State of Tennessee v. Nicholas Cole
M2015-02286-CCA-R3-CD
| Tenn. Crim. App. | Oct 18, 2016Background
- Nicholas Cole pled guilty to 15 counts of theft of property valued at $500 or less and 18 counts of burglary of an automobile.
- The trial court imposed an effective 15-year sentence after a sentencing hearing.
- The court ordered partial consecutive sentencing and continuous confinement for the auto-burglary convictions.
- Cole appealed, challenging consecutive sentencing, denial of probation, and continuous confinement, among others.
- The appellate court affirmed the length and partial consecutive sentencing and denial of probation, but reversed continuous confinement for burglary of an auto and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consecutive sentencing basis | Cole argues no adequate basis for consecutive sentences. | State contends established grounds under 40-35-115(b) supported consecutive sentences. | Consecutive sentences upheld with presumption of reasonableness. |
| Denial of probation | Probation denial was an abuse of discretion given mitigating factors. | Record supports denial under §40-35-103(1) to protect society. | Probation denial affirmed. |
| Continuous confinement under 40-35-122 | 40-35-122 prohibits continuous confinement for non-violent property offenses absent exceptions. | Trial court correctly imposed continuous confinement; not moot. | Trial court erred; continuous confinement reversed and remanded for new sentencing; 40-35-122 applies. |
| Scope of remand and available alternatives | Remand should restore permissible alternatives under 40-35-104(c). | Appropriate sentencing options limited to those remaining after 40-35-122 application. | Remand for resentencing with appropriate alternatives under 40-35-104(c); periodic confinement possible if still available. |
Key Cases Cited
- State v. Bise, 380 S.W.3d 682 (Tenn. 2012) (abuse of discretion standard and presumption of reasonableness for sentencing)
- State v. Pollard, 432 S.W.3d 851 (Tenn. 2013) (consecutive sentencing review requires adequate reason on record; possible de novo review on remand)
- State v. Carter, 254 S.W.3d 335 (Tenn. 2008) (eligibility for probation and criteria when imposing confinement)
- State v. Caudle, 388 S.W.3d 273 (Tenn. 2012) (probation decision reviewed under abuse of discretion with presumption of reasonableness)
- State v. Samuel, 243 S.W.3d 592 (Tenn. Crim. App. 2007) (supports upholding consecutive sentencing based on defendant’s criminal history and livelihood)