IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 30, 2019 Session

STATE OF TENNESSEE V. JERRY REGINALD BURKES

Appeal from the Criminal Court for Greene County

No. 14CR180 Alex E. Pearson, Judge

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No. E2018-01713-CCA-R3-CD

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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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

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.

OPINION

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 

07/12/2019
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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 
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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.

 

1 The trial court approved Defendant to travel outside of Tennessee during the pendency of his 

direct appeal.
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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 sentences were 

the result of a plea agreement, whereas Defendant was convicted by a jury. 

In pronouncing the sentence, the trial court found that Defendant was not eligible 

for probation pursuant to Tennessee Code Annotated section 40-35-303 because his 

sentence was greater than ten years. The trial court then stated:

And so then we look at the Community Corrections under . . . [Tennessee 

Code Annotated section] 40-36-302(b): 

These options set out in this subsection may be used in 

conjunction with a period of shock incarceration or in 

conjunction with a period or time of probation and/or a time 

of split confinement or a periodic confinement as provided in 

Chapter 35 of this title, 

which was what the Court attempted to do last time. 

So if you look . . . at 40-36-302 and you look at 40-35-303, there’s just not 

much I can do, [Defendant]. I mean, I -- I attempted to sentence you to 

something lesser previously . . . .

Your case is an interesting case because I don’t necessarily like the 

outcome of what I have to sentence you to. I’ve -- I attempted to sentence 

you to less, but that-- the court of appeals cut that off. [Of c]ourse, you 

may have thought that was too much, but you certainly have the right to 

think what you think. But I sentenced you at that point in time to a split 
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confinement sentence that I thought was appropriate given the 

consideration of your prior history and given . . . .

And perhaps it’s true that you got too much of a sentence in your prior case. 

I certainly -- I don’t know all the ins-and-outs of that case, but I certainly 

have seen several people involved in the illegal narcotics trade in this area . 

. . that did not get a sentence of that magnitude.

But the bottom line is, is that is the sentence you received, and they are 

convictions that I have to use for the purposes of enhancement, and those 

made you Range 2. And I already made a finding on that, and that’s been 

up to the court of appeals, and the court of appeals affirmed my finding that 

you’re Range 2. 

And so given all those factors and considerations, [Defendant], I have no 

choice but to sentence you to 18 years to serve. I’m going to impose the 

same fine that I previously imposed. 

. . . .

I mean, I presume you’ve had an opportunity to review that appeal, the 

decision of the court of appeals, and they say I can’t give you split 

confinement of that length. And I’ve done about all I can do. 

Based on the length of the incarceration, the trial court did not order Defendant to 

pay restitution. 

Defendant now timely appeals.

Analysis

On appeal, Defendant claims that the trial court abused its discretion by not 

allowing him to introduce evidence concerning the Connecticut convictions used by the 

trial court to enhance his sentence range in the initial sentencing hearing. Defendant 

claims that such proof would have enabled him to show that he was actually a Range I 

offender. Defendant also asks this court to adopt a rule requiring “certified copies of 

judgments from the court of conviction” for range determination. Finally, Defendant 

claims that his sentence “does not comport with the purposes and principles of the 

sentencing act and does not promote justice.” The State argues that the trial court 

properly refused to revisit the offender classification on resentencing and, alternatively,

that there was sufficient proof to establish Defendant was a Range II offender. The State 
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also claims that the trial court did not abuse its discretion in ordering Defendant to serve 

the within range sentence.

Range Classification

This court’s opinion on direct appeal affirmed Defendant’s convictions, the trial 

court’s determination that Defendant was a Range II offender, and the length of the 

sentence imposed by the trial court. Jerry Reginald Burkes, 2018 WL 2194013, at *1. 

The State argues that the “law of the case doctrine” precluded Defendant from relitigating

offender classification. We agree with the State. Our supreme court described the 

doctrine as follows:

The phrase “law of the case” refers to a legal doctrine which 

generally prohibits reconsideration of issues that have already been decided 

in a prior appeal of the same case. In other words, under the law of the case 

doctrine, an appellate court’s decision on an issue of law is binding in later 

trials and appeals of the same case if the facts on the second trial or appeal 

are substantially the same as the facts in the first trial or appeal. The 

doctrine applies to issues that were actually before the appellate court in the 

first appeal and to issues that were necessarily decided by implication. The 

doctrine does not apply to dicta.

The law of the case doctrine is n[either] a constitutional mandate nor 

a limitation on the power of a court. Rather, it is a longstanding 

discretionary rule of judicial practice which is based on the common sense 

recognition that issues previously litigated and decided by a court of 

competent jurisdiction ordinarily need not be revisited. This rule promotes 

the finality and efficiency of the judicial process, avoids indefinite 

relitigation of the same issue, fosters consistent results in the same 

litigation, and assures the obedience of lower courts to the decisions of 

appellate courts.

