### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 19, 200 2 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 - F iled December 3, 2002

The defendant was charge d with twen ty- four sep arate

counts including one count of driving under the influence, nine counts of reckless endang erment involving a deadly weapon, one count of reckle ss driving , eight c ounts of aggravat ed assault, two counts of failure to give notice of an accide nt, two counts of evading arrest creating a risk of de ath, andone coun t of false imprisonme

nt. Eight of the reckless e

ndange rment an d reckle ss driv ing cou nts merged with other charg es. The defendant entered guilty

pleas to the other sixteen counts. After a sentencing hear ing, the trial court imposed an effec tive sente nce of th irty ye ars and s ix months. The defendant appealed the sentence as excessive , arguing that the trial court er red in calculating his total sentence. After re view of the record , we aff

irm the jud

gments o f convic tion but re mand for entry of corr ected ju dgments

. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ci rcuit Court Affirm ed and Remanded for Entry of Corrected Judgments
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBER T W. W EDEMEYER , JJ., joined.
Me rr il yn Fei rma n, N ash vi ll e, T enn ess ee ( on a ppe al) ; Do nna L. Hargrove, District Public Defender (on appeal a

nd at tria l); and Andrew Jack son Dear ing, I II , Assis t ant Public Defender (at trial), for the appellant, Jeffrey

Dana York.
Paul G. Summers , Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William Michael McCown, District Attorney Gene ral; and Weakley

E. Barnard, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION-2- FACTS According to the presentence report, the defenda nt, Jeffrey Dana

York, picked his wife, CindyCurry , up from w ork somet ime afte r 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 defenda nt pulled her back. According to Curry’s statement, he the n “started speeding down the r oad driving all

crazy,” a s she pleaded with him to let her out of the car. Lewisburg police officers responded to a reckless driving calland, upon seeing the defendant’s vehicle, turned on their lights and sirens. Instead of sto ppin g, the defendant fled, crashing into a c ar stopped at a stop sign.
Officer Chris Steel, testifying

at the sentencing hearing, desc ribed 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. Howeve r, the defendant ’s vehic le came around the police car and struck the stoppe d vehicle , whic h was o ccupied by Shelly Kousser and her ten-y

ear-old daughter Co ur tn ey. Both were taken to the hospital and released tha t same day. This incident re s ulted in indictment counts 4, 5, and 6. The defendant’s wife aga in 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 de fendan t ran a s top s ign and proceeded “at a high ra te of speed” through

a hilly residen tial neig hborhood . Beca

use the chase was occurring at 4:30 p.m., the area was “busy

because school [was] still in session and work [was ] getting ou t.” App arently, as the defendant ran the stop sign, his vehicle beca me airborne and he struck an automobile

occupie d by

Martin Z ynd a and his t

wenty -three -month-o ld son Tra vis, both of whom wer

e subsequ ently

taken to the hospital as a result. They were rel eased t hat sa me even ing. This collision resulted in indictment counts 9, 10, 11, and 12.
The defenda

nt’s strik ing the Z ynd a car pu sh ed it in to oncoming traffic, where it struck another vehicle head-on. This vehicle contained two y oung adults and two children, ag es s ix and fourteen. All four w ere tra nsported to a loca

l hospital, with the fourteen-year-old then being transferred

to Maury

Regiona l Hosp ital, 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 hy drant. As Officer Steel app roache d the vehi cle, the

defenda nt was try ing to fr ee it. His wife was still in the vehicle, “holding her head,” a nd it appeared that her head had struck the windshiel d or dashboard. The defendant refused to get ou t of the ve

hicle or show the o fficer s his hands. They pulled their we apons, 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 office rs ha d t o forcef ully restrain him with handcuffs. Officer Steel then desc ribed what occurred after the defendant had been placed into a patrol c ar:-3- He was kick

ing the windows, banging his head agains t the windo ws, up against the cage, hollering and screaming. He

had to be restrained several times, opening the doo r. We had to use our chemical weapons on him

in the back of the car because he was kicking the back win dow out.
Office r Steel de scribed

the defe ndant’s b ehavior

at the hos pital: They had to g

ive him a catheter, and he had gotten up a nd yanked

it out. He was spitting blood and try ing to get out of the emergency room. So they

handcuf fed him to t

he bed. A

nd while h

e was in the bed handcuffed to the bed, he was doing f lips with the handcuffs on his wrists. I guess the cuf fs were spinning around his wrist. He was attempting to bite at h

is wrists to get th

e handc uffs off

. So they had to give h im severa l sedative s. A blood samp le of the defendant revealed an a lcohol level of 0.20% and tested positive for marijuana. According to the pre sentenc e repor t, the def endant ma

de the fo llo wi ng statement as to the incident : On April the 2nd I was depre ssed about many problems I

was havin g. Every wa

y I turned I was ge tting deeper int

o debt like

child s upp ort and other things. I we nt home and started drinking and blacked out and ended up causing a wrec k. I never set out to hurt nobody [sic] or cause an y h arm. I was trying to get hel p thro ugh menta l hea lth bu t I d idn’t get the h elp I need ed in tim [si c].
If I hadn’t of [sic] been drinking I wouldn’t be w here I a m now. I understand that

what I did was wr

ong and I ask the victim s to forgive me and pray

that the court has mercy

on me. Those victims who provideda victim impact statement detailed their injuries. Martin Zy nda reported that, as the result of his vehicle having been struck by that of the def

enda nt, he had sustained a “severe spra

in to left kne e and left ankle and sever[e] bruising to chest and left a rm.” He was treated in the emergency room and under went two weeks of phy sical therapy . He reported furt herthat, as a result of the injuries, he lost his jobs and expended $5844.49 for car repairs a nd medical expenses. His son sustained “severe bruises on his chest and shoulders and stomach.” T he defendant’s wife, Cindy Curry , report ed that she sustained a “cracked bone in left foot, torn ligame nts in right foot, bruised upper and lower arm, con tusion to fo

rehead , 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-4-

to pay the loan pa

yments on the car

operated by

the defendant which was destroy ed as the result of the incident.
Ac cording to the presentence report and judgme nts, the defendant has seven prior f elon y convicti ons, all in 1994: three convictions for thef t of prope rty $1,000 - $ 10,000, e ach res ulting in a four-ye ar sentence, and four convictions for “r eckless endangerment

- deadly we apon involved,” eachresulting in a two-y ear sentence. The reckless endangerme nt convictions were reported in the presentence report to have resulted f romthe defendant’s “being involved in a hit and run accident which caused p ersonal

propert y da mage a nd injurie s to th e occupants of the other vehicle.” The defendant had been paroled in 1995, with the parole being re voked in 1997, appare

ntly resulting in his being incarcerated until 1999.
ANALYSIS
The only issue raised on appe al is whether the trial court erred in ordering that certain of the de fe nd an t’ s s en te nc es be se rv ed co ns ec ut iv el y. I. Standard of Review
When an accused

challenges the length and manne r of service of a sentence, it is the duty of this c ourt to condu ct a de novo review on the record with a presumption that “the deter minations made by the court fr

om which the appeal is taken are correct.” Ten n. C ode Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmat ive showin g in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 ( Tenn. 199 1). The p resumptio n does not a

pply to the leg al concl

usio ns r eached 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. C rim. App. 1994); Statev. Smith , 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994) ; State v. Bonestel , 871 S.W.2d 163, 166 (Ten

n. Crim. Ap

p. 1993). Howeve

r, this court is required to give grea tweight to the trial court’s dete rmination of contr overted facts a s the tria

l court' s determination of these fa cts is predi cated u pon t he wit nesse s’ dem eanor a nd app earance when t estifying.
In conducting a de novo review of a sentence, this court must consider (a) any evidence r eceived at the tri al and/or

sentenc ing hea

ring, ( b) the pr esentence repo

rt, (c) t he princ ip les o f sente ncing, (d) the a

rgumen ts 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 accuse d in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or treatme nt. Tenn. Code Ann. §§ 40-35- 103, -210 ; State v. Sc ott , 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 sen t ence is erroneous. Tenn. Code Ann. § 40-35-401, Sentenc ing Commission Cmts.;-5-

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 e rroneou s. II. Length of Sentence
On appeal, the defendant and the State disag ree upon the sentenc ed imposed, the defense asserting that the eff

ecti ve sentence is sixteen yea rs and six months, while the State computes the sentence to be thirt

y y ears and six months. T

he disag reemen t ste ms from the fact that there are a total of sixteen judgments, with different sets of sentences ordered to be served concurr ently with eachother y

et conse cutive to

all other sets of c onviction s, allof which, in turn, areconsecu tive with eachother. We have reviewed the trial court’s ruling at the sentencing hearing, a s well as the judgmen ts, and compared the two. Based upon our analysis, it appea rs that the trial court sentenced the defenda

nt as a Range I

I, pe rsistent o ffende

r to an ef fective sentenc e of thirt

y y ears a nd si x months, while the judgments provide for an effective sentence of sixteen years and six months as a multiple offender. Where there is a conflict betwe en 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, a nd the defendant’s effective sentenc e is thirty years a nd six months as a persis tent offe

