IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 18, 2017 at Knoxville

STATE OF TENNESSEE v. EBONY MARSHALL

Appeal from the Criminal Court for Shelby County

Nos. 13-05966, 13-05021 James C. Beasley, Jr., Judge

No. W2015-01835-CCA-R3-CD

The Defendant, Ebony Marshall, was convicted upon his guilty pleas of two counts of 

robbery, a Class C felony. He was sentenced to terms of twelve and thirteen years as a 

persistent, Range III offender for the offenses. The sentences were imposed to run 

consecutively, for an effective sentence of twenty-five years. The Defendant filed a 

motion to withdraw his guilty plea, which the trial court denied. On appeal, the

Defendant contends that: (1) the trial court erred in denying his motion to withdraw his 

guilty pleas, (2) the trial court erred in imposing consecutive sentences, and (3) he was 

denied his rights to due process and self-representation in the trial court proceedings. We 

affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and D. KELLY THOMAS,JR., JJ., joined.

Ebony Marshall, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; 

Amy P. Weirich, District Attorney General; Jose Leon and Kenya Smith, Assistant 

District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Defendant’s convictions relate to robberies that occurred in Shelby County on 

May 25, 2013, and September 10, 2013. The record reflects that the Defendant was 

represented variously by multiple attorneys, was allowed to proceed pro se at the 

Defendant’s request, and was assisted by advisory counsel at different stages of the trial 

court proceedings. The Defendant has elected to proceed pro se in this appeal.

05/31/2017
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On July 6, 2015, the Defendant pleaded guilty to both counts of robbery. The 

record reflects that he was represented by counsel. According to the prosecutor’s 

recitation of facts at the hearing, the circumstances of the offenses are as follow:

[The defendant] is doing an open plea to Indictment 13-05021 to the 

offense of robbery, a Class (C) Felony. . . . The fact pattern on that would 

have been that on May the 25th, 2013[,] officers responded to a robbery at 

925 Poplar Avenue. Briana Walls (phonetically) the complainant advised 

that she was checking out another customer when the defendant jumped 

over the counter. He was – she had her hand on the right side of the cash 

register.

The victim complained that the defendant grabbed her hand and 

pushed it out of the way and grabbed the money, took the money and 

jumped off the counter and ran out – out the business what is the westbound 

location. Witness Randy (indiscernible) advised that when he turned 

around he saw the defendant on the counter grabbing the money so he ran 

towards the suspect. A witness, Michael Norfleet, advised he was in the 

drive-thru when he heard the commotion. This individual, Michael 

Norfleet, chased the defendant down Poplar and Dunlap. He advised that 

the suspect took the money out of his pockets and threw it on the ground. 

He picked up the money and brought it back with the [defendant] back to 

925 Poplar where the offense occurred.

Officer Bernell (phonetically) counted the money and there was a 

total of $45. Officer Rector made the [scene]. [The defendant] was 

arrested and transported to 201 Poplar. This offense occurred in Shelby 

County.

[The defendant] is also doing an open plea to Indictment 13-05966 

to the offense of robbery . . . . And should these matters [have] gone to 

trial[,] the facts would have been that on September 10th, 2013 at 5:30 p.m. 

an individual entered the McDonald’s located at 1389 Poplar where Kiera 

Hawkins, Audrey Davis and Felix (indiscernible) were employed. He stood

in line and waited until the cash register was opened by Kiera Hawkins. 

When it was open, the male suspect, the defendant, jumped onto the 

counter and placed both hands in the drawer. Kiera Hawkins, the witness, 

tried to shut up the register but she was forced away by the defendant. He 

was able to retrieve $39 in cash from the drawer and flee the business.

Audrey Davis was standing beside Kiera Hawkins when this 

occurred and she fell to the ground. On September the 12, Sergeant 

Vincent developed [the defendant] as a suspect in this incident. He went to 
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the McDonald’s at 1389 Poplar. . . . Felix (indiscernible) and Audrey 

Davis were shown [a] photographic lineup by the investigator and they 

identified the [defendant] as the individual responsible for the incident. 

This occurred here in Shelby County.

The Defendant was sentenced, and judgments were filed on August 11, 2015. He 

filed various pro se pleadings, including a notice of appeal on September 3, 2015. His 

appointed attorney filed a notice of appeal on September 10, 2015. The Defendant filed a 

pro se “notice of withdrawal of guilty plea” in case number 13-05966 on October 1, 

2015. On November 3, 2015, the trial court granted the Defendant’s counsel’s motion to 

withdraw and appointed an attorney who had represented the Defendant in earlier stages 

of the case. The court’s order also purported to stay the appeal pending resolution of the 

motion to withdraw the guilty plea. On November 18, 2015, the court admonished in an 

order denying a motion for extension of time that the Defendant could not proceed 

simultaneously through counsel and pro se and cautioned that future pleadings should be 

filed by counsel. On February 2, 2016, the Defendant filed another pro se motion to 

withdraw his guilty pleas, which listed case numbers 13-05021 and 13-05966. 

