State of Tennessee v. Aaron Duchesne

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
August 5, 2008 Session

STATE OF TENNESSEE v. AARON DUCHESNE

Direct Appeal from the Circuit Court for Madison County
No. 06-504 Donald Allen, Judge

No. W2007-01535-CCA-R3-CD - Filed May 12, 2009

Following a jury trial, Defendant, Aaron Duchesne, was found guilty of theft of property valued
between $10,000 and $60,000, a Class C felony. At the conclusion of Defendant’s sentencing
hearing, the trial court sentenced Defendant as a Range II, multiple offender, to ten years, and
ordered Defendant to serve his sentence consecutively to any sentences that might be imposed in
case numbers 06-05119 and 06-04963 which were pending in Shelby County at the time of the
sentencing hearing. On appeal, Defendant argues that (1) the evidence was insufficient to support
his conviction; (2) the trial court failed to perform its function as thirteenth juror; and (3) the trial
court erred in its sentencing determinations concerning the length of his sentence and in imposing
consecutive sentencing. After a thorough review, we affirm Defendant’s theft conviction and the
length of his sentence. We reverse the trial court’s imposition of consecutive sentencing and remand
for entry of a judgment consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part;
Reversed in Part; and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and D.
KELLY THOMAS, JR., JJ., joined.

Charles Edgar Waldman, Memphis, Tennessee, for the appellant, Aaron Duchesne.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred Earls, Assistant District Attorney General,
for the appellee, State of Tennessee.

OPINION

I. Background

Sam Rick Neely, the general manager of Carlock Nissan in Jackson, testified that a red 2003
Ford Explorer, VIN 1FMDU74K53ZA71457, was purchased by the company on May 29, 2006, as
a trade-in vehicle in connection with the sale of a 2006 Nissan Pathfinder. Mr. Neely said that the
Explorer was valued at $12,500. Mr. Neely stated that he noticed that the Explorer was missing
from the car lot on July 7, 2006. After he confirmed that the Explorer had not been sent to another
location for repairs or loaned to a customer, Mr. Neely reported the vehicle as stolen.

Mr. Neely said that the Explorer was located in Vicksburg, Mississippi, on July 8 or July 9,
2006, and returned to Tennessee by a wrecker service. Mr. Neely stated that the vehicle’s windows
and sunroof were broken, the ignition was stripped, the DVD player was missing, the original tires
had been removed and a different set of tires placed on the vehicle, and the engine would not start.
Mr. Neely said that Carlock Nissan’s insurance company considered the vehicle a total loss and paid
the company the full value of the Explorer. Mr. Neely identified the Explorer from photographs
taken after its recovery in Mississippi. Mr. Neely said that he did not know Defendant and did not
give Defendant permission to remove the Explorer from the car lot.

On cross-examination, Mr. Neely agreed that the Explorer model was started with a magnetic
key which would not work if the ignition was damaged. Mr. Neely stated that at the time of the
offense, approximately 250 new and used vehicles were on the car lot, and the car lot was not
equipped with video surveillance equipment. Mr. Neely stated that he questioned several employees
about the Explorer, and no one could provide any information about the whereabouts of the vehicle
or who had taken it. Mr. Neely said that the Explorer was parked behind the car lot’s building where
vehicles were stored before they were ready for sale. Mr. Neely observed the Explorer on the car
lot in early June and stated that the Explorer was not in the condition it was when retrieved from
Mississippi. Mr. Neely acknowledged that the back parking lot also contained customer and
employee vehicles.

Mr. Neely acknowledged that trade-in vehicles were occasionally loaned to customers while
the customer’s vehicle was being repaired. Mr. Neely stated, however, that the keys to the trade-in
vehicles were kept in the office of the used car manager, Bill Blakemore. Mr. Neely said that when
Mr. Blakemore informed him that the Explorer was missing, Mr. Blakemore had both sets of keys
to the Explorer. Mr. Neely acknowledged that he did not question all of the company’s employees
about the missing Explorer.

Debbie Stanfill, an investigator in the Jackson Police Department’s auto theft unit, testified
that the police department received notification on July 10, 2006, that the Explorer had been located
in Mississippi by the Warren County, Mississippi Sheriff’s Department. Investigator Stanfill was
informed that the sheriff’s department had taken Defendant and his companion, Melanie Fuller, into
custody in connection with the recovery of the Explorer, and that Ms. Fuller had given a statement
to the investigating officers.

Deputy Sheriff Chris Satcher, with the Warren County Sheriff’s Department, testified that
he observed a red 2003 Ford Explorer parked on the side of the road at approximately 8:30 p.m. on
July 9, 2006. Deputy Sheriff Satcher noticed that the vehicle’s back driver’s side window was
broken and the vehicle did not have a license plate. He stopped to investigate and recorded the

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Explorer’s VIN as 1FMDU74K53ZA71457. Deputy Sheriff Satcher ran the VIN through the sheriff
department’s dispatch and learned that the Explorer had been reported as stolen in Tennessee.
Deputy Sheriff Stacher stated that approximately two hours later, he and Investigator Jeff Crevitt
initiated a traffic stop of a truck in which Defendant was a passenger about two miles from the
location of the Explorer. Defendant was arrested for the theft of the vehicle and transported to the
Warren County Jail.

On cross-examination, Deputy Sheriff Satcher said that he was “sure” that no DNA samples
were taken from the Explorer. Deputy Sheriff Satcher stated that the Explorer was found
approximately one-fourth of a mile from Ricky Brown’s house. Deputy Sheriff Satcher transported
Defendant to the jail in his patrol car, but he could not recollect if he had activated the camera inside
the vehicle.

Investigator Crevitt identified Defendant at trial as the passenger of the white commercial
truck he stopped on July 9, 2006. Investigator Crevitt testified that Defendant was developed as a
suspect in the theft of the Explorer while the officers were gathering evidence from the vehicle.
After receiving information from another officer, Inspector Crevitt drove to Ricky Brown’s residence
which was located approximately 150 yards from the Explorer. Inspector Crevitt and other officers
searched for Defendant in the woods around Mr. Brown’s residence without success. When
Inspector Crevitt returned to Mr. Brown’s residence, Melanie Fuller was sitting on the front steps.
Ms. Fuller was advised of her Miranda rights. She told Inspector Crevitt that she had accompanied
Defendant when Defendant drove the Explorer from Tennessee to Mr. Brown’s residence.

Ms. Fuller was taken into custody, and Inspector Crevitt returned to the Explorer to take
photographs. Inspector Crevitt said that he received a telephone call from Mr. Brown asking him
to return to Mr. Brown’s residence. When he arrived, Inspector Crevitt observed a white commercial
truck leaving Mr. Brown’s driveway at a high rate of speed. Inspector Crevitt pursued the truck for
approximately three miles when the truck pulled to a stop. Inspector Crevitt approached the vehicle
on the passenger side and stated that Defendant was leaning down into the passenger seat. Inspector
Crevitt read Defendant his Miranda rights and placed him in custody. Inspector Crevitt told
Defendant that he would be charged with theft of the Explorer and that Ms. Fuller had already
disclosed information about the vehicle. Defendant told Investigator Crevitt that Ms. Fuller was not
involved and that he had stolen the Explorer. Investigator Crevitt asked Defendant about the missing
DVD player and the tires. At that point, Defendant told Investigator Crevitt that he wanted to speak
with a lawyer, and Inspector Crevitt stopped questioning Defendant.

On cross-examination, Investigator Crevitt stated that the ignition of the Explorer did not
appear damaged, and he agreed that a key would be needed to start the vehicle. Investigator Crevitt
said that he had obtained some partial fingerprints from the Explorer, but he did not submit them for
identification because Defendant had admitted that he had been in the vehicle. Investigator Crevitt
stated that he went to Mr. Brown’s house because he received a telephone call from Investigator
Trexler that Mr. Brown told him that Defendant had been driving the Explorer. Investigator Crevitt
stated that he did not see Ricky Brown’s brother, Victor, at the house that night. Investigator Crevitt

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acknowledged that he had previously arrested Victor Brown for burglary. Investigator Crevitt said
that Ricky Brown told him that Defendant had arrived at his house approximately two weeks earlier
driving the red Explorer.

Investigator Crevitt said that he did not take Defendant to identify the Explorer because the
Explorer had already been towed by the time Defendant was located and arrested. However, Ms.
Fuller’s purse was found on the ground beside the Explorer, and Investigator Crevitt told Defendant
he was talking about the red Explorer parked at the intersection of Grange Isle and Fish Ferry Road,
to which Defendant made no reply.

II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to support his conviction. Defendant
contends that there was no direct evidence connecting Defendant with the theft of the Ford Explorer
beyond his uncorroborated statement to Officer Crevitt that he “took the truck.” Defendant also
submits that the evidence was insufficient to support a finding that the Ford Explorer was, in fact,
stolen, and there was no explanation of how the Explorer was driven off the carlot. Defendant points
out that Mr. Neely testified that the Explorer’s two keys were still in the possession of the carlot and
that the Explorer could not be started if the ignition was damaged. Investigator Crevitt testified that
the Explorer’s ignition did not appear damaged when the vehicle was found in Mississippi.

When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced on appeal with a
presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.1991). The defendant has the
burden of overcoming this presumption, and the State is entitled to the strongest legitimate view of
the evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective
consent.” T.C.A. § 39-14-103. If the value of the property obtained is not less than $10,000 but not
more than $60,000, the offense is a Class C felony. Id. § 39-14-105(4). “Value” is defined as “[t]he
fair market value of the property . . . at the time and place of the offense,” or “[i]f the fair market

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value of the property cannot be ascertained, the cost of replacing the property within a reasonable
time after the offense.” Id. § 39-11-106(36)(A).

“[A] conviction cannot be founded solely upon a defendant’s confession, and our cases have
long required some corroborating evidence in order to establish the corpus delicti.” State v. Smith,
24 S.W.3d 274, 281 (Tenn. 2000) (citing Ashby v. State, 124 Tenn. 684, 697-98, 139 S.W. 872, 875
(1911)). The term “corpus delicti” refers to the “body of the crime,” and “requires a showing that
a certain result has been produced and the result was created through a criminal agency.” State v.
Jones, 15 S.W.3d 880, 890-891 (Tenn. Crim. App. 1999). Only slight evidence, direct or
circumstantial, however, is needed to corroborate a defendant’s confession, and the corroborating
evidence need not connect the defendant with the crime. Smith, 24 S.W.3d at 282; Buckingham v.
State, 540 S.W.2d 660, 663 (Tenn. Crim. App. 1976). “[A]s long as this very modest corroboration
requirement is satisfied, the ultimate truth or falsity of the defendant’s confession is a determination
left to the jury.” State v. Housler, 193 S.W.3d 476, 491 (Tenn. 2006).

Mr. Neely testified that a red Ford Explorer, VIN 1FMDU74K53ZA71457, valued at
$12,500, was taken from the Nissan carlot without permission. Mr. Neely stated that he first noticed
that the Explorer was missing from the car lot on July 7, 2006. The Explorer was found in
Mississippi on July 9, 2006, and identified by its VIN. On cross-examination, Investigator Crevitt
said that Ricky Brown told him that Defendant had arrived at his house in a red Explorer
approximately two weeks earlier, and that Defendant was trying to put tires on the vehicle. Melanie
Fuller, Defendant’s girlfriend, was read her Miranda rights and taken into custody at Mr. Brown’s
house. Investigator Crevitt testified, without objection, that Ms. Fuller told him that she had
accompanied Defendant as he drove the red Explorer from Tennessee to Mississippi. Investigator
Crevitt stated that Ms. Fuller’s purse was found on the ground next to the Explorer. Investigator
Crevitt read Defendant his Miranda rights, and Defendant stated he understood them. Defendant
then told Investigator Crevitt that Ms. Fuller was not involved and that he had stolen the Explorer.

