# FILED
January 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9701-CC-00060 Appellee, ) ) CARROLL COUNTY VS. ) ) HON. C. CREED McGINLEY, NOAH GENE NO BLE, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT : GUY T. WILKINSON District Public Defender BILLY ROE (at trial) Assistant Public Defender P.O. Box 663 Camden, TN 38320 RAYMOND L. IVEY (on appeal) Ivey, Parish, & Johns P.O. Box 229 Huntingdon, TN 38344 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter GEORGIA BLY

THE FELNER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General ELEANOR CAHILL Assistant

District Attorney

General P.O. Box 686 Huntingdon, TN 38344

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION
The appellant, Noah Gene Noble, appeal s the sentences imposed by the Circuit Court of Carr

oll County following

his guilty plea to the following: Count 1: driving on a rev

oked license; Count 2: ev ading arrest; Count 3: fail ure to appear on counts 1 and 2; Count 4: agg ravated burglary ; and Count 5: failure to appear on count 4. The trial court ordered him to serve an effective sente nce of almost fourteen (14) years. The appel lant contends the sentences are e xcessive. The judgment of the trial court i s affirmed.

FACTS
In April 1994, the appellant was driving his car while his drivers license had been revoked or suspended. Tennessee Highway Patr ol Officer Warren Rainey attempted to arrest appellant for this offense, but he fled. In M ay 1994, the appellant failed to appear in c ourt to answer these char ges. This led to a misdemeanor charge for failure to appear. Later in May 1994, the appellant unlawfully entered the home of Robert Steve Todd, thereby committi ng a burglary. The appellant was confronted by the homeowner’s teenage sons and , after a struggle w hich included the discharge of a weapon, he left. In June 1994, the appellant failed to appear to answ er the aggravated burgl ary charge, and a felony charge for failure to appear r esulted. Appellant entered a plea of guilty and was sentenced as follows: Count 1: Driving on

Revoked License- Six

(6) months, to run concurrently w

ith Count 2. Count 2: Evading Arrest- Eleven (11) months twenty-nine (29) days, to run concurr ently with Count 1. Count 3: Failure to Appear- Eleven (11) months twenty-nine (29) days, to run consecutively with all other offenses. Count 4: Aggravated Burglary- Ni ne (9) year s to run co nsecutive ly with all other offenses. Count 5: Failure to Appear- T hree (3) ye ars to run consecut ively with all other offenses.
SENTENCING STANDARD OF R EVIEW3 This Court’s review of the sentences imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative showing i n the record that the trial judge considered

the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply w

ith the statutory direc

tives, there is no pre

sumption of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). The burden is on the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d) Sentencing Commissi on Comments. In conducting our revi ew, we are requi red, pursuant to Tenn. Code Ann. § 40- 35- 210, to consid er the following f actors in senten cing: (1) [t]he evidence, if any, r eceived at the trial and the s entenc ing hearing; (2) [t]he presentence report; (3) [t]he princ iples of sentencing and arguments as to sentencing alternatives; (4 ) [ t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a] ny stat ement the defendant wishes to make in hi s own behalf abo ut sentencing. If our review reflects

that the trial court follow ed the statutory sentencing procedure, imposed a lawful s entence after giving due consideration and proper weight to the factors and p rinciples set out under s entencing law, and the tr ial court’ s findin gs are a

dequate ly supp

orted by the rec ord, the n we may

not modify the sentence even if we w ould have preferred a different res ult. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

EXCESSIVE SENTENCES
As to the two (2) fe lony convictions, a ppellant was sent enced as a Range II, Multiple Offender. The appellant contends that sentences of nine (9) years for aggravated burgl ary, three (3) yea rs for felony failure to appear,and eleven (11) months and twenty-nine ( 29) days for evading a rrest are excessiv e.1 Appellant had eight (8) prior felony convictions as well as prior

misdemeanor convictions.
4 A

. If no mitigating or enhanci ng factors for sentencing ar e present, Tenn. Code Ann. § 40-35-210(c) pro vides that the presumptiv e sentence shall be the minimum sentence within the app licable range. See State v. Fletcher , 805 S.W.2d at 788. However, if such factors do exist, a trial cour t should start at the minimum sentence, enhance the minimum senten ce within the range for aggravating factor

s and then reduce the sentence w ithin the range for the mitigating factors. Tenn. C ode Ann. § 40-35-210(e). No par ticular weight for each factor is prescribed by statute, as the weight given to each factor is left to the discretion of the trial court as long as its findi ngs are supported by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.Nevertheless, should there be no mitigating factors, but en hancement factors are present, a tr ial court may set the sentence above the minimum rang e. Tenn. Code Ann. § 40-35-210(d); see Manning v. State , 883 S.W.2d 635, 63 8 (Tenn. Crim. App. 1994).

B. After the sentencing hearing , the trial court found that tw o (2) enhancement factors applied in this case: (1) the appellant had a previous history of criminal con

victions in addition t

o those necessary to establ ish the appropriate range, and (2) the offense involved more than one victim. Tenn. Code Ann. § 40-35-114 (1), (3). The trial court properly applied enhancement factors in this case. The appellant had a lengthy history of prior convictions. 1 The trial court also properly found the agg ravated bur glary offen se involv

ed more than on e victim. In addition to the enhancement factors applied by the trial cou rt, we note5

that the aggravated burglary and felony failure to appear were committed while the appellant was on bail for introducing alcohol i nto the county jail. See Tenn. Code Ann. § 40-35-114 (13)(A). It also appears that some of the appellant’s previous convicti ons occurred at a time wh en he was on probation or par ole. See Tenn. Code Ann. § 40-35-114 (8). This Court is authoriz ed to consider any enhancing or mitigating factors supported by the rec ord even if not relied upon by the trial court. See State v. Smith , 910 S.W.2d 457 (Tenn. Crim. App. 1995). We find these enhancement factors to be applicable.

C. The appellant was sentenced as a Range II, Multiple Offender for the felony convictions. The s entencing range for agg ravated burglary is six (6) to ten (10) years, and the range for felony failure to appear is two (2) to four (4) y

ears. Tenn. Code Ann. § 40-35-112(b)(3) , (5). After givi ng due consideration to the factors and principles rel evant to sentencing, the t rial court imposed sentences that were within th e statutory range and adeq uately supported by the r ecord. This Court will not,therefore, disturb those sentenc es. See State v. Fletcher, 805 S.W.2d at 789. The appellant further contends his el even (11) month twenty -nine (29) day sentence for evading arre st is excessive.This Court has held there i s no presumptive minimum in misdemeanor sentencing. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The sentence was properly determined by the trial court, and w

e see no reason to reduce it.

CONSECUTIVE SENTENCING
Finally, the appe llant contend s the trial court er red in imposing a consecutive sentence for the misdemeanor charge of failure to appear. It is undisputed that the appellant had an ex tensive prior recor

d of criminal activity

.6

See Tenn. Code Ann. § 40-35-115 (b)( 2). We must also determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve to p rotect the public from further cr iminal conduct by the offender; and (3) are congruent w ith general principl es of sentencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). Although the tri al court failed to make the findings required b y Wilkerson , we find that these factors ar e present under ou r power

of de novo

review. Tenn. Code Ann.§ 40-35-401(d). Consecutive sentencing was appropriate.

For the above reasons, the judgment of the trial court i s affirmed.

__________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ JOE B. JONES, PRESIDING JU DGE

______________________________ PAUL G. SUMM ERS, JUDGE