# FILED
November 10, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1998 SESSION
STATE OF TENNESSEE, ) ) NO. 02C01-9802-CC-00048 Appellee, ) ) CHESTER COUNTY VS. ) ) HON. FRANKLIN MURCHISON, MICHAEL S. HOLMES, ) JUDGE ) Appellant. ) (Aggravated Robbery, Aggravated Assault, Aggravated Kidnapping, Felony Escape, Theft of Property)

FOR THE APPELLANT : C. MICHAEL ROBBIN S (on appeal) 46 North Third Street, Sui te 719 Memphis, TN 38103 GEORG E MORTON GO OGE (at trial ) District Public Def

ender MICHAEL D. RASNA KE (at trial) DANIEL J. TAYLOR Assistant District Public Defenders 227 West Baltimore Street Jackson, TN 38301-6137 FOR THE APPELLEE : JOHN KNOX WALKUP Attorney General and Reporter ELIZABETH T. RYAN Assistant Attorney General Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JAMES G. (JERRY) WOODALL District Attorney Gener al DONALD H. ALLEN Assistant

District Attorney Gene ral P.O. Box 2825 Jackson, TN 38302-2825

OPINION FILED:

AFFIRMED
JOE G. RILEY, JUDGE1 A charge of attempted first degree murder was dismissed pre-trial by the state. The vehicular burglary charge was dismissed by the trial court at the hearing of defendant’s motion for new trial. 2 OPINION

On March 5, 1997, a Chester C ounty jury found defen dant guilt y of Aggra vated Robbery, Aggravated Assault, Aggravated Kidnapp ing, Felo ny Escape , Burglary of a Vehicle, and Theft of Property Over $1,000. 1 The trial court sentenc ed the defendant to an effective twenty -year sentence on the

subject charges, to run consecutively to both a prior Shelby C ou nty sentence and a thirty-ye ar federal sentence. The defendant raises three issues on appea l: (1) th e de fendant’s multiple convic tions for aggravated robbe ry , aggravated assault, aggravated kidnapping, escape and theft of property vi olate double jeopardy; (2) the State of Ten ne ssee lacked jurisdicti on to try the de fendant for escape from the Chester County Jail since he was being held there on federal charges; and (3) the defendant’s sentence is exce ssive.
This court concludes there is no double jeopardy violation; the State of Tennessee properly prosecuted defendant for escap e; and the sentence is proper. The judgment and sentence imposed by the trial court is AFFIRMED.

FACTS
Defendant, Michael S. Holmes, was a federal p risoner housed at the Chester County jail pursuant to a contrac t with the United States Marshal Service. He was convicted on federal drug charges in February of 1995 and was awaiting sentenci ng on those charges. At approximately 12:15 a.m. o n January 4, 1996, he and another prisoner, Sherman Sanders,executed an escape plan. The jailer, Shane Hesselro de, was lured into the h allw ay near defendant’s cell to assist a maximum security prisoner wh o allegedly needed medical att ention.3

Hesselrodeopened the door to the entry hall and observed defendant and Sanders exit their cells. Sanders pl aced a home-madeknife, described as a “shank,” at the jailer’s back and order

ed him to enter the cell and drop his keys. Simultaneously, defendan t went to the dispatcher’s office where Barbara Paulman was on duty. He rushed at her and threw her out of her chair onto the concrete floor. She struggled with defendantas he dragged her along the floor t o the jail cell while jabbing at her with a “shank.” By the time they reach e d the cell, herblous e and bra were completely torn, and the zipper was ri pped out of h e r pants. The dispatcher suffered br uising, a large knot on her he ad, and a serious shoulder injury as a result of defendant’s actions. After locking Hesselrode and Paulman in the jail cell, defendant and Sanders made their way out

of the jail area and out of the building. It was later discovered they took Paulman’s keys from her purse and absconded with her car. Defendantwas convicted of aggravated robbery of Hesselrode’s jail keys, aggravated assault and aggravated kidnappi ng of Paulman, felony escape , and theft of Paulman’s vehicle

. Prior to the trial on these state charges, defendant pled guilty in federal court to the offense of escape arisi ng from these incidents.

