IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 5, 2012
STATE OF TENNESSEE V. JASON EVERETT NICKELL
Appeal from the Circuit Court of Madison County
No. 11-393 Roger A. Page, Judge
No. W2011-02155-CCA-R3-CD - Filed November 9, 2012
Jason Everett Nickell (“the Defendant”) pleaded guilty to three counts of misdemeanor
stalking, with no agreement as to his sentences. After a hearing, the trial court sentenced him
to eleven months, twenty-nine days at seventy-five percent on each count, to be served
consecutively. On appeal, the Defendant argues that his sentence is excessive because the
trial court did not consider two mitigating factors. After a thorough review of the record and
the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Circuit Court Affirmed
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
C AMILLE R. M CM ULLEN, JJ., joined.
George Morton Googe, District Public Defender (on appeal), and Paul E. Meyers, Assistant
Public Defender (at plea and sentencing hearings), Jackson, Tennessee, for the appellant,
Jason Everett Nickell.
Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; James
G. (Jerry) Woodall, District Attorney General; and Benjamin C. Mayo, Assistant District
Attorney, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
The Defendant was indicted on July 5, 2011, for three counts of misdemeanor stalking
in violation of Tennessee Code Annotated section 39-17-315 (2010). His charges arose out
of several incidents which occurred in March and April of 2011, involving three victims:
Miracle Morman, Hollie Garland, and Laura Ferkaluk. He pleaded guilty to the
misdemeanor offenses on November 2, 2011, leaving the sentence on each conviction to be
determined by the trial court. Following a sentencing hearing, the trial court sentenced the
Defendant to eleven months, twenty-nine days at seventy-five percent on each count, to be
served consecutively. The Defendant timely appealed his sentence, arguing that the trial
court erred in not considering two mitigating factors which were submitted to the court:
remorse and admission of guilt. Thus, the Defendant asserts, this Court should “modify and
reduce the sentence.”
At the sentencing hearing, the presentence report was admitted as an exhibit, and it
is included in the record before us.1 Additionally, the prosecutor introduced certified copies
of judgments from West Virginia, sentencing and plea agreements from West Virginia, and
probation revocation orders from Texas. These documents were admitted as exhibits.2 This
proof established that the Defendant’s prior record included at least the following: two
convictions for “indecency with a child third degree” from Texas;3 felony convictions from
West Virginia including one conviction for failure to register as a sex offender,4 one
1
The only objection defense counsel made to the admission of the presentence report was to charges
or arrests listed in the “comments” section on page eight which do not state the disposition. Defense counsel
asked that this portion of the presentence report be stricken, and the trial court granted his request.
2
Defense counsel objected to the admission of documents contained in exhibit five and collective
exhibit eight. Exhibit five pertains to a conviction for indecent exposure from West Virginia. Defense
counsel objected to the admission of the affidavit of complaint and the plea agreement. Although the trial
court did not rule on the objection, it only allowed a certified copy of the judgment to be admitted.
Collective exhibit eight pertains to a conviction for failure to register as a sexual offender and it includes the
following: an amended sentencing order, a sentencing order, a petition to revoke bond, an order revoking
bond, a plea order, a plea agreement, and an indictment. Defense counsel objected, stating that “we’re just
getting into hearsay, anything besides the judgment.” The trial court ruled that it would only consider the
judgment portion of this exhibit.
3
The Defendant was sentenced to “ten (10) years Texas Department of Criminal Justice Institutional
Division (probated).” The Defendant’s probation for these offenses later was revoked, and he was ordered
to serve five years in actual confinement.
4
The Defendant was sentenced “to an indeterminate sentence of one (1) to five (5) years in the West
Virginia State penitentiary.”
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conviction for attempted kidnapping;5 several misdemeanor convictions from West Virginia,6
including two convictions for indecent exposure, one conviction for simple assault, one
conviction for evading arrest, and one conviction for driving on a revoked license; and one
conviction for attempt to violate the sex offender registry from Tennessee.
At the sentencing hearing, Miracle Morman, one of the victims named in the
indictment, testified that her first encounter with the Defendant occurred at the Jackson mall.
Inside the mall, the Defendant approached Morman and complimented her on how pretty she
looked. Thereafter, Morman saw the Defendant several other times in the mall that day,
causing her to feel uncomfortable, so she decided to leave the mall. As she was leaving the
mall, Morman saw the Defendant behind her again, “like he was about to go out the door,
too.” She wanted him to exit the mall before she did, so she entered another store to let him
leave first. When Morman left the store, the Defendant was still in the lobby “looking kind
of suspicious,” but she exited the mall anyway.
