### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 18, 2000

STATE OF TENNESSEE v. HAROLD WAYNE SHAW

Appeal as of Right from the Criminal Court of Davidson County

No. 95-D-2761 Seth Norman, Judge

No. M1999-01119-CCA-R3-CD - Filed October 27, 2000

The defendant, Harold Wayne Shaw, was convicted by a Davidson County jury

of second-degree murder and aggravated kidnapping in 1996. The trial court sente

nced the defend

ant as a Range II offender to serve eighteen (18) years for the a ggravated kidnapping and thirty-five ( 35) yearsfor the second-degree

murder, both sentences to be served consecutively. Following the defendant’s direct appeal, this Court affirmed the defenda nt’s conviction but remanded the case to the trial court for resentencing because the trial co urt mista kenly sentenced the defendant as a Range I I, persistent offender, mis app lie d tw o st atu tor y enhanceme nt factors, and failed to make findings of fact and conclusions of law sufficient to support the imposition of consecutive sentences. The trial court then resentenced

the defendant as a Range I, standard offender to serve ten (10) years

for the aggravated kidnapping and twenty-two (22) y ears for thesecond-degre e murder. The co

urt again ordered the sentences to be served cons ecuti vely. On appeal, this Court finds (1) that the length of the defendant’s sentence is appropriate, and (2) that although the record does not support the trial court’s finding that the defendant is a professional criminal, the tri a l court was correct in finding that the defendant has an extensivecriminal history; thus consecutive sentences are also appropriate. The judgment of the trial court is therefore affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court of Davidson County is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS , J., and R OBERT W. W EDEMEYER , J., joined.

Jeffery A. DeVasher, Assistant Public Defender, on appeal, and Wendy S. Tucker, Assistant Public Defender, at trial, Nashville, Tennessee for the appellant, Harold Way ne Shaw.

P aul G. Summers, Attorne y General and Reporter, To

dd R. Kelley,

Assistant Attorney

General, Nashville, Tennessee and Victor S. Johnson
, District Attorney Ge neral and Kimberly Haas, Assistant District Attorney, Nashville, Tennessee, for the appellee, State of Tenne ssee.-2- OPINION

Factual Backgrou

nd The facts surrounding this case were summarized by this Court following the defend ant’ s
direct appeal a

s follows:

On December 29, 1993, at approximately 10:00 p.m., police officers and an ambulance were dispatched to G-Man's Market on Brick Church

Pike in Nashville in response to a call that a shooting had occurred. Upon arrival, they found 24-year- oldCorey Barbee on the floor, ble eding from seve

ral gunshot woun

ds. Barbee told them that "some dudes got Garland [Brinkley]." The victim was asked if the same men who had taken Garland had shot him, and Barbee responded "yes." He told them that three men in masks hadentered the store, fired several shots, and then taken away the owner of the market (Garla nd Brinkley).

Barbee was taken to

Vanderbilt Unive

rsity Hospital, where over the next few days he underwent several surgeries. Fourteen days later, on January 12, 1994, Corey Barbee died of complications from the gunshot wounds to his chest and abdomen.

Garland Brinkle

y, whose nic

kname is "G-Man," was the owner of G-Man's Market. About six months earlier, Brinkley was involved in some drug transactions, specifical lycocaine, with a man he knew as Harold Moore, but whose name was actually Harold Sh a w, the Defendant. Brinkley testified that he and Defenda nt agreed that Defendant would "fron t" t he cocaine to Brinkley to sell, and then Brinkley would later pay

Defendant. The cocaine

was actually given to Brinkley by

a man namedEric, who Brinkl ey testifie d was a "go-between." Brinkley testified tha t in two such transactions , he gave the drugs to someone else to sell. The proceeds f romthe drug deals were apparently never given to Brinkley so he in turn never

r eturned any of the proceeds to Defendant. I t is not clear from the record as to the total amount and value of thecocaine in the transactions. At the preli minary hearing, Brinkley said he owed $3,800 for three ounces on the first transaction and $9,000 for 1 2 ounces on the second deal. However, he told investigators and testified at tria l that the deals involved a quarter-kilo valued at $27,000.

