IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1997 SESSION
October 22, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9607-CC-00260
)
Appellee, ) BLOUNT COUNTY
)
VS. ) HON. D. KELLY THOMAS, JUDGE
)
MICHAEL W. KAUFMANN, ) (Aggravated Burglary, 2 counts,
) Forgery, Theft)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37801 CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
MIKE FLYNN
District Attorney General
PHILLIP MORTON
Assistant District Attorney General
363 Court Street
Maryville, TN 37801
OPINION FILED:
AFFIRMED
CHRIS CRAFT,
SPECIAL JUDGE
OPINION
The defendant, Michael Kaufmann, appeals as of right from a sentence
imposed by the Blount County Circuit Court. He entered guilty pleas to five
indictments: two Aggravated Burglary indictments (eight years), Theft over $1,000
(four years), Theft over $500 (two years) and Uttering a Forged Instrument (two years),
all concurrent, as a Range II Multiple Offender, in the custody of the Department of
Correction. A sentencing hearing was then held for the sole purpose of determining
whether these five convictions would be served concurrently or consecutively to
unexpired sentences he was then serving for crimes committed in Loudon and
Anderson Counties, totaling five years. The defendant contends that the trial judge
erred in ordering that the effective eight year sentence for his Blount County crimes be
served consecutively to his previous five year sentences. We affirm the judgment of
the trial court.
When an appeal challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990).
However, this presumption of correctness is "conditioned upon the affirmative showing
that the trial court in the record considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the
event that the record fails to demonstrate such consideration, review of the sentence
is purely de novo. Id. If appellate review reflects that 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. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
The procedure the trial court must follow in deciding whether or not a sentence
should be served concurrently or consecutively with another unexpired sentence is set
out in Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure, as follows:
Sentence When Defendant Has Prior Sentence Not Fully Served. If the
defendant has additional sentences not yet fully served as the result of
convictions in the same court or in other courts of this state and if this fact is
made known to the court prior to sentencing, the court shall recite this in the
judgment setting sentence, and the sentence imposed shall be deemed to be
concurrent with the prior sentence or sentences, unless it affirmatively appears
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that the new sentence being imposed is to be served consecutively with the
prior sentence or sentences. The judgment to make the sentences consecutive
or concurrent shall explicitly recite the judge's reasons therefor, and is
reviewable on appeal.
This Court has previously held that the exercise of discretion given the trial court by
Tenn. R. Crim. App. 32(c)(2) essentially involves the consideration of the consecutive
sentencing criteria provided in Tenn. Code .Ann. § 40-35-115(b)(1990). See State v.
Lisa Gaye Copeland, 1997 Tenn. Crim. App. LEXIS 453, No. 03C01-9605-CC-00196,
Knoxville, May 13, 1997, and State v. Thomas Edward Capps, 1996 Tenn. Crim. App.
LEXIS 125, No. 01C01-9506-CC-00164 (Tenn. Crim. App., Nashville, February 29,
1996). The trial court has the discretion to run sentences consecutively if it finds any
of seven criteria by a preponderance of the evidence.
Tenn. Code Ann. § 40-35-115(b) states in relevant part that “the court may
order sentences to run consecutively if the court finds by a preponderance of the
evidence that: (1) The defendant is a professional criminal who has knowingly devoted
himself to criminal acts as a major source of livelihood; (2) The defendant is an
offender whose record of criminal activity is extensive,” and “(6) The defendant is
sentenced for an offense committed while on probation.” The trial judge found all three
of these criteria applicable to the defendant, and his findings are amply supported by
the record.
The presentence report and testimony of the defendant show that he served 19
months of a 3 year sentence in 1984 for trafficking in cocaine. In 1988, a warrant was
issued for him for five counts of fraud involving felony bad checks, which was served
on him in 1991, resulting in convictions. He then became partners in crime with a
friend he met in prison, crossing the country on interstate highways, burglarizing
houses close to shopping malls and expressway exits, stealing checks and forging and
cashing them before moving to the next county or state, repeating the same crimes
there. The defendant began this in 1993, using his half of the proceeds to pay rent,
bills and to buy cocaine for himself and his girlfriend. Between trips he testified he
would work one or two days a week making golf videos. Eventually he gave up his
video business in 1994, when he was arrested and convicted under a false name for
Forgery in Florida. The authorities placed him on probation for five years, not knowing
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his real identity. When he was released from jail on probation, instead of reporting to
the probation office, he and his partner left Florida, working their way up the interstate
committing burglaries, and stealing and cashing checks as his sole source of
livelihood, until finally arrested in Loudon County, Tennessee. The defendant admitted
that he was on probation from Florida at the time of these crimes, and that at the time
of sentencing there was a hold placed on him by the Federal authorities for
counterfeiting.
The trial judge found that the defendant was a professional criminal who has
knowingly devoted himself to criminal acts as a major source of livelihood, that his
record of criminal activity was extensive, and that he was on probation when all his
Tennessee crimes were committed. The record supports this determination. Whether
sentences are to be served concurrently or consecutively is a matter addressed to the
sound discretion of the trial court. State v. James, 688 S.W.2d 463 (Tenn. Crim. App.
1984). The record also shows clearly that the consecutive sentences are necessary
to protect the public from further misconduct by the defendant, and reasonably reflect
the severity of the offenses. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.
1995).
The judgment of the trial court is AFFIRMED.
CHRIS CRAFT, SPECIAL JUDGE
CONCUR:
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JERRY L. SMITH, JUDGE
JOE RILEY, JUDGE
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