As Defendant points out, there was inconsistent testimony from Mr. Neely and Investigator
Crevitt as to whether the Explorer’s ignition had been damaged when it was recovered in Mississippi
and returned to the carlot. However, it is the jury’s prerogative to resolve inconsistencies in the
proof in favor of the State. See Bland, 958 S.W.2d at 659.

Based on our review of the record, we conclude that Defendant’s admission that he stole the
Explorer was sufficiently corroborated, and that a rational trier of fact could find beyond a reasonable
doubt that Defendant committed the offense of theft of property valued between $10,000 and
$60,000. Defendant is not entitled to relief on this issue.

III. Thirteenth Juror

Defendant argues that the trial court failed to act as a thirteenth juror. Defendant submits that
the trial court had the benefit of learning from the sentencing hearing that Defendant had a history

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of mental illness and a ninth grade education. Defendant contends that based on these factors as well
as the insufficient evidence presented at trial, the trial court should have overturned the jury verdict.

Tennessee Rule of Criminal Procedure 33(f) provides that “[t]he trial court may grant a new
trial following a verdict of guilty if it disagrees with the jury about the weight of the evidence.” An
appellate court may grant a new trial only where the trial court has failed to act as the thirteenth juror,
as it is the only practical remedy. State v. Moats, 906 S.W.2d 431, 435 (Tenn.1995). The accuracy
of the trial court’s determination as a “thirteenth juror” is not subject to appellate review. Id.

At the hearing on Defendant’s motion for new trial, and after Defendant raised the thirteenth
juror issue, the trial court reviewed the evidence and found in its opinion that the evidence “was
more than sufficient to sustain the verdict of guilty.” When a trial court overrules a motion for new
trial, this Court may presume that the trial court has served as the thirteenth juror. Id. at 434. The
trial court’s statement that it had no disagreement with the jury’s verdict is enough to demonstrate
that it performed its duty as thirteenth juror. See State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)
(concluding that this Court may reverse the trial court’s judgment only if the record contains
statements by the trial court indicating disagreement or dissatisfaction with the jury’s verdict).
Defendant is not entitled to relief on this issue.

IV. Length of Sentence

Defendant argues that the trial court failed to properly apply certain mitigating factors and
failed to properly weigh enhancement and mitigating factors in sentencing Defendant, as a Range
II multiple offender, to ten years for his Class C felony theft conviction.

At the sentencing hearing, the State relied on Defendant’s presentence report which was
introduced as an exhibit without objection. Defendant did not offer any evidence at the sentencing
hearing. According to the presentence report, Defendant was twenty-six years old at the time of the
commission of the offense. Defendant dropped out of high school after completion of the ninth
grade but reported earning his G.E.D. while incarcerated at the Shelby County Penal Farm.

The presentence report reflects that Defendant was convicted of vandalism, a Class D felony,
in 1999; and in 2001, leaving the scene of an accident involving death, a Class E felony, vehicular
assault, a Class D felony, and vehicular homicide, a Class C felony. In addition, Defendant has
several misdemeanor convictions including three misdemeanor drug possession convictions, one
evading arrest conviction, one domestic assault conviction, and one simple assault conviction, as
well as several traffic violations. Defendant was sentenced September 10, 2002, to four years for
his vehicular homicide conviction, after which he was convicted of misdemeanor evading arrest,
possession of a Schedule II drug, and several offenses of driving with a suspended license.

Defendant stated in the presentence report that he suffers from bipolar disease and is
currently taking Trizodone. Defendant said that he stopped drinking alcohol six years ago, but he

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admitted he has a problem with methamphetamine. Defendant expressed his willingness to
participate in an in-patient drug treatment program or a boot camp program.

Defendant’s mother, Genelle Harris, was interviewed during the preparation of the
presentence report. Ms. Harris stated that Defendant married very young and had a ten-year-old son.
Although that marriage ended in divorce, Ms. Harris said that Defendant’s fiancée, Melanie Fuller,
was very supportive. Ms. Harris blamed Defendant’s problems on drugs and indicated that she
would like for him to participate in a rehabilitation program.

At the conclusion of the sentencing hearing, the trial court found that Defendant was a Range
II, multiple offender, based on his 1999 felony vandalism conviction, and one of his 2005 felony
convictions. See T.C.A. § 40-35-106(A)(1). As enhancement factors, the trial court found that
Defendant had a history of criminal convictions in addition to those necessary to establish his
sentencing range and that Defendant had on several occasions failed to comply with the conditions
of a sentence involving release into the community. See id. § 40-35-114(1), (8). The trial court also
noted as part of Defendant’s criminal behavior that he was indicted in Shelby County on February
27, 2006, for two counts of theft of property over $10,0000, shortly before the current offenses were
committed in Madison County in July 2006. See id. § 40-35-114(1).

The trial court considered Defendant’s limited education as a mitigating factor but assigned
this factor little weight, noting that it was Defendant’s “choice not to . . . finish high school.” See
id. § 40-35-113(13). Moreover, we note that Defendant stated in his presentence report that he had
obtained a G.E.D. The trial court also extended slight weight to Defendant’s mental health and the
fact that his conduct neither caused nor threatened serious bodily injury. See id. § 40-35-113(1),
(13). After considering the applicable enhancement factors, the trial court found that “based upon
this criminal history . . . the maximum sentence is justified in this case.” Accordingly, the trial court
sentenced Defendant to ten years.

On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n Comments;
see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges the length,
range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on
the record with a presumption that the determinations made by the court from which the appeal is
taken are correct. T.C.A. § 40-35-401(d). This presumption of correction, however, “‘is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008)
(quoting State v. Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the Sentencing Act,
the presumption of correctness fails,” and our review is de novo. Carter, 254 S.W.3d at 345 (quoting
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); State v. Pierce, 138 S.W.3d 820,
827 (Tenn. 2004)).

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 A trial court is mandated by the Sentencing Act to “impose a sentence within the range of
punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required to begin with
a presumptive sentence subject to increase and decrease on the basis of enhancement and mitigating
factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate court is “bound by a trial court’s
decision as to the length of the sentence imposed so long as it is imposed in a manner consistent with
the purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id.

In conducting a de novo review of a sentence, this Court must consider (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) evidence and information offered by the parties on the enhancement
and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;
(f) any statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at
343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

As a Range II, multiple offender, Defendant was subject to a sentence between six and ten
years for his Class C felony conviction. T.C.A. § 40-35-112(b)(3). Defendant argues that the trial
court erred in sentencing him to the maximum sentence in the range because the trial court
acknowledged the presence of mitigating factors. Defendant’s argument challenges the weight
placed by the trial court on the articulated enhancement and mitigating factors. However, our
supreme court has recently explained that:

[p]rior to the 2005 amendments [to the 1989 Sentencing Act], a defendant could
appeal on the basis that “[t]he enhancement and mitigating factors were not weighed
properly, and the sentence is excessive under the sentencing considerations set out
in § 40-35-103.” [T.C.A.] § 40-35-401(b)(2) (2003). Similarly, the State could
appeal on the basis that “[t]he enhancement and mitigating factors were not weighed
properly.” Id. § 40-35-402(b)(5). Significantly, the 2005 amendments deleted as
grounds for appeal a claim that the trial court did not weigh properly the
enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353, §§ 8, 9.
Rather, a defendant may now appeal on the basis (among others) that the sentence “is
excessive under the sentencing considerations set out in §§ 40-35-102 and 40-35-
210,” id. § 40-35-401(b)(2) (2006), and the State may now appeal on the added basis
(among others) that the sentence “is inconsistent with the purposes or considerations
of sentencing set out in §§ 40-35-102 and 40-35-103,” id. § 40-35-402(b)(7).

Carter, 254 S.W.3d at 344.

Thus, the weight assigned to the applicable mitigating and enhancement factors has been left
to the trial court’s sound discretion. The Carter court further instructed that:

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 even if a trial court recognizes and enunciates several applicable enhancement
factors, it does not abuse its discretion if it does not increase the sentence beyond the
minimum on the basis of those factors. Similarly, if the trial court recognizes and
enunciates several applicable mitigating factors, it does not abuse its discretion if it
does not reduce the sentence from the maximum on the basis of those factors.