Brinkley testified that on the mor ning of December 29, 1993, Defendant telephonedhim at the store and demanded that Brinkley tu

rn over his house a

nd his Chevrolet Blazer as payment for

the cocaine debt. Defendant claimed that Brinkley owedhim $27,000 plus a $5,000 late fee, for a total of $32,000. Later that morning, Defendant

cam e to G-M an's Mar ket and agai n de man ded paym ent fro m Bri nkl ey. However, Brink

ley refuse d and Defendant

left.-3- Brinkley testified that later

that evening, Corey Barbee, known as " Bruno,"

was at the store with

Brinkley. Barbee and Brinkley had been friends for several years.Barbee

would stop by the market and watch television and would sometimes help Brinkley clean the store and close it at night. As they were closing the store on the night of D ecember 29, 1993, the door suddenly flew open and a masked man steppedin and shot Barbee five or six times. Brink ley de scribed the shoote

r as a black male, about six feet

tall and 175 pounds, with a hood over his head in addition to the mask. He was armedwith what Brinkley described as a nine millimeter Glock

or Beretta. The shooter

was followed into the market by two more men. The second

man hadno mask on his face, but only a hood and sunglasses. Brinkley recognized this man as Harold Moore (Shaw), the Defendant. Defendant was armed with a pistol-grip

shotgun. The third man, who was also masked, was shorter and chubbier. According to Brinkley, all three men were bla ck.

After Barbee was sho

t, Barbee asked to use the phone to call an ambulance. He then managed

to get to the phone and call 911 for help. Brinkley testified that the Defendant

then ordered Brinkley to leave the market with them. Brinkley

said that he initially refused and

that the man who had shot Barbee then "shot me and grazed my leg." He testified that the bullet did not enter his leg, but that he has a scar from being grazed. However, there is apparently no medical record of such a graze wound. Brinkley eventually

got into the 1976 or 1977 blue Chevrolet Impala with the three men. Barbee wa

s left at the marke

t.

This same evening, Clara Coleman was helping in some remodeling work on

a business locatedin the same building as G-Man's Market. She heard gunshots and looked out in time to see a light blue older model car speed away from

the market. She testified that she saw three or four black men in the car. Ms. Coleman did not kno w Bri nkl ey.

As the car drove off, Defe ndant told the shooter to put duct tape over Brinkley's face and to bind his hands togethe

r with the tape also. Defendant held the shooter's gun while

he taped up Brinkley. According to Brinkley , the car ride lasted about 15 to 25 minutes. Defendant kept saying to Brinkley , "you think I'm play

ing withyou?" The ca

r eventually

came to a stop and the men pulled Brinkley out and took him into a garage or shed. They bound his feet with duct tape. There the three

men pro ceed ed t o be at Br ink ley. Defendant pistol-whipped him. Brinkley testified t hat he believes he pa

ssed out two or thre

e times during the

beatings which h e estimated lasted "for hour s ." Defendant then forced Brinkley to make se veral cellular phone calls in an effort to have Brinkley's wife bring the deed to their house. Calls

were made to Brinkley

's mother, aunt,

brother-in-law, and a cousin, but t hey could not locate Brinkley's wife.-4- Brinkley said that three or four more black men later joined the group and participated

in the beatings. Brinkley still had tape over his ey es, but he said he could tell the men were bla

ck by their v

oices. The me

n took his wallet which had about $300 cash in it. They cut his pants and inflicted a f

our to five inch la

ceration on his left thigh. Accordin

g to Brinkley, his attackers poured some liquid on his wound and attemptedseveral times to light it with a match, although doctors were unable to find any evidence of burns. However, a trauma surgeon who treated Br inkley at Vanderbilt

testified that lacerations of t en produce a bur

ning sensation, p

articularly if liquid is poured o

n them.

The beatings continued until someonesaid "kill him." At this point, most of the men stepped outside to confer, but when they returned Brinkley was told that he

was "lucky." They then cut the tape from his ankles, threw him back in the car, and drove to Whites Creek Pike. The car slowed dow n near the U nited Parcel Service location andBrinkley

was thrown out. He testified that as he rolled down an embankment, he heard two or three shots fired. The car then took off.

Bri nkley was able to pull the tape from his eyes enough to see, and he then walkedto the UPS security guard station. O

ne guard calle

d 911 while

the other cut the tape from Brinkl

ey's fac e and wrists. An am

bulance took Bri

nkley to Van

derbilt Hospital where he was treated for a fracture to his upper jaw, a large cut on the back of his scalp, a cut on his left thigh, injuries to his mouth, and rib pain sugge sting a fractured rib. Brinkley was discharge d from Vanderbilt on December 31, 1993.

Investigatorsfound six nine millimeter shell casings, two outside the market andfour inside. Brinkley

acknowledged that the fully-loaded .357 revolver found on the floor of the market bel

onged to Barbe

e, who usually

carried it in

his coat pocket. Also, a fully-loaded nine millimeter semiautomatic pistol was found under th

e cash

r egister

. Brinkley identified that gun as belonging to him. Office r Brad Corcoran testified that neither o f these weap ons appeared to h ave been fired. The only fingerprints identified at the scene were those of Brinkley and Barbee.

On January 12, 1994, the day Corey Barbee died, homicide detectives Johnny Lawrence and Mike Roland int erviewe d Bri nkl ey. T hey s how ed Br ink ley a photog raphic a rray from which Brinkley identified Defendant as the leader of the group that kidnapped him and killed Barbee.

The day after Brinkley

was released from

the hospital, Defendant

called him and reiter ated that he want ed the deed to Br

inkley's h ouse. When Brinkle

y ask e d why Defendant allowed Barbee to be killed, Defendant replied, "I don't give a f--- about him." Defendant continued to call Brinkley every day and sometimes several times a day. Brinkley finally called the police because of the harassing calls from Defendant. Detectives went to Brinkley's house and rec orded two incoming

calls1 At the time the defendant was convicted in this case, he had already been sentenced to eight (8) years

incarcer ationfor possession of cocaine with intent to deliver. Following the defe ndant’s conv iction for t he earlier charge, however, the trial court in t

hat case r

eversed the

convicti on for posses sion with i ntent, a nd the sta

te appeale

d. While that appeal

was pending, t

he defendant was convicted in t he present case, and t

he trial court

in this case

ordered the sentences served consecut ively to each

other and t

o the eight (8)

year sent

ence for the

prior char

ge. Foll owing the state’s appeal from the trial court’s dismiss al of the previous char ge, this Court r

einstated that conviction. Th us, on the defendant’s direct app eal in this case , this Court fo und tha t ordering the defen dant to serv e the in stant senten ces consecutively to the previous sentence for possession with intent was proper.

2 On direct a

ppeal, t he state apparentl

y conceded that

the defendant

should have been sentenced as a Range I offende r.
-5- from Defendant. In those calls, Brinkley and Defe ndant argued about

the shooting of Barbee. However, Detective Clifford Douglas admitted that police made no attempt to trace the tele

phone calls, nor w

as any voic

e analysis d

one in an attempt to determine whether

the callswere actually made by Defendant. Defendant continued to call Brinkley until Brinkley was inca rcerated for food stamp fraud.

Statev. Harold Wayne Shaw , No. 01C01-9707-CR -00259, 1998 WL 7 31573 at *1-*4 (Te nn. Crim. App. 1998). The defendant was convicted by a jury of second-degree murder and aggravated ki dnapping. Following a

sentencing hearing, the trial court found the existence of the following five (5) statutory enha ncementf

actors applicable to both of the defendant’s convictions: that the defendant had a previous history

of criminal convic

tions in addition to those necessary to establish the ap

propriate range, Tenn. Code Ann. § 40-35-114(1); that the defendant was the leader in the commission of the offense, Id. § 40-35-114(2); th at the offense

involved more than one (1) victim, Id. § 40-35-114(3); that the defendant treated the victim with exceptional cruelty, Id

. § 40-35-11 4(5); and that the defendant had no hesitation about committing a crime when the risk to human life was high. Id. § 40-35-114(10). The trial court found that the defendant was a Range II offender, and sentenced the defendant to thirty-five (35) years imprisonment for the se cond-degree

mu rder and eighteen (18) yearsimprisonment for the aggravated kidnapping, bo th s entences to be served consecutively to each other, for a tota

l effective sen

tence of fifty

-three (53) y

ears. 1 The defendant appealed, and this Court affirmed the conviction, but remanded the case to the trial court for resentencing because (1) the trial court erroneousl y sentenced the defendant as a Range II, rather than a Range I, offender, (2) the trial court erroneously applied two statutory enhancement factors, and ( 3) the trial court ordered the defendant to serve consecutive sentences without adequately making the required findings of fa ct and conclusions of law on the record. 2 Following remand, th

e trial court

sentenced the defendant as a Range I offende r to serve twenty-two

(22) years incarceration for second-de gree murder, and ten (10) years f or ag gr avated kidnapping. The court ordered the sentences served consecutively

.-6- Length of Sentence A. First, the defendant contends that the trial court’s sentence for second-degree murder was excessive. This Court's review of the sentence imposed by the trial court is de nov o with a presumption of correctness. Tenn. Code Ann. § 40-35-401 (d) . However, this pr esumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 1 66 , 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of correctness

and our review is de novo. State v. Poole , 945 S.W. 2d 93, 95 (Te nn. 19 97). In conducting a de novo review, we must consider (1) the evidence, if any, received a t the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristic

s of the criminal c

onduct, (5) any mitigating

or statutory enhancement factors, (6) any statement that the defendant made on his own behalf and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; Ashby , 823 S.W.2d at168. The defendant a

rgues that his

sentence of twenty-two

(22) years for second-degree murder

as a Range I offender was proportionally greater within the sentencing range tha n his origi nal sentence for thirty-five (35) yea rs as a R ange II off end er. T wen ty-t wo ( 22) years con sti tut es ei ghtyeight (88) percent of the maximum sentence allowable for a Range I, sec ond -degree murder convicti o n, and thirty-five (35) year s constitutes eighty-seven and one-half (87.5) perce nt of the maximu m allo wable sentence for a Range II , persistent offender. Thus, argues the defendant, the trial court’s sentence following remand is presumptively

vindictive according to North Carolina v. Pearce , 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). First, we note that the defendant’s reliance on Pear ce is misplaced. The purpose of the holding in Pearcewas to ensure that the defendant’s sentence was not influenced by the trial court’s vindictiveness an

d that the defenda

nt was not deterre

d from seeking a

ppellate review :

Due process of law, then, requires that vin dictiveness

against a defendant for having successfully

attacked his first convictionmust play no part in the sentence he receives after a new trial. And since the fea r of s uch vindictivenes s may uncons titutionally deter a de fendant's e

xercise of the rig

ht to appeal or col

laterally a

ttack his first

conv iction, d ue process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

395 U.S. at 725. In Pearce
, the United St ates Supreme Court held that the state violated a defendant’s due process rights where, following a retrial after a succ essful appeal , the trial court imposed a harsher

sentence on the defendant than the sentence originally imposed. Id . at 726. The Cou rt opined that, because the trial court imposed a harsher sentence without of fering an y justification for the increased sentence, a presumption of the trial court’s vindictiveness arose. Id. Here, the trial court,

following remand, actually imposed a lesser sentence in terms of a bsolute years on the defendant, thus, no such presumption arose. Furthermore, we reject

the idea that Pearceor its progeny mandates adhere

nce to a precise mathematical formula when a defendant is resentenced within a lesser sentencing rang e. Indeed,-7-

su ch a formula would be almost impossible to administer, because the ranges themselve s are o f different parameters. For exampl e, the sente ncing range fo r a Range I offender convicted of seconddegree murder is between fifteen (15) and twenty-five (25) y ears. Tenn. Code Ann. § 40-35-112 (a)(1). The sentencing

range for a Ra

nge II offender convi

cted of the same

crime is between

twe ntyfive (25) and forty (40) ye ars. Id. , § 40-35-112 (b)(1). Thus, t he sentencing range is wider for a Range II offender (f

ifteen years) than it is for a Range I offender (ten years).

B. The defendant also argues that the trial court erroneously enhanced the defendant’s sente nces following remand. Following the defendant’sdirect appeal, t his Court held that the trial court erred in applying Tenn. Code Ann. § 40-35-114(3), th e “more than one

victim” factor, t

o both sentences, and in applying

Ten n. C ode Ann . § 4 0-3 5-1 14( 5), the “ex cept ion al c ruel ty” factor, to the sentence for second-degree murder. Because there was no new evidence presented at the second sentencing hearing and the trial court was ordered to resentence the defenda nt without relying on the stricken enhancement

factors, the def

endant argues th at the sentence imposed following remand was excessive. The defendant was convicted of second -d egree murder, a Class A felony, and ag gravated kidnappin g, a Class B felony. The presumptive sente

nce for a Class

A felony is the midpoint of the applicable

range if no mitig

ating or enhanc

ement factors f

or sentenc ing are present. Tenn. Code Ann. § 40-35-210(c).

