# FILED
February 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE CRIMINA

L COURT OF A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9701-CR-00016 ) vs. ) Hamilton County ) AMOS LEWIS JONES, ) Hon. Douglas A. Meyer, Ju dge ) Appellant. ) (Aggrav ated robbery; aggrav

ated ) rape; especiall

y aggravated ) kidnaping ; theft) ) FOR THE APPE LLANT: FOR THE APPELLEE: CLAYTON M. WHITTAKER JOHN KNOX WALKUP 515 Pioneer Bank Building Attorney General & Reporter 801 Broad Street Chattanooga, TN 37402 SANDY C. PATRICK Asst. Attorney G eneral 450 James Ro bertson Parkway Nashv

ille, TN 37243-0493 WILLIAM H. COX, III District Attor

ney General C. LELAND DAVIS Asst. Distric

t Attorney General Suite 300, C ourts Building Chattanooga, TN 37402

OPINION FILED: _____________ AFFIRMED CURWOOD WITT, JUDGE1 The defendant reached the age of seventeen on December 24, 1994.

His cases were tra nsferred to criminal court from juvenile court.

2 A fifteenth adjudication was for an unspecified offense. 2 OPINION
The defendant, A mo s Lewis Jones, appeals from the sentencing judgmentof the Hamilton County Cri minal Court. Thedefendant’s six convictions resulted from guilty pleas. The tr ial court sentenced the defendan t t o maximum Range I terms of four years for theft, twelve years for ea ch of two counts of aggravated r obbery , and 25 years each for one count of especially aggrav ated kidnapping and two counts of aggravated rape. The three twenty-fiv e y ear sentences were plea-bargained to run concurrently to each other, but the trial court set the sentences for theft and aggrava ted robbery to run consecutively to each other and consecutively to the twenty-five year ag gregate sentence for the kidnapping and rape charges, yie lding a total effective sentence of 53 year s. The defendant appeals only the consecuti ve sente ncing aspect of the trial court’s judgment. Upon our revi ew of the case, we affirm the ju dgment of the trial court.

The defendant was sixteen years of a ge when the underlying offenses
were committed on Sept ember 30 and October 1, 1994. 1 He had spent a major portion of his teenage years in the custody of the Depa rtment of Youth Development. His prior criminal rec o rd consisted of fifteen juvenile court adjudications, including convict ions for assault, evading arrest, escape, possessi on of a weapon on school grounds, two first-degree bur glaries, two unauthor

ized uses of vehicles, and six thefts. 2 The defendant, a sixth-grade dr opout, had never submitted a job application and h ad never been employed, although he had been released from the Department of Youth Devel opment on one occasion for as long
as five months and had acquired some carpentry and masonry skills while in department custody.

Th e record shows that the crimes were committed during a two-d a y3 The court found these sentences wer e justified by the presence of seven enhancement factors. See Tenn. Code Ann. § 40-35-114(1), (5), (7), (8), (9), (10), and (21) (1997) (the court applying factor (9), that a firearm was used, only with respect to the rape and theft convictions). 3 period in which the defendant was attempting to demonstrate his criminal prowess in order to be promoted, or “get [his] ranks built up,” as a member of a str eet gang known as the “Crips.” During this test, the defendant, armed with his twelve-gauge shotgun and accompanied by the gang leader, underto ok a cri me spree that resulted in the armed robbery of tw o individuals and the abduct i on a nd multiple rapes of the second ofthe robbery victims, a female. At one point, this v ictim was raped simultaneously by the defendant and his accomplice. Afterward s he jumped
or was thro wn fro m the assailants’ car, and t he car ran over her foot as the defendant’s accomplice drove aw ay.

The trial cour

t sentenced t he defendant to the maximu m sentences allowed within R

ange I for each offense. 3 The court found threebases to support
consecu tive sentencin g. It found (1) that the defendant was a pr ofessional criminal, “knowingly devot[ing his] life to criminal acts a s a major source of livelihood,”

(2) that he had an extensive record of criminal activity , and (3) that he
was a dangerous offender “whose behavior i ndicates little or no regard for human life, and no hesitation about committing a c rime in w hich the risk to human life is high.” Tenn. Code Ann. § 40-35- 115(b)(1) (1997).

