# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 02C01-9809-CC-00259 Appellant ) ) CHESTER COUNTY vs. ) ) Hon. WHIT LAFON, Judge LUTHER WAYNE WHITE, ) ) (State Appeal - Sentencing) Appellee )
For the Appellee : For the Appellant: Angela R. Scott John Knox Walkup Bishop, Scott & Bishop Attorney General and Repor ter P. O. Box 408 Henderson, TN 38340 Peter Coughlan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 James G. (Jerry) Wo

odall District Attorney General Shau n Bro

wn Asst. District Attor

ney General P. O. Box 2825 Jackson, TN 38302

OPINION FILED: REVERSED
David G. Hay

es Judge1 In thi s appeal, t he State does not challenge the trial

court’s ap plicat ion or wei ght of mitigating factors o r the length of the se ntence s: these issues a re not raise d in the Sta te’s brief. See Tenn . Code A nn. § 40- 35-402 (b)(1-5) (1 997). 2 OPINION
The State appeals the sentencing dec ision of the Circuit Cour t of Chester County following the appellee’s guilty pleas to two violations of the Motor Vehicle Habitual Offenders Act and one count of mis demeanor possession of marijuana. The appellee , Luther W ayne Whit e, received a sent ence of two years a s a range one standard offender for each habitual offender conv iction and eleven months and twenty-nine days for the marijuana convicti on. The trial court ordered the appellee to serve six months of eac h sentence followed by super vised probation. The State appeals contending the trial court erred by (1) sentencing the appellant to th e incorrect sentencing r

ange; (2) granting partial probation; and (3) ordering concurrent sentences. 1

After review, we find the State’s contentions to be mer itorious. The judgments of the trial court are reversed and the appell ee’s sentences are modified as ordered below.

BACKGROUND
On June 13, 1996, the appellee w as arrested for violati on of the Motor Vehicle Habitual Offenders Act. On September 29, 1997, he was again cited for violation of the MVHO Act and for misdemeanor drug possess ion. The appellee pled guilty to all thre e offenses on March 4, 1998 . Prior to the sent encing hearing, the State filed notice to seek enhanced pun ishment as a range II offender and also moved for consecutive senten ces.
This court’s review of the length, range, or manner of service of a sentence is3

de novo with a presumption that the determination made by the tri al court is correct. Tenn. Code Ann. § 40-35-401(d) (1 997). See also State v. Bingham , 910 S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). This presumption is only applicable if the rec ord demonstrates that the trial court properly consi dered relevant sentencing pr

inciples. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The record does not reflect that the trial court considered

the relevant principl es of sentencing; accordingl

y, the presumption is not afforded.
Upon our de novo

review, we ar

e required to consider the evidence heard at trial and at sentencing, the presentence report, the argument of counsel, the nature and characteristics of the offense, any mitigating and enhancement factor s, the defendant’s statements, and the defendant’s potential for rehabilitation. Tenn. Code Ann. § 40-35-102, -103(5), - 210(b) (1997). The burden is on the appellant to show that the sentence imposed was i mproper. Ashby , 823 S.W.2d at 169; State v. Fletcher , 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentenci ng Commission Comments, Tenn. Code Ann. § 40-35-401 (d).

The record establishes the appellee’s extensiv e list of criminal conv

ictions from 1987 to the present. Evidence presented at the sentencing he aring indicates approximately six

teen prior convictions

including the followi ng: (1) 1987, felony conviction for possessi on with intent to sell marijuana, sentenced to two years; (2) 1987, misdemeanor possession of cocai ne; (3) 1989, conspiracy to sell interstate stolen motor vehicles, see 18 U.S.C. § 371, sentence of three years; (4) 1989, six counts interstate transporting of stolen vehicles, see 18 U.S.C. § 2312, sentence of two years; (5) 1994, violation of Motor Vehicle Habitual Offender Act, a class E felony, sentence of three years as a range II multiple off ender; (6) 1994, DUI, first offense; (7) 1994, reckless endang erment; and (8) and other traffic r elated offenses. In addition, the appellee has a previous history of unwillingness to comply with the conditions of probation. The record reflects that h is federal probation was4

violated in July of 1993.The appellee’s May 1994 conv iction for violation as

an habitual motor vehicle offender r esulted in a three year c ommunity correction sentence. While in this program, the appel lee was arrested for the fir st instant offense on June 13, 1996. Moreover, while on bond for that offense, the appel lee was arrested for the second and third present offenses on September 29 , 1997.
The presentence report reflects that the appellee is thirty -one years old, divorced, and has attained his GED. The appellee was dec lared an habitual motor vehicle offender in 1987. Since then, the appellee has not had a dri ver’s license; however, at the time of the pr esent offenses, he was eligi ble to receive them. The appellee presently resides with his parents and has been employed as a mechan ic for over a year.
Upon con clusion o f the he aring, the trial cour t impose d a sente nce of two years in each felony count and eleven months and twent y-nine days for the misdemeanor with all but s ix months suspended. The appellee was also granted eligibility for w

ork release during the six months of incarcerati on. After completion of his jail sentence, the appel lee was granted probati on for the balance of the sentenc e. The th ree off enses were ordered t o be served concurre ntly.
The guidelines of Tenn. Code Ann. § 40-35-1 06(a)(1) (1997) define a multiple offender as a defendant who has receiv ed “[a] minimum of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) low

er felony classes . . .”

Tenn. Code Ann. § 40-35-106(b)( 2) permits the sentencing cour t to consider all offenses incl uding those occurring prior to Novemb er 1, 1989 . In comp liance with Tenn. Co de Ann. § 40-35-10 6(b)(4), we note that the seven prior federal felony convictions involving stolen vehicles in interstate commerce constitut e but a single course of conduc t for classification2 The record con tains a judgment from the United States District Court for the We stern Distri ct of Tennessee. Although the appel lee was convi cted of seven different f elony count

s, the record fai ls to demonstrat e whether these convicti ons constit ute a singl e or separate occurrences outside a t

wenty-fo ur hour peri od. Therefore, we must presume the seven counts const itute a single co urse of c onduc t in the abse nce of e vidence to the con trary. 5 purposes as a multiple offender. 2 Nonetheless, considering his federal convictions as one felony in addition to the two state felony conv

ictions, the appellee qual ifies as a range II, multiple offender.

Next, we address w

hether the sentences should run concurrently or consecutively. The Stat e contends under the provis ions of Tenn. Code Ann. § 40- 35-115(b)(2) (1997), i.e. , the appellee’s extensiv e criminal history,that the convictions should be or dered to run consecutivel y. Specifically, the State points out the appellee’s numerous conv ictions in thirty-

one years of life, his denial of drug usage with previ ous drug convictions , and his inability to conform to the requirements of his bail or probationary periods justify consecutive sentencing in order to protect the public. The appellee argues that consecut ive sentencing would not be reasonably related t o the severity of the offenses i nvolved.
Although the provisions of Tenn. Code Ann. § 40-35-115 (b)(2) are applicable in determining consecutive sentencing, subsection (d) defers to those ma ndatory guidelines provided i n Tenn. R. Crim. P. 32. The sentenc es imposed in each count of driving while an habitual motor vehicle offender must be run consecutively because the appellee was re leased on bail following his first present offense and subsequently pled gui lty to both offenses. See Tenn. R. Crim. P. 32(c)( 3)(C); see, e.g. , State v. Blanton , 926 S.W.2d 953 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1996).
Finally, we addres

s the issue of whether the tr ial court improperly

granted probation. Initially , we note the appellee is no t entitled to the presumption for an alternative sentencing

option, because he is a rang e II, multiple offender. See6

Tenn. Code Ann. § 40-35-102(6). M oreover, because the appell ee “has a long history of criminal c onduct” and “mea sures les s restrict ive than co nfinem ent” have proven unsuccessful, confinement i s necessary. Tenn. Code Ann . § 40-35- 103(1)(A) and (C). A

ccordingly, w

e find the trial court err ed in granting probati on.
In summary, the appellee is sentenced to the Tennessee Department of Correction as a range I I multiple offender upon each convic tion for violation of the MVHO Act. The sentences are ordered to run consecutive for an ef fective sentence of four years. A sentence of elev en months and twenty-nine days is imposed for the appellee’s conviction for misdemeanor possession of mariju ana. This sentence is to run concurrently w

ith the appellee’s aggr

egate four year sentence. The j udgments of the trial court are va

cated and this cause is remanded for entry of judgments consistent with this opinion.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

__________________________________ JOE G. RILEY, Judge

__________________________________ JOHN EVERETT WILLIAMS, Judge