Therefore, when an initial appeal results in a remand to the trial 

court, the decision of the appellate court establishes the law of the case 

which generally must be followed upon remand by the trial court, and by an 

appellate court if a second appeal is taken from the judgment of the trial 

court entered after remand. There are limited circumstances which may 

justify reconsideration of an issue which was [an] issue decided in a prior 

appeal: (1) the evidence offered at a trial or hearing after remand was

substantially different from the evidence in the initial proceeding; (2) the 

prior ruling was clearly erroneous and would result in a manifest injustice if 
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allowed to stand; or (3) the prior decision is contrary to a change in the 

controlling law which has occurred between the first and second appeal.

Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 

303, 306 (Tenn. 1998) (internal citations omitted). The doctrine is equally applicable to 

criminal cases and has been applied in a case where the conviction was affirmed, the 

sentence was vacated, and the case remanded for resentencing. See State v. Jefferson, 31 

S.W.3d 558, 561-62 (Tenn. 2000). 

We determine that none of the three exceptions to the doctrine listed above apply. 

The evidence offered at the sentencing hearing after remand was not substantially 

different from the evidence in the initial proceeding, the prior ruling finding Defendant a 

Range II offender was not clearly erroneous and does not lead to manifest injustice, and

there has been no change in the sentencing law governing sentence range during the 

pendency of this case.

The trial court properly limited resentencing to the manner of service of the 

sentence and restitution. Defendant is not entitled to relief on this issue.

Certified Copies of Judgments of Conviction

Defendant asks this court to adopt the “Taylor Rule,” which Defendant claims 

requires trial courts to enter certified copies of judgments of conviction from other 

jurisdictions to prove prior convictions. See Taylor v. United States, 495 U.S. 575 

(1990). The State argues that Taylor does not require certified copies of judgments of 

conviction for range determination. We agree with the State. 

In Taylor, the United States Supreme Court held “that an offense constitutes 

‘burglary’ for purposes of [18 United States Code section] 924(e) sentence enhancement 

if either its statutory definition substantially corresponds to ‘generic’ burglary, or the 

charging paper and jury instructions actually required the jury to find all the elements of 

generic burglary in order to convict the defendant.” Id. at 602. The United States

Supreme Court did not say or imply that certified copies of judgments of conviction are 

required for a trial court’s range determination. 

In Tennessee, reliable hearsay can be used for sentencing provided “the opposing 

party [is] afforded a fair opportunity to rebut any hearsay admitted in evidence” and 

provided there is “an indicia of reliability[.]” State v. Taylor, 744 S.W.2d 919, 921 

(Tenn. Crim. App. 1987); see also Tenn. Code Ann. § 40-35-209(b). “This court has 

consistently held that the presentence report is reliable hearsay.” State v. Leon Booker, 

No. M2014-00840-CCA-R3-CD, 2015 WL 395264, at *3 (Tenn. Crim. App. Jan. 30, 
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2015), perm. app. denied (Tenn. May 14, 2015). “[C]ertified copies of convictions are 

not necessary to prove a prior criminal history; thus, courts can rely upon the presentence 

report.” State v. Adams, 45 S.W.3d 46, 59 (Tenn. Crim. App. 2000) (citing State v. 

Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993)).

Based on well-established precedent, we will not adopt a rule requiring certified 

copies of judgments of convictions for sentencing hearings. Defendant is not entitled to 

relief on this issue.

Purposes and Principles of the Sentencing Act and Promotion of Justice

Defendant claims that the sentence imposed in the resentencing hearing “does not 

comport with the purposes and principles of the sentencing act and does not promote 

justice.” We will not address the sentencing range or the length of the sentence, both of 

which were affirmed by this court on direct appeal. See Jerry Reginald Burkes, 2018 WL 

2194013, at *3. We will address the trial court’s denial of a community corrections

sentence and imposition of a sentence of confinement.

When the record establishes that the trial court imposed a sentence within the 

appropriate range that reflects a “proper application of the purposes and principles of our 

Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic 

and reasoning was improper when viewed in light of the factual circumstances and 

relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 

555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). The

supreme court expanded its holding in Bise to trial courts’ decisions regarding alternative 

sentencing, holding “that 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, 388 S.W.3d 273, 278-79 (Tenn. 2012).

To facilitate meaningful appellate review, the trial court must state on the record 

the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code 

Ann. § 40-35-210(e) (2018); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in 

the articulation of the reasons for imposing a particular sentence . . . should not negate the 

presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party appealing the 

sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401 

(2018), Sent’g Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 

1991).
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In recognition of the limited resources of the state prisons, “convicted felons 

committing the most severe offenses, possessing criminal histories evincing a clear 

disregard for the laws and morals of society[,] and evincing failure of past efforts at 

rehabilitation shall be given first priority regarding sentencing involving incarceration[.]” 