The following day as Morman was walking towards Kohl’s, the Defendant
approached her in his vehicle. The Defendant, again, complimented Morman on how pretty
she looked, causing her to feel uncomfortable. Morman continued on her way to Kohl’s.
She stated, “I shopped for a while and when I came out he approached me again [in his
vehicle] like he was waiting on me to exit the store.” The Defendant told Morman “that he
had a fetish with [her]” and asked her if she could “stand there and let him look at [her] for
a while.” According to Morman, the Defendant was looking at her “sexually” while he said
this to her, and he also “made a comment about [her] breasts.” Morman explained that there
was no way for her to get away from the Defendant because she was walking and he was
driving in his vehicle, so she began walking towards Ross, a nearby store. As she walked
towards Ross, the Defendant drove behind her. Morman stated that the Defendant then
“pulled up beside me. And when he pulled up beside me, he was in his car masturbating.
And then I ran into the store and I didn’t come out.” When Morman returned home after this
incident, she called police and gave a statement.
Hollie Garland, another victim named in the indictment, testified at the sentencing
hearing that her first encounter with the Defendant occurred at Target. Garland first noticed
the Defendant because he was driving “really slow” beside her and her friend. She explained
that “he was staring intently at us as we were walking in.” Garland and her friend went
5
The Defendant was sentenced “for an indeterminate period of not less than One (1) year nor more
than Five (5) years.” His sentence was suspended, and he was “placed on probation for a period of Five (5)
years.” The Defendant’s probation subsequently was revoked.
6
We characterize these convictions as misdemeanors because the sentence imposed for each
conviction was eleven months, twenty-nine days or less.
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inside Target and shopped for approximately ten or fifteen minutes, but the Defendant was
still in the parking lot when they exited. Garland stated that they saw his vehicle “coming
towards us again, so we were scared.” Thus, Garland and her friend walked to her car
quickly. Garland then noticed the Defendant “waiting at the end of an aisle as if like to see
me leave. . . . [S]o I took a different way out the back of Target and went back to Union.”
Garland encountered the Defendant again several days later. On this occasion,
Garland had parked her car on Union University7 campus and was getting out of it when,
according to her, the Defendant “pulled up in a different vehicle right behind my car, like
blocked my car and like I couldn’t have moved it if I wanted to.” The Defendant told
Garland how stunning she was, and then he asked her about her major, what she was studying
at Union, how tall she was, and other personal questions. When Garland began to realize that
he was the same individual from Target, she “became very scared and . . . knew that that was
not right.” The Defendant next asked Garland if she knew what a fetish was, to which she
responded that she did. The Defendant then asked, “So if I asked you if I could look at your
feet would you let me?” Garland told the Defendant “no” and that she needed to go. The
Defendant then “sped off rather quickly.” Subsequently, Garland called Union campus
security and filed a report the same day.
Officer Mark Headin8 of the City of Jackson Sex Offender Registry Compliance Unit
testified at the sentencing hearing that Union campus security was able to get a tag number
from the Defendant’s vehicle, which came back as registered to the Defendant and his wife.
Union campus security also determined that the Defendant is a registered sex offender.
Officer Headin became involved in this case because this information was forwarded to him
“to follow up on.”
Officer Headin initially was not aware that there were two other victims besides
Garland, Miracle Morman and Laura Ferkaluk. However, during the course of his
investigation, Officer Headin discussed the facts of the case involving victim Garland with
Lieutenant Tyreece Miller, and Lt. Miller informed him that those facts sounded similar to
another stalking case that Investigator Cole currently was working on, which involved victim
Morman. Officer Headin then conferred with Investigator Cole, and the two of them
determined that both cases probably involved the Defendant. Because the Defendant was a
registered sex offender, Officer Headin was able to access a photograph of him. Officer
7
Garland referred to this as “Union campus” or “Union” throughout her testimony. We assume,
however, that “Union” is Union University located in Jackson, Tennessee.
8
Mark Headin’s last name is spelled “Heddin” in the sentencing transcript. However, on the state
warrant pertaining to victim Garland and on the indictment in this case, his last name is spelled “Headin.”
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Headin then compiled a photographic lineup to present to Morman, and she positively
identified the Defendant as the person that approached her at the mall and at Kohl’s.
Officer Headin further testified that Lt. Miller “put out a press release, and during the
course of the press release we issued a photograph and with – anyone having contact or any
more information regarding this case to contact the Jackson Police Department.”
Subsequently, Laura Ferkaluk contacted Officer Headin. She was another Union student
who “had contact with Mr. Nickell.” As a result, Officer Headin “charged him by
indictment” for a third count of misdemeanor stalking, naming Laura Ferkaluk as the victim.
The Defendant testified at the sentencing hearing and admitted that he has “a
problem.” He stated that his “problem” started because of his first marriage. The Defendant
and his first wife were both in the Army. According to the Defendant, when he came “back
from a mission . . . she had admitted that she had had an abortion because she didn’t want to
hurt her military career.” The Defendant then stated,
And it – I don’t – I don’t know what flipped on me, but I started turning
towards, you know, the – basically the, you know – the incidents that would
– that had caused me to be in trouble with this – this fear of – of being with
someone and having them be pregnant and do the same thing and just – I – I
don’t know what – what I was thinking. It was obviously stupid.
At the time of the sentencing hearing, the Defendant had been married to his current
wife for four years. In this regard, the Defendant stated,
I straightened up my life, I had met her, started going to her church, and
actually worked my way up in the ministry to the parts where I was actually an
evangelist and was an elder of the church and was being called to several
churches.
Nevertheless, the Defendant admitted that “[r]egardless of what happens here I do need to
try to speak to a professional to find out why I slipped now after working so hard.”
The Defendant also testified, “I’ve been willing to take responsibility for my actions,
you know. . . . And what I [have] done is inexcusable. And I’m willing to be responsible for
my actions. And that’s all I’ve ever tried to do.” He also said that he did not mean to cause
harm to the victims. When asked whether he was sorry for what he did, the Defendant stated,
“[t]he fact that I have – I have alarmed them so that – that’s put us here today, yes.” The
Defendant also said,
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I honestly don’t think I – I honestly don’t think I was thinking. That’s
part of the reason why I – I want to try to find out.
I mean, I – I can’t , you know, do time and go out and do nothing about
it. I want to try to do something about it so I can help make sure this doesn’t
happen again.
On cross-examination, the Defendant admitted that he “went to counseling in Texas
with the first offense” and that it was not by court order. He also went to counseling in West
Virginia, but he did not complete it.
The Defendant explained some of his prior record, admitting that he is on “the
registry” for his “indecent exposure charge.” He stated, however, that he has no sexual
convictions involving offenses for which he actually had contact with the victim. With
regard to the simple assault conviction, the Defendant stated there “was no injury” and that
he was not charged with a sexual offense in that instance. With regard to the Defendant’s
attempt to violate the sex offender registry conviction, he stated that it “was an attempt due
to the fact that I had not signed one of the papers he [sic] was supposed to send to the TBI.
And I – I was working. I overlooked it.” He explained that he “agreed to the sentencing”
for that offense. With regard to the Defendant’s attempted kidnapping conviction, he
explained,
It was an argument. I had yelled. I was angry. At no time did I even
come near the person who had said that I attempted to kidnap him. However,
with their word against mine I had no say and I just said, “Fine, I’ll plead
guilty.” They gave me probation.
With regard to the Defendant’s revocation of probation for his attempted kidnapping
conviction, as well as his failure to register as a sex offender conviction, the following
exchange occurred between the Defendant and the State immediately following the previous
statement by the Defendant:
Defendant: With the fail to register was the – was in that same area was a
fact that I had a cell phone with prepaid minutes that ran out of
minutes. I was charged, convicted, and they violated the
probation to run it concurrent with the violation order.
State: So you got probation for the attempted kidnapping and then you
violated probation and had to serve that sentence?
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Defendant: Well, I asked them to violate it to run it concurrent with the –
with the prison sentence of the violation of – of failed to
register.
At the conclusion of the proof at the sentencing hearing, the trial court sentenced the
Defendant to eleven months, twenty-nine days on each count. The trial court ordered that
the Defendant serve “the maximum percentage that can be applied in this type of
misdemeanor,” seventy-five percent, and the trial court ordered that each count run
consecutively based upon the Defendant’s extensive criminal record. The Defendant now
argues on appeal that his sentence is excessive.
Analysis
Omission of Guilty Plea Transcript
We first note that the Defendant failed to include a transcript of the guilty plea
hearing. It is the Defendant’s duty to compile a complete record for appeal. See Tenn. R.
App. P. 24(b). Disagreement exists among previous panels of this Court over whether, on
appellate review, we should presume the correctness of the trial court’s sentencing
determination in the absence of the guilty plea transcript in the record. Some panels have
determined that this Court should address the merits of the sentencing determination if a
thorough review is possible without the transcript. See, e.g., State v. Monica Rankin, No.
M2011-01849-CCA-R3-CD, 2012 WL 3255087, at *7 (Tenn. Crim. App. Aug. 9, 2012)
(concluding that “the record is sufficient to afford appellate review” despite the defendant’s
failure to include a transcript of the guilty plea hearing); State v. Anna M. Steward, No.
E2010-01918-CCA-R3-CD, 2011 WL 4346659, at *2 (Tenn. Crim. App. Sept. 19, 2011)
(“Despite the absence in the appellate record of a transcript of the plea submission hearing,
we hold that the record is adequate for this court’s de novo review . . . .”). Other panels have
concluded that an appellant waives the right to a full review of the trial court’s sentencing
determination by failing to include the guilty plea transcript in the appellate record. See, e.g.,
State v. Darren Allan Vincent, No. M2010-02468-CCA-R3-CD, 2012 WL 187347, at *2
(Tenn. Crim. App. Jan. 20, 2012) (concluding that failure to include a transcript of the guilty
plea hearing “precludes a de novo review of his sentence and requires this court to presume
that the evidence supported the sentence”); State v. Christine Caudle, No. M2010-01172-
CCA-R3-CD, 2011 WL 6152286, at *4 (Tenn. Crim. App. Dec. 8, 2011) perm. to app.
granted (Tenn. April 12, 2012) (concluding that failure to include a transcript of the guilty
plea hearing “precludes a de novo review of her sentences and requires this court to presume
that the evidence supported the sentences”).
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While inclusion of the guilty plea transcript is preferred, based upon the specific facts
of this case, we conclude that the record is sufficient to afford appellate review of the
Defendant’s sentence without the inclusion of the transcript of the guilty plea hearing.
Additionally, as indicated above, the facts underlying the Defendant’s guilty plea were
adduced during the sentencing hearing.
Standard of Review
On appeal, the applicable standard of review of a challenged sentence is abuse of
discretion with a presumption of reasonableness. State v. Susan Renee Bise, __ S.W.3d __,
__, No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *17 (Tenn. Sept. 26, 2012).9 The
presumption of reasonableness is granted to sentences that are within the authorized term for
the misdemeanor and which reflect a “proper application of the purposes and principles of
our Sentencing Act.” Id. Moreover, if the sentence is within the appropriate term for the
misdemeanor and the sentence is otherwise in compliance with the purposes and principles
listed by statute, see id., we may not disturb the sentence even if we had preferred a different
result, see State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the
sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401,
Sent’g Comm’n Cmts. (2010); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Sentencing
The Defendant claims that the trial court erred in sentencing him because it did not
consider the mitigating factors of remorse and admission of guilt. See Tenn. Code Ann.
§ 40-35-113(13) (2010) (“[a]ny other factor consistent with the purposes of this chapter”).
Thus, the Defendant asserts, this Court should “reduce the amount of the sentence the
Defendant is required to serve.”
First, a defendant convicted of a misdemeanor may have, but is not entitled to, a
separate sentencing hearing. Tenn. Code Ann. § 40-35-302(a) (2010). The trial court must,
however, impose a specific sentence in terms of the months, days, or hours to be served. See
Tenn. Code Ann. § 40-35-302(b) (2010). The court shall impose the sentence in accordance
with the purposes and principles of the Tennessee Criminal Sentencing Reform Act (“the
Sentencing Act”). Id. A person convicted of a misdemeanor is not entitled to the
presumption of a minimum sentence. Johnson, 15 S.W.3d at 518.
9
Although Bise involved sentencing for felony offenses, we conclude that the Tennessee Supreme
Court would apply the same analytical framework to misdemeanor sentencing.
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The trial court shall then determine a percentage of the sentence to be served in actual
confinement by the defendant, and it shall do so in a manner that is not arbitrary. Tenn. Code
Ann. § 40-35-302(d) (2010). In that determination, the court must consider enhancement and
mitigating factors, as well as the legislative purposes and principles related to sentencing.
See id. The trial court is not required to make findings on the record when fixing a
percentage of a defendant’s sentence to be served in actual confinement. See State v.
Troutman, 979 S.W.2d 271, 274 (Tenn. 1998) (“[W]hile the better practice is to make
findings on the record when fixing a percentage of a defendant’s sentence to be served in
incarceration, a trial court need only consider the principles of sentencing and enhancement
and mitigating factors in order to comply with the legislative mandates of the misdemeanor
sentencing statute.”). The maximum percentage of a misdemeanor sentence that may be
served in actual confinement before the defendant is eligible for consideration for
rehabilitative programs is seventy-five percent. See Tenn. Code Ann. § 40-35-302(d).
In this case, the Defendant pled guilty to three counts of stalking, Class A
misdemeanors,10 punishable by no more than eleven months, twenty-nine days. See Tenn.
Code Ann. § 40-35-111(e)(1) (2010) (“The authorized terms of imprisonment . . . for
misdemeanors are . . . Class A misdemeanor, not greater than eleven (11) months, twenty-
nine (29) days . . . .”). The trial court’s sentence of eleven months, twenty-nine days on each
count, therefore, is within the authorized term for a Class A misdemeanor.
Next, the trial court determined that the percentage of the sentence the Defendant shall
serve in actual confinement before he is eligible for consideration for rehabilitative programs
is seventy-five percent. In making this determination, the trial court must consider
enhancement and mitigating factors, as well as the purposes and principles related to
sentencing. Tenn. Code Ann. § 40-35-302(d).
The trial court determined that the following two enhancement factors were
established by the proof submitted at the sentencing hearing: the Defendant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish
the appropriate range, and the Defendant has failed to comply with conditions of a sentence
involving release into the community. See Tenn. Code Ann. § 40-35-114(1), (8) (2010). The
trial court’s findings are supported by the record. As set forth above, the presentence report,
as well as the exhibits admitted at the sentencing hearing, reflect that the Defendant has an
extensive history of criminal convictions. Additionally, the record reflects that the
Defendant’s prior probationary periods have been revoked at least twice.
10
See Tenn. Code Ann. § 39-17-315(b)(2) (2010).
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The trial court also determined that one mitigating factor was established by the proof
submitted at the sentencing hearing: the Defendant’s conduct neither caused nor threatened
serious bodily harm. See Tenn. Code Ann. § 40-35-113(1) (2010). This mitigating factor
is supported by the testimony adduced at the sentencing hearing. With regard to the
mitigating factors of remorse and admission of guilt, although the trial court did not
specifically articulate on the record that these two factors did not apply to mitigate the
Defendant’s sentence, the trial court does not have to make findings on the record when
fixing a percentage of a defendant’s sentence to be served in incarceration. See Troutman,
979 S.W.2d at 274. Instead, “a trial court need only consider the principles of sentencing and
enhancement and mitigating factors in order to comply with the legislative mandates of the
misdemeanor sentencing statute.” Id. We hold that the trial court complied with this
requirement, considered the mitigating factors of remorse and admission of guilt pursuant
to Tennessee Code Annotated section 40-35-113(13) (“[a]ny other factor consistent with the
purposes of this chapter”), and implicitly determined that neither was established by
sufficient proof to be accorded any weight.
In terms of the two enhancement factors that the trial court determined were
established by the proof, it accorded them “great weight.” The one mitigating factor that the
trial court determined was established by the proof was accorded “very little weight” based
on “the circumstances of this case.” A trial court’s weighing of enhancement and mitigating
factors is “left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345.
In addition, when a trial court imposes a sentence involving incarceration, as the trial
court did in this case, that determination must be based on the following sentencing
considerations:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
See Tenn. Code Ann. § 40-35-103(1) (2010).
During the sentencing hearing, the trial court determined that, based on the
Defendant’s criminal history, “it’s important to keep him away from society for as long as
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possible,” and it also determined, as stated above, that the Defendant had been “revoked from
previous probationary periods.” Both of these findings are supported by the record. As
previously stated, the Defendant has an extensive prior criminal record. The Defendant’s
record of criminal convictions began in 1993, and consists of, for example, convictions for
two counts of indecency with a child, two counts of indecent exposure, attempted
kidnapping, assault, and failure to register as a sex offender. Further, as stated above, the
record reflects that the Defendant’s prior probationary periods have been revoked at least
twice. The record established that the Defendant’s probation was revoked for both of his
indecency with a child convictions and for his attempted kidnapping conviction.
For these reasons, the trial court did not act arbitrarily in ordering the Defendant to
serve seventy-five percent of his sentence in each count in actual confinement. The
imposition of seventy-five percent service is consistent with the Sentencing Act.
Finally, the trial court also determined that the Defendant shall serve all of his
sentences consecutively. The Defendant only challenges his sentence based upon his
assertion that the trial court failed to consider two mitigating factors. The Defendant does
not address consecutive sentencing in his brief. Accordingly, any challenge to the trial
court’s imposition of consecutive sentences has been waived. See Tenn. Ct. Crim. App.
10(b).
In sum, the trial court imposed the maximum sentence available, ordered the
maximum percentage to be served in actual confinement, and ordered all of the sentences to
be served consecutively. We hold that the trial court imposed these sentences in a manner
consistent with the purposes, principles, and goals of the Sentencing Act. Thus, the
Defendant is entitled to no relief on this issue.
CONCLUSION
For the reasons set forth above, we affirm the judgments of the trial court.
_________________________________
JEFFREY S. BIVINS, JUDGE
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