The presumptive se

ntence for a Cla

ss B felony is

the minimum sentenc

e in the range. Id. If enhancem ent an d mitigating factors do exist, a trial court should start at the presumptive sentence, enhance the sentence within the range for enhance ment factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). In this case, the sentencing range for a Range I offender convicted of second-degree murder is between fifteen (15) and twenty-five (25) y ears. Tenn. Code Ann. § 40-35-112 (a)(1). Because the trial court found enhancement factors applicable, the presumptive sentence was the midpoint of the range, or twen

ty (20) years. After finding three enhanc ement factors and

no mitigating fa

ctors, the court enhanced the sentence to twenty-two (22) y ears. The sentencing range for a Range I offender convicted of

aggravated kidnapping is between eight (8) and twelve (12) years. Tenn. Code Ann. § 40-35-112 (a)(2). The presumptive sentence was thus eight (8) y

ears, the minimum w

ithinthe range. The trial court f ound four (4) app

licable enhancement factors and imposed a ten (10) year se ntence for aggravated kidnapping. Both sent e nces were, under the circumstances, well within the trial court’s discretion. Alth ough the d efendant argues that the trial court should have reduced the sentence by a greater proportion because fewer enhancement factors were used in resente ncing, the defendant cites no authority supporting this position. No particular weight for each factor is prescribed by the statute,

as the weight given to each factor is left to the discretion of the trial court, prov

ided that its

findings

are supported by the record. State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments. We find that the record supports the defendant’s sentences. This issue is without m

erit.-8- Consecutive Sente

ncing

The defendant next asserts that the trial court erred in i mposi ng consecutive, rather than

concurre nt, sentences. The trial court imposed consecutive sentences because it found that th e defendant (1) was a profession

al criminal who ha

s knowingly

devoted his life to

criminal acts as a major source of livelihood, and (2) was an offender whose record

of criminal activity was extensive. See Tenn. Code Ann. § 40-35-115 ( b)(1), (2). Withou

t further comment

, the trial court he

ld “with reg ardto [consecutive sentencing] the court finds under [Tenn. Code Ann. §] 40-35-11 5 tha t [subsection] one applies and that [subsect ion] two applies. I run those sentences consecutive one to the other . . . .” With

no apparent find

ings of fact supp

orting the trial c

ourt’s holding, w

e must review the imposition of consecutive sentences de novo. We disagre e with the trial cour t’s finding that th

e defendant was

a professional c

riminal. Although the defendant has two prior drug conviction s, t he record does not support a finding that the defendant was a professional criminal who has knowingly devoted his life to criminal acts as a major source of livelihood. Contrary to the state’s assertion, the present ence re port indicates that the defendant was gainfully employ ed since leaving prison in 1993 and has not been c onvicted of

a crime since 1991. Although the defen da nt’s conviction in the present case resulted from a drug debt, we may not a

ssume that the def

endant was a prof

essional crimin

al who devoted his life to criminal acts as a

major source of his livelihood. Although the state claims that the evidence at trial provedthat the defendant was a “major drug dealer,” the onl y relevant

evidence on this point establishedthat the defendant had made two (2) or three (3) drug deals about six (6) months before the shoo ting. Absent a

ny other spe

cific findings o

f fact, we may

not assume the existe

nce of this factor. Cf. Statev. Desirey , 909 S.W.2d 20, 32 (Te nn. Crim. App. 1995) (holding that evi dence did notpreponderate against trial court finding that defendant was a p rofess ional criminal where evidence proved that defendant relied on inc ome f rom illegal gambling and made large sums of money from h

is illegal activi

ties); see also State v. Vanek , No. 01C01 -9601-CR- 00025, 199 6 WL 752336 at *3 (Tenn. Crim. A pp. 1996)(holding

that the record d

idnot supportfinding that defendant was a professional criminal merely because the defe ndant had sold drugs). However, we agree with the trial court that the defendant was an offender whose record of criminal activity wa

s extensive. Extensiv

e cri minal history alone will support consecutive sentencing. State v. Chrisman , 885 S.W.2d 834, 839 (Tenn. Cri m. App. 1994). In this case, the defendant had seven (7) convictions prior to the two in the instant case. In short, we agree with trial court that consecutive sentences were appropriate under Tenn. Code Ann. § 40-35-115 (b)(2). See State v. Palmer , 10 S.W.3d 638, 649 (Tenn. Crim. App. 1999). This issue is without m

erit. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE