State of Tennessee v. Ziberia Marico Carero

Defendant, Ziberia Marico Carero, was charged in a presentment by the Knox County Grand Jury in Count One with possession of cocaine in a school zone with intent to sell; in Count Two with possession of cocaine in a school zone with intent to deliver; in Count Three with sale of cocaine; and in Count Four with delivery of cocaine for his role in a sale of cocaine to a confidential informant. Defendant was also charged in Count Five with a criminal gang offense enhancement pursuant to Tennessee Code Annotated section 40-35-121. After a jury trial, Defendant was convicted of the charges in Counts One through Four. In a bifurcated trial, the jury found Defendant not guilty of the criminal gang offense enhancement. The trial court merged Count Two into Count One and merged Count Four into Count Three. The trial court sentenced Defendant to concurrent sentences of twenty-three years and eighteen years. On appeal, Defendant challenges the sufficiency of the evidence and his sentences. Defendant also argues that the trial court improperly refused to merge all four of the convictions into a single conviction. After a review of the record, we determine that the evidence was sufficient to support the convictions. However, we conclude that the multiple convictions violate double jeopardy principles and, therefore, should have been merged into one conviction for possession of cocaine in a school zone with the intent to sell. As a result, we merge all four convictions into Count One and remand the matter for entry of separate, corrected judgment forms for Counts One through Four in light of the supreme court‟s recent order in State v. Marquize Berry, No. W2014-00785-SC-R11-CD, 2015 WL _____ (Tenn. Nov. 16, 2015) (per curiam order).