### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 12, 2016 Session

STATE OF TENNESSEE v. STEPHEN GERARD SMITH

Appeal from the Circuit Court for Franklin County No. 20336 J. Curtis Smith, Judge

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No. M2015

- 00261

- CCA

- R3

- CD

– Filed November 4, 2016

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Stephen Gerard Smith, the Defendant, filed a pro se Motion for Reduction of Sentence pursuant to Tennessee Rule of Criminal Procedure 35 in which he asked the trial court to either reduce his sentence or to grant a new sentencing hearing. Because the Defendant was erroneously sentenced as a career offender rather than a persistent offender for Class C felony aggravated assault and because the sentence was entered as the result of an agreement between the State and the De fendant, the trial court granted a new sentencing hearing. Following the sentencing hearing, the trial court sentenced the Defendant to thirteen years ‟ incarceration as a Range III persistent offender for Class C felony
aggrava ted assault and to a consecutive sentence of twelve years ‟ incarceration as a

c areer offender for Class D felony attempted aggravated assault

. The Defendant was sentenced to eleven month s and twenty

- nine day s for each of the three domestic assault convict ions to be served concurrent ly with each other and with the felony sentences

. The Defendant claims the trial court abused its discretion in allowing him to proceed pro se in the motion hearing and in the imposition of the sentences. Discerning no error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right ; Judgment s of the Circuit Court are Affirmed

T HOMAS T. W OODALL
, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and T I MOTHY L. E ASTER
, JJ., joined.

Robert T. Carter, Tullahoma, Tennessee , for the appellant

, Stephen Gerard Smith.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam

, Assistant Attorney General ; J. Michael Taylor, District Attorn ey General; and Courtney Lynch

, Assistant District Attorney General, for the a ppellee, State of Tennessee.- 2

- OPINION

In July 2012, the Franklin County Grand Jury indicted the Defendant for three counts of aggravated assault and four counts of domestic assault. The victim in the first six counts was the Defendant‟s wife, and the victim in Count 7 was the Defenda n t‟s daughter. Count 7 was dismissed by the State. O n June 26, 2013, t he State filed a “Notice of Intention to Seek an Upper Range Punishment

. . . ” listing six prior fel ony

co nvictions

— two Class D and four Class E felon ies. On July 15, 2013, a jury found the Defendant guilty of aggravated assault, attempted aggravated assault, and three counts of domestic assault . The jury found the Defendant not guilty of aggravated assault in Count 5

.
We glean from the briefs and record that the Def e ndant and the State reached an agreement shortly after the jury trial on a proposed sentence for the five Franklin County convictions , as well as a plea agre ement for two pending Grundy County charges

. On July 1 8 , 2013 , the trial court signed an order find ing that the Defendant

, after being “ fully informed by his attorney ,” “ waive s all issues related to the jury trial and verdict in this

case an d the possible appeal s thereof.” The order also provided that “issues related to bond revocation are moot” a n d that the Defendant “waived venue so that these judgments and order can be entered in Grundy County [

. ] ” On July 19

, 2013, judgments of conviction wer e entered in Franklin County sentencing t he Defendant to fifteen years as a career offender for aggravated assault, twelve years as a career offender for attempted aggravated assault, and eleven months and twenty

- nine days for each of the three domestic assaults

. All sentence s were order e d to be served concurrently. B ased on the briefs and statements of counsel at the motion hearing, the Defendant pleaded guilty to the Grundy County charges and was sentenced to twelve years as a career offender for Class D felony vandalism and to fifteen years as a career offender f o r Class C felony aggravated assault

. The G r undy County sentences were ordered to be served concurrently with each other and with the Franklin County sentences as part of a global

sen tencing agreement . The effective sentence for the seven convictions was fifteen years in the Department of Correction with a 60% release eligibility date

.
On November 4, 2013, the Defendant filed a pro se Rule 35 motion in which he asked the trial court to either reduce his sentence or to grant a new sentencing hearing

. The motion specifically asked the trial court to sentence t he Defendant as a Range II offender and to release the Defendant on probation or parole for time served.

