State v. Palmer

• Decision Date: 13 May 2022
• Docket Number: M2021-00480-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. FRANK BARNETT PALMER
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE
v.
FRANK BARNETT PALMER

No. M2021-00480-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

May 13, 2022

Assigned on Briefs May 11, 2022

Appeal from the Criminal Court for Davidson County Nos. 2019-D-2719, 2020-B-1181 Angelita Blackshear Dalton, Judge

Defendant, Frank Barnett Palmer, entered a guilty plea as a Range II multiple offender, ^[1]pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), to one count of unlawful possession of a firearm by a convicted felon and one count of evading arrest in a motor vehicle, both Class E felonies. As a part of the plea agreement, the State agreed to a sentence of two to four years on each count, to be determined by the trial court, with a forty-five percent release eligibility. Following a hearing, the trial court sentenced Defendant to four years with a forty-five percent release eligibility on each count, with six months to serve in count one and the remainder of the sentences suspended to supervised probation, and ran the sentences consecutively. On appeal, Defendant argues that his sentences are excessive and that the trial court erred in imposing split confinement. After a thorough review, we affirm the judgments of the trial court.

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

Kevin Kelly, Nashville, Tennessee, for the appellant, Frank Barnett Palmer.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Glenn R. Funk, District Attorney General; and Paul Dewitt, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and John W. Campbell, Sr., JJ., joined.

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OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

Facts and Procedural History

The facts of this case as detailed in the presentence report^[2] are as follows:

On 03/02/2019[, ] Defendant was involved in an alleged aggravated assault involving a firearm at [a house on] Wren [Road], Goodlettsville, [Tennessee]. When officers arrived[ ] [D]efendant was fleeing in a vehicle that was identified by the victim to contain the perpetrator of the assault Officers conducted a traffic stop on the vehicle and detained all individuals including [D]efendant[, ] who was driving Once the victim identified [D]efendant as the primary aggressor[, ] [officers] began a search of the vehicle. [Officers] located a Taurus TCP .380 in the center console within reach of [D]efendant. On 03/16/2019[, ] a more in depth criminal history check was performed an[d] it was discovered [D]efendant had multiple felonies on his record including [one] out of [Georgia] and one in [Tennessee].

On 12/23/2019, at approximately 02:16 [a.m.], officers were dispatched to [an address on] Scruggs [Lane] regarding a burglary. When officers arrived, they spoke with victim Letreona Smith. [Ms.] Smith stated she was in bed when her ex-boyfriend, [Defendant, ] began banging on her door trying to get into the apartment. [Ms.] Smith stated [that Defendant] began stating he loved her and that he would kill her before he let her leave him. [Ms.] Smith stated that is when [Defendant] kicked in her front door, and she ran onto her patio screaming for neighbors to call for help. [Ms.] Smith's child [D.S.]^[3] was in the apartment at the time and woke up from the noise. [D.S.] stated he witnessed [Defendant] pacing around the apartment

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and flipping the glass coffee table over, shattering it. [D.S.] stated he ran out the back door but returned a bit later thinking [Defendant] had left. [D.S.] stated when he returned, he observed [Defendant] still in the apartment grabbing a plate rack and throwing it on the floor. As officers arrived at the complex, they observed a Black male with a moustache in a camouflage hoodie leaving the apartments. [Ms.] Smith was able to point [Defendant] out. Officers returned to where they observed [Defendant] and observed him inside a maroon Ford Fiesta attempting to leave the parking lot. Officers turned on their lights and siren to attempt to stop the vehicle, but [Defendant] fled at a high rate of speed and got onto I-65 South. Officers did not pursue.

Sentencing Hearing

Defendant testified that he was living with his fiancée for the prior eighteen months and that they had been together for two years. He said that his children and grandchildren lived in Atlanta and that his family was close. Defendant stated that he was employed at a restaurant and at a pallet factory. He acknowledged that, due to his prior criminal record, he was not allowed to possess a firearm. Defendant explained, "[W]here I'm from, . . . back home, man, I got to protect myself, you know what I'm saying? I don't be out there reckless with no pistol or nothing, you know, so that's why I moved up here to stay, to stay out of trouble, man." Defendant continued, "I'm too old now, man, to be fighting with these young cats, I mean, and too, too impatient to wait for the police, but I can't carry no pistol so I done gave them up." Defendant testified that, since his arrest for unlawful possession of a firearm, he "got rid" of all the weapons in his home.

Defendant recalled that he and Ms. Smith had been in a relationship. He explained that the relationship was volatile and that, if Ms. Smith "didn't get her way," Defendant "would end up in jail." Defendant stated that he never reached out to Ms. Smith but that Ms. Smith made contact with him on multiple occasions via a "private number." Defendant said that, since his arrest for the present charges, he had not "been through no drama" but instead would go to work and come home to spend time with his fiancée and grandson, who was visiting from Atlanta. Defendant stated that he had no mental health issues or substance abuse problems.

On cross-examination, Defendant agreed that, between 2000 and 2005, he had five felony convictions in Georgia and Tennessee: two for burglary, one for aggravated assault, one for reckless aggravated assault, and one for evading arrest in a motor vehicle. He explained that he received "some kind of suspended sentence" in each of those cases and that all but one was "put into effect to serve[.]"

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The trial court noted that Defendant appeared at each of his seventeen court appearances and "took it seriously[.]" It acknowledged that Defendant took measures to attempt to demonstrate a change in his conduct. Due to Defendant's criminal history, the trial court applied enhancement factor (1), that Defendant had a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range. It also applied enhancement factor (8), that Defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community, because in prior cases, Defendant failed to comply with the conditions of release and had his suspended sentences put into effect. The trial court declined to apply any mitigating factors. It sentenced Defendant to four years on each count with a release eligibility of forty-five percent. The trial court found that Defendant's sentences were mandatorily required to be served consecutively because Defendant was released on bond for the first offense when he...