The trial court conducted a hearing on the motion to withdraw the guilty pleas on 

February 18, 2016, and the Defendant proceeded through counsel. The Defendant and 

the attorney who represented him at the time of the guilty pleas testified. The Defendant 

testified that his guilty pleas in the present case had been his first “open” pleas and that 

he had not understood he faced up to thirty years due to the possibility of consecutive 

sentencing. He acknowledged that he had thirteen to fifteen prior convictions, all of 

which had resulted from negotiated guilty pleas, and that the court had sentenced him as a 

Range III offender. He said counsel had advised him that he did not qualify for 

mandatory consecutive sentences and that “there’s a chance that the Judge would 

probably run them concurrent.” He said counsel had no further conversation about 

consecutive sentences with him. The Defendant stated that “there is no way [he] would 

have” accepted an open plea if he had known he would receive consecutive sentences. 

He said that, when he accepted the plea offer, he thought the court would be lenient and 

impose an effective fifteen-year sentence. He stated that he thought he would have 

prevailed at a trial but had not wanted to wait two to three years for a trial. The 

Defendant acknowledged a passage in the transcript of the guilty plea hearing in which 

the court advised him that he faced three to fifteen years on each robbery charge. The 

Defendant said, though, that he was only scheduled for trial on one of his three thenpending cases and questioned “why would we talk about [a] consecutive sentence, if I 

was going for one case.” He said his attorney did not say anything to him about a 

consecutive sentence. The Defendant acknowledged that he had answered negatively 

when asked by the court at the guilty plea hearing whether anyone was making him plead 

guilty and said that no one made him plead guilty. He said he was “looking for a way 

out” and wanted to settle the case in order to get out of jail while he was young. He 

reiterated that he thought he would receive a fifteen-year sentence. When asked about his 
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statement at the guilty plea hearing that he had been satisfied with counsel and that 

counsel had done a good job, the Defendant said, “That was sarcasm.” The Defendant 

stated he had filed numerous complaints with the Board of Professional Responsibility 

against counsel.

The Defendant’s former attorney testified that he explained the possible 

consequences of the plea offer to the Defendant. He said that for “major violators,” he 

prepared a “charge exposure offer sheet” that explained count-by-count the sentencing 

exposure a defendant faced and the State’s corresponding offer. He said he prepared 

such a document for the Defendant. Counsel said he and the Defendant had multiple 

conversations about the possibility of consecutive sentencing. Counsel stated that he 

advised the Defendant that mandatory consecutive sentencing did not apply to the 

Defendant’s cases. Counsel stated that he had written a March 25, 2014 letter to the 

Defendant advising that counsel thought it unlikely the prosecutor would agree to the 

Defendant’s proposed settlement in another case of five years on probation on two counts 

of aggravated assault. Counsel said he also advised the Defendant in the letter that 

counsel believed the plea offer was in the Defendant’s best interests because the 

Defendant faced up to 120 years. Counsel stated in the letter that even if the Defendant 

were not convicted of the robbery charges, the Defendant nevertheless faced up to thirty 

years for the two aggravated assault charges, given the likelihood of consecutive 

sentencing.

The Defendant’s former attorney testified that the Defendant asked about a 

settlement “a number of times” on the day the first case was set for trial. Counsel said he 

asked the prosecutor about a “package deal” but that the prosecutor said the only 

settlement option was an “open plea.” Counsel said he explained to the Defendant that if 

the Defendant accepted an open plea, the trial court had the discretion to impose 

consecutive sentencing and that consecutive sentencing was a “very distinct possibility.” 

Counsel said he did not “twist [the Defendant’s] arm” in order for the Defendant to plead

guilty. He said the Defendant did not appear to be intoxicated or impaired.

The Defendant’s former attorney testified that he requested that the hearing be 

bifurcated because the Defendant wanted to be considered for the Jericho Project. The 

attorney said that ultimately, his office received a letter stating that the Defendant was not 

eligible for consideration because of another pending case. 