On February 1 1, 2014, the Defendant‟s Rule 35 motion was argued in the trial

court. The Defendant was represented at the hearing by the attorney who represented him in the jury trial , the entry of the plea to the Grundy County cases, and the sentencing hearin g (trial counsel) . The State admitted that it erred in determining that the Defendant- 3

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had sufficient prior convictions to justify sentencing the Defendant as a career offender on the Class C felony aggravated assault

, and t rial counsel admitted that he incorrectly advised the Defendant that he was a career offender for the Franklin County Class C felony

. After st atements by counsel, the trial court stated

, “In my opinion I cannot grant him a new sentencing hearing and leave the [Grundy County] pleas in place.” The trial

c ourt stated

, “[ T h e Defendant ] can go to trial on the [Grundy County charges] , he can plead them out, but I‟m not telling you I will do anything, Mr. S mith, but you run the risk of getting somewhere between [ten] and [fifteen] years on t he one that you‟re convicted [of] and then going to trial and getting those stacked on top o f those.” The Defendant respond ed

, “Yes, sir. ”

T he reafter, the trial court granted the Rule 35 motion, set aside the prior judgment s for both the Franklin County and Grundy County convictions and granted a new sentencing hearing for the Franklin County convictions

. In addition, the trial court set aside the order dismissing C ount 7. In its order entered on February 18, 2014, the trial court stated that it was treating the Rule 35 motion as a “Motion to Withdraw” his guilty pleas in the two Grundy County cases and as a “Motion to Set Aside the Judgment[s] previously entere d in [Franklin County] Case #20336[.]” Because the judgments

sen tencing the Defendant to the Department of Correction were set aside, the trial court ordered the Defendant to be held in the Franklin County Jail. The order further stated that the Defendant “ shall have no contact ” with his wife , his daughter , a witness who testified at trial

, and the witness‟ husband

. The judgments of conviction for aggravated assault and attempted aggravated assault also contained a no contact provision concerning the Defendant‟s wife. Trial counsel was relieved of further representat ion

, and new counsel was appointed.

The State filed a petition for contempt alleging that the Defendant willfully violated the no contact by telephoning his parents from the jail and speaking with his daughter. The trial court set the hearing on the con tempt petition on the same day as the sentencing hearing.

At the sen tencing hearing

, Josh Rogers, a probation officer

, testified that he prepared the presentence report , which was entered as an exhibit . Mr. Rogers was also actively supervising the Defendant ‟s probation on previous misdemeanor conviction s at the time the Defendant was indicted for the seven assaults in this case . The Defendant‟s probation was revoked after he was indicted. The presentence report list ed the following six prior felon y convictions : Class E felony reckless endangerment involving a deadly
weapon ; Class E felony evading arrest ; Class E felony theft ; Class D felony burglary ; Class D felony theft ; and Class E felony schedule VI controlled substance . The report indicate d th at the Defendant was sentenced to concurrent sentences of three years for Class D felony theft of property and two years for a Class E felony marijuana offense on- 4

-

July 10 , 2001, and placed on probation

. On December 5, 2001, he was sentenced to consecutive

, two

- year sentences for Class E felony th eft and Class D felony burglary , and as a result, h is probation was revoked . He was sentenc ed to community corrections after service of ninety days in jail . The Defendant‟s community correction s was revoked on Ma rch 11, 2003 , and he was ordered to serve his sent ence in the Department of Correction. He was sentenced to two year s for the reckless endangerment and two years for felony evading on March 27, 2003

. Those sentence s were ordered to be served consecutively to his prior convictions. He was paroled Octo ber 11, 2004, and his parole was revoked on March 1, 2005. He was senten c ed to three consecutive eleven

- month and twenty

- nine day sentence s for two assaults and on e count of va n dalism and thirty days for criminal trespass on March 17, 2009. He was ordered to serve eleven months and twenty

- nine days in the jail followed by probation . He was sentenced to eleven months and twenty

- nine day s for vandalism on April 29, 2009, and that sentence was ordered to be served consecutively to the prior misdemeanor sentences. His probation was fully revoked on July 12, 2010.

It is unclear from the presentence report as to which charges Mr. Rogers was referring when he stated the Defendant‟s probation was revoked when he was charged with the assaults in this case. Mr. Rogers also testified that the Defendant was convicted of DUI in Coffee County immediately after his jury trial in Franklin County

. The presentence report also show ed that the Defendant ha d charges pending against him in Franklin County for vandalism over $1,000, leaving the scene of an accident, aggravated burglary, and misdemeanor theft. The Defendant had also been convicted of a number of traffic offenses.

