IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 24, 2014 Session

STATE OF TENNESSEE v. BURTON W. WEBB

Appeal from the Criminal Court for Hamilton County

No. 283234 Rebecca J. Stern, Judge

No. E2013-02107-CCA-R3-CD - Filed July 29, 2014

The Defendant, Burton W. Webb, pleaded guilty to three counts of reckless aggravated

assault, Class D felonies, two counts of vehicular assault, Class D felonies, and driving under

the influence (DUI) second offense, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-

13-106, 55-10-401 (2010). The trial court merged the DUI conviction with the vehicular

assault convictions and sentenced the Defendant as a Range I, standard offender to two years

for each reckless aggravated assault conviction and to three years for each vehicular assault

conviction. The court ordered consecutive service of the vehicular assault convictions, for

an effective six-year sentence. On appeal, the Defendant contends that the trial court erred

(1) by applying certain enhancement factors to the vehicular assault convictions, (2) by

denying alternative sentencing, and (3) by ordering consecutive sentences. Although we

conclude that the trial court erroneously applied two enhancement factors, the lengths and

the manner of service of the sentences are proper. We also conclude that the trial court erred

by failing to state its factual findings underlying its conclusion that consecutive sentences

were warranted pursuant to State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We

remand the case in order for the court to state its factual findings on the record.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

in Part; Reversed in Part; Case Remanded

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Jerry H. Summers (on appeal) and Benjamin McGowan (at the guilty plea and sentencing

hearings and on appeal), Chattanooga, Tennessee, for the appellant, Burton W. Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Although the Defendant pleaded guilty to two counts of vehicular assault and to three

counts of reckless aggravated assault, a transcript of the guilty plea hearing is not included

in the appellate record. The record reflects, though, that the Defendant pleaded guilty with

the understanding that the trial court would determine the length and the manner of service

of his sentences. At the sentencing hearing, Stephanie Anders testified that she prepared the

presentence report, which was received as an exhibit. The report shows that the Defendant

had previous convictions for resisting a stop and frisk in 2007, driving with a suspended,

canceled, or revoked license in 2007, and DUI in 2005.

Regarding the present offenses, the presentence report shows that the Defendant was

released on bond on July 9, 2012, on the condition that he complete an intensive outpatient

treatment program at “CADAS.” The Defendant failed a drug screen and was placed in an

in-patient treatment program. On October 3, 2012, the Defendant was permitted to enter a

treatment program at English Mountain Recovery in Sevierville, Tennessee that wasfollowed

by six months at St. Paul Sober Living in St. Paul, Minnesota. Although he successfully

completed the English Mountain Recovery program, on April 24, 2013, the Defendant was

discharged from St. Paul Sober Living because of a “relapse on heroin, alcohol, and

oxycodone.” The Defendant failed to notify his attorney and the trial court of his

unsuccessful attempt to complete the program. After the Defendant’s discharge from the

program was discovered during the presentence investigation, the trial court forfeited the

Defendant’s bond for failure to comply with the conditions of his pretrial release and issued

a capias for his arrest. He was arrested on July 26, 2013, and held in confinement until the

sentencing hearing on August 26, 2013.

The presentence report shows that the Defendant graduated from high school but did

not complete college. He reported first drinking alcohol at age seventeen and first using

heroin, oxycodone, and marijuana in his twenties. He said he stopped using oxycodone and

marijuana in 2012 because “I had to - I didn’t want to, but I had to - it was killing me.” The

Defendant reported entering a rehabilitation program in Newport Beach, California in 2003,

but the information was unverified because the program was closed.

Although the Defendant reported successfully completing the program in Minnesota,

Ms. Anders received a letter from the program director stating that the Defendant was asked

to leave the program on April 24, 2013, for failing a drug screen. The Defendant admitted

to the program director that he used opiates, which was his second relapse. On March 4,

2013, the Defendant admitted consuming alcohol to a staff member. On April 19, 2013, the

Defendant admitted consuming alcohol to a staff member and was asked to leave the facility

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but given until the end of the week to find other arrangements. On April 23, the Defendant

was “high on oxycodone” and asked to leave the facility immediately.

The presentence report showed that the Defendant was employed at Paradise Car

Wash from November 2012 to May 2013. Although the Defendant reported earning $8.00

per hour, employment records showed that he earned $7.25 per hour and that he was a

“voluntary quit,” which usually meant the person failed to show up for work. The Defendant

also reported working at Montana Harvest as a cashier from 1995 to 1997 and quitting for

an undisclosed reason. The Defendant reported working at various health food stores,

performing HVAC work, and following the music band Phish on tour but provided no

documentation.

On cross-examination, Ms. Anders testified that although the Defendant failed to

comply with the terms of his pretrial release in the present case, she found no previous

violations of probation.

Philip Boring testified that he was the victim of one of the vehicular assaults, which

occurred on September 12, 2011. He said the accident occurred at 8:00 a.m. when he was

taking his four children to school before going to work. He said that he was stopped at a

traffic light, that he proceeded into the intersection when the light turned green, and that he

saw the Defendant’s car just before the impact. He said he turned his car toward the

Defendant’s car in an effort to direct the impact to his door instead of the rear door where his

children were sitting in the back seat. He said the Defendant’s car hit his car on the driver’s

side door, which caused the car to spin. He said that when his car stopped, it was facing the

opposite direction.

Mr. Boring testified that his children were ages five, six, seven, and eight at the time

of the accident. He said the children’s mothers were deceased at the time of the accident.

His son Alex was in the front passenger seat and only sustained a few scratches. His

youngest son, who was sitting in the back seat, had a scar on his right cheek, which he

assumed was caused by broken glass. He said his oldest son received a “real bad” bruise to

his left elbow, although the doctors first thought the arm was broken. He said his daughter

received the most severe injuries. He said she sustained a brain injury that was similar to an

injury caused by shaken baby syndrome. He stated that she was paralyzed on her left side

for approximately two months and that the doctors initially did not think she would survive.

He said she was transferred to a rehabilitation center in Atlanta, Georgia for almost two

months and continued rehabilitation for one year. He said she had to relearn to speak and

walk because of the extended duration of the paralysis. He stated that at the time of the

sentencing hearing, she was “functional” and that she was a straight A student. He said,

though, she continued to have difficulty walking.

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Mr. Boring testified that he suffered ten broken ribs, a punctured lung, a broken

femur, and a fractured pelvis. He said he was hospitalized for one and one-half months and

was confined to a wheelchair for an additional one and one-half months. He said he

progressed to a walker and then a cane. He said he had to learn to walk again. He said he

had a 16" to 18" scar on his leg where the doctor’s inserted a metal rod. He said he

underwent multiple surgeries, developed arthritis, and continued to have a lot of soreness.

Mr. Boring testified that he was unable to care for his children when he was

hospitalized and that they were happy to see him when he returned home. He said his two

oldest children were receiving counseling. He said that after the accident, he had to find

another place to live because a third-floor apartment was not conducive to a wheelchair. He

said his car was a total loss. He said that he paid $4000 for the car and that the insurance

company paid him $3000. On cross-examination, Mr. Boring testified that the Defendant’s

insurance company paid him $100,000 for the personal injuries, which was the policy limit.

Chattanooga Police Officer Steve York testified that he arrived at the scene at 8:12

a.m. and that a man who was not involved in the accident told him the Defendant was

involved in the accident and walking toward Krystal restaurant. He saw the Defendant walk

with a limp, enter the restaurant, walk into the restroom, and lock the door. He said he

knocked, identified himself, and asked the Defendant to step outside. He said the Defendant

responded that he needed to use the restroom. He said that the Defendant was in the

restroom “for an extended amount of time” and that he heard the toilet flush several times.