The Defendant’s former attorney testified that he explained the State’s pleadings 

related to notification of intent to seek enhanced punishment, consecutive sentencing, and 

for application of enhancement factors. Counsel stated that he received a letter from the 

Defendant, which was dated the day after the sentencing hearing, in which the Defendant 

thanked the attorney for “exceptional effort” on the Defendant’s behalf. 
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The Defendant’s former attorney testified that he filed a timely notice of appeal 

but that the Defendant had been concerned the notice would not be filed promptly and 

filed a pro se notice of appeal. Counsel agreed with the following recollection of the trial 

court:

[Y]ou were originally appointed and then [the Defendant] indicated that he 

wanted to represent himself. I allowed him to represent himself for an 

extensive period of time. Then he asked for assistance, again. I asked you 

to [be] elbow counsel and then he wanted you to handle the case for him[.]

Counsel recalled that while acting pro se, the Defendant obtained remands for a 

preliminary hearing relative to two indictments, that the Defendant represented himself at 

one of the preliminary hearings, and that the attorney represented the Defendant at the 

second preliminary hearing. Counsel agreed with the court’s characterization of the 

Defendant as “very, very involved in” the Defendant’s cases and “very, very proficient” 

at drafting and filing pleadings and making requests. Counsel agreed with the court’s 

recollection that the Defendant believed he had committed theft, not robbery, because the 

Defendant snatched money but did not employ force and violence. Counsel said that at 

times, however, the Defendant took the position that he had not been present for the 

offenses. Counsel said he explained to the Defendant that even if the Defendant 

prevailed in a couple of the indictments, the Defendant might still receive a sentence 

greater than the State’s twenty-year offer at 85%.

The transcript of the guilty plea hearing was received as an exhibit at the hearing 

on the motion to withdraw the guilty pleas. This transcript reflects that the trial court 

questioned the Defendant about his understanding of the terms of the plea agreement and 

his right to a trial. In this examination, the Defendant acknowledged that his attorney had 

reviewed and explained the agreement to him. The Defendant expressed his satisfaction 

with his attorney and stated the attorney “[d]id a good job.” The Defendant was given 

the opportunity to ask questions about pleading guilty but stated he had none. The 

Defendant stated that he understood the court would determine his sentence at a later 

date, and he said he hoped the court would show mercy to him and stated he would be 

“praying every day” until the sentencing hearing. 

After hearing the proof, the trial court found that the Defendant “fully understood 

his rights” and what he was doing in pleading guilty. The court found that the Defendant 

had a lengthy history of criminal convictions and was “well versed in how to work the 

system and how to manipulate the system.” The court found that the Defendant thought a 

possibility existed that the court would allow him a Community Corrections sentence or 

placement in the Jericho Project, that the Defendant’s basis for seeking to withdraw his 

guilty pleas was his dissatisfaction with the consecutive, incarcerative sentences he 

received, and that the motion to withdraw the guilty pleas was an attempt “strictly to 

manipulate the system.” The court also found that the Defendant elected, on the day the 
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first case was set for trial, to enter into an open-ended guilty plea because the Defendant 

viewed this as the better option. The court found that the Defendant was fully advised of 

the consequences of his plea. The court found that the Defendant failed to establish that 

manifest injustice existed and denied the motion to withdraw the guilty pleas. 

Procedurally, this case is complicated by the Defendant’s persistent pro se filings 

while represented by appointed counsel and by his lack of compliance with procedural 

rules while proceeding pro se. As such, we must preliminarily determine which, if any, 

issues raised in the appeal are properly before this court.

The sentencing hearing was conducted on August 11, 2015, and judgments were 

filed on that date. The Defendant was represented by counsel at the sentencing hearing. 

The record contains a pro se notice of appeal dated August 31, 2015, but it does not 

contain a file stamp. It contains a second pro se notice of appeal, which was filed on 

September 3, 2015. The record also contains an undated pro se “Notice of Intent to 

Appeal Certified Question of Law” regarding the court’s ruling on a motion to suppress, 

which does not contain a file stamp. The record contains a pro se “Motion to [I]nvoke 6th

Amendment Rights” alleging ineffective assistance of trial counsel. This motion contains 

a certificate of service dated August 28, 2015, but it does not contain a file stamp. On 

September 10, 2015, counsel filed a notice of appeal “from the final judgment.” Due to a 

conflict of interests, the trial court appointed a different attorney to represent the 

Defendant on September 30, 2015. The Defendant filed his pro se “Notice of Withdrawal 

of Guilty Plea” on October 1, 2015. 