nder. B efore d

etermining whet

her the t rial cou rt abuse d its discretion in ordering that certain of the se ntencesbe served consecutively to others , we fir st will review the sentences impo sed by the trial court at the concl usio n of th e sent encin g hearin g. As a Rang e II , persiste

nt offen der, the

trial cou rt senten ced the d efenda nt as follo ws: Count Offense Sentence
1 Driving While Under The I nfluence 11 mo nt hs , 2 9 d ays 2 Reckless Endangerment with a Deadly Weapon 3 years 3 Reckless Driving merged 4 Aggr

avated A ssault 8 years 5 Reckless Endangerment merged 6 Aggr

avated A ssault 8 years 7 Failure To Give Notice Of Accident 30 da ys 8 Evading

Arrest Cr

eating Risk of De ath 3 years 9 Aggr

avated A ssault 8 years 10 Reckless Endangerment merged 11 Aggr

avated A ssault 8 years, 6 months 12 Reckless Endangerment merged 13 Failure To Give Notice Of Accident 30 da ys 14 Evading

Arrest Cr

eating Risk of De ath 3 years 15 Aggr

avated A ssault 8 years 16 Reckless Endangerment merged 17 Aggr

avated A ssault 8 years-6-

18 Reckless Endangerment merged 19 Aggr

avated A ssault 8 years 20 Reckless Endangerment merged 21 Aggr

avated A ssault 8 years 22 Reckless Endangerment merged 23 Reckless Endangerment with a Deadly Weapon 3 years 24 False Imprisonment 11 months, 2 9 day s At the senten cing h earing , the tria l court or dered th at the fo llowing g rouping s of count s should run concurrently

one with the other: counts 4 and 6; counts 9and 11; co

unts 15, 17, 19, and 21; counts 1, 2, 7, 13, and 14; and counts 23 and 24. T he fol lowing counts were to be served co ns ec ut iv el y: counts 4 a nd 6 to counts 9 and 11; which, in turn, wereconsecutive 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 2 3 and 24. T his order calcula tes to a tota

l sentenc e of thirt

y y ears and six m o nths. We note that the trial court did not specify that count 8, for which the defendant was sentenced to three y ears impr isonment, was to be

served c onsecuti vely

to any of the other sente

nces. Therefore, by o

peratio n of law, it is serve d concur rently with the ot

her sent e nces. 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 d isparity in sentencing between that ordere d by the trial court during the sentencing hearing and that provided by the judgments stems from the fact that the latter, while providing for groupi ngs of concurrent

counts 1, 2 , 7, 8, 13, a

nd 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 judg ments do not reflect the trial court’s instructions durin g the sentencing hearing that ther e should be five groupings of indictment count s, al l consecutive with each other, and that the defe ndant is a persistent offender. Since, as we have noted, the sentenc ing tra

nscript p revails o ver the j udgmen ts, the defendant ’s effe ctive se ntence i s thirty yearsand six months. Having made that determination, we now will ascertain whether the defe ndant was appropriately

sentenced.
The presentence report and the judgments of

previous convictions show that the defendant has seve n felony convicti ons since

1994, fou

r of which are fo

r reckl ess enda

ngerme nt.
In sentenc ing the d

efenda nt, the trial court found no mitigating factors applicable but a pplied the following five

enhanc ement fa

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

in addition

to those necessar

y to establish t he appropriate range;-7- (4) A victim of the offense was par ticularl y vuln erable becaus e of age or phy sical or m

ental disa bility , includ ing, but not limited to, a situation where the defenda nt delive red or so ld a controlled substance to a minor within one thousand feet (1,000 ft.) of a public playg

round, public swimming pool, yout h cent er, vide o arcad

e, low inc ome housing project, or church; (8) The defendant has a previous history of unwilli ngness to comply withthe conditions of a sentenceinvolving releas e inth e c om mu ni ty; (10) The defendant had no hesitation about committing a crime when the risk to human life was high; and (16) The crim

e was committed under circumstances under which the potentia l for bodi ly in

jury to a victim

was gr eat. 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. Cod

e Ann. § 40 -35-210( d) (Supp. 1999); Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996) . There is no mathematical formula of evaluating the enhancement

factor s to calc ulate the

appropr iatesentence. See gener

ally id. “Rather, the weight to be afford ed an exist

ing factor is lef

t to the tri al court 's discr

etion solong as the court compli es with the purposes and principles of the 1989 Sentencing Act and its findings a re adequately

supported by the record.” Id. at

47 5-76 (citations omitted). The defendant does not contest the enhance ment factor s, nor does he argue for the app li cat io n of

mi ti gat in g fa cto rs. In each of the felony cases, the defendant was sente

nced with in the rang e for a p ersisten t offend er, and w e thus conclude tha t, as to eachindividual offense, the defendant was sentence d appropriately . We now will determine wheth er consecutive sentencing was appropriate or whe ther all sentences should be served concurrently , as the defe ndant ass erts on a

ppeal.
As a general rule, consec

utive sentences are imposed at the discretion of the trial cour tupon its consideration of one or more of the following statutory criteria: (1) The defendant is a professiona l criminal who has kn owingly devotedsuch defendant’s life to criminal act s as a major source of livelihood; (2) The defenda

nt is an of fender whose record of c

riminal a ctivity is extensive;1 Five persons were in the vehicle struck b y the stole n vehic le op erated by the d efend ant in 19 94, re sulting in

his being charged wit

h fi ve coun ts of r eckl ess endang erment . He en ter ed ple as of guilty to fou r cou nts of this ind ictmen t. -8- (3) The de fendan t is a dangerous mentally abnormal person as declared by a competent psyc

hiatrist who concludes as a result of an investigation prior to sentencing that the defendant’s criminal conduct has been characterized by a pattern of repe tit ive or compulsive behavior with heed

less indif ferenc e to consequence s; (4) The defendant is a dangerous offender whose behavior indicates littleor 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 offense s involv ing sex ual abuse of a minor with consideration of the aggravating

circumstances arising from the rela tionship between the defendant an d vic tim or victims, the time span of defendant’s undetected

sexual activity, the

nature and scope of the sexual acts and the extentof

the resid ual, phy sical an d mental d amage to the vic tim or victims ; (6) The defendant is sentenced for an offe nse committed while on probation; or (7) The def

endant issentenc ed for c

riminal c ontempt. Tenn. Code Ann. § 40-35-115(b).
These criteria are stated in the alternative; there fore, o nly on e need exist to support the appropr iatenes s of consecutive sentencing. I n ordering consecutive sentencing , the tri a l court utilized criteri a one an d four, f inding “that the d

efenda nt is o bviously

a person whose criminal activity is extensive ” and tha

t the episo de resul

ting in the latest c onviction s and at le ast 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 of fender” and that “incarce

ration is necessary

to protect society.”
The presentence report prepar ed following the defendant’s 1994 traffic incident, resulting in four convictions for reckless endanger ment with adeadly we apon involved, 1 details the facts of that matter:
Mr. York was operating a stolen vehicle on 31-A in

Ma rs ha ll Co un ty. The vehicle

York wasoperati ng was t ravelin g at a

high rate of speed when it struck another vehicle in the rear ca using exte nsiv e damage to that vehicle and injuries to it’s [sic] occupants. Mr. York did not2 We note that t he defendant

also r eceived consecut ive se ntences in 1994 for certain of his theft and reckless endang erment co nvictions. -9-

stop to check

on the other parties, to exchange information, or notify the prope r author ities.
A ccording to the presentence report, the defenda nt was placed on parole from these s entence s on September 29, 1995. Subsequently, he was arrested on October 6, 1996, and charged with failure to obey a traff ic control device and

failure to report an accident, both of which re sulted in fines. He next was arr ested on Ja

nuary 18, 1997, c

harge d this time w ith reckless endangerment and e vading arrest. He was convicted of these offenses on February 18, 1997, receiving concurrent sentences of eleven months and twenty-nine day s. On February 28, 1997, his parole was revoked, and, ap pa re nt ly, he then r

emained in carcerat ed until January 21, 1999, when his sentence s expired. According to testimony presented at the sentencing hearing, the de fendant has “been on some form of alternative release, inc ludin g parole” on five occasions. The de fendant told Judy By

rd, the Tennessee Department of Probation and Parole investigating officer who prepared the pre sentence report, that he had consumed alcoholic beverag es and used marijuana “on a da il y b asis s ince age ten.”
It is a

bundantly clear from the record that the def endant is a dangerous offender with little or no regard for human

life and with a pro

pensity to utilize a

vehicle in a dead ly f ashion. T hat fac t, in add itio n to h is rep orted daily use of alco hol an d mari juana , supp orts c onsec utiv e sent encin g. 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 judg ments which reflec t the o rders o f the t rial c ourt a t the s enten cing he aring.
CONCLUSION
Based up on the f

oregoing authorities and rea soning, we affirm the trial court’s sentencing of the defendant but remand for entry of corrected judgments reflecting the sentences imposed at the sentencing he ar in g. Ad di ti on al ly, we re mand for correction of the judgments for c ounts 8 and 14 to reflect that the pleas of guilty were to evading arrest a s a Class E felony, as stated in the Petition to Enter Plea of Guilty, and not a s a Class D felony, which both judgments currently provide. The judgmen ts should also reflect that

the defendant is a persistent offender, as de termined by

the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE