IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 19, 2002 Session

STATE OF TENNESSEE v. JEFFREY DANA YORK

Direct Appeal from the Circuit Court for Marshall County

No. 14718 Charles Lee, Judge

No. M2001-02956-CCA-R3-CD - Filed December 3, 2002

The defendant was charged with twenty-four separate counts including one count of driving under

the influence, nine counts of reckless endangerment involving a deadly weapon, one count of

reckless driving, eight counts of aggravated assault, two counts of failure to give notice of an

accident, two counts of evading arrest creating a risk of death, and one count of false imprisonment.

Eight of the reckless endangerment and reckless driving counts merged with other charges. The

defendant entered guilty pleas to the other sixteen counts. After a sentencing hearing, the trial court

imposed an effective sentence of thirty years and six months. The defendant appealed the sentence

as excessive, arguing that the trial court erred in calculating his total sentence. After review of the

record, we affirm the judgments of conviction but remand for entry of corrected judgments.

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

Remanded for Entry of Corrected Judgments

ALAN E. GLENN,J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.

WEDEMEYER, JJ., joined.

Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna L. Hargrove, District Public Defender

(on appeal and at trial); and Andrew Jackson Dearing, III, Assistant Public Defender (at trial), for

the appellant, Jeffrey Dana York.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant

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

OPINION
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FACTS

According to the presentence report, the defendant, Jeffrey Dana York, picked his wife,

Cindy Curry, up from work sometime after 4 p.m. on April 2, 2001. She said that he was upset and

she could tell that he had been drinking, but he would not say what was upsetting him other than,

“you are all a bunch of bitches.” Curry tried to get out of the car, but the defendant pulled her back.

According to Curry’s statement, he then “started speeding down the road driving all crazy,” as she

pleaded with him to let her out of the car. Lewisburg police officers responded to a reckless driving

call and, upon seeing the defendant’s vehicle, turned on their lights and sirens. Instead of stopping,

the defendant fled, crashing into a car stopped at a stop sign.

Officer Chris Steel, testifying at the sentencing hearing, described the ensuing chase of the

defendant’s vehicle. With his vehicle, Steel tried to block the defendant’s vehicle from hitting a car

which had stopped for a stop sign. However, the defendant’s vehicle came around the police car and

struck the stopped vehicle, which was occupied by Shelly Kousser and her ten-year-old daughter

Courtney. Both were taken to the hospital and released that same day. This incident resulted in

indictment counts 4, 5, and 6. The defendant’s wife again tried to get out of the car, but he pulled

her back and sped off.

With Officer Steel in pursuit, his siren and blue lights activated, the defendant ran a stop sign

and proceeded “at a high rate of speed” through a hilly residential neighborhood. Because the chase

was occurring at 4:30 p.m., the area was “busy because school [was] still in session and work [was]

getting out.” Apparently, as the defendant ran the stop sign, his vehicle became airborne and he

struck an automobile occupied by Martin Zynda and his twenty-three-month-old son Travis, both

of whom were subsequently taken to the hospital as a result. They were released that same evening.

This collision resulted in indictment counts 9, 10, 11, and 12.

The defendant’s striking the Zynda car pushed it into oncoming traffic, where it struck

another vehicle head-on. This vehicle contained two young adults and two children, ages six and

fourteen. All four were transported to a local hospital, with the fourteen-year-old then being

transferred to Maury Regional Hospital, where she was released later that night. This collision

resulted in indictment counts 15, 16, 17, 18, 19, 20, 21, and 22. 

The defendant’s vehicle went off the road and hit a tree, becoming wedged between the tree

and a fire hydrant. As Officer Steel approached the vehicle, the defendant was trying to free it. His

wife was still in the vehicle, “holding her head,” and it appeared that her head had struck the

windshield or dashboard. The defendant refused to get out of the vehicle or show the officers his

hands. They pulled their weapons, but the defendant still refused to get out of his vehicle. When

finally he got out of his vehicle, the defendant was “combatant, fighting” and the officers had to

forcefully restrain him with handcuffs. Officer Steel then described what occurred after the

defendant had been placed into a patrol car:
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He was kicking the windows, banging his head against the windows,

up against the cage, hollering and screaming. He had to be restrained

several times, opening the door. We had to use our chemical

weapons on him in the back of the car because he was kicking the

back window out.

Officer Steel described the defendant’s behavior at the hospital:

They had to give him a catheter, and he had gotten up and yanked it

out. He was spitting blood and trying to get out of the emergency

room. So they handcuffed him to the bed. And while he was in the

bed handcuffed to the bed, he was doing flips with the handcuffs on

his wrists. I guess the cuffs were spinning around his wrist. He was

attempting to bite at his wrists to get the handcuffs off. So they had

to give him several sedatives.

A blood sample of the defendant revealed an alcohol level of 0.20% and tested positive for

marijuana.

According to the presentence report, the defendant made the following statement as to the

incident:

On April the 2nd I was depressed about many problems I was

having. Every way I turned I was getting deeper into debt like child

support and other things. I went home and started drinking and

blacked out and ended up causing a wreck. I never set out to hurt

nobody [sic] or cause any harm. I was trying to get help through

mental health but I didn’t get the help I needed in tim [sic].

If I hadn’t of [sic] been drinking I wouldn’t be where I am

now. I understand that what I did was wrong and I ask the victims to

forgive me and pray that the court has mercy on me.

Those victims who provided a victim impact statement detailed their injuries. Martin Zynda

reported that, as the result of his vehicle having been struck by that of the defendant, he had

sustained a “severe sprain to left knee and left ankle and sever[e] bruising to chest and left arm.”

He was treated in the emergency room and underwent two weeks of physical therapy. He reported

further that, as a result of the injuries, he lost his jobs and expended $5844.49 for car repairs and

medical expenses. His son sustained “severe bruises on his chest and shoulders and stomach.” The

defendant’s wife, Cindy Curry, reported that she sustained a “cracked bone in left foot, torn

ligaments in right foot, bruised upper and lower arm, contusion to forehead, and infection in right

foot.” She said that she had to use crutches for two months to walk and took medication for pain and

inflammation in both of her feet. She missed work for two and one-half months and was continuing
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to pay the loan payments on the car operated by the defendant which was destroyed as the result of

the incident. 

According to the presentence report and judgments, the defendant has seven prior felony

convictions, all in 1994: three convictions for theft of property $1,000 - $10,000, each resulting in

a four-year sentence, and four convictions for “reckless endangerment - deadly weapon involved,”

each resulting in a two-year sentence. The reckless endangerment convictions were reported in the

presentence report to have resulted from the defendant’s “being involved in a hit and run accident

which caused personal property damage and injuries to the occupants of the other vehicle.” The

defendant had been paroled in 1995, with the parole being revoked in 1997, apparently resulting in

his being incarcerated until 1999.

ANALYSIS

The only issue raised on appeal is whether the trial court erred in ordering that certain of the

defendant’s sentences be served consecutively.

I. Standard of Review

When an accused challenges the length and manner of service of a sentence, it is the duty of

this court to conduct a de novo review on the record with a presumption that “the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).

This presumption is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached

by the trial court in sentencing the accused or to the determinations made by the trial court which are

predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.

1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d

163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to the trial

court’s determination of controverted facts as the trial court's determination of these facts is

predicated upon the witnesses’ demeanor and appearance when testifying.

In conducting a de novo review of a sentence, this court must consider (a) any evidence

received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of

sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and

characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by

the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation

or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.

Crim. App. 1987).

The party challenging the sentences imposed by the trial court has the burden of establishing

that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
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Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence

imposed by the trial court is erroneous.

II. Length of Sentence

On appeal, the defendant and the State disagree upon the sentenced imposed, the defense

asserting that the effective sentence is sixteen years and six months, while the State computes the

sentence to be thirty years and six months. The disagreement stems from the fact that there are a

total of sixteen judgments, with different sets of sentences ordered to be served concurrently with

each other yet consecutive to all other sets of convictions, all of which, in turn, are consecutive with

each other. We have reviewed the trial court’s ruling at the sentencing hearing, as well as the

judgments, and compared the two. Based upon our analysis, it appears that the trial court sentenced

the defendant as a Range II, persistent offender to an effective sentence of thirty years and six

months, while the judgments provide for an effective sentence of sixteen years and six months as a

multiple offender. Where there is a conflict between a judgment form and the transcript of the

proceedings, the transcript controls. See State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App.

1991); State v. Davis, 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985). Accordingly, the transcript from

the sentencing hearing controls, and the defendant’s effective sentence is thirty years and six months

as a persistent offender. Before determining whether the trial court abused its discretion in ordering

that certain of the sentences be served consecutively to others, we first will review the sentences

imposed by the trial court at the conclusion of the sentencing hearing.