On November 3, 2015, this court granted the Defendant’s appointed attorney’s 

motion to withdraw due to a conflict of interests and appointed an attorney who 

represented the Defendant at an earlier stage of the case. This court’s order stated that 

the Defendant’s appeal of the judgments was stayed pending resolution of the motion to 

withdraw the guilty plea and that if the Defendant appealed following any denial of the 

motion by the trial court, the appeal “shall” be consolidated with the already-pending 

appeal. On November 18, 2015, this court denied the Defendant’s pro se motion for an 

extension of time to file a brief and directed that all future pleadings should be filed 

through counsel.

On February 2, 2016, the Defendant filed a second pro se document in the trial 

court seeking to withdraw his guilty pleas. The hearing on the motion to withdraw the 

guilty pleas, at which the Defendant was represented by his appointed counsel, occurred 

on February 18, 2016, and the court denied the motion by written order on February 19, 

2016. In a March 10, 2016 order, the court granted the Defendant’s motion to proceed 

pro se on appeal and, in a March 11, 2016 order, the court appointed advisory counsel to 

assist the Defendant. A notice of appeal was filed on March 11, 2016 by the attorney 

who was permitted to withdraw by the court’s March 10 order. The notice stated that the 

appeal was “from the final judgment entered after defendant’s petition to withdraw his 
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guilty plea on February 19, 2016.” The Defendant filed a pro se notice of appeal on 

March 21, 2016. The notice specified that the Defendant was appealing from the court’s 

order denying the motion to withdraw the guilty plea.

Against this background, we conclude that the Defendant, through counsel, filed a 

timely notice of appeal from the trial court’s judgments and that the appeal was stayed by 

this court, pending the outcome of the motion to withdraw the guilty plea. The internal 

records of this court reflect, as well, that upon the filing of the notice of appeal from the 

denial of the motion to withdraw the guilty pleas, this case and the pending appeal, the 

latter of which had been stayed, were consolidated. Thus, we conclude that the issues 

related to the appeal following the sentencing and entry of judgments and to the appeal 

from the denial of the motion to withdraw the guilty pleas are properly before this court.

Regarding the State’s argument that we should not consider the Defendant’s 

appeal because his brief was untimely, we note that the State has calculated the 

Defendant’s brief’s due date by reference to the date of the September 10, 2015 notice of 

appeal, which appeal was stayed by this court’s November 3, 2015 order. The record of 

this court reflects that once the notice of appeal from the denial of the motion to withdraw 

the guilty plea was filed, the Defendant filed various motions related to supplementation 

of the record, that this court ordered the trial court to resolve an issue regarding whether 

certain transcripts of pretrial proceedings were needed for resolution of the appeal, and 

that once the question of the state of the record was resolved, the Defendant filed his brief 

promptly. We, therefore, reject the State’s argument that we should not consider the 

merits of the Defendant’s appeal due to an untimely brief.

I

Denial of Motion to Withdraw Guilty Pleas

As we have stated, the Defendant filed a pro se notice of appeal from the trial 

court’s denial of the motion to withdraw the guilty pleas. The State contends the 

Defendant has abandoned any argument that the trial court erred in denying the motion to 

withdraw the guilty pleas because the Defendant did not address the issue in his brief. 

We acknowledge that the Defendant’s pro se brief falls short of addressing alleged errors 

in the court’s ruling on the motion to withdraw the guilty plea, though it does allege that 

the court refused to rule on offers of proof submitted in support of the motion to 

withdraw the guilty plea. We will consider the issue, but we caution the Defendant that 

he proceeds pro se at his own peril relative to the adequacy of his brief, and we remind 

him that compliance with the Tennessee Rules of Appellate Procedure is expected from 

both represented and pro se litigants. See T.R.A.P. 27 (content of briefs).

Tennessee Criminal Procedure Rule 32(f) permits a defendant to withdraw a guilty 

plea after a sentence is imposed but before a judgment becomes final only to “correct [a] 
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manifest injustice.” Tenn. R. Crim. P. 32(f)(2). A defendant has the burden of 

establishing a guilty plea should be withdrawn to correct a manifest injustice. State v. 

Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The standard of review on 

appeal relative to a trial court’s decision whether to grant a motion to withdraw is abuse 

of discretion. State v. Drake, 720 S.W.2d 798, 799 (Tenn. Crim. App.1 986); see 

Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947). Although manifest injustice is not 

defined by procedural rules or statute, this court has stated it must be determined on a 

case-by-case basis. Turner, 919 S.W.2d at 355. A trial court may permit a defendant to 

withdraw his guilty plea to prevent a manifest injustice, in relevant part, when a guilty 

plea was involuntarily and unknowingly entered and when a defendant received the 

ineffective assistance of counsel in connection with the entry of the plea. State v. Crowe, 

168 S.W.3d 731, 742 (Tenn. 2005). A defendant, though, is not permitted to withdraw a 

guilty plea simply because he has a change of heart or is dissatisfied with the sentence 

imposed. Turner, 919 S.W.2d at 355.