Tenn. Code Ann. § 40-35-102(5) (2018). 

Tennessee Code Annotated section 40-35-103(1) states that the trial court may 

order confinement when:

(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) (2018).

In determining the proper sentence, the trial court must consider: (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 Tennessee Code 

Annotated sections 40-35-113 and -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 made in the defendant’s own behalf 

about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2018); State v. Taylor, 63 

S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court should also consider the 

potential or lack of potential for rehabilitation or treatment of a defendant in determining 

the sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-

103(5) (2018).

At the time of resentencing, the trial court could: (1) sentence Defendant to 

eighteen years’ continuous confinement in the Department of Correction pursuant to 

Tennessee Code Annotated section 40-35-104(c)(8); (2) place Defendant on community 

corrections for eighteen years pursuant to Tennessee Code Annotated section 40-35-

104(c)(9); or (3) sentence Defendant to serve up to one year of his sentence in continuous 

confinement (shock incarceration) in the local jail or workhouse pursuant to Tennessee 
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Code Annotated section 40-36-302(b) followed by placement in community corrections 

for the balance of the sentence.

In determining the manner of service following remand from this court, the trial 

court was not limited to the evidence introduced at the resentencing hearing. The trial 

court could also consider the evidence received at the trial and at the initial sentencing 

hearing, including the presentence report. The initial sentencing hearing occurred on July 

29, 2016, and the transcript of that hearing was included in the appellate record in the 

initial direct appeal and was referenced by this court in its opinion. See Jerry Reginald 

Burkes, 2018 WL 2194013, at *1. We take judicial notice of the record of Defendant’s 

direct appeal. State ex rel. Brown v. Newell, 391 S.W.2d 667, 669 (1965).

Concerning the trial court’s original sentencing decision, this court in its direct 

appeal opinion stated:

When considering the appropriate manner of service of [D]efendant’s 

sentence, the trial court found that “the deterrence factor is one primary 

consideration” and that “efforts have been attempted to rehabilitate 

[Defendant], and they’ve not been successful because he was on probation 

and then he commits serious felonies again.” The court concluded that 

these factors as well as the need to avoid “depreciating the seriousness of 

the offense” justified a period of confinement. The trial court stated:

Now, consider whether that should be all incarceration or 

whether I should consider some type of alternative split 

sentence because as I’ve already stated, I don’t think that 

putting you on community corrections, at least, initially—I do 

think that would depreciate the seriousness of the offense and 

would not sufficiently serve as a deterrent factor to you and 

others.

The trial court also expressed an opinion that a sentence of full 

incarceration was not appropriate in this case. Ultimately, the court 

sentenced the defendant to “eighteen years, split confinement, five years. 

The rest will be on community corrections.”

Jerry Reginald Burkes, 2018 WL 2194013, at *15.
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The trial court determined in the first sentencing hearing that placement of 

Defendant on community corrections for the entire eighteen-year sentence was not 

appropriate based on three factors: deterrence, failed efforts at rehabilitation, and not 

depreciating the seriousness of the offenses. The same factors support the trial court’s 

decision to sentence Defendant to eighteen years’ continuous confinement in the 

Department of Correction rather than up to one year shock incarceration followed by 

community corrections placement. Although it may have been clearer if the trial court 

had made new findings at resentencing concerning the factors it was utilizing to impose 

continuous confinement in the Department of Correction, the failure to do so does not 

mean that the trial court failed to make its sentencing decision based upon the purposes 

and principles of sentencing. The trial court’s sentencing decision is entitled to the 

presumption of reasonableness. Bise, 380 S.W.3d at 707. Defendant has failed to prove 

“that the trial court’s logic and reasoning was improper when viewed in light of the 

factual circumstances and relevant legal principles involved in a particular case’” 

Shaffer, 45 S.W.3d at 555 (quoting Moore, 6 S.W.3d at 242), and has therefore failed to 

overcome the presumption of reasonableness.

Restitution

Tennessee Code Annotated section 40-35-304(a) allows a trial court, in its 

discretion, to order restitution as a condition of probation. “The terms of a community 

corrections sentence” can also include a provision requiring payment of restitution. State 

v. Blake Austin Weaver, No. E2016-01774-CCA-R3-CD, 2017 WL 2103182, at *1 

(Tenn. Crim. App. May 15, 2017). The length of incarceration is a factor the court can 

use in establishing restitution. The trial court did not abuse it discretion in not requiring 

Defendant to pay restitution.

Conclusion

The sentence imposed by the trial court is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE