FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 21, 1999
FEBRUARY 1999 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9805-CR-00234
)
vs. ) Sumner County
)
GEORGE MATTHEWS, ) Hon. Jane W. Wheatcraft, Judge
)
Appellant. ) (Sentencing-Evading Arrest)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID ALLEN DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
ZOE LAAKSO (sentencing) ELIZABETH B. MARNEY
Assistant Public Defender Assistant Attorney General
117 East Main St., Suite 2C 425 Fifth Ave. N., 2d Floor
Gallatin, TN 37066 Nashville, TN 37243-0493
REGAN L. RUDLAND (on appeal) LAWRENCE RAY WHITLEY
Assistant Public Defender District Attorney General
117 East Main St., Suite 2C
Gallatin, TN 37066 LYTLE ANTHONY JAMES
Assistant District Attorney
113 West Main Street
Gallatin, TN 37066
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, George Matthews, appeals from his sentence imposed
for evading arrest,1 a Class E felony, in the Sumner County Criminal Court. The trial
court imposed a sentence of four years at 35 percent as a Range II offender to be
served in the Tennessee Department of Correction consecutively to a Davidson
County conviction. In this direct appeal, the defendant raises two issues: (1)
whether the trial court correctly sentenced the defendant to serve four years at 35
percent in the Department of Correction, and (2) whether the trial court properly
ordered the defendant to serve this sentence consecutively to Davidson County
case number 97-I-237. After a review of the record, the briefs of the parties, and
the applicable law, we affirm the sentence.
The evidence of the circumstances of the offense was presented at
the sentencing hearing after the defendant pleaded guilty. On January 14, 1997,
the defendant was driving his vehicle at a speed of 80 miles per hour in a 50 mile
per hour zone. Officer Clark passed the defendant driving in the opposite direction
and turned to follow the defendant after clocking his speed. Officer Clark activated
his blue lights and drove beside the defendant. He observed the defendant’s
vehicle swerving through traffic and continuing to accelerate. They continued
driving for approximately a mile and a half until the defendant stopped his vehicle
and submitted to the arrest.
At the time of sentencing, the 38-year old defendant had spent most
of his adult life in and out of confinement. The presentence report contained an
extensive criminal record. The defendant did not complete high school, but he
obtained a GED in 1981. He plans to start his own business of building pallets after
he is released.
1
Tenn. Code Ann. § 39-16-603 (1997).
2
When there is a challenge to the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review of the record
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 40-35-401(d) (1997). This presumption 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. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is
upon the appellant.” Id. In the event the record fails to demonstrate the required
consideration by the trial court, review of the sentence is purely de novo. Id. If
appellate review reflects the trial court properly considered all relevant factors and
its findings of fact are adequately supported by the record, this court must affirm the
sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing,
(2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct
involved, (5) evidence and information offered by the parties on the enhancement
and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
The record of the case at bar reflects that the trial court engaged in a
thorough review of the relevant principles and considerations. Accordingly, its
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determination is entitled to the presumption of correctness.
I.
In determining the sentence, the trial court enhanced the defendant’s
sentence by applying the following factors:
(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those
necessary to establish the appropriate range;
(8) The defendant has a previous history of
unwillingness to comply with the conditions of a
sentence involving release in the community;
(10) The defendant had no hesitation about committing
a crime when the risk to human life was high.
Tenn. Code Ann. § 40-35-114(1), (8), (10) (1997). The trial court found no
applicable mitigating factors and that the defendant was not amenable to
rehabilitation. Therefore, the court imposed the maximum sentence of four years.
The court ordered the defendant to serve this sentence consecutively to a Davidson
County sentence because he has an extensive criminal record and his behavior
indicated little or no regard for human life. The court found confinement to be
necessary in order to deter others likely to commit this type of offense and to avoid
depreciating the seriousness of the offense.
The defendant claims the trial court based its application of
enhancement factor (1) on unreliable hearsay contained in the presentence report.
Specifically, the defendant argues that the court could not find that the defendant
had a prior criminal record unless the state had entered certified copies of the
judgments into evidence at the sentencing hearing. The defendant relies on State
v. Buck, 670 S.W.2d 600 (Tenn. 1984), for the proposition that computer print-outs
are unreliable hearsay and are not admissible. In Buck, the supreme court held that
“computer print-outs from the N.C.I.C. are not admissible as a substitute for certified
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copies of court convictions nor for any other purpose.” Buck, 670 S.W.2d at 607.
However, as the defendant concedes, the presentence report is not
a computer print-out from the N.C.I.C. The preparer of this presentence report
testified that information contained in the presentence report was obtained from
various sources, including a computer print-out from the N.C.I.C. The defendant
objected to information derived from the N.C.I.C. computer print-out, and the trial
judge ordered this information to be stricken from the report. Therefore, any
information from the N.C.I.C. computer print-out was not considered by the trial
court.
This court has consistently held the presentence report to be reliable
hearsay. See State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App. 1997) (“[T]he
information [in a presentence report] is reliable because it is based upon the
presentence officer’s research of the records, contact with relevant agencies, and
the gathering of information which is required to be included in a presentence
report.”); State v. Dale Nolan, No. 01C01-9511-CC-00387, slip op. at 31-32 (Tenn.
Crim. App., Nashville, June 26, 1997); State v. Dewayne Foster, No. 01C01-9501-
CC-00008, slip op. at 6-7 (Tenn. Crim. App., Nashville, Nov. 21, 1995); State v.
Richard J. Crossman, No. 01C01-9311-CR-00394, slip op. at 10-12 (Tenn. Crim.
App., Nashville, Oct. 6, 1994); State v. Richardson, 875 S.W.2d 671, 677 (Tenn.
Crim. App. 1993). In both Foster and Crossman, the defendants contended, as the
defendant does here, that certified copies of convictions are required to prove prior
criminal history. This court held that certified copies are not necessary to prove a
prior criminal history; therefore, courts could rely upon the presentence report in
finding a prior criminal history. Crossman, slip op. at 11-12. Most importantly, the
defendant had an opportunity at the sentencing hearing to challenge any
information contained in the presentence report as inaccurate or incorrect.
5
Excluding the N.C.I.C. computer print-out information, the defendant‘s
prior criminal history contained convictions for escape, theft of property, cocaine
possession, receipt of stolen property, and burglary in the second degree. Three
felony convictions were used to enhance the defendant to a Range II multiple
offender pursuant to Tennessee Code Annotated section 40-35-106. The
remaining convictions were used to enhance the length of the defendant’s sentence
by applying enhancement factor (1). We find the trial court properly applied
enhancement factor (1).
Next, the defendant contends that the trial court improperly applied
enhancement factors (8) and (10). Additionally, the defendant claims mitigation
factor (1), defendant’s conduct neither caused nor threatened serious bodily injury,
should apply to this case. See Tenn. Code Ann. § 40-35-113(1) (1997).
The enhancement factor regarding high risk to human life applies to
evading arrest convictions when the circumstances warrant the application of this
factor. See State v. Virginia Ailene Gann, No. 01C01-9704-CC-00164, slip op. at
14 (Tenn. Crim. App., Nashville, May 27, 1998); State v. James Ray Bartlett, No.
01C01-9509-CC-00302, slip op. at 14 (Tenn. Crim. App., Nashville, Apr. 7, 1998);
State v. Wayne L. Hughes, No. 01C01-9502-CC-00033, slip op. at 16 (Tenn. Crim.
App., Nashville, June 20, 1996) (opinion on rehearing). The defendant was
swerving in and out of traffic on a heavily traveled road. The traffic was light at the
time of this offense; however, the potential for an accident with serious bodily injury
was great, especially at the speed the defendant was driving. We agree with the
trial court that enhancement factor (10) applied under the circumstances of this
case.
Regarding enhancement factor (8), the defendant contends that
6
release on bond is not a release as part of a sentence, therefore enhancement
factor (8) is not applicable. The defendant contends that the trial judge based her
application of this factor on the fact that the defendant committed another offense
while on bail for the evading arrest offense. After a review of the sentencing hearing
and the presentence report, we find that the trial judge applied this factor on the
basis that the defendant had sentences involving community releases and he
continued to commit criminal offenses. The presentence report lists two previous
offenses for which the defendant was placed on supervised probation for one year.
During the probation period, the defendant committed three additional offenses.
Accordingly, enhancement factor (8) is applicable under these circumstances.
The trial court found mitigation factor (1) to be inapplicable because
the defendant was involved in a high risk activity. The defendant’s conduct did not
cause serious bodily injury, but his conduct certainly threatened serious bodily
injury. The trial court properly found this mitigation factor to be inapplicable in
consideration of its finding that the defendant committed a crime with high risk to
human life.
We find the length of the sentence imposed was appropriate given the
applicable enhancement factors and lack of any mitigating factors.
II.
The defendant challenges the imposition of consecutive sentencing.
Consecutive sentencing may be imposed in the discretion of the trial court upon a
determination that one or more of the statutory criteria exist. See Tenn. Code Ann.
§ 40-35-115(b) (1997). Consecutive sentences, however, should not be routinely
imposed even for the offender whose record of criminal activity is extensive. Tenn.
Code Ann. § 40-35-115, Sentencing Commission Comments; State v. Taylor, 739
7
S.W.2d 227, 230 (Tenn. Crim. App. 1987); State v. Roscoe C. Smith, No. 01C01-
9502-CR-00031, slip op. at 10 (Tenn. Crim. App., Nashville, Oct. 12, 1995). The
Sentencing Reform Act requires the application of the sentencing principles set forth
in the Act and a “principled justification for every sentence, including, of course,
consecutive sentences.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
“The proof must also establish that the terms imposed are reasonably related to the
severity of the offenses committed and are necessary in order to protect the public
from further criminal acts by the offender.” Wilkerson, 905 S.W.2d at 938; Tenn.
Code Ann. § 40-35-102(1), (3)(B) (1997).
The trial court found the defendant to be (1) “an offender whose
record of criminal activity is extensive” and (2) “a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-
35-115(b)(2), (4) (1997). The defendant reiterates his argument that the trial judge
relied on inadmissible hearsay in finding an extensive criminal history to support
consecutive sentencing. The Sentencing Act specifies that the court shall consider
the presentence report in determining the manner of sentencing. See Tenn. Code
Ann. § 40-35-210(b)(2) (1997). The presentence report contained information
regarding the defendant’s extensive criminal record. Therefore, the defendant is
subject to consecutive sentencing for this factor alone. Whether the defendant is
a dangerous offender need not be considered by this court because consecutive
sentencing may be imposed upon a finding of an extensive criminal history.
The Wilkerson factors are satisfied by this record. Considering this
offense in addition to the Davidson County offense of unlawful possession of a
weapon, the aggregate sentence is reasonably related to the severity of the
offenses and is necessary to protect the public from further criminal activity by this
8
defendant. This defendant has continually committed criminal offenses throughout
his adult life. He obviously is not amenable to rehabilitation, as the court below
found.
In consideration of the foregoing and the record as a whole, the
sentence imposed by the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
DAVID G. HAYES, JUDGE
_______________________________
JOHN EVERETT WILLIAMS, JUDGE
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