IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION May 18, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9706-CR-00230
Appellee, )
) Roane County
V. )
) Honorable E. Eugene Eblen, Judge
JIMMY RAY BOLDEN, JR., )
) (Sentencing)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Joe H. Walker John Knox Walkup
District Public Defender Attorney General & Reporter
Walter B. Johnson, II Janis L. Turner
Assistant District Public Defender Cordell Hull Building, Second Floor
P.O. Box 334 425 Fifth Avenue North
Harriman, TN 37748 Nashville, TN 37243-0493
Charles E. Hawk
District Attorney General
Roger Delp
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
Appellant Jimmy Ray Bolden, Jr. was indicted for aggravated burglary and
theft of property over $1000. He pled guilty to both charges. The trial court
sentenced him as a Range II, multiple offender, to six years for the aggravated
burglary conviction and to four years for the theft conviction in the Tennessee
Department of Correction. The sentences were to run concurrently to one
another but consecutively to the appellant’s prior sentences which he was
serving.
The appellant’s sole issue on appeal is whether the trial court erred by
sentencing the appellant to consecutive sentences. We affirm.
The facts of the case show that the appellant entered the home of Danny
and Amanda Estes in Roane County without their consent with the intent to
commit theft. He stole firearms and a videocassette recorder. He later pawned
these items at the EZ Pawn Shop in Anderson County.
The appellant acknowledges that the trial court could, and did, find that
the appellant was a career criminal under Tennessee Code Annotated § 40-35-
115 (1997). However, the appellant contends that the trial court “must look to
the overall length of the sentences given in the determination of consecutive or
concurrent.” The appellant further maintains that sentencing him “to another 6
years on top of the lengthy sentences already being served is excessive.”
The state asserts that the trial court did not err in ordering consecutive
sentences. It contends that the trial court followed the principles of sentencing
and that although the appellant was a Range II, multiple offender, the trial court
sentenced him not only to the minimum sentence for aggravated burglary and to
theft of property valued over $1000 but also ordered that his sentences be
served concurrently to one another. Furthermore, the state contends that under
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Tennessee Code Annotated § 40-35-115 the trial court may order consecutive
sentencing “if the defendant has an extensive criminal history and if the instant
offense was committed while the defendant was on probation at the time of the
commission of the offense.” The appellant has numerous convictions in several
counties, and he was on community corrections at the time the instant offenses
occurred. Finally, the state argues that consecutive sentencing is necessary to
protect the public from the appellant, especially in light of his lengthy criminal
history. We note that his criminal history spans five pages in this record.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1997). However, this presumption is conditioned on an affirmative
indication 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 appellant bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and
(f) the appellant’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997).
The trial court has the “authority to consider whether or not the effective,
total sentence will meet the principles and purposes of the Sentencing Reform
Act when assessing what weight applies to those factors which affect both the
length of each sentence for the involved offenses and the consecutive
sentencing decision.” State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.
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1994).
We conclude that the trial court did not err in ordering consecutive
sentencing. The appellant, who was only twenty-six years old at the time of
sentencing, already had a lengthy history of criminal activity. Furthermore,
because he was on community corrections at the time of the offenses in this
case, he has shown the judicial system that he is not a rehabilitation candidate.
To say that he is not amenable to correction is charitable. Frankly, the record
shows that he is not even curious about behaving himself.
We affirm the trial court’s judgment.
__________________________
PAUL G. SUMMERS, Judge
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CONCUR:
____________________________
JERRY L. SMITH, Judge
____________________________
CURWOOD W ITT, Judge
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