A man convicted in December of a 2014 aggravated burglary and theft in DeKalb County will no longer be serving his fifteen year prison sentence as a "career" offender.
During a hearing Wednesday in DeKalb County Criminal Court, Judge Gary McKenzie denied a motion for a new trial but found that due to a miscalculation of his prior offenses, 54 year old David Petty does not qualify as a "career" offender. Instead Petty will serve his fifteen year term, the maximum allowed by law in this case, as a "persistent" offender. As a "career" criminal, Petty would have had to serve at least 60% of the sentence before coming eligible for parole. As a "persistent" offender, Petty will become eligible for parole after serving 45% of the sentence.
Petty stood trial and was convicted by a jury in DeKalb County Criminal Court Wednesday, December 9, 2015. A month later following a sentencing hearing, Judge McKenzie handed down the fifteen year term against Petty for aggravated burglary and another twelve years for theft of property over $1,000. The sentences were merged as one fifteen year term.
In his amended motion for a new trial, Petty's attorney Michael Auffinger set forth grounds including one in which he claimed "the trial court erred in its determination that Petty qualified as a "career" criminal. Although Petty has prior convictions for kidnapping, these do not qualify to be counted individually. The statutory language within Tennessee Code Annotated 40-35-108 (b) (4) reads: except for convictions for which the statutory elements include serious bodily injury, bodily injury, threatened serious bodily injury, or threatened bodily injury to the victim or victims...convictions for multiple felonies committed within the same twenty four hour period constitute one(1) conviction for the purpose of determining prior convictions. In contrast, the statutory definition of kidnapping contains the language: under circumstances exposing the other person to substantial risk of bodily injury", according to Auffinger's motion.
"The trial court erred when it found Petty to be a career offender. Under TCA 40-35-108, once a defendant has been convicted of a Class C felony, the court must find any combination of six or more Class A, B, or C prior felony convictions. However, upon looking at Petty's prior record, there are no A or B offenses, and at most, five Class C offenses. At most, Petty is a Range III Persistent Offender," Auffinger's motion states.
Assistant District Attorney General Stephanie Johnson said while Judge McKenzie found in favor of Petty on this one point he ruled for the state on the remaining issues raised by Petty's attorney in his motion.
"There was a miscalculation in his (Petty's) prior convictions therefore he did not fall into a "career" offender range of punishment. Instead, he fell into a "persistent" offender range. The only change the court made based on that was instead of his (Petty's) sentence being fifteen years at 60%, his sentence will still be the maximum of fifteen years but at 45%. While the judge changed the sentence a little bit he denied the defense motion for new trial and ruled in favor of the state on all of those points (raised by the defense) except the re-sentencing with the calculations of the priors," Johnson told WJLE Wednesday.
After deliberating for less than an hour in December, a jury of six men and six women found Petty guilty of aggravated burglary and theft of property over $1,000 as charged in the indictment against him.
Because Petty has multiple previous felony convictions in several counties dating back to 1980, Assistant District Attorney General Johnson asked the court in January to sentence him as a career offender. "Mr. Petty's criminal conduct spans 35 years. He has very serious prior felony convictions. I understand they are from the 1980's but still we have someone who has persistently violated the law and obtained criminal convictions in several different counties in our state. Mr. Petty has been active in five different surrounding counties. He previously violated and has been revoked on parole twice and probation five times. This defendant has not had any measure of success on supervised release in our community. Furthermore, while he has not been charged, he has been out on an OR bond and has admitted drug use so he has continued to involve himself in illegal activity while this case was pending trial," Assistant DA Johnson told the court during Petty's sentencing hearing in January.
A co-defendant in the case, 44 year old Anthony Lynn Colwell pled guilty in July, 2015 to aggravated burglary and received a TDOC sentence of eleven years at 45% before parole eligibility. The term is to run concurrently with a Warren County case against him. He was given two days of jail credit.
Sheriff Patrick Ray said at the time of their arrests that on Tuesday, July 8, 2014 Petty and Colwell broke into a residence on Man Hill Road and stole a jewelry box containing several items of jewelry which were later pawned at a local jewelry store and at a pawn shop in Warren County. Petty's defense essentially was that while he sold the property, he did not commit the burglary and theft.
Petty's attorney Auffinger, in asking the court for leniency for his client during the January sentencing hearing, said that Petty was never proven to have participated in the burglary. "There was never any direct proof whatsoever that tied him to the burglary," he said.
Auffinger also pointed out that Petty voluntarily cooperated with law enforcement officers in the burglary investigation and tried to settle the debt with one of the pawn shop owners who suffered a loss because of the case. He also said Petty suffered from significant health problems and underwent surgery a week before the sentencing hearing. Auffinger asked the court to make Petty's sentence at the "bottom of the range" of punishment allowed by law in this case.
During the January sentencing hearing Judge McKenzie found that due to seven prior felony convictions since 1980, which included three kidnappings, an assault with intent to commit a felony, and a grand larceny, Petty should be sentenced as a career offender.
"Mr. Petty it looks to me that from 1980 to today (January 7) there has been criminal behavior on your part," said Judge McKenzie during the sentencing hearing. " In the sentencing report there was a DUI conviction around 2003. There is a disorderly conduct in 2000. If your 1983 cases were not of a felony nature that would be one thing. If they were smaller level offenses that would be one thing but they are kidnappings. There's an assault. And then there are some drug offenses and burglaries. There is a lot of criminal history here. Based on those seven felonies I'm going to classify you as a career offender. Most individuals go their entire lives without a single arrest. Without a single conviction. The vast majority of us go our entire lives without multiple convictions. And you've got seven. The prior criminal history and multiple convictions certainly weighs strong for the state. If an individual in our community gets seven prior felony offenses then there becomes a need to protect society from releasing him back," added Judge McKenzie.