FILED

October 7, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST 1998 SESSION

STATE OF TENNESSEE, )

) NO. 01C01-9710-CR-00498

Appellee, )

) DAVIDSON COUNTY

VS. )

) HON. CHERYL BLACKBURN,

MICHAEL W. ORMAN, ) JUDGE

)

Appellant ) (Sentencing)

FOR THE APPELLANT:

THOMAS F. BLOOM

500 Church Street, 5th Floor

Nashville, Tennessee 37219

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

TIMOTHY BEHAN

Assistant Attorney General

Cordell Hull Building, 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,Tennessee 37021-1649

OPINION FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
2

OPINION

The defendant was found guilty by a Davidson County jury of burglary and

theft of property over $1,000. The trial court sentenced defendant to Range II

sentences of six years on each count and ordered them served consecutively for

an effective twelve-year sentence. The defendant contends that the trial court erred

in finding and weighing the enhancement and mitigating factors and in ordering the

sentences served consecutively instead of concurrently. After a thorough review of

the record, we affirm the sentence 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 supported one child and the child’s

mother. He asserted that the burglary and theft were impulsive acts motivated by

a desire to provide necessities for his family; that he played a minor role in the

commission of the offenses; and that he accepted full responsibility for his actions.

His prior criminal record included four felony and at least two misdemeanor

convictions dating back to 1989. The defendant was still on probation for one of

the felony convictions at the time of commission of the present offense.

The state essentially argued that there should be no mitigation of the

defendant’s sentence in light of defendant’s history of criminal convictions and

behavior in combination with a history of non-compliance with conditions for release

in the community.

The trial court correctly noted that T.C.A. § 40-35-210 directs trial judges to

consider: (1) evidence at the trial and the sentencing hearing; (2) the pre-sentence

report and addendums; (3) principles of sentencing; (3) arguments; (4) the nature

and characteristics of the crime; (5) any enhancing or mitigating factors; and (6) the

statement of the defendant.

In each count the court found four statutory enhancement factors applicable

to the defendant: (1) a previous history of criminal convictions or behavior in
3

addition to those necessary to establish the appropriate range; (2) he was a leader

in the commission of an offense involving two or more actors; (8) a previous history

of unwillingness to comply with the conditions of a sentence involving release in the

community; and (13) he was on probation when the events of this case occurred.

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 following mitigating factors: (1)

defendant’s conduct neither caused nor threatened serious bodily injury; and (13)

defendant had letters of support from customers in his business and the testimony

of his son’s mother regarding his exemplary behavior toward his son. See T.C.A.

§ 40-35-113. The court gave little weight to factor number (13). The court

specifically noted its rejection of other mitigating factors based on the proof and

defendant’s testimony at sentencing.

Based on these findings, the court enhanced the sentence to eight years and

mitigated it back down to six years in each count, thus imposing a mid-range

sentence for each conviction.

II

Our review of the sentence imposed by the trial court 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. 1993). The

presumption of correctness which attaches to the trial court'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 absolutely clear from the record that the trial judge

properly considered all appropriate sentencing principles and relevant facts and

circumstances. With such an affirmative showing, the presumption of correctness

attaches to the trial court’s determinations.
4

In reviewing the record de novo with the attached presumption, this Court

finds that the trial court properly applied both enhancement and mitigating factors

and properly evaluated the relevant facts and circumstances in conjunction with the

sentencing principles. Accordingly, this court will not disturb the six-year sentences

received by the defendant. 

IV

In its determination that the sentences imposed should be served

consecutively, the trial court made specific findings that the defendant’s criminal

activity was extensive, see T.C.A. § 40-35-115(b)(2); and that the current offenses

were committed while the defendant was on probation for a felony. See T.C.A. §

40-35-115(b)(6). The trial court went on to examine the case in light of State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In doing so, it found the aggregate term

of twelve years reasonably related to the severity of the offenses and was

necessary to protect the public from further criminal conduct by the defendant. The

sentences were ordered served consecutively.

A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that the defendant is an offender whose record of

criminal activity is extensive, or the defendant is sentenced for an offense

committed while on probation. Tenn. Code Ann. § 40-35-115(b)(2),(6); see also

State v. Black, 924 S.W.2d 912 (Tenn. Crim. App. 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 protect the public from

further criminal conduct by the offender; and (3) are congruent with general

principles of sentencing. State v. Wilkerson, 905 S.W.2d at 939.

As noted previously, the trial court properly examined the sentencing statutes

and sentencing principles. Thus, its determinations are entitled to a presumption

of correctness. The imposition of consecutive sentences under these

circumstances is proper.
5

CONCLUSION

This is a classic case of a trial judge doing exactly what she was supposed

to do. A thorough consideration of applicable statutes, principles, and relevant facts

and circumstances was made in the course of making the findings that led to the

imposition of the sentence. This decision is entitled to a presumption of

correctness; we will not disturb it.

We affirm the trial court’s imposition of six-year sentences for burglary and

theft. We affirm the trial court’s order that these sentences run consecutive to one

another.

____________________________

JOE G. RILEY, JUDGE

CONCUR:

____________________________

JOSEPH M. TIPTON

____________________________

THOMAS T. WOODALL