Id. at 345-46.

Based on our review, we conclude that the sentence of ten years was imposed in a manner
consistent with the purposes and principles set out in sections 40-35-102 and 40-35-103 of the
Sentencing Act. We are, therefore, bound by the trial court’s decision as to the length of the
sentence. Defendant is not entitled to relief on this issue.

IV. Consecutive Sentencing

Defendant argues, and the State concedes in its brief, that the trial court erred in ordering him
to serve his theft sentence consecutively to any sentences which might ultimately be imposed in case
nos. 06-05119 and 06-04963 in Shelby County which were pending at the time of Defendant’s
sentencing hearing.

Tennessee Code Annotated section 40-35-115(b) provides that it is within the trial court’s
discretion to impose consecutive sentencing if it finds by a preponderance of the evidence that any
one of an enumerated number of criteria applies or, if not, “consecutive sentences are specifically
required by statute or the Tennessee Rules of Criminal Procedure.” In the instant case, the trial court
did not find that any of the criteria listed in section 40-35-115(b) were applicable. Rule 32(c) of the
Tennessee Rules of Criminal Procedure, however, provides that a sentence “shall be consecutive .
. . to a sentence for a felony committed while the defendant was released on bail and the defendant
is convicted of both offenses.” Rule 32(c)(3)(C).

The “imposition of judgments, including sentences, for existing convictions shall occur in
a progressive fashion with the successive sentences being determined to be served concurrently or
consecutively to those previously imposed.” State v. Arnold, 824 S.W.2d 176, 178 (Tenn. Crim.
App. 1991) (citing T.C.A.§ 40-20-111(a)).

In Thompson v. State, 565 S.W.2d 889 (Tenn. Crim. App. 1977), the Coffee County Circuit
Court ordered a sentence to be served consecutively with “any sentence which the defendant may
receive in Moore County for criminal conduct prior to the date of this order.” The Moore County
charge apparently was pending at the time of the sentencing. In ordering the deletion of the reference
to the Moore County charges, this Court stated,

[w]e conclude ... that under the terms of the statute a sentence may only be run
consecutively to a previously imposed sentence. There is no statutory authority for
the in futuro order entered in this case. It would be solely within the discretion of the

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 Moore County Court to determine whether a sentence resulting from a subsequent
Moore County conviction should be served consecutively to or concurrently with the
pre-existing Coffee County sentence now under review. Id. at 890; see also Arnold,
824 S.W.2d at 176 (concluding that the Coffee County Circuit Court could not
require consecutive sentencing “in futuro” relative to judgments of conviction not yet
entered in Lincoln County).

As the Arnold court explained:

[g]enerally, the last sentencing court should have the responsibility to determine
whether or not a sentence should be served consecutively. See, e.g., State v. Stafford,
368 N.W.2d 364, 366 (Minn. App. 1985); Ex parte Ward, 161 Tex. Crim. 64, 274
S.W.2d 693 (1955). Otherwise, the first sentencing court’s action would be
preemptive of the last court’s function and power to impose a sentence which is
based upon all that has gone before. See, e.g., United States v. Eastman, 758 F.2d
1315 (9th Cir. 1985).

Id. at 178.

Based on the foregoing, we conclude that the trial court erred in ordering Defendant to serve
his sentence for his theft conviction consecutive to any sentence which might later be imposed in
case nos. 06-05119 and 06-0493 in Shelby County, and we remand the case for modification of the
judgments by deleting any reference to the Shelby County cases.

CONCLUSION

After a thorough review, we affirm the trial court’s judgment relative to Defendant’s
conviction of theft of property valued between $10,000 and $60,000, and the length of Defendant’s
sentence. We reverse the trial court’s order requiring the sentence to be served consecutively to his
pending cases in Shelby County and remand the case for modification of the judgments by deleting
any reference to the Shelby County cases.

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THOMAS T. WOODALL, JUDGE

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