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

Briefs J uly 16, 2003
STATE OF TENN ESSEE v. CHARITY H. KEITH Direct Appeal from the Circuit Court for Williamson County No. II-900-272-B Timothy L. Easter, Judge

No. M2002-02386-CCA-R3-CD - F iled December 5, 2003

Defend ant, Charity

H. Keith, appealsfrom the r evocati on of her

probatio n, arguing tha

t th e trial court erred in ordering her original sentenc e to run consecutively to her subsequent sentences in Davidson County. We affirm the judg ment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
T HOMAS T. W OO DALL , J., delivered the opinion of the court, in which J OE G. R IL EY and A LAN E. G LENN , JJ., joined.
John H. Henderson, District Public Defender; EugeneJ. Honea, Assistant Public Defender, for the appellant, Charity H. Ke

ith.
Paul G. Summers, Attorney Gene ral andReporter ; Jennifer L. B ledsoe, A ssistant A

ttorney Genera l; Ronald L. Da vis, Distr ict Attorn

ey Genera l; and Der

ek K. Smit

h, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
On April23, 2001, De fe nd an t p le d g ui lt y to th ef t o f p ro pe rt y ov er $1 ,0 00 , a Cl as s D fe lo ny, and the Williams on County Circuit Court sentenced her as a Rang e I, standar

d offend er to fou r y ears, which were suspended. Defendant wa s ordered to serve her sentence on intensive probation.
A violation of probation warrant was issued on May 21, 2001, because Defendant had failed to report to or contact her probation officer since being placed on

probation. An amendment to the warrant was issued on June 7, 2002, stating that Defendant was in violation of the rules of her probation because she had (1) failed to obey the law; (2) failed to report her subsequent arrests and convictions; and (3) failed to pay the required court costs and fines.
At the probation revocation hearing, Taz Fa rmer, Defendant’s probation officer , tes tified th at Defendant

had not called or contacted him since she was placed on pr obation on April 23, 2001. Mr.2

Farmer also said that Defendant had not paid the fines and costs associated with her

2001 conviction. In addition, Defendant had been convicted of four offense s in Davidson County since her probationary

period commenced. Defendant was convicted of criminal imperson ation, a Cl ass B misdemeanor, on January 14, 2002, and received a sentence of thirty days. Def

endant was convicted of theft of m

erchandise of le ss than $50 0, a Class A misdemeanor, on March 6, 2002, and received a sentence of forty -five day s. Defendant was co nvicted o f driving under the

influenc e, a ClassA m isdeme anor, on May

23, 2002, a

nd was se

ntenced to eleve n months, tw enty -nine da ys, all suspended but four day s, with eleven months, twenty-nine da ys to be served on pr

obation.
Mr. Farmer testified

that Defendant

was arrested for child abuse of a c hild under the age of six on January 27, 2002, and the ca se was bound over to the Davidson County grand jury

on February 2, 2002. N o judgme

nt of conv

iction for this offense, however, was made a part of the record on appeal. Mr. Farmer testified that, acc o rding to the Davidson County clerk’ s recor

ds, Defendant

pled guilty

to the lesser offense of attempted child abuse of a c hild under

the a ge o f six, a Class E felony. Mr. Fa

rmer said that Defendant received a two-year sentence, wi th al l b ut 18 0 d ays suspended, and a two-ye ar probation. As of the time of the revocation hearing, Def endant had served her 180-day s and was currently serving her two-y

ear probationary

period.
Defend ant, who lived in Alabama at the time of her 2001 conviction, testified that she did notreport to Mr. Farmer because she was afraid her abusive boy friendwould take away

her children if she came to Tennessee. Defenda nt said that she did not attempt to call Mr. Farmer later because she thought M

r. Farm er would not under stand her

situ a tion. Defendant confirmed that she pled guilty to the charges of criminal impersonation, DUI and attempted child abuse but denied that she pled guilty to the theft c

harge.
Defendant

m oved to T ennesse e at some point in time

and stay ed at a N ashville hotel. Defendant

said that the criminal impersonation charge arose because she gave a f

alse name to the police when she was stopped for expired tags. Defendant

said that s he left her two-y ear-ol d son with a woman, who also lived at the hotel, while Defendant went to work. The w oman apparen tl y left the hotel, leaving the child alone. When Defendant returned from work, the child had already

