# FILED
October 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

STATE OF TENN ESSEE, ) ) NO. 01C01-9710-CR-00498 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, MICHAEL W. ORMAN, ) JUDGE ) Appellant ) (Sentencing)

FOR THE APPELLANT : THOMAS F. B LOOM 500 Church Street, 5th Floor Nashville, Tennessee 37219 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter TIM OTH Y BEH AN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General ROGER D. MOORE Assistant

District Attorney

General Washington Square - Suite 500 222 Second Avenue North Nashville, Te nnessee 37021 -164 9

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 OPINION The defendant was found guilty by a Dav idson County jury o

f burglary and th eft of p roperty over $1,000. The trial court sentenced defendant to Range II sentences of six years on each c ount and ordered them served c onsecutively for
an effect ive twelve-year s entence. The defendant contends that the trial court erred in finding and weighing

the enhancement and mitigating factors and in ordering the sentences served consecutivel y instead of concurrently. After a thorough review of the record, we affirm the sentenc e as imposed.

I At the time of sentencing defendant was self-employed having started
a lawn care business after being released from a temporary position with Rand McNally Publishers. From this income, he supporte d one chi ld and the child’s mother. He assertedthat the burglary and theft were impulsive act s motivated by
a desire to provide neces sities for his family; tha t he played a m inor role in the commission of the offenses; and that he acce pted full responsibility for his actions. His prior criminal recor d included four felony and at leas t two misdemeanor convictions

dating ba ck to 1989. The defendant was sti ll on probation for one of the felony convictions a t the time of commission of the present offense. The state ess entially argued t hat there should be no mitigation of the defendant’s sentence in light of defendant ’s hist ory of criminal convi ctions and behavior in combination with a history of non-compliance with conditions for release in the com munity. The trial court correctly noted that T.C.A. § 40-35-210 directs t rial judges to consider: (1) evidence at the tr ial and the sentencing hearing; (2) the pre-sentence report and addendums; (3) prin ciples of sentencing; (3) argument s; (4) thenature and characteristics of the crime; (5) any enhancing or mitigating factors; and (6) the statement of the defendant. In each countthe court found four statutory enh ancement factors applicable to the defendant: (1) a previous history of criminal con victions or behavior in3

addition to those necessary to establis h the appropriaterange; (2) he was a leader in the commission of

an offense involving tw o or more actors; (8) a pr evioushistory of unwillingness to comply withthe conditions of a sentence involving release in the
commun ity; and (13) he was on probati on when the events of this case occurr ed. See T.C.A. § 40-35-114. The court gave very little weight to factor number (2). In each count the court then considered the followi ng mitigating factors: (1) defendant’s conduct neither caused nor threatened serious bodily inj ury; and (13) defendant had letters of support from customers in his business and the testimony of his son’s mother

regardinghis exemplary behav ior toward his son. See T.C.A. § 40-35-113. The c ourt gave lit tle weight to factor number (13). The court specif ically

noted its rejection of other mi tigating factors based on the proofan d defendant ’s testimony at se ntencing. Based on these findings, the court enhanc ed the sentence to eight yea rs and mitigated it back down to s ix years in each coun t, thus imposin g a mid-range sentence for each conviction.

II Our review of the sentence i mposed by thetrial cou rt is de novo , with a presumption that the determinations of the trial court are correct. T.C. A. § 40-35- 401(d); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App . 1 993). The presumption of correctness which at taches to the trialcourt's action is conditioned upon an 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).

III In the instant case, it is abs olutely clear from the rec ord that the tria l judge properlyconsidered all appropriate sentencing principles a nd relevant facts and circumstances. With such an affirmative showing, the p resumption of correctness attaches to the trial court’s determinations.4 In reviewing the r

ecord de novo

with the attached presumptio n, th is Court finds that the trial court properl y applied both enhancement and miti gating factors and properly evaluated the relevant facts and circumstances in conjunctionwith the sentencing principles. Accordingly, this court will not disturb the six-year sentenc es received by the defendant.

IV

In its dete rm ination that the sentences imposed should be served
consecu tively, the trial court made sp e cific findings that the defendant’s criminal activity was extensive, see

T.C.A. § 40-35-115(b)(2); and thatthe current offenses
were committed while the defendant w as on probation for a felony. See T.C.A. § 40-35-115(b)(6). The trial court w ent on to exam ine the c ase in l ight of State v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). In doing so, it found the aggregate term of twel v e years reasonably r elated to the severity of the offenses and was necessary to protect the public from further crimina l conduct by the defendant. The sentenc es were ord ered serve d consecu tively. A court may order sentences t o run consecut ively if the court fin ds by a preponderance of the evidence that the defendant is an offender whose record of criminal activity is ex tensive, or the defend ant is sentenced for an offense committed while on probation. Tenn. C ode Ann. § 40-35-115(b)(2),( 6); see also State v. Black , 924 S.W.2d 912 (Tenn. Crim. A pp. 1995). Furthermore, the court is required to 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 criminal conduct by the offender; and (3) are con grue nt with general principles of sentencing. State v. Wilkerson , 905 S.W.2d at 939. As noted previously, th e tri al court properly ex amined the sentencing statutes and sentencing principles . Thus, its deter mina tions are entitled to a pres umption
o f correctness. The impositi on of consecutive sentences under th es e circumstances is proper.5 CONCLUSION This is a classic case of a trial judge doing

exactly what sh e was supposed to do. A thorough consideration of applicable statutes, principles, and relevant facts
an d circumstances was made i n the course of making the findings that led to t h e imp osition of the sentence. This decision i s entitled to a presumption of correctness; we w

ill not disturb it. We affirm the trial court’s imposition of six -year sentences for

burglary and theft. We affirm the trial court’s orde r that these sentences run cons ecutive to one another.

_______ ______________

______ _ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOSEPH M. TIPTON

____________________________ THOMAS T. WOODALL