He said that when he asked the Defendant why he flushed the toilet multiple times, the

Defendant responded that he had to use the restroom. He escorted the Defendant to the

scene. He said that the victims had been taken to the hospital when he returned. He learned

during his investigation the Defendant’s car “failed to stop for the red traffic light.” On

cross-examination, Officer York testified that although he believed the Defendant’s conduct

inside the restroom was suspicious, he agreed he did not find any evidence showing the

Defendant engaged in wrongdoing.

Leah Webb, the Defendant’s mother, testified that the Defendant was thirty-five years

old and lived with her at the time of the accident. She agreed the Defendant had relationships

with his father and his grandmother. She said that the Defendant would live with her if the

trial court imposed probation. She said the Defendant would have his own room and would

not have access to her car. She agreed the Defendant had a substance abuse problem and said

she learned of his addiction when he entered the English Mountain rehabilitation program.

She said that the Defendant did well there and that afterward, the Defendant did not have

“continuing . . . substance abuse” problems.

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Ms. Webb testified that she suspected but did not know for sure if the Defendant was

using drugs at the time of the accident. She said that before the accident, the Defendant was

not living with her and that she did not know about the Defendant’s activities. She said that

if the Defendant lived with her, he would live under her rules. She said the Defendant was

looking for a job and studying to become an insurance agent when he was released on bond.

She said that the Defendant received monthly income from a life insurance annuity but that

she controlled the funds as a trustee. She thought the Defendant’s father could provide

support, too.

Ms. Webb testified that the Defendant called her to pick him up in Minnesota when

he was discharged from the rehabilitation program. She denied the Defendant told her that

he was discharged from the program and said she assumed the Defendant had completed the

program. She agreed she was angry, disappointed, and frustrated with the Defendant. She

said that if the Defendant received probation, she would give the probation officer full access

to her house and would inform the probation officer if she thought the Defendant was using

drugs.

On cross-examination, Ms. Webb clarified that the Defendant lived with her at the

time of the accident and testified that she did not know the Defendant was using drugs. She

said, though, she could now look at the Defendant’s face and determine if he was using

drugs. She said that although the Defendant was discharged from various rehabilitation

programs, she could provide “more oversight” than the program staff because the last

program provided little supervision. She agreed she could not be with the Defendant all the

time. When asked if the Defendant was capable of rehabilitation, she said the Defendant

was “a good boy” who made bad choices. She said that the Defendant changed completely

after he received a job with Liberty National Insurance and that he was excited and looked

forward to the future. She said the Defendant began studying after he was discharged from

the Minnesota rehabilitation program.

On redirect examination, Ms. Webb testified that public transportation stopped at the

end of her road. She said the Defendant returned from Minnesota in May and was taken into

custody in late July.

The Defendant addressed the trial court and stated,

First and foremost I just would like to apologize to Mr. Boring and his family.

I’d like to say that I have a niece and nephew . . . [who] were around the same

age. And I think about that daily. And it hurts me to think that I’ve troubled

his family as much as I have. And I deserve to live with this pain and I am

truthfully sorry. And I’m sorry. That’s, you know, the bottom line. And I’d

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like to also apologize to my family for the embarrassment that I’ve caused

them. And I truly am trying to get my life in order. And that’s all I have to

say. Thank you.

The Defendant’s Department of Safety driving record wasreceived as an exhibit. The

document showed that the Defendant was convicted of DUI in 2005, which involved an

accident with property damage, driving on a revoked license reduced to not carrying a

driver’s license in 2007, and speeding involving an accident with personal injury in 2011. 

The trial court found that statutory enhancement factors (1), (6), (10) applied to the

vehicular assault convictions. See T.C.A. § 40-35-114(1) (2010) (“The defendant has a

previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range[.]”); -114(6) (“The personal injuries inflicted upon, or the

amount of damage to property sustained by . . . the victim was particularly great[.]”); -

114(10) (“The defendant had no hesitation about committing a crime when the risk to human

life was high[.]”). In mitigation, the court found that the Defendant had good social ties and

had made some efforts at rehabilitation, although not always successfully. See id. § 40-35-

113(13) (2010) (“Any other fact consistent with the purposes of the Sentencing Act.”). The

court noted that it did not find “anything unusual about these circumstances.” The court

sentenced the Defendant as a Range I, standard offender to three years for each conviction.

Regarding the reckless aggravated assault convictions, the court found that

enhancement factors (1) and (10) and the same mitigation applied. See id. § 40-35-114 (1),

(10); -113(13). The court sentenced him as a Range I, standard offender to two years for

each conviction. The court further found that confinement was necessary to avoid

depreciating the seriousness of the offenses and to provide an effective deterrent to others

likely to commit similar offenses.

The trial court ordered that the vehicular assault sentences be served consecutively

and that the reckless aggravated assault sentences be served concurrently. The court found

that the Defendant had been given “every opportunity at rehabilitation” and had failed to

show amenability to rehabilitation. The court found consecutive sentences were justified

because he was a dangerous offender whose behavior indicated little or no regard for human

life and because he had no hesitation about committing a crime in which the risk to human

life was high. See id. § 40-35-115(b)(4) (2010). The court found that consecutive service

was reasonably related to the severity of the offenses committed and was necessary to protect

society from the Defendant’s further criminal acts. This appeal followed.

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I

The Defendant contends that the trial court erred by applying enhancement factors (6)

and (10) to the vehicular assault convictions. He argues factor (6) was erroneously applied

because serious bodily injury was an element of the offense and because insufficient

evidence was presented regarding the amount of property damage. Regarding enhancement

factor (10), he argues no evidence was presented showing that individuals other than those

named in the indictment were placed at risk by the Defendant’s conduct. The State responds

that the trial court properly applied each factor.

The length of a sentence “within the appropriate statutory range [is] to be reviewed

under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise,

380 S.W.3d 682, 708 (Tenn. 2012). In determining the proper sentence, the trial court must

consider: (1) any evidence received at the trial and 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, (5) any mitigating or statutory

enhancement factors, (6) statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee, (7) any statement that the

defendant made on his own behalf, and (8) the potential for rehabilitation or treatment.

T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991);

State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

Generally, challenges to a trial court’s application of enhancement and mitigating

factors are reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We

must apply “a presumption of reasonableness to within-range sentencing decisions that

reflect a proper application of the purposes and principles of our Sentencing Act.” Id. at 707.

“[A] trial court’s misapplication of an enhancement or mitigating factor does not invalidate

the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended

in 2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and

principles of sentencing, as provided by statute, a sentence imposed by the trial court within

the appropriate range should be upheld.” Id.

We note that although the trial court did not state on the record whether it applied

enhancement factor (6) based on the personal injuries or the amount of property damage

sustained by the victims, the State requested application of this factor based on the amount

of property damage. The prosecutor told the court that the injuries sustained by the victims

were “contemplated in the elements of the offense” but that it sought application of factor

(6) based on the value of the car and Mr. Boring’s having to find housing to accommodate

his being in a wheelchair. The Defendant correctly states that in the context of personal

injuries, this factor is not applicable to vehicular assault convictions because serious bodily

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injury is an element of the offense. Factor (6) is not applicable in vehicular assault cases

based on the personal injuries sustained by the victim. See State v. Jones, 883 S.W.2d 597,

602 (Tenn. 1994); see also State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995).

Application of factor (6), though, is permitted when based on the amount of property

damage sustained by the victim. Mr. Boring testified that he paid $4000 for his car, that the

car was a total loss, and that he received a $3000 payment from the insurance company for

the value of the car. Although Mr. Boring testified that his injuries prevented him from

living in his third-story apartment, we conclude that the loss of his apartment is not property

damage as contemplated by factor (6). Likewise, we conclude that the amount of property

damage regarding the victim’s car was not particularly great and that the trial court erred by

applying this factor.

Regarding enhancement factor (10), this court has concluded that a “trial court may

consider this factor when the defendant endangers the lives of people other than the victim.”