Foll owing the testimony of Mr. Rogers, the State call ed John Smith, the Defendant‟s father, as a witness on the pending contempt petition

. The State advised the court that it wanted to play several audio recordings of tele phone calls made by the Defend ant to his father from the Franklin County Jail

. Additionally, the State argued the audio recording s were admissible on the issue of alternative sentencing because the Defendant had asked to be released into the community on probation or parole in the Rule 35 motion. The Defendant‟s counsel advised the trial court that the Defendant‟s father and Ginny Smith, the Defendant‟s mother

, would be “ invokin g their 5 th
A mendment right not to incriminate themselves.” After t h e Defendant‟s counsel stipula te d that it was the Defendant‟s voice on the audio recordings , the State released Mr. and Mrs. Smith from the subpoenas

. The Defendant ‟s counsel then stated “that [the Defendant] would be willing to offer a stipulation as a matter of law that he did violat e conditions of his release by contacting or attempting to contact prohibited people in the conditions.” The State stated that it wanted to play the audio recordings “for the substance of those as to his candidacy for release” and announced that it would call- 5

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Scotty McKay, Jail Administrator for the Franklin County Sheriff‟s Department, as its next witness.

Mr. M cK a y explained that except for the initial call made when a prisoner is booked, all calls after a prisoner enters the general population are recorded. He testifi ed that i nmates are advised that tele ph one calls a re recorded each time a call is made

. T he State asked to play the a udio recording s . The Defendant made a “blanket objection” stating that the audio recording contained “some infla mmatory thing” and argued that the Defendant had stipulated that he violated the court‟s order. Concerning the audio recordings, the tr i al court asked the State “where d o they fit into the sentencing matrix[?] ” The State responded th at the D efendant ‟s bl atant disregard for th e Court ‟s order shows that he i s not a candidate for release

. The trial court overruled the objection and allowed the audio recordings to be play ed

.
During one telephone call

, the Defendant wa s “talking to [ his daughter ] about her mother‟s truthfulness [.]” During another telephone call, this time speaking with his father, the Defendant made numerous offensive and vulgar remarks about the trial court and stated that the trial court cannot “tell me when I can or cannot tal k to my child.” T he trial court

, after acknowledging that the Defendant‟s statements were disparaging of the court, asked the State how they are relevant to sentencing. The S t ate argued that the statements show ed that the Defendant d id not intend to foll ow the court‟s orders. The trial court stated that, “I take no personal offense in what he says about me.” The trial

court indicated that it would consider the audio recordings on the Defendant ‟s “amenability, not following directions on proba tion[.] ”

At the conclusion of the sentencing hearing, the trial court took the matter under advisement.

On July 7, 2014, the trial court filed a “Sentencing Memorandum” in which the court stated :

In determining the appropriate sentence for these offenses, this Court has considered the evidence presented at the trial and the sentencing hearing, the presentence report, the principles of sentencing and arguments made as to sentencing alternatives, the nature and characteristics of the criminal conduct involved, the evidence and information offered by the parties on the mitigating and enhancement factors, any statistical information provided by the administrative office [] of the court[s] as to sentencin g practices for similar offenses in Tennessee and the Defendant‟s potential for rehabilitation.- 6

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The trial court made the following statement about the fact s:

Defendant engaged in a several hours rampage of assaults lasting several days against his wife.... During that time defendant forcibly grabbed his wife on several occasions, hit her with his fists and foot on several occasions, pressed a sharp object against her neck, threatened her with his bow and arrows and verbally abused his wife.

In determining the proper length of the Defendant‟s sentence s , t he tr ia l court applied three enhancement factors listed in Tennessee Code Annotated section 40

- 35

- 114 , finding that t he Defendant :

(1) “has a previous history of criminal activity or criminal behavior in addition to those necessary to establish the appropriate range[ ; ]” (2) “before trial or sentencing, has failed to comply with the conditions of a sentence involving release into the comm unity[ ; ]” and (3) “[a]t the time the felony was committed ... was released on probation....”

