IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 10, 2015 Session

STATE OF TENNESSEE v. GEORGE A. MIKITA

Appeal from the Circuit Court for Rutherford County

Nos. F68537, F68538 Mitchell Keith Siskin, Judge

No. M2014-00650-CCA-R3-CD – Filed April 13, 2015

Defendant, George A. Mikita, was implicated in two separate home invasions and 

charged with various crimes as a result. Defendant entered guilty pleas to two counts of 

aggravated burglary, one count of theft of property valued at $1,000 or more, and one 

count of theft of property valued at $500 or more. Defendant was sentenced to an 

effective sentence of thirteen years after a sentencing hearing. Defendant appeals, 

challenging the trial court’s imposition of consecutive sentences under a theory dubbed 

“just desserts.” After a review, we determine there is no evidence that the trial court 

abused its discretion in sentencing Defendant to an effective sentence of thirteen years. 

Consequently, the judgments of the trial court are affirmed. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY,JR., J., joined.

Drew Justice, Franklin, Tennessee, for the appellant, George A. Mikita.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; 

Kim R. Helper, District Attorney General; Bret T. Gunn, Assistant District Attorney 

General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background
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Defendant was indicted by the Rutherford County Grand Jury in two separate 

cases in September of 2012. He was charged with aggravated kidnapping, aggravated 

burglary, and theft of property valued at $1,000 or more in case number F68537. In case 

number F68538, Defendant was charged with aggravated burglary, theft of property 

valued at $500 or more, and vandalism. Defendant entered an open plea to aggravated 

burglary in each case, theft of property valued at $1,000 or more in case number F68537,

and to theft of property valued at $500 or more in case number F68538. The remaining 

counts were dismissed.

At the guilty plea hearing, counsel for the State recounted the basic facts which 

gave rise to the indictments. In case number F68537, Defendant was indicted for crimes 

committed on June 6, 2012, at the home of Mary Melvin. Defendant entered the home, 

and when the victim tried to leave, he forced her into her bedroom while he stole several 

items and then fled the scene. On the same day, Defendant entered the home of Mary 

Harmon, stole several of her personal belongings, and fled the scene. Defendant was 

located because he used the cell phone he stole from Mrs. Melvin.