State v. Kelley, 35 S.W.3d 471, 480 (Tenn. Crim. App. 2000); see State v. Sims, 909 S.W.2d

46, 50 (Tenn. Crim. App. 1995) (stating that enhancement factor (10) “may be applied in

situations were individuals other than the victim are in the area and are subject to injury”).

The Defendant argues no evidence was presented at the sentencing hearing regarding other

drivers on the roadway. Although Officer York testified that he arrived at the scene of the

accident at 8:12 a.m. and that a man who was not involved in the accident told him the

Defendant was involved in the accident and walking toward Krystal, no evidence was

presented showing the man was in the zone of danger at the time of the accident. Likewise,

although the accident occurred around 8:00 a.m. on a weekday and counsel conceded the

intersection in which the accident occurred “was probably busy,” no evidence showed that

other drivers were on the roadway at the time of the accident. We conclude that the evidence

fails to support a conclusion that other drivers were on the roadway at the time of the

accident or that other persons were in the zone of danger. We conclude that the trial court

erred by applying factor (10).

Although we conclude that the trial court erred by applying enhancement factors (6)

and (10), the misapplication of an enhancement factor does not invalidate the Defendant’s

sentences. See Bise, 380 S.W.3d at 706. “So long as there are other reasons consistent with

the purposes and principles of sentencing, as provided by statute, a sentence imposed by the

trial court within the appropriate range should be upheld.” Id. The record reflects that the

court considered the purposes and principles of the Sentencing Act and the appropriate

evidence at the sentencing hearing and that the court properly applied the remaining

enhancement and mitigating factors. We note the court’s proper application of enhancement

factor (1) and the Defendant’s criminal driving history, which included DUI involving an

accident with property damage, driving on a revoked license reduced to not carrying a

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driver’s license, and speeding involving an accident with personal injury. Further, the nature

of the offense supports the length of the sentences. The Defendant chose to drive his car

while under the influence of an intoxicant and struck the victim’s car injuring Mr. Boring and

his four children. We note the significant injuries sustained by Mr. Boring and his daughter.

After the accident, the Defendant chose to leave the scene. He entered a nearby restaurant,

used the restroom, and flushed the toilet multiple times. We conclude that the court did not

abuse its discretion in imposing the sentences. The Defendant is not entitled to relief on this

basis.

II

The Defendant contendsthe trial court erred by relying on deterrence and depreciating

the seriousness of the offense in denying alternative sentencing. The State responds that the

trial court properly denied alternative sentencing. We agree with the State.

A defendant is eligible for probation if the sentence imposed is ten years or less. See

T.C.A. § 40-35-303(a) (2010); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). A

defendant has “the burden of establishing suitability for probation.” T.C.A. § 40-35-303(b);

see Carter, 254 S.W.3d at 347. In order for a defendant to meet this burden, he or she must

show that “probation will ‘subserve the ends of justice and the best interest of both the public

and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v. Housewright, 982 S.W.2d

354, 357 (Tenn. Crim. App. 1997)). “A defendant’s sentence is based on ‘the nature of the

offense and the totality of the circumstances in which it was committed, including the

defendant’s background.’” State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006) (quoting

State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (citations omitted)).

Our supreme court has concluded that the abuse of discretion with a presumption of

correctness standard in Bise applies to “questionsrelated to probation or any other alternative

sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). When determining if

incarceration is appropriate, a trial court should consider if:

(A) Confinement is necessary to protectsociety by restraining a defendant who

has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

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(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C) (2010);see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

The record reflects the trial court found that probation was not appropriate based on

the need to prevent depreciating the seriousness of the offenses and to deter others from

committing similar offenses. The Defendant apologized for his conduct and the injuries he

caused the victims, and the record reflects the Defendant’s conduct was the result of his

acknowledged drug addiction. Although the Defendant attempted to complete various drug

rehabilitation programs during his pretrial release, he was discharged for failing drug screens

and failed to report the discharge to counsel and to the court. His behavior indicates he failed

to appreciate the seriousness of his conduct and his inability to rehabilitate himself. The

Defendant chose to drive under the influence of drugs, resulting in an accident that caused

significant injuries to Mr. Boring and his daughter. We note Mr. Boring’s punctured lung

and fractured pelvis and his daughter’s paralysis and long-term rehabilitation to learn to

speak and walk again. We conclude that the trial court did not abuse its discretion and that

he is not entitled to relief on this basis.