When there is a challen ge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption that the det erminations made by the tri al court are correct. Tenn. Code Ann. §40-35-401(d)(1997). This presumption is “conditioned upon the aff irmative showing in the recor d that the trial court cons idered the sentencing principles

and all relevant facts and circumstances.” State v. As hb y , 823 S.W.2d 166, 169 ( Tenn. 1991). “The burden of showing that the sentence is imprope r i s upon the appellant.” Id . In the event the record fails to de monstrate the required
c o nsideration by the tria l court, re view of the sentenc e is purely de novo

. Id . If4

appellate review reflects the trial court properly considered al l relevant factors and its findings of fact are adequately supported by the record, this c

ourt must affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).

Upon our review of the rec ord, we find that the trial judge’s sentencing determinationsmerit the presumption of correc tness, and furtherwe find that the record supports the trial court ’s decision w it h respect to all three consecutivesentencing bases. The finding of professional criminality under sec tion 40-35 - 115(b)(1) is supported by the proof that this defendant, although young, had never been employed and had ne ver applied for a job despite having quit schoo l in the sixth grade. He indicated that he and his unemp loyed girlfriend lived together, supported only by help from well- meaning friend s. The lack of a work rec ord, together with an “extensive criminal record, including several theft related offenses, l ead[s] the court to believe that the Defendant has turned to crime for a majo r source of his livelihood.” State v. Jason Morin , No. 02C01-9512-CR-00370, slip op. at 11 (Tenn. Crim. App., Jack son, June 2, 1997). Furtherm ore, an ext ensive criminal record has been demonstrated in support of the trial court’s finding under section 40-35-115(b)(2). See Jason Morin , slip op. at 11; see also State v. Jason L. Broadnax , No. 01C01-9702-CC-00044, s lip op. at 4 (Tenn. Crim. App., Nashv ille, Jan. 16, 1998). The defendant has failed to overcome the presumption of the correctness of the trial co urt’s findi ng as to th ese two ba ses for co nsecutive sentencing.

As to the t hir d ground, that the defendant is a dangerous of fender, Tenn. Code Ann. § 40-35-115(b)(4)(1997) , we agree with the defendant that the trial court did notannounce all of the finding s that wer e required

by our supr

eme court in St ate v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). In Wilkerson , the supreme court held that the imposition of consecutive sentencing upon a defendant found to be a dangerous offender requires , “in addition to the a pplicat ion of general5

principles

of sentencing, the finding that an extended sentence is necess ary to protect the public against further crimin al conduct by the defendant and that the
consecu tive sentences must reasonably r elate to the severity

of the offenses committed.” Wilkerson , 905 S.W.2d at 939. The trial court’s omission in this regard notwithstandin g, we find that the record affords cogent evidence that a lengthy sentence is necessary to protect the public from this d efendant who, after spending much time in the custody of the Depar tment of Youth D evelopment , not only
con tinued to reoffend, but who escalated his off ending into more serious crimes. In this regard, we take note of esca pe an d aggravated assault charges that were pending against the defendant at the time of his sentencing in the presen t case. The proof showed that the defendant, armed w ith a gun, escaped from the custody of the Department of Youth Development and assaulted an officer in the process. Although this conduct may not be part of a rec ord of criminal activity under section 40-35-115(b)(2), it is probative on the question of whether the public should be protected from this defen dant under section 40- 35-115(b)(4) and Wilkerson . Finally, we conclude that the

record supports a conclus ion that the period of confinement is reasonably related to the severity of the

cri mes committed. The severity of the defendant’s crimes in this cas e speaks for itself.

We agonize over the pl ight of this young man. His f ather was imprisoned when the defendant was ten years of age, and the defendant dropped out of school in the sixth grade. Many of his few years have been spent in c ustody. Yet, no one has successfully i ntervened to stem his cri minal behavior, and with the substantial sentence imposed him, the defendant has tragically broug ht his life to the brink of ruin. Nevertheless, our role as an appel lat e court is limited. If the record reflects that the trial co ur t properly considered all relevant factors and i ts findings are adequately supported by the record, as they are in this present case, we must defer to the judgment of the trial court. Fletcher , 805 S.W.2d at 789.

For the reasons

explained above, we affirm the judgment of the trial6

court.

_________________________ CURWOOD WITT, JUDGE CONCUR:

_______________________________ JOE B. JONES, PRESIDING JUDGE

_______________________________ PAUL G. SUMMERS, JUD GE