State v. Perry

• Decision Date: 09 December 2022
• Docket Number: W2019-01553-SC-R11-CD
• Citation: 656 S.W.3d 116
• Parties: STATE of Tennessee v. Quinton Devon PERRY
• Court: Tennessee Supreme Court

656 S.W.3d 116

STATE of Tennessee

v.Quinton Devon PERRY

No. W2019-01553-SC-R11-CD

Supreme Court of Tennessee, AT JACKSON.

April 5, 2022 Session

FILED December 9, 2022

Kendall Stivers Jones (on appeal), Franklin, Tennessee; and George Morton Googe, District Public Defender, Greg Gookin, Assistant Public Defender (at trial), for the appellant, Quinton Devon Perry.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Blumstein, Solicitor General; Brent C. Cherry, Senior Assistant Attorney General; Jody Pickens, District Attorney General; and Matthew Floyd, Assistant District Attorney General, for the appellee, State of Tennessee.

Jeffrey S. Bivins, J., delivered the opinion of the Court, in which Roger A. Page, C.J., and Sharon G. Lee, Holly Kirby, and Sarah K. Campbell, JJ., joined.

OPINION

Jeffrey S. Bivins, J.

In this appeal, we address principles governing the imposition of consecutive sentencing for "an offender whose record of criminal activity is extensive." Tenn. Code Ann. § 40-35-115(b)(2) (2019). Quinton Devon Perry pleaded guilty to twenty-four counts of aggravated sexual exploitation of a minor that took place during the years 2016 and 2017, stemming from the discovery that he had uploaded 174 images or videos comprising child pornography or child erotica to his electronic file sharing account. Although Mr. Perry had no prior criminal convictions, the trial court imposed partial consecutive sentencing after finding that he qualified as an offender whose record of criminal activity was extensive. A divided panel of the Court of Criminal Appeals affirmed. State v. Perry, No. W2019-01553-CCA-R3-CD, 2021 WL 2563039, at *7 (Tenn. Crim. App. June 22, 2021), perm. app. granted, (Tenn. Nov. 18, 2021). The dissenting judge, citing a lack of proof that Mr. Perry engaged in a continuous course of downloading and uploading materials over the alleged time period, concluded that the record did not establish him as an offender whose record of criminal activity was extensive. Id. at *6–7 ( McMullen, J., dissenting).¹ Mr. Perry sought permission to appeal, arguing that the lower courts improperly found him to be an offender whose record of criminal activity was extensive based solely on the number of offenses to which he pleaded guilty. We accepted Mr. Perry's appeal. In this opinion, we clarify certain principles for imposing consecutive sentencing under Tennessee Code Annotated section 40-35-115(b)(2) and set forth a non-exclusive list of considerations to aid determining whether a defendant qualifies as an offender whose record of criminal activity is extensive. Based on our review, we have determined that the trial court adequately articulated the reasons for ordering consecutive sentencing on the record. Affording the trial court's decision a presumption of reasonableness, we conclude that the trial court did not err in imposing partial consecutive sentencing. Accordingly, we affirm the decision of the Court of Criminal Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2017, the National Center for Missing and Exploited Children notified the Jackson Police Department of a tip it had received from the electronic file sharing service Dropbox, Inc. The tip indicated that a Dropbox user had uploaded to his Dropbox account 174 electronic files believed to be child pornography or child erotica. The Jackson Police Department investigated and confirmed that the uploaded files consisted of still images and videos depicting minors engaged in sexual activity or posed in a sexual manner. Further police investigation led authorities to Quinton Devon Perry ("the Defendant"). In February 2018, police investigators interviewed the Defendant.² The Defendant initially denied responsibility but ultimately admitted that he had downloaded the images and videos and uploaded the files to his Dropbox account using his mobile phone. The Defendant also admitted that he had shared or traded electronic files with others.

The Defendant was indicted in July 2018 on twenty-four counts of aggravated sexual exploitation of a minor. The first six counts alleged that the Defendant

did knowingly promote, sell, distribute, transport, purchase, or exchange material, or possess with the intent to promote, sell, distribute, transport, purchase, or exchange material, which includes a minor engaged in sexual activity or simulated sexual activity that is patently offensive and where the number of materials involved is greater than twenty-five (25).

See Tenn. Code Ann. § 39-17-1004(a)(2) (2018).³ Because the first six counts specified that the number of materials involved was greater than twenty-five, they were classified as Class B felonies.⁴ See Tenn. Code Ann. § 39-17-1004(a)(4). The remaining eighteen counts contained the same factual allegation except that they each corresponded to a single item of material, and as such, they were classified as Class C felonies. See id. By indicting the Defendant in this manner, the State maximized the number of Class B felony counts and remaining Class C felony counts, given that there were a total of 174 images or videos. Each count of the indictment alleged that the unlawful activity occurred "on or about 2016 through 2017."

In June 2019, the Defendant pleaded guilty to all twenty-four counts. At the guilty plea hearing, the State recounted the facts described above to establish the factual basis for the offenses. In addition, the State identified a particular Internet Protocol address ("IP address")⁵ from which the Defendant had uploaded the 174 electronic files to his Dropbox account. In describing the Defendant's statement to police, the State recounted:

[The Defendant] stated that he has a problem where he enjoys looking at young girls/children for sexual pleasure. He informed [t]he investigators that he downloaded images and videos of children committing sexual acts to another person and/or touching their naked bodies in a sexual manner. He informed investigators that he uploaded this child pornography to his Dropbox account and shared or traded the images and videos electronically with other people. He did advise that he downloaded and uploaded this pornography while he was residing at his grandparents’ house here in Madison County ... and it took place during the years 2016 and 2017.

The Defendant agreed that he had committed the offenses as described by the State.

The Defendant entered an open or blind guilty plea, meaning that he had no sentencing agreement with the State. The State filed a motion requesting that the trial court impose consecutive sentences, arguing that the Defendant was an offender whose record of criminal activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(2) (2019). The trial court conducted a sentencing hearing in July 2019, at which the State introduced a presentence report that contained background information about the Defendant as well as details concerning the offenses.

The presentence report revealed that the Defendant was born in January 1997, making him nineteen to twenty years old at the time of the offenses. He had no prior criminal convictions. However, the Defendant reported that he used marijuana "occasionally" from age fifteen through twenty. Similarly, the Defendant admitted that he drank alcohol "on occasion" beginning at age seventeen. The Defendant graduated high school in May 2016 and lived in Jackson with his grandparents during 2016 and 2017 before moving to nearby Hardeman County. He began working at age thirteen and continued to work, in a variety of jobs, through his arrest. The Defendant was evaluated through the use of an assessment tool that gauged the general likelihood to re-offend, yielding the result of a low risk.

As for the circumstances surrounding the offenses, the report recounted the facts described above, but it provided some additional details. The report revealed that law enforcement authorities, through subpoenas, attempted to obtain information about the IP address used to complete the "uploads" to the Defendant's Dropbox account, "using a time frame five days prior and five days after the date and time of the reported uploads." In other words, the report's references to uploads—plural—suggested that the Defendant uploaded files to his Dropbox account on more than one occasion. Additionally, law enforcement authorities obtained information that "mobile devices ... had been used to log into the Dropbox account" and "four additional IP addresses ... had been used to log into the account." In other words, consistent with the factual basis from the guilty plea hearing, the report suggested that the Defendant had allowed others to access his Dropbox account. Lastly, the report indicated that the 174 images and videos did not involve a single minor and sex act, but instead involved multiple different minors and multiple sex acts.

For his part, the Defendant offered his own testimony and that of his mother. The Defendant emphasized that he had no prior criminal convictions. He also testified that he was amenable to receiving professional help for his behavior. His mother confirmed that he had never been in trouble previously and had been a good member of the family.

After the presentation of proof, the State acknowledged that the Defendant had no prior criminal convictions but argued that precedent indicated he could qualify as "an offender whose record of criminal activity is extensive," Tenn. Code Ann. § 40-35-115(b)(2), based on the convictions presently before the trial court. The State asked that two of the B felony counts be run consecutively, with the remaining counts running concurrently. To support its request, the State pointed, in general terms, to the number of offenses involved (twenty-four felonies), the particular facts making up the offenses, and the circumstances detailed in the presentence report.

In addressing the question of consecutive sentencing, the Defendant acknowledged that he would have to serve time in prison given...