III

The Defendant contends that the trial court erred by ordering consecutive service of

his vehicular assault sentences. He argues the court made “conclusory” findings without

specificity regarding its decision to impose consecutive sentences and requests this court

remand the case to the trial court for it to “specify the grounds” upon which consecutive

sentences were imposed. The State responds that the trial court’s ordering consecutive

sentences is supported by the record.

Our supreme court recently concluded that the appropriate standard of review for all

sentencing decisions, including the determination to impose consecutive sentences, is an

abuse of discretion with a presumption of reasonableness. State v. James Allen Pollard, —

S.W.3d —, —, No. M2011-00332-SC-CD, slip op. at 9, 14 (Tenn. Dec. 20, 2013).

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b)(4)

(2010), which states, in pertinent part, that the court may ordersentencesto run consecutively

if it finds by a preponderance of the evidence that the defendant “is 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.”

Our supreme court has concluded that when the imposition of consecutive sentences

is based on the trial court’s finding the defendant to be a dangerous offender, the court must

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also find “that an extended sentence is necessary to protect the public against further criminal

conduct by the defendant and that the consecutive sentences must reasonably relate to the

severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939; see State v. Lane, 3

S.W.3d 456, 461 (Tenn. 1999). The abuse of discretion with a presumption of

reasonableness standard does not eliminate a trial court’s obligation to comply with

Wilkerson. James Allen Pollard, — S.W.3d at —, slip op. at 13. When a trial court fails to

comply with Wilkerson, the appellate courts many conduct a de novo review of the record

to “determine whether there is an adequate basis for imposing consecutive sentences” or

“remand for the trial court to consider the requisite factors in determining whether to impose

consecutive sentencing.” Id., — S.W.3d at —, slip op. at 14 (citing Bise, 380 S.W.3d at 705

& n.41).

The record reflects that the trial court imposed consecutive sentences on the basis that

the Defendant was a dangerous offender whose actions indicated little or no regard for

human life and that the Defendant had no hesitation in committing a crime in which the risk

to human life was high. The court, likewise, found that consecutive sentences were

“necessary to protect the public against further criminal conduct by the defendant” and

“reasonably relate[d] to the severity of the offenses committed.” See Wilkerson, 905 S.W.2d

at 939. Although the court made the appropriate conclusions pursuant to Wilkerson, the court

failed to state its factual findings underlying its conclusion that consecutive sentences were

warranted pursuant to Wilkerson.

In James Allen Pollard, the trial court failed to discuss the need to protect the public

and how consecutive sentences reasonably related to the severity of the offenses. Our

supreme court upheld this court’s remanding for a new sentencing hearing “because the

considerationsrequired under Wilkerson involve a fact-intensive inquiry” and concluded that

“the better course is to remand to the trial court for consideration of the Wilkerson

requirements in determining the propriety of consecutive sentencing.” James Allen Pollard,

— S.W.3d at —, slip op. at 14. In light of our supreme court’s conclusions in James Allen

Pollard, we conclude that the trial court erred by failing to state on the record the facts

underlying its conclusion that consecutive sentences were needed to protect the public and

reasonably related to the severity of the offenses pursuant to Wilkerson. We remand the case

in order for the court to state on the record its findings underlying its conclusion that

consecutive sentences were warranted pursuant to Wilkerson.

Although we conclude that the trial court erroneously applied two enhancement

factors, the lengths and manner of service of the Defendant’s sentences are proper. We also

conclude that the trial court erred by failing to state on the record the facts underlying its

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conclusion that consecutive sentences were warranted pursuant to Wilkerson. We remand

the case in order for the court to make its findings on the record.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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