T.C.A. § 40

- 35

- 114(1), (8), (13). The court found no mitigating factors.

Focusing on the alignment of the multiple convictions , the trial court found

, pursuant to Tennessee Code Annotated section 40

- 35

- 115(b)(2) and (6), that “the defendant is an offender whose record of criminal activity is extensive” and that “the defendant is sentenced for an offense committed while on probation[

. ]” T he trial court order ed the thirteen

- year aggravated assault sentence and the twelve

- year attempte d aggravated assault sentence to be served consecutively in the Department of Correction. The record d oes not shed any light on the outcome of the charges in Grundy County.

After t he De fendant ‟s Motion for New Trial was overruled, the Defendant timely filed his Notice of Appeal.

Analysis

Pro se representation

The D efendant claims the trial court abused its discretion by allowing the Defendant to proceed pro se “when it failed to adequately safeguard the [Defendant‟s] [S] ixth [A] mendment right to counsel” at the Rule 35 motion hearing and by failing to ensure “that [the Defen dant‟s] decision to do so was a voluntary act made knowingly and intelligently[.]” The State argues the issue is waived because the Defendant raised this issue for the first time on appeal

. The State also avers that the Defendant cannot meet the- 7

-

plain

- er ror test because there was no clear violation of the law. Fina lly

, the State argues that the Defendant was represented by counsel in the Rule 35 motion. We agree with all three of the State‟s arguments.

First we note that the only “pro se representation” occurred when the Defendant ini ti ally filed the Rule 35 motion during the time he was incarcerated in prison

. The Defendant claims the trial court “should not have heard and ruled on a pro se motion unless the accused knowingly and voluntarily waived his right to counsel and expressed a competent desire to represent himself.” That argument defies logic . The Defe ndant had

a n absolute right to file the motion and to request whatever rel ief to which he believed he was entitled

. A trial court cannot anticipatorily appoint counsel should a d efendant decide to file a motion after the judgment of conviction becomes fin al

. However, a trial

court can insure that a d efendant is provided an opportunity to be represented by counsel after the motion is filed, which is exactly what the trial court did in this case.

The Defendant did not raise this issue at the Rule 35 moti on hearing , probably because the Defendant ‟s trial counsel represent ed him throughout the hearing without the Defendant voicing a concern or raising an objec tion to th at representation

. “Ordinarily, i ssues raised for the first time on appeal are waived. ” State v. Alvarado , 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) . Even if the issue were not waived, the Defendant cannot prevail under a plain error analysis

. There was no clear violation of any law concerning pro se representation

. See State v. Adkisso n , 899 S.W.2d 626 , 641 (Tenn. Crim. App. 1994)

. He was represented by his trial counsel throughout the Rule 35 motion hearing

, and trial counsel successfully obtained a new sentencing hearing for the Defendant. The issue is without merit.

Length of s entenc es
The Defendant claims the trial court abused its discretion by imposing more than the minimum sentence for the two felony convictions and by ordering the two felony

sentences be served consecutively. The State argues that the trial court did not a buse its discretion because it imposed sentences within the appropriate range after a proper application of the purposes and principles of our Sentencing Act and that the findings by the trial court supported consecutive sentences

. We agree with the State.

When the record establishes that the trial court imposed a sentence within the appropriate range that reflects a “proper application of the purposes and principles of our Sentencing Act,” this court reviews the trial court‟s sentencing decision unde r an abuse of discretion standard with a presumption of reasonableness. State v. Bise , 380 S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when it applies an incorrect legal standard, reaches a n illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the- 8

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complaining party.” State v. Clark

, 452 S.W.3d 268

, 287 (Tenn. 2014) (citing State v. Banks , 271 S.W. 3 d 90, 116 (Tenn. 2008 )). “[A] trial court‟s misa pplication of an enhancement or mitigating factor does not remove the presumption of reasonableness from its sentencing determination.” Bise 380 S.W.3d at 709. Moreover, this court may not disturb the sentence even if it had preferred a different result. See State v. Carter , 254 S.W.3d 335, 346 (Tenn. 2008). The same standard applies when a defendant challenges the denial of probation or other alternative sentence. State v. Ca u dle , 388 S.W.3d 273, 278

- 79 (Tenn. 2012).