been placed in state custody , and Defendant was arrested for c hild abuse. Defendant said that someone told her if she pled guilty

to the charge they

would help Defendant

regain custody

of her son. After her son was pl aced in s tate cus tody , Defen dant w as sto pped and charged with driving unde r the infl uence while she was taking a friend home. Defe ndant denied that she was guilty of the theft offens e. Defe ndant admit ted th at she had pr ior co nvict ions for st atuto ry rape and shopl ifti ng.
At the conclusion of the hearing, the trial court revoked De fendant’s probation onthe basis that she had failed to report to her probation officer as re quired by

the te rms of her probation and because she had incur red new criminal convictions while on probation. Based on the testimony presented at the hearing, the trial court found that Defendant

evidenced a lack of apprec iation for the seriousness of the probation granted her. The tria l court ordered

that Defendant’s original sentence of four ye ars be served consecutively to Defendant’s sentence for attempted c hild abuse.3

Defendant

appeals the trial court’sorder of

consecu tive sente ncing. Becau se proba

tion is a suspendedsentence, Defendant contends that there is no subsequently

“imposed sentence” to which Defendant’s origina

l convict ion for theft in William son County may be consecutive. Defendant further argue s t hat Davidson County is potentially the last sentencing court, and the Williamson County trial court’s order of consecutive sentencing impermiss ibly

preempt s the Davidson Count y cour t’s decisio n as to whether Defendant’s sentence s should be served consecutively should the Davidson County

court at some point

in time revo

ke Defe ndant’s p robation for the a ttempted c

hild abuse conviction. Defendant also arguesthat even if the trial cou rt corre ctly ordere d Defen dant to serve her sentence for theft consecutively to the Davidson County sentence f or at tempted c

hild abuse, the trial court failed to consider the principles of sentencing embodied in the Tennessee Criminal Sentencing Reform Act of 1989 when making its determination. Based upon our review of the record, we find that the trial court committed no reve rsible error.
When a defendant challenges the le ngth, range or manner

of service of a sentence, this Court conductsa de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court co nsidere d the sent encing principle s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is on Defendant to show the impropriety of her sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Ourr eview requi res an a nalysis of (1) t he evi dence r eceive d at th e heari ng; (2) th e presentencereport; (3) the principles of sentencing a nd the arguments of cou nsel relative to sentencing alterna

tives; (4) th e nature and characteristics of the off ense; (5) any

mitigating or enhancing factors; (6) any statements made by the de fendantin his or her own behalf; and (7) the defendant’s potential for

rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210.
As D efendant points out, this Court has previously conc luded that, in general, t he “las t sentencing court should have the responsibility to deter mine whether or not a sentence should be served consecu ti vely.” Sta te v. Arno ld , 824 S.W.2d 176, 178 (Tenn. Crim. App. 1991). If, for example, the first

sentencing court

orders a defendant’s sentence to be served consecutively

to any other sente nce whi ch may be i mpos ed in t he fut ure by the s econd sente ncing c ourt , “the fi rst sentencing court’s action would be preemptive of the last court’s function and power toim pose a sentence which is based upon all that has gone before.” Id. ; see also Th ompson v. State , 565 S.W.2d 889, 890 (Tenn. Crim. App. 1977).
This is not the situation present, however, in this matter. Def endant w as sente

nced in Davidson County for the commission of the attempted chi ld ab use offense prior to the revocation of her probation in Williamson County. The Davidson County conviction served as one of the bases for revoking Defend ant’s pr

obation in Williamson County. Tennessee Code A nnotated section 40- 35-310 pr ovides tha

t:4

in any ca se of revocation of suspension on acc ount of conduct by the de fendant which has resulted in a judgment of conviction aga ins t th e defendant during the defendant’s period of

probatio n, the t rial judge may order that the term of imprisonmentimposed by the original judgment be served consecutively to any sentence which was imposed upon such conviction. Tenn. Code Ann. § 40-35-310.
Th e thrust of Defendant’s argument is that a sente nce of probation is not an “imposed” senten ce a s contemplated by this provision. Rather, De fendant’s sentence of incarce ration was part ially susp ended by the D avidson County court for the of fense of attempted child abuse. She contends that until t

he David son County

court in th

e future revokesDefend ant’s p robat ion and reinstates her orig

inal judgment of se

ntencing , th e Williamso n County court is w ithout powe

r to order consecutive sentencing. We re spectfully disag ree. Upon a v erdict o

r plea of guilty , it is the du

ty o f the tria

l court to d

etermine and imp ose a defendant’s sentence

. See T enn. Code Ann. § 40- 35-203. A

n “impose d sentenc e” is a “ specific penalty imposed for

a specific offense.” State v. Langston , 70 8 S .W .2d 830 , 83 2 (T enn . 19 96) . In making its sentencing determinations, the trial court must determine how the defendant’s sentence will be served. See Tenn. Code Ann. § 40-35-21 2. If the sente nce act ually imposed is eight yea

rs or less, a defendant may

be eligible to serv e his or her sentence through probation rather than incarceration. See Tenn. Code Ann. §§ 40-35-212(a) and -303. “If the cour

t determines that

a period of probation is appropriate, the court shall sentence the defendant to a specific se ntence but suspend the execution

of all or part thereof

and place the defendant on supervised or unsupe rvised probation

. . . .” Tenn. Code Ann. § 40-35-303(c). The g rant i ng of probation does not, however, mean that the defendant has not had a penalty imposed for

a specific offense. The “sentence ” received when the trial court grants the defendant the privilege of probation is “the period of time that the defendant could be incarcerated.” Young v. State , 101 S.W.3d 430, 432 ( Tenn. Cr im. App. 20 02); see also Sta te v. Pettus , 986 S.W.2d 540, 544 (Tenn. 1999) (recognizing that “probation and communit y corrections sentences are alter natives to incarceration.”)
As the State

points out, this Court h as previ ously concluded that the revoking trial court has the discr etion toorder itsrevoked sentenc e to run c onsecuti vely to a previously imposed sentenc e when the defendant

is convict ed of a crime while on probation. State v. Ke vin W ayne Brim , No. M1999-01925-CCA-R3-CD, 2001 W L 166362, at *1 (Tenn. Crim. App., Nashville, Feb. 9, 2001), perm. to appeal de nied (Tenn. June 4, 2001) ; see also State v. George Cantrell, III , No. M1998- 00104-CCA-R3-CD, 1999 W L 120 3822, (Tenn. Crim. App., Nashville, Dec. 16, 1999). A trial judge may order

a sentence of incarcera

tion to run consecutively to a suspended sentence. State v. Malone , 928 S.W.2d 41, 44 (Tenn. Crim. App. 1995). In that event, the pr obationary ter

m begins upon completion of the intervening custodial sentence. Id.
Defendant

ar g ues that even if the trial court is permitted to order consecutive se ntencing under Tennessee Code Annotated section 40-35-115(b)(6) , the trial court fai led to m ake specific5

findi ngs that “an extended sentence is necessary

to protect the public ” and is “

reasona bly related to the severity of

th e o ff en se s c om mi tt ed ” a s r eq ui re d b y State v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). Defendant’s relian ce on Wil kerson , however, is misplaced. These specific finding s are required only in the

consecutive sentencing of “dang erous offenders.” State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999). The trial court in this instance imposed consecutive sentences because Defendant was sentenced for an offense while o n pr obation. See Tenn. Code Ann. § 40-35-115(b)(6). Subsection (b)(6) desc ribes a category of offenders “deserving of consecutive sentencing.” Wilkerson , 905 S.W.2d at 936-37. We note also that the record notonly supports the trial court’s finding but also supports a finding that Defendant has an extensive re co rd of cr im in al ac ti vi ty. Tenn. Code Ann. § 40-35-115(b)(2). Defendant is not entitled to relief on this issue.
CONCLUSION Accordingly , the judgment of the trial court is affirmed.

____________________________________ THO MAS T. WO ODA

LL , J.