary consecutive

sentencing, the trial court found that the Defendant's record, while not sufficient for the

Defendant to be classified as a professional criminal who had knowingly devoted his life

to criminal acts as a major source of livelihood, was sufficient for the court to find beyond

a reasonable doubt that the Defendant was an offender whose record of criminal activity

was extensive. See Tenn. Code Ann. § 40-35-115(b)(2).

As to the manner of service, the trial court noted the Defendant's reported history

of drug use and addiction but found that it was not "pervasive” and did not appear to be the

driving force behind the Defendant's criminal acts. The court found that the Defendant

lacked commitment in "taking part in positive areas of life” and that there was nothing in

his history to suggest that anything other than a sentence of confinement was warranted.

More specifically, the court found, based on the Defendant's history and his STRONG-R

risk assessment analysis, that the Defendant had clearly demonstrated that he would not

abide by the conditions of probation or other release into the community. The court

additionally found that confinement was necessary to deter the Defendant from committing

further criminal acts and to protect the community from his criminal behavior.

At the conclusion of the hearing, the court ordered that the Defendant's two 12-year

sentences for burglary and Class D theft of property be served concurrently to each other

and the Defendant's three 6-year sentences for Class E theft of property and automobile

burglary be served concurrently to each other but consecutively to the burglary and Class

D theft of property sentences. The court ordered that the Defendant's 12-year sentence at

45% for the Class C offense of aggravated burglary be served consecutively to the other

two sets of sentences, for a total effective sentence of thirty years in the Department of

Correction.1

ANALYSIS

On appeal, the Defendant argues that the trial court erred by classifying him as a

career offender, which led to an excessive sentence, and by denying probation or other

alternative sentencing. The State responds by arguing that the record fully supports the

trial court's sentencing determinations. We agree with the State.



1 The judgment forms reflect that the Defendant received concurrent 11-month, 29-day sentences for his

four misdemeanor theft convictions. - 5 -

Under the 2016 amendments to the Sentencing Act, a trial court is to consider the

following when determining a defendant's sentence and the appropriate combination

of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant's own

behalf about sentencing; and

(8) The result of the validated risk and needs assessment conducted by the

department and contained in the presentence report.

Tenn. Code Ann. § 40-35-210(b).

The trial court is granted broad discretion to impose a sentence anywhere within the

applicable range, regardless of the presence or absence of enhancement or mitigating

factors, and "sentences should be upheld so long as the statutory purposes and principles,

along with any applicable enhancement and mitigating factors, have been properly

addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a

trial court's sentencing determinations under an abuse of discretion standard, "granting a

presumption of reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.” Id. at 707. This

standard of review also applies to "questions related to probation or any other alternative

sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

The Defendant first contends that the trial court imposed an excessive sentence by

erroneously classifying him as a career offender for the Class D and E felonies. To qualify

as a career offender for sentencing for those felonies, the Defendant was required only to - 6 -

have at least six prior felony convictions of any classification. Tenn. Code Ann. § 40-35-

108. The Defendant complains about the State's mistaken inclusion of certified copies of

his co-defendant's two felony convictions in the sentencing exhibits and argues that several

of his felony convictions that occurred close together in time should be counted as a single

conviction for classification purposes. See Tenn. Code Ann. § 40-35-108(b)(4) (providing

that "felonies committed as part of a single course of conduct within twenty-four (24) hours

constitute one conviction” for sentencing purposes). The Defendant concedes that he

would still have ten prior felony convictions if the complained-of convictions are removed

from the tally, but he suggests that five of those ten should be discounted because they

were based on offenses that occurred twenty-four years ago when he was only nineteen.

He cites no authority in support of his proposition that offenses committed years in the past

or as a teenager should not be counted, and we are unpersuaded by his argument that it was

unfair for the trial court to classify him as a career offender due to the harshness of the

resulting mandatory sentences. We, therefore, conclude that the trial court properly

classified him as a career offender for the Class D and E felonies.

The Defendant next contends that the trial court abused its discretion by imposing a

sentence of confinement rather than probation or some other form of alternative sentencing.

He points out that the probation and parole officer who prepared the presentence report

apparently made no effort to verify or follow up on his mental health status and that neither

the officer nor the trial court considered how his "impulsivity” and "opportunism”

referenced in the STRONG-R risk analysis report might be related to his bipolar disorder.

The State responds that the trial court properly ordered a sentence of full confinement after

considering the appropriate sentencing guidelines and making findings of fact for the

record. We, again, agree with the State.

Under the revised Tennessee sentencing statutes, a defendant is no longer presumed

to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335,

347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the

"advisory” sentencing guidelines provide that a defendant "who is an especially mitigated

or standard offender convicted of a Class C, D or E felony, should be considered as a

favorable candidate for alternative sentencing options in the absence of evidence to the

contrary[.]” Tenn. Code Ann. § 40-35-102(6).

A defendant shall be eligible for probation, subject to certain exceptions, if the

sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). As the State

points out, the Defendant, who received twelve-year sentences for three of the convictions,

was not eligible for probation.

To qualify for consideration for punishment in the community under the community

corrections, an offender must meet all of the following criteria:- 7 -

(A) Persons who, without this option, would be incarcerated in a correctional

institution;

(B) Persons who are convicted of property-related, or drug-or alcohol-related

felony offenses or other felony offenses not involving crimes against the

person as provided in title 39, chapter 13, parts 1-5;

(C) Persons who are convicted of nonviolent felony offenses;

(D) Persons who are convicted of felony offenses in which the use or

possession of a weapon was not involved;

(E) Persons who do not demonstrate a present or past pattern of behavior

indicating violence; and

(F) Persons who do not demonstrate a pattern of committing violent offenses.

Tenn. Code Ann. § 40-36-106(a)(1).

In determining if incarceration is appropriate in a given case, a trial court should

consider 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[.]

Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant's potential for rehabilitation

or lack thereof should be examined when determining whether an alternative sentence is

appropriate. Id. § 40-35-103(5).

The record reflects that the trial court considered the sentencing guidelines, the facts

and circumstances surrounding the offenses, and the background information in the

presentence report, including the Defendant's prior failures to abide by the terms of - 8 -

sentences involving release into the community, before ordering a sentence of confinement.

The trial court also made findings for the record that a sentence of confinement was

necessary to prevent the Defendant from further criminal acts and to protect the community

from the Defendant's criminal behavior.

The Defendant asserts that the trial court's reference in its findings to the

Defendant's having just been released on parole when he committed the offenses, when

the Defendant had in fact been released in 2015, shows that the trial court did not accurately

consider the entire record and the Defendant's background of drug addiction and bipolar

disorder. We respectfully disagree. Although the trial court did not mention every detail

in the presentence report, it was clear that the court was familiar with the information in

the report and with the Defendant's background. Accordingly, we find no abuse of

discretion in the trial court's sentencing determinations.

Based on the foregoing authorities and reasoning, we affirm the judgments of the

trial court.