As a Range II, persistent offender, the trial court sentenced the defendant as follows:

Count Offense Sentence

1 Driving While Under The Influence 11 months, 29 days

2 Reckless Endangerment with a Deadly Weapon 3 years

3 Reckless Driving merged

4 Aggravated Assault 8 years

5 Reckless Endangerment merged

6 Aggravated Assault 8 years

7 Failure To Give Notice Of Accident 30 days

8 Evading Arrest Creating Risk of Death 3 years

9 Aggravated Assault 8 years

10 Reckless Endangerment merged

11 Aggravated Assault 8 years, 6 months

12 Reckless Endangerment merged

13 Failure To Give Notice Of Accident 30 days

14 Evading Arrest Creating Risk of Death 3 years

15 Aggravated Assault 8 years

16 Reckless Endangerment merged

17 Aggravated Assault 8 years
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18 Reckless Endangerment merged

19 Aggravated Assault 8 years

20 Reckless Endangerment merged

21 Aggravated Assault 8 years

22 Reckless Endangerment merged

23 Reckless Endangerment with a Deadly Weapon 3 years

24 False Imprisonment 11 months, 29 days 

At the sentencing hearing, the trial court ordered that the following groupings of counts

should run concurrently one with the other: counts 4 and 6; counts 9 and 11; counts 15, 17, 19, and

21; counts 1, 2, 7, 13, and 14; and counts 23 and 24. The following counts were to be served

consecutively: counts 4 and 6 to counts 9 and 11; which, in turn, were consecutive to counts 15, 17,

19, and 21; which, in turn, were consecutive to counts 1, 2, 7, 13, and 14; which, in turn, were

consecutive to counts 23 and 24. This order calculates to a total sentence of thirty years and six

months. We note that the trial court did not specify that count 8, for which the defendant was

sentenced to three years imprisonment, was to be served consecutively to any of the other sentences.

Therefore, by operation of law, it is served concurrently with the other sentences. See Tenn. R.

Crim. P. 32(c)(1) (“Unless it is made to affirmatively appear that the sentences are consecutive, they

shall be deemed to be concurrent.”).

The disparity in sentencing between that ordered by the trial court during the sentencing

hearing and that provided by the judgments stems from the fact that the latter, while providing for

groupings of concurrent counts 1, 2, 7, 8, 13, and 14 to be consecutive to concurrent counts 15, 17,

19, and 21, with both to be consecutive to concurrent counts 23 and 24, does not connect them with

counts 4 and 6, which are concurrent with each other but consecutive to counts 9 and 11, which are

concurrent with each other. In other words, the judgments do not reflect the trial court’s instructions

during the sentencing hearing that there should be five groupings of indictment counts, all

consecutive with each other, and that the defendant is a persistent offender. Since, as we have noted,

the sentencing transcript prevails over the judgments, the defendant’s effective sentence is thirty

years and six months. Having made that determination, we now will ascertain whether the defendant

was appropriately sentenced.

The presentence report and the judgments of previous convictions show that the defendant

has seven felony convictions since 1994, four of which are for reckless endangerment.

In sentencing the defendant, the trial court found no mitigating factors applicable but applied

the following five enhancement factors: 

(1) The defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the

appropriate range;
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(4) A victim of the offense was particularly vulnerable because of age

or physical or mental disability, including, but not limited to, a

situation where the defendant delivered or sold a controlled substance

to a minor within one thousand feet (1,000 ft.) of a public playground,

public swimming pool, youth center, video arcade, low income

housing project, or church;

(8) The defendant has a previous history of unwillingness to comply

with the conditions of a sentence involving release in the community;

(10) The defendant had no hesitation about committing a crime when

the risk to human life was high; and

(16) The crime was committed under circumstances under which the

potential for bodily injury to a victim was great.

Tenn. Code Ann. § 40-35-114(1), (4), (8), (10), (16).