I. MULTIPLE CONVICTIONS / DOUBLE JEOPARDY
Defendant asserts that the aggravated robbery , agg ravated assault, aggravated kidnapping, escape and theft shoul d be viewed as a single cr iminal episode with a single crimi nal intent: theintent to escape. As such, th e defendant argues the multiple convi ctions violate the princi ple of double jeopardy. State v. Denton , 938 S.W.2d 373 (Tenn. 1996), outlines the proper test for evaluating a double jeopardy claim. To determine whether multiple convictions are permitted we must: (1) conduct a Blockburger analysis of the statutory offenses; (2) analyze the evidence used to prove the offens es; (3) consider whether there were4

multiple victims or discrete acts; and (4) compare the purposes of the respective statutes. Denton , 938 S.W.2d at 381. Under Blockburger v. United Stat es , 284 U.S. 2 99 , 52 S.Ct. 180, 76 L.Ed. 3 06 (1932), one must determine whether each offense requires pro of of a n additional fact which the other does not . All five of the subject offenses require proof of additional facts not included in each of the othe r offenses. The same evidence was not used t o establish each offense. Hesselrodewas the victim of the aggravated r obbery and Paulman was the victim of the aggravat ed assault, aggravated kidnapping andt heft. Distinct acts wer e committed in the course of each offense. Finally, a comparison of the statutes ’ purposes shows that each offense protects a different

interest. Theft is a pr

operty offense; escape, an offense against the administration of govern ment. Aggrav ated robbery, aggravated assault, and aggravated kidnapping are all offenses against the person; however, they too have elements t hat disti nguish them from one another. Further, they are in different parts of the criminal code which reflects a legislative intent that they be considered distinct offenses. If this court were to accr edit the defendant’s argument, w e would reach an untenable result. Effectively, Tennessee would be prohibited from prosecuting any criminal act, no matter how heinous, committed in the course o f an inmate’s escape other than the escape itself. Defendant’s multiple convic tions do not violate double je opardy under Denton . The multiple convictions are proper.

II. JURISDICTION OVER ESCAPE

Defendantwas housed in the Chester County jail pursuantto a contract with2 UnitedStates v. Depew , 977 F.2d 1412 (10th Cir. 1 992); United States v. Eaglin , 571

F.2d 1069 (9th Cir. 1977) ; United States v. Stead , 528 F.2d 257 (8th Cir . 1975); United States v. Hobson , 519 F.2d 765 (9th Cir. 1975); Credille v. United States , 354 F.2d 652 (10th Cir. 1965). 5 the U.S. Marshal while he awaited sentencing in federal court. Defendant argues that becaus e of his sta tus as a federal prisoner,the State of Tennessee lacked jurisdiction to prosecutehim for escape from the Chester C ounty jail. In support of this argument, defendant cites a number of federal cases. 2 He co ntends these
cases hold that a federal prisoner, on escape from a state facility, cannot be tri ed in state court for escape. The rationale, defendant argues, is that he is in the U.S. Attorney General’s custody and not state custody.
A. Double Jeopardy

The facts and legal posture of the instant case are distinguishable from those
cases relied upon by the defendant. The issue in the federal ca ses was whet her
a defendant could be prosecuted under the federal escape statut e. The casesdid not specifically address the state’s right to prosecute those prisoners under its own laws pursuant to the principle of dual sovereignty. The long-standing doctrine regarding prosecution by dual sovereign ties i s expressed in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). “[A] federal prosecution does not bar a subsequent state prosecution of the same person for the sam e ac ts, a nd a state prosecution does not bar a federal one . . . [P]rosecutions under the laws of separate sover eigns do not . . . subject [the defendant] for the same offence to be twice put in jeop ardy.’” United States v. Wheeler , 435 U.S. at 317, 98 S.Ct. at 1082-83, 55 L.Ed.2d at 308-9. Tennessee courts specifically uphold and adhere to this doctrine. See , e.g. , Lavon
v. State , 586 S.W.2d 112, 113-14 (Tenn. 1979); State v. Crabtree , 655 S.W.2d 173, 177 (Tenn. Crim. App. 1983). Both the United States and t he State of Tennessee have establis hed the criminal offense of “escape.” As the United States and the State of Tennessee are6

clearly separate sovereigns, each ha s a right to prosecute an individual whose actions con stitute “escape” under its definition. The fact that a defendant is prosecuted and convicted under both such laws is of no consequence with regard to double jeopardy. See Bar tkus v. Illinois , 359 U.S. 121, 131-32, 79 S.Ct. 676, 682, 3 L.Ed.2d 684, 691-92 (1959).
B. Tennessee Escape Statute
Having disposed of any double jeopardy claim, we must evalua

te the scope of the T ennesse e escape statute. Particular ly, we must determine w hether the legislature intended it toencompass the escape of a federal pris oner held in a state institution solely on feder al charges. In evaluating the statute, it “ must be construed so as to as certain and gi v e effect to the intent and purpose of the legislation consider ing the statute as a whole and giving words their com mon meaning. The Court should ass ume that the legislature used each word in the statute purposely and that the use of these words conveyed some intent. ” State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 1997)(citations omitted). To this end, we look to the natural and ordinary language of the Tennessee escape statute which provides that “[i]t is unlawf u l for any person arrested for, charged with, or

convicted of an offense to escape from a penal inst itution.” Tenn. Code Ann. § 39-16-605(a). Stem ming from this provi sion, we note the following definitions: (1) “Penal institution” is defined as “any institutionor facility used to house or detain a person . . . convic ted of a crime.” Tenn. C ode Ann. § 39- 16-601(4)(A); (2) “E s cape” is defined as “unauthorized departure from custody.” Tenn. Code Ann. § 39- 16-601(3); and (3) “Cu stody” is defined as “under arrest by a la w enforcement

offi ceror under restraint by a public serv ant pursuant to an order of a cour t.” Tenn . Cod e Ann. § 39-16-601(2). It is noteworthy that nowhere withi n the s tatute is there an explicit7

requirement that custody be f or a state offense. Nor is there any indication that a prisoner’s status should be relevant to the escape inquiry. In fact, the st atute is phr ased in generic terms whic h tend to negate that very suggesti on. It encompassesa person convicted of “an offense,” not “a state offense.” It requir es custody to be pursuant to the order of “a court,” not “a state court.” Defendantwas convicted in February 1995 on drug charges in U.S. District Court, Western District of Tennessee. He was held in the Chester C ounty jail to await sentencing on that case. On Janu ary 4, 1996, he departed from the restraint of the Chester County jail er without authorization t o do so. In sum, defendant was a person convicted of anoffense who escaped from
a penal institution pursuant to Tenn. Code Ann. §39-16-605. H e was subject to the jurisdiction of the Tennessee courts, and h is prose cution and conviction in accordance with that section was entirely proper. This issue has no merit

.

III. SENTENCING

The trial court sentenced defendant to a total of twenty ye ars on t hese charges. It ran the first three sentences (consis ting of the aggravated robbery, aggravated assault and aggrava ted kidnapping) concurrent; th e remaining sentences (consisting of the escape an d theft) conc urrent ; and each set consecutive to the other. The trial court additionally ordered the effective twentyyear sentence in this case serv ed consecutively to

both a prior Shelby County conviction and defendant’s thi rty-year federal sentenc e. De fendant ma kes no specific assignm ents of error with regar d to the trial court’s findings in reaching this decision. N everthel ess, he maintains the twentyyear sentence imposed in thi s case is excessive. Defendantbases this assertion
on the fact that his federal se ntence was enhanced as a result of the Cheste r3 At sentencing in U.S. D

istrictCourt, defendant’s mandatory minimum sentence under federal g

uidelines was enh

anced from 262 mo

nths to 360 months. 8 County misconduct. 3 Our review of the sentence i mposed by the trial court is de novo , with a presumption that the determinations of the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Byrd ,861 S.W.2d 377,37 9 ( Ten n. Cr im. App . 1993). The presum

pti on of correctness wh ich a tta ches t o the t ri al

cour t ' s act i on i s condi t

i oned upon an aff i rmati ve showi ng i n the r ecor d that t he tr i al cour t consi dered the sentencing pri ncipl es and

all rel evant facts and cir cum

stances. Stat e v. Ashby

,823 S.W.2d 166, 169 ( Tenn 1991).
A. Length of Sent ence

The trial court i n this instance made a careful, studied evaluation of the circumstances

surrounding these convictions. It appropriately c onsid ered: (1) evidence at the trial and the se ntenci ng hearing; (2) the pre-sentence report and addendums; (3) principles of sent encing and arguments for alte rnatives; (4) the nature and characteristics of the crime; (5) aggrava ting or mitigating factor

s; and (6) the statement of the defendant. See Tenn. Code Ann. § 40-35-210. After establishing the

proper sentencing range for each conviction, the trial judge identified, articul ated, and applied multiple enhanc ement factors. He found
no mitigating factors applicable. As a result, a maximum sentence was set for each offense. Withoutany assignment of error by the defendant regar ding the manner or results of these findings, we see no need to disturb the length of these sentences. B. Consecutive Sentencing

A court may

order multiple sentences to run consecutively if the court finds by a preponderance of the evidence that the defendant is a professional criminal,
an offender

whose record of crimi nal activity is extensive, a dangerous of fender with little or no regard for human li fe, or sentenced fo r an offense committed whi le on4 Defendant was technically

on probation at the

timeof these

offenses but, obviously, noton release in the

community. Never

theless, the misapp

licati o n of this factor does not invalidate conse

cutive sentencin

g in view of the othe

r factors. 9 probation. Tenn. Code Ann. § 40-35-115(b) (1), (2), (4), (6) ; see also State v. Black , 924 S.W.2d 912 (Tenn. Crim . App. 1 995). Furthermore, the court i s required to determine whether the consecutive sent ences (1) are reasonably r elated to the severity of the offenses committed; (2) serve to protect the pu blic from further criminal conduct by the offender; and (3) are congruent with general p rinciples o f sentencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. Crim. App. 1995).

1. T.C.A. / Wilkerson

The tria l cou rt in this case made cl ear and careful findings i n the course of deciding which of defendant’s terms would be concurrent and which consecutive. Specifically, it found the existence of four statutor y factors that weighed in f avor of running defendant ’s s entences consecutively: ( 1) defendant is a professional criminal who has knowin gly devoted h is life to criminal acts as a major source of livelihood; (2) defendant has an extensive record of criminal activity; (3) defendant is a dangerous offender whose behavior indicates l ittle or no regard for hum an life, and no hesitation about committing a crime in which the risk to hum an life is high; and (4) defendant was sentenced for a n offense committed whil e on probation. 4 See Tenn. Code Ann. § 40-35-115 (1) ,(2),(4),(6). Although the court did not specifically identify the Wilkersonconsiderations in its decision, our de novo review indicates that th e consecutive sentences are, in fact, reasonably related to the s everity of the offenses and ser ve to protect the public from further crimi nal conduct by this defendant. A n eff ec tive se nte nc e o f tw en ty yea rs fo r ag gra va ted rob be ry, a gg rav ate d a ss au lt, ag gra va ted kid na pp ing, es ca pe , an d th eft o f pro pe rty also comports with t he general pri ncipl es of sentenci ng. Accordingl y, the conse cu tiv e se nte nc es w ere pro pe rly im po se d b y th e tria l co urt.10 2. Rules of Criminal P rocedure

The trial court noted Tennessee Rule of Criminal Procedure 32 in the course of its sentencing determinations. Ru le 32( c)(3)(B) states that mandatory consecutive sentencing applies “to a sentence for escape or for a fel ony committed while on escape.” This was a proper consideratio n in this case. Ourr eview of this issue rev eals that T.R.Cr.P. 32(c )(2) is also relevant. “If the defendant has additional sentences or portions thereof to serve, as the result of conviction in other states or in federal court, the sentence i mposed shall be consecutive thereto unless the court shal l determine in the exercise of its discr

etion that good cause exists to run the sentences concurrently and explici tly so orders.” T.R.Cr.P. 32(c)(2). There has been no such showing of good cause which would dictate that thesentences in this case run concurrently with the federal sentence. The trial judge did not find any , nor do we. The consecutiv e sentencing, both with respect to thestate and federal convicti ons, is proper and shall not be disturbed.

CONCLUSION
Based upon the foregoing, the judgm ent of the trial court is affirmed.

____________________________ JOE G. RILEY, JUDGE

CONCUR:11

____________________________ PAUL G. SUMMERS, JU DGE

____________________________ DAVID H. WELLES, JUD GE