IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
October 7, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9710-CR-00498
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. CHERYL BLACKBURN,
MICHAEL W. ORMAN, ) JUDGE
)
Appellant ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS F. BLOOM JOHN KNOX WALKUP
500 Church Street, 5th Floor Attorney General and Reporter
Nashville, Tennessee 37219
TIMOTHY BEHAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
ROGER D. MOORE
Assistant District Attorney General
Washington Square - Suite 500
222 Second Avenue North
Nashville, Tennessee 37021-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant was found guilty by a Davidson County jury of burglary and
theft of property over $1,000. The trial court sentenced defendant to Range II
sentences of six years on each count and ordered them served consecutively for
an effective twelve-year sentence. The defendant contends that the trial court erred
in finding and weighing the enhancement and mitigating factors and in ordering the
sentences served consecutively instead of concurrently. After a thorough review of
the record, we affirm the sentence as imposed.
I
At the time of sentencing defendant was self-employed having started
a lawn care business after being released from a temporary position with Rand
McNally Publishers. From this income, he supported one child and the child’s
mother. He asserted that the burglary and theft were impulsive acts motivated by
a desire to provide necessities for his family; that he played a minor role in the
commission of the offenses; and that he accepted full responsibility for his actions.
His prior criminal record included four felony and at least two misdemeanor
convictions dating back to 1989. The defendant was still on probation for one of
the felony convictions at the time of commission of the present offense.
The state essentially argued that there should be no mitigation of the
defendant’s sentence in light of defendant’s history of criminal convictions and
behavior in combination with a history of non-compliance with conditions for release
in the community.
The trial court correctly noted that T.C.A. § 40-35-210 directs trial judges to
consider: (1) evidence at the trial and the sentencing hearing; (2) the pre-sentence
report and addendums; (3) principles of sentencing; (3) arguments; (4) the nature
and characteristics of the crime; (5) any enhancing or mitigating factors; and (6) the
statement of the defendant.
In each count the court found four statutory enhancement factors applicable
to the defendant: (1) a previous history of criminal convictions or behavior in
2
addition to those necessary to establish the appropriate range; (2) he was a leader
in the commission of an offense involving two or more actors; (8) a previous history
of unwillingness to comply with the conditions of a sentence involving release in the
community; and (13) he was on probation when the events of this case occurred.
See T.C.A. § 40-35-114. The court gave very little weight to factor number (2).
In each count the court then considered the following mitigating factors: (1)
defendant’s conduct neither caused nor threatened serious bodily injury; and (13)
defendant had letters of support from customers in his business and the testimony
of his son’s mother regarding his exemplary behavior toward his son. See T.C.A.
§ 40-35-113. The court gave little weight to factor number (13). The court
specifically noted its rejection of other mitigating factors based on the proof and
defendant’s testimony at sentencing.
Based on these findings, the court enhanced the sentence to eight years and
mitigated it back down to six years in each count, thus imposing a mid-range
sentence for each conviction.
II
Our review of the sentence imposed by the trial court is de novo, with a
presumption that the determinations of the trial court are correct. T.C.A. § 40-35-
401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The
presumption of correctness which attaches to the trial court's action is conditioned
upon an 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).
III
In the instant case, it is absolutely clear from the record that the trial judge
properly considered all appropriate sentencing principles and relevant facts and
circumstances. With such an affirmative showing, the presumption of correctness
attaches to the trial court’s determinations.
3
In reviewing the record de novo with the attached presumption, this Court
finds that the trial court properly applied both enhancement and mitigating factors
and properly evaluated the relevant facts and circumstances in conjunction with the
sentencing principles. Accordingly, this court will not disturb the six-year sentences
received by the defendant.
IV
In its determination that the sentences imposed should be served
consecutively, the trial court made specific findings that the defendant’s criminal
activity was extensive, see T.C.A. § 40-35-115(b)(2); and that the current offenses
were committed while the defendant was on probation for a felony. See T.C.A. §
40-35-115(b)(6). The trial court went on to examine the case in light of State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In doing so, it found the aggregate term
of twelve years reasonably related to the severity of the offenses and was
necessary to protect the public from further criminal conduct by the defendant. The
sentences were ordered served consecutively.
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that the defendant is an offender whose record of
criminal activity is extensive, or the defendant is sentenced for an offense
committed while on probation. Tenn. Code Ann. § 40-35-115(b)(2),(6); see also
State v. Black, 924 S.W.2d 912 (Tenn. Crim. App. 1995). Furthermore, the court
is required to determine whether the consecutive sentences (1) are reasonably
related to the severity of the offenses committed; (2) serve to protect the public from
further criminal conduct by the offender; and (3) are congruent with general
principles of sentencing. State v. Wilkerson, 905 S.W.2d at 939.
As noted previously, the trial court properly examined the sentencing statutes
and sentencing principles. Thus, its determinations are entitled to a presumption
of correctness. The imposition of consecutive sentences under these
circumstances is proper.
4
CONCLUSION
This is a classic case of a trial judge doing exactly what she was supposed
to do. A thorough consideration of applicable statutes, principles, and relevant facts
and circumstances was made in the course of making the findings that led to the
imposition of the sentence. This decision is entitled to a presumption of
correctness; we will not disturb it.
We affirm the trial court’s imposition of six-year sentences for burglary and
theft. We affirm the trial court’s order that these sentences run consecutive to one
another.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOSEPH M. TIPTON
____________________________
THOMAS T. WOODALL
5