In determining the appropriate sentence for a felony conviction, the sentencing court, if there

are enhancement factors but no mitigating factors, may set the sentence above the minimum in that

range but still within the range. See Tenn. Code Ann. § 40-35-210(d) (Supp. 1999); State v. Boggs,

932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). There is no mathematical formula of evaluating the

enhancement factors to calculate the appropriate sentence. See generally id. “Rather, the weight to

be afforded an existing factor is left to the trial court's discretion so long as the court complies with

the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by

the record.” Id. at 475-76 (citations omitted). The defendant does not contest the enhancement

factors, nor does he argue for the application of mitigating factors. In each of the felony cases, the

defendant was sentenced within the range for a persistent offender, and we thus conclude that, as to

each individual offense, the defendant was sentenced appropriately. We now will determine whether

consecutive sentencing was appropriate or whether all sentences should be served concurrently, as

the defendant asserts on appeal.

As a general rule, consecutive sentences are imposed at the discretion of the trial court upon

its consideration of one or more of the following statutory criteria:

(1) The defendant is a professional criminal who has knowingly

devoted such defendant’s life to criminal acts as a major source of

livelihood;

(2) The defendant is an offender whose record of criminal activity

is extensive;
1

Five persons were in the vehicle struck by the stolen vehicle operated by the defendant in 1994, resulting in

his being charged with five counts of reckless endangerment. He entered pleas of guilty to four counts of this indictment.

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(3) The defendant is a dangerous mentally abnormal person as

declared by a competent psychiatrist who concludes as a result of an

investigation priorto sentencing that the defendant’s criminal conduct

has been characterized by a pattern of repetitive or compulsive

behavior with heedless indifference to consequences;

(4) 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;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between the

defendant and victim or victims, the time span of defendant’s

undetected sexual activity, the nature and scope of the sexual acts and

the extent of the residual, physical and mental damage to the victim

or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). 

These criteria are stated in the alternative; therefore, only one need exist to support the

appropriateness of consecutive sentencing. In ordering consecutive sentencing, the trial court

utilized criteria one and four, finding “that the defendant is obviously a person whose criminal

activity is extensive” and that the episode resulting in the latest convictions and at least three of his

prior convictions “involved the threat of death or serious bodily injury[.]” The trial court also found

“the defendant to be a dangerous offender” and that “incarceration is necessary to protect society.”

The presentence report prepared following the defendant’s 1994 traffic incident, resulting in

four convictions for reckless endangerment with a deadly weapon involved,1 details the facts of that

matter:

Mr. York was operating a stolen vehicle on 31-A in Marshall County.

The vehicle York was operating was traveling at a high rate of speed

when it struck another vehicle in the rear causing extensive damage

to that vehicle and injuries to it’s [sic] occupants. Mr. York did not
2We note that the defendant also received consecutive sentences in 1994 for certain of his theft and reckless

endangerment convictions.

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stop to check on the other parties, to exchange information, or notify

the proper authorities.

According to the presentence report, the defendant was placed on parole from these sentences

on September 29, 1995. Subsequently, he was arrested on October 6, 1996, and charged with failure

to obey a traffic control device and failure to report an accident, both of which resulted in fines. He

next was arrested on January 18, 1997, charged this time with reckless endangerment and evading

arrest. He was convicted of these offenses on February 18, 1997, receiving concurrent sentences of

eleven months and twenty-nine days. On February 28, 1997, his parole was revoked, and,

apparently, he then remained incarcerated until January 21, 1999, when his sentences expired.

According to testimony presented at the sentencing hearing, the defendant has “been on some form

of alternative release, including parole” on five occasions. The defendant told Judy Byrd, the

Tennessee Department of Probation and Parole investigating officer who prepared the presentence

report, that he had consumed alcoholic beverages and used marijuana “on a daily basis since age

ten.”

It is abundantly clear from the record that the defendant is a dangerous offender with little

or no regard for human life and with a propensity to utilize a vehicle in a deadly fashion. That fact,

in addition to his reported daily use of alcohol and marijuana, supports consecutive sentencing.2

III. Calculation of Sentence

As we have stated previously, the judgments do not conform to the instructions of the trial

court at the sentencing hearing. Accordingly, we remand this matter for entry of corrected judgments

which reflect the orders of the trial court at the sentencing hearing.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the trial court’s sentencing

of the defendant but remand for entry of corrected judgments reflecting the sentences imposed at the

sentencing hearing. Additionally, we remand for correction of the judgments for counts 8 and 14

to reflect that the pleas of guilty were to evading arrest as a Class E felony, as stated in the Petition

to Enter Plea of Guilty, and not as a Class D felony, which both judgments currently provide. The

judgments should also reflect that the defendant is a persistent offender, as determined by the trial

court.

___________________________________ 

ALAN E. GLENN, JUDGE