To facilitate meaningful appella te review, the trial court must state on the record the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40

- 35

- 210(e) (2010); Bise , 380 S.W.3d at 706. However, “[m]ere inadequacy in the articulation of the reasons for impo sing a particular sentence . . . should not negate the presumption [of reasonableness].” Id. at 705

- 06. The party appealing the sentence has the burden of demonstrating its impropriety. T.C.A. § 40

- 35

- 401 (2010), Sent‟g Comm‟n Cmts.; see also State v. A shby , 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and argume nts as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on the mitigating and enhancement factors set out in Tennessee Code Annotated sections 40

- 35

- 113 and

- 114; (6) any statistical information provided by the Administrative Office of the Courts as to sentencing practices for similar offenses in Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf about sentencing. See T.C.A. § 40

- 35

- 210(b) (2010); State v. Taylor , 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court should also consider the potential or lack of potential for rehabilitation or treatment of the defendant in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40

- 35

- 103(5) (2010).

In determining a specific sentence within a range of punishment, the trial court should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of pu nishment is the sentence that should be imposed, because the general assembly set the minimum length of sentence for each felony class to reflect the relative seriousness of each criminal offense in the felony classifications; and

(2) The sentence length w ithin the range should be adjusted, as appropriate, by the presence or absence of mitigating and enhancement factors set out in §§ 40

- 35

- 113 and 40

- 35

- 114.- 9

-

T.C.A. § 40

- 35

- 210(c) (2010).

Although the trial court should consider enhancement and mitigating factors, the statutory enhancement factors are advisory only. See T.C.A. § 40

- 35

- 114 (2010 & Supp. 2013); see also Bise , 380 S.W.3d at 699 n. 33, 704; Carter , 254 S.W.3d at 343. “ [A] tri al court‟s weighing of various mitigating and enhancement factors [is] left to the trial court‟s sound discretion.” Carter , 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence within the applicable range so long as the leng th of the sentence is „consistent with the purposes and principles of [the Sentencing Act].‟” Id. at 343. “[Appellate courts are] 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 w ith the purposes and principles set out in sections

- 102 and

- 103 of the Sentencing Act.” Id. at 346.

In this case, the trial court properly applied the principles and purposes of sentencing and explained its reasoning in its Sentencing Memorandum . As such, we review the trial court‟s sentencing decision for an abuse of discretion with a presumption of reasonableness.

The record supports the trial court‟s application of three enhancement facto rs

. T he presentence report and the testimony presented at the sentencing hearing establish that the Defendant had “ a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range.” T.C.A.§ 40

- 35

- 114(1)

. In addition to six prior felony conviction s required by Tennessee Code Annotated section 40

- 35

- 108(3) to establish that the Defendant was a career offender for Class D felony attempted aggravated assault or the five or more felony conviction s within the same class or the next two lower classes required by Tennessee Code Annotated section 40

- 35

- 107(1) to establish that the Defendant was a persistent offender for the Class C felony aggravated assault

, the Defendant had five class A misdemeanor convictions, including two for assault

. In the sectio n of the presentence report concerning alcohol and drug
usage , the Defendant was asked, “ [D] o or have you used any non

- prescribed or illegal drugs ?” The Defendant‟s response was “everything but heroine [sic] [.] ” No information

was provided as to when the Defendant f irst u se d drug s , h ow m uch and h ow o ften the Defendant used drug s , when he last used drug s , and w hy he q uit u sing d rug s

. The second enhancement factor found by the trial court was that the Defendant “before trial or sentencing, has failed to comply with the conditions of a sentence involving release into the community[.]” T.C.A. § 40

- 35

- 114(8). The Defendant‟s presentence report and the testimony of the probation officer show that the Defendant ‟s alternative sentence s ha ve been rev o ked numerous times, including revocations of probation, community corrections, and parole.- 10

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The third enhancement factor found by the trial court was that “[a]t the time the felony was committed ” the Defendant was “ released on probatio n

. ” T.C.A. § 40

- 35

- 114(1 3)(C) . The Defendant‟s probation officer testified that the Defendant was on probation when he committed the five assaults for which he was convicted.

The court found no mitigating factors.

The sentence range for a Range III persistent offender convicted of Class C aggravated assault is ten to fifteen years at 45% service. T.C.A. § 40

- 35

- 112(c)(3). The trial court sentenced the Defendant to thirteen years at 45% service. The mandatory

sentence for a career offender convicted of Class D attempted aggravated assault is twelve years at 60% service. T.C.A. §§ 40

- 35

- 108(c),

- 112(c)(4). The trial court sentenced the Defendant to twelve years at 60% service. The trial court did not abuse its discretion in sentencing the Defendant within the appropriate rang e.

Consecutive sentences

The Defendant claims that the trial court abused its discretion in ordering the two felony convictions to be served consecutively. The State argues that the trial court did not abuse its discretion in ordering the two felony sentences to be served consecutively. We agree wi th the State.

The Tennessee Supreme Court has expanded the standard of review in Bise to trial courts‟ decisions regarding consecutive sentencing. State v. Pollard , 432 S.W.3d 851, 859 (Tenn. 2013). “ So long as a trial court properly articulates reasons for ordering consecutive sentences, thereby providing a basis for meaningful appellate review, the sentences will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1) ; Bise , 380 S.W.3d at 705 ). Tennessee Code Annotated section 40

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- 115 sets forth seven different criteria for the trial court to consider in deciding whether or not to impose consecutive sentencing. Two of those criteria were properly articulated by the trial court in its Sentencing Memorandum: that “the defendant is an offender whose record of criminal activity is extensive

, ” T.C.A. § 40

- 35

- 115(b)(2)

, and that “the defendant is sentenced for an offense committed while on probation[.]” T.C.A. § 40

- 35

- 115(b)(6). Those two criteria are supported by the presentence report and the testimony at the sentencing hearin g. The trial court did not abuse its discretion in ordering consecutive sentences.

Cru el and unusual punishment

Finally, the Defendant claims that consecutive sentencing of the Defendant violated the Defendant‟s right against cruel and unusual punishment. In State v. Harris

, our supreme court stated:- 11

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Although the language of Article I, Section 16, of the Tennessee Constitution is virtually identical to that of the Eighth Amendment, this does not foreclose a more expansive interpretation of the Tennessee constitutional provision. See State v. Black

, 81 5 S.W.2d 166, 188 (Tenn. 1991). We therefore examine the scope of the Tennessee provision before turning to Defendant ‟ s State constitutional challenge

. We hold that the proper means by which to evaluate a defendant ‟ s proportionality challenge under the Te nnessee Constitution is that set forth by Justice Kennedy in Harmelin

, [ 501 U.S. 957, 996 (1991) ] (Kennedy, J., concurring in part). Under this methodology, the sentence imposed is initially compared with the crime committed. Unless this threshold comparison leads to an inference of gross disproportionality, the inquiry ends

— the sentence is constitutional. In those rare cases where this inference does arise, the analysis proceeds by comparing (1) the sentences imposed on othe r criminals in the same jurisdiction, and (2) the sentences imposed for commission of the same crime in other jurisdictions.

State v. Harris , 844 S.W.2d 601, 602

- 03 (Tenn. 1992)

.
We determine that the imposition of consecutive sentences for the two felo ny convictions is not grossly disproportional and does not constitute cruel and unusual punishment under Article I, Section 16, of the Tennessee Constitution , or the Eighth Amendment of the Un ited States Constitution. The Defendant‟s extensive history of prior felony convictions making him a per sistent offender for the Class C felo ny aggravated assault and a career offender for the Class D felony attempted aggravated assault is the reason his sentences are the length they are and the reason his release eli gibility dates are what they are

. The Defendant‟s extensive record of criminal activity and the fact that he committed these offenses while on probation are the reasons the trial

court ordered his sentences to be served consecutively.

Conclusion

The Defendant was represented by counsel at the Rule 35 motion hearing. The Defendant‟s claim that he was f orced to proceed pro se is baseless

. The trial court did not abuse its discretion in sentencing the Defendant, either in setting the term of years of- 12

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service for each conviction or in ordering the sentences to be served consecutively , and the effective sentence does not constitute cruel and unusual punishment

. The judgments of the tri a l court are affirmed.

____________________________________________ THOMAS T. WOODALL, PRESIDING JUDGE