The trial court found that the Defendant’s motion to withdraw the guilty pleas was 

an effort to manipulate the criminal justice system due to the Defendant’s dissatisfaction 

with the sentence he received. The court found that the Defendant understood the terms 

of the plea agreement and entered into the agreement voluntarily. The court found that 

the Defendant failed to show a manifest injustice which needed correction by allowing 

the Defendant to withdraw the guilty pleas. Upon review, we conclude that the trial court 

did not abuse its discretion in denying the motion to withdraw the guilty pleas.

We have noted the Defendant’s argument that the trial court refused to rule on 

“offers of proof submitted in motion to withdraw guilty plea,” and we have reviewed the 

portions of the appellate record cited in support of the Defendant’s argument. The record 

does not support a conclusion that the Defendant attempted to make an offer of proof 

pursuant to Tennessee Rule of Evidence 103(a)(2) and that such offer was rejected by the 

court. The Defendant’s argument appears to be merely an alternative couching of his 

complaint that the court did not rule in his favor on the motion to withdraw the guilty 

pleas. 

Likewise, we have not overlooked the Defendant’s argument that the trial court 

failed to adhere to the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and State 

v. Mackey, 553 S.W.2d 337 (Tenn. 1977), relative to a trial court’s obligation to inquire 

and determine that a criminal defendant’s guilty plea voluntarily and knowingly 

relinquishes or abandons constitutional rights of which the defendant is aware. The 

Defendant contends, specifically, that the court failed to advise him of the rights he 

waived by pleading guilty and of the possibility of consecutive sentencing. We note that 

the rights of which Boykin and Mackey require a defendant to be advised do not include,

specifically, any right to be advised that he faces the possibility of consecutive 

sentencing. See Boykin, 395 U.S. at 244; Mackey, 553 S.W.2d at 341. The State 

contends that the right to appeal from a guilty plea is limited to situations which fit in the 
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narrow guidelines of Tennessee Rule of Criminal Procedure 37(b) and Tennessee Rule of 

Appellate Procedure 3(b), and that this court should decline to address the Defendant’s 

issue relative to the knowing and voluntary character of his plea. See State v. Wilson, 31 

S.W.3d 189, 193 (Tenn. 2000) (noting that “whether a defendant knowingly and 

voluntarily entered a guilty plea will rarely, if ever, be apparent from a record of the 

‘proceedings already had . . . .’” (citing Tenn. R. Crim. P. 37(b)(2)(iii); T.R.A.P. 

3(b)(2))). 

To the extent that the State construes the Defendant’s argument, which we 

acknowledge is not a model of clarity, to be a constitutional challenge to the knowing and 

voluntary character of his guilty pleas, we agree that the issue is not properly before the 

court. See Tenn. R. Crim. P. 37(b); T.R.A.P. 3(b); Wilson, 31 S.W.3d at 192-94. To the 

extent, however, that the Defendant’s argument regarding the alleged inadequacy of the 

advice he received at the guilty plea hearing may be construed as a component of his 

appeal from the trial court’s denial of his motion to withdraw the guilty pleas, we have 

considered it. In denying the motion to withdraw the guilty pleas, the court found, after 

receiving the proof, that the Defendant was advised of his rights by counsel and by the 

court at the guilty plea hearing, that the Defendant knowingly and voluntarily 

relinquished his rights, and that as a result, no manifest injustice existed which required 

that the Defendant be allowed to withdraw his pleas. The Defendant is not entitled to 

relief on this basis.

II

Sentencing

The Defendant contends that the trial court erred in sentencing him more harshly 

than he deserved for the offenses. The State contends that the trial court did not abuse its 

discretion. We agree with the State.

This court reviews challenges to the length of a sentence within the appropriate 

sentence range ‘under an abuse of discretion standard with a ‘presumption of 

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must 

consider any evidence received at the trial and sentencing hearing, the presentence report, 

the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature 

and characteristics of the criminal conduct, any mitigating or statutory enhancement 

factors, statistical information provided by the Administrative Office of the Courts as to 

sentencing practices for similar offenses in Tennessee, any statement that the defendant 

made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 

823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); 

State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 

(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).
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Likewise, a trial court’s application of enhancement and mitigating factors is 

reviewed for an abuse of discretion with “a presumption of reasonableness to withinrange sentencing decisions that reflect a proper application of the purposes and principles 

of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of 

an enhancement or mitigating factor does not invalidate the sentence imposed unless the 

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long 

as there are other reasons consistent with the purposes and principles of sentencing, as 

provided by statute, a sentence imposed . . . within the appropriate range” will be upheld 

on appeal. Id.

The abuse of discretion with a presumption of reasonableness standard also 

applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859 

(Tenn. 2013). A trial court has broad discretion in determining whether to impose 

consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a 

preponderance of the evidence that one criterion is satisfied in Tennessee Code 

Annotated section 40-35-115(b)(1)-(7) (2014). In determining whether to impose 

consecutive sentences, though, a trial court must ensure the sentence is “no greater than 

that deserved for the offense committed” and is “the least severe measure necessary to 

achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4) 

(2014); see State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

At the Defendant’s sentencing hearing, trial counsel acknowledged that the 

Defendant was a Range III offender with fifteen prior felony convictions. Counsel 

requested initially that the hearing be bifurcated because the Defendant intended to 

submit an application for the Jericho Project. Counsel stated if the application were 

approved, the defense requested that the hearing be reconvened for the trial court to 

consider whether the Defendant would be allowed to participate as a component of a 

Community Corrections sentence. At the end of the hearing, however, counsel stated that 

the Defendant had changed his mind about being considered for the Jericho Project and 

wanted to move forward with the appeal process, and the Defendant acknowledged his 

agreement with his counsel’s statement.

Neither party called any witnesses at the hearing, although the Defendant 

addressed the court in an allocution. He disputed a statement in the presentence report 

that he was a gang member. Regarding the prosecutor’s argument that the Defendant had 

never been gainfully employed, the Defendant stated that he had held three full-time jobs 

in his life, the last being about seven years ago. He stated that most of his criminal 

history was from his younger days and that he had only received two felony convictions 

in the past ten years.
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The presentence report was received, which reflects that the then-forty-two-yearold Defendant committed the offenses by jumping on the counter at two fast food 

restaurants and grabbing money from the cash registers. In both instances, the Defendant 

physically kept the cashiers from the cash registers. The Defendant had a tenth grade 

education and a GED he earned during prior incarceration. His criminal history spanned

his entire adult life. He reported fair mental health, daily alcohol and cocaine use until 

his arrest, past marijuana use, and past substance abuse treatment. He reported work 

though temporary employment agencies for the previous seven years.

Defense counsel argued that the Defendant had not employed a weapon in the 

offenses, that the offenses occurred as a result of the Defendant’s drug addiction and 

unspecified mental health issues, and that the Defendant did not attempt to nor had any 

intent to harm anyone. The State argued that the Defendant was able to work but instead 

relied upon criminal activity to support himself, that he had an extensive record of 

criminal activity throughout his adult life, that the victims were lucky not to have been 

seriously injured, that the offenses took place in crowded businesses, that the Defendant 

had been given numerous opportunities for reform through both probationary and 

incarcerative sentences for past offenses, and that enhanced, consecutive sentences were 

appropriate.

The trial court stated that it had considered the purposes of sentencing and the 

sentencing considerations as stated in the Sentencing Reform Act, the presentence report, 

and the arguments of counsel. The court found that the Defendant was a Range III 

offender. The court found that the Defendant’s sentences should be enhanced based upon 

the Defendant’s history of criminal convictions and behavior in addition to those used to 

establish his eligibility for Range III classification. See T.C.A. § 40-35-114(a) (2014) 

(amended 2016) (“The defendant has a previous history of criminal convictions or 

criminal behavior, in addition to those necessary to establish the appropriate range[.]”). 

The court rejected the defense’s argument that the sentences should be mitigated based 

upon the criminal conduct neither causing nor threatening serious bodily injury. See id. § 

40-35-113(1) (“The defendant’s criminal conduct neither caused nor threatened serious 

bodily injury[.]”). The court stated, “I think the conduct involved in both of these snatch 

and grab type robberies . . . do threaten serious bodily injury. Obviously there are all 

types of things that could occur as a result of somebody forcefully stealing money and the 

manner in which [the Defendant] did so.” The court noted, as well, the potential for 

injury in light of citizens’ having chased down the Defendant in both robberies. The 

court also rejected the defense’s argument for mitigation based upon the Defendant’s 

committing the offenses in order to provide necessity for himself or his family, which the 

defense proposed based upon the Defendant’s drug addiction. See id. § 40-35-113(7) 

(“The defendant was motivated by a desire to provide necessities for the defendant’s 

family or the defendant’s self.”). The court allowed mitigation pursuant to the “catch-all 

factor,” however, based upon the Defendant’s drug addiction. See id. § 40-35-113(13) 
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(providing for mitigation pursuant to “[a]ny other factor consistent with the purposes of 

this chapter”).

The trial court observed:

In imposing sentence, the Court finds that weighing the extensive 

record of [the Defendant] . . . versus the addiction to drugs that he suffers 

under and apparently has for a number of years, the Court finds in 

reviewing his history that[:]

Confinement is necessary to protect society by restraining a 

defendant who has a long history of criminal conduct.

[The Defendant] has a long history of criminal conduct. Whether all 

of that is related to drugs, or not, he has been violating the law and the 

morals of society for the last twenty five years.

Confinement is necessary to avoid depreciating the seriousness of 

the offense, or confinement is particularly suited to [provide] a deterrent to 

others likely to commit similar offenses.

Again, I am aware of the problems and addictions that being 

addicted to drugs causes.

However, these types of offenses, involving the robbery of 

businesses, with patrons present and clerks and other people who are 

simply there trying to do their job, being frightened. I can only imagine the 

type of fear, because they don’t know, even if they recognize that [the 

Defendant] may be addicted to drugs, that may be all the more reason to be 

frightened and afraid when somebody leaps up on the counter, in the 

manner in which he is and snatches money out of the tray and don’t know 

what to anticipate, or what to expect.

I think those types of offenses are very serious and the Court feels 

that confinement is necessary to avoid depreciating how serious that is and 

also to provide a deterrent to others whom even though may be addicted to 
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drugs, but choose to make a livelihood using that type of modus operandi to 

rob and steal from people.

I do note that there have been, at least, on several occasions it 

appears in the past when [the Defendant] has been placed on probation and 

those efforts obviously have failed, because he has continued to break the 

law multiple times since those efforts were made, that the sentence imposed 

should be no greater than that deserved for the offense committed.

I have taken all those factors into account and the Court feels that the 

appropriate sentence in indictment 13-05021 should be a sentence of twelve 

years as a range three persistent offender and that will be the sentence that I 

will impose, taking into account the fact that once [the Defendant], for legal 

reasons, I forgot now, I believe there was [an] allegation that the victim 

wasn’t able to come . . . to the preliminary hearing. There was some 

reason, but [the Defendant] was released from custody and just a week, or 

two later, in indictment 13-05966, did the same thing, again.

The Court, again, finds, that the enhancement factor of his lengthy 

[history of] criminal conviction[s] and criminal behavior weighed against 

his drug addiction and for the reasons considered under 40-35-103[,] the 

Court will impose a sentence of thirteen years as a range three persistent 

offender in that particular case.

In determining whether the sentences would be served concurrently or 

consecutively, the trial court found that the Defendant was an offender with an extensive 

record of criminal activity and that he was a professional criminal. See id. §§ 40-35-

115(b)(1) (2014) (permitting consecutive sentencing upon a finding that “[t]he defendant is 

a professional criminal who has knowingly devoted the defendant’s life to criminal acts as 

a major source of livelihood), 40-35-115(b)(2) (permitting imposition of consecutive 

sentencing if the trial court finds that “[t]he defendant is an offender whose record of 

criminal activity is extensive”). The court stated, “There are multiple thefts, there are 

multiple other offenses that [cause] the Court a great deal of concern[.]” The court also 

stated that the Defendant’s “twenty-five years of committing offenses in this community 

justify an extensive sentence” and imposed consecutive sentences on that basis.

For his Class C felony convictions, the Defendant faced sentences of ten to fifteen 

years as a Range III offender for each offense. See id. § 40-35-112(c)(3) (2014). The 

trial court imposed mid-range sentences of twelve and thirteen years. On appeal, the 

Defendant complains that the court failed to specify its reasons for enhancing his 
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sentences above the statutory minimum. The Defendant’s complaint is unfounded in

view of the court’s detailed findings of fact relative to the applicable enhancement and 

mitigating factors. The enhancement factor for previous history of criminal convictions 

and criminal behavior in addition to those used to establish the range is supported by the 

record, as is the court’s allowance of mitigation for the Defendant’s drug addiction. The

Defendant has not shown that the court abused its discretion in setting the length of the 

Defendant’s sentences at twelve and thirteen years based upon the presence of these 

factors.

The Defendant contends that the trial court abused its discretion in ordering 

consecutive sentences because the record fails to show the court considered relevant 

statutory sentencing considerations and principles of sentencing. He also contends that 

he was deprived of due process because the court failed to state on the record its reasons 

for imposing consecutive sentences. As we have stated, the court made detailed findings 

regarding the applicability of two statutory factors upon which consecutive sentencing 

may be based. It also made detailed findings relative to its consideration of the statutory 

sentencing considerations and principles of sentencing. Relative to the court’s order of 

consecutive sentencing, it noted the Defendant’s long history of criminal convictions and 

behavior in the community. The record reflects that the court relied more heavily on the 

Defendant’s extensive record of criminal activity in imposing consecutive sentences. 

Although the court also relied on the professional criminal factor as a basis for 

consecutive sentencing, we note that despite the Defendant’s lengthy criminal history, 

many of the offenses involved theft of relatively small amounts or involved criminal 

conduct which was unrelated to theft. We conclude that the record supports the trial 

court’s findings relative to the consecutive sentencing factor for an extensive record of 

criminal activity but that it does not support its finding that the Defendant was a 

professional criminal who knowingly devoted his life to criminal activity as a major 

source of his livelihood. In any event, based upon the presence of the extensive criminal 

activity factor, the Defendant has not shown that the court abused its discretion in 

imposing consecutive sentences. He is not entitled to relief on this basis.

III

Denial of Rights to Due Process and Self-Representation

The Defendant contends that he was denied his rights to due process and selfrepresentation in the trial court proceedings and that, as a result, he had no choice but to 

plead guilty. He complains that the court failed to rule on his “Motion to Suppress 

Evidence” and “Motion to Dismiss/Lesser Offense.” The record reflects that these 

motions pertain to the adequacy of the affidavit of complaint in case number 13-05966 

and the sufficiency of the allegations of indictment number 13-05021. He also complains 
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that the court issued an order denying his motion to supplement the appellate record with 

the “transcript and judgement [sic] sheets of hearing on motion dismiss remand T.R.C.P. 

Rule 5(e).” 

As a preliminary matter, we note that in this court, the Defendant filed various 

motions to supplement the record that are relevant to this issue. The Defendant filed a 

motion requesting that the appellate record be supplemented with the trial court’s order 

relative to a motion to dismiss, a motion to suppress, and the transcript of the hearing on 

the motion to dismiss. In response, the trial court clerk provided a certified statement that 

these documents were not in the clerk’s file. This court then ordered the trial court to 

determine whether the requested proceedings should be transcribed and included in the 

appellate record. In its “Order Denying Request for Transcripts to Supplement Appellate 

Record,” the trial court recounted relevant procedural history as follows:

This cause came on to be heard on an Order from the Court of 

Criminal Appeals for this Court to determine whether requested 

proceedings should be transcribed at the State’s expense to supplement the 

defendant’s appellate record for his Motion to Withdraw his Guilty Plea. 

The requested proceedings dealt with the defendant’s request for a Court 

ordered preliminary hearing after indictment. He is requesting transcripts 

of a hearing on a Motion to Dismiss for failure to grant a proper 

preliminary hearing pre indictment. The Court granted the motion and the 

defendant was afforded a delayed preliminary hearing. Subsequently he 

entered into a guilty plea on his trial date. He entered an open ended plea. 

. . . . 

After reviewing the files in this case the Court finds no justification 

for preparing at State expense transcripts for hearings and proceedings 

which have no bearing on the issue before the Court of Criminal Appeals. 

The issues in question dealt with pretrial matters that were favorably ruled 

in the defendant’s favor. At the time of those rulings the defendant was 

representing himself.

(Emphasis added.) 

Thus, the record reflects that the Defendant was permitted to proceed pro se on the 

motions he identified in his appellate brief, that he was afforded a hearing, and that the 

trial court granted his requested relief. Discussions on the record at the hearing on the 

motion to withdraw the guilty pleas reflect, as well, that the Defendant was afforded a 

hearing on the motions to dismiss and suppress, that he was permitted to represent 

himself, that the trial court granted his request for preliminary hearings on the 

indictments, and that those hearings occurred. To the extent that the Defendant now 
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complains that he was not allowed to proceed pro se and that the trial court failed to rule 

on his motions, the record does not support his allegations.

Insofar as the Defendant complains that he had no choice but to plead guilty due to 

the trial court’s manner of conducting the proceedings, we decline to address the issue. 

This question is one which is more appropriately resolved in post-conviction proceedings. 

See Wilson, 31 S.W.3d at 195. Because the issue is not appropriate for review at this 

stage, the court appropriately ruled that the transcripts of the motions hearings were not 

necessary supplements to the appellate record.

In consideration of the foregoing and the record as a whole, the judgments of the 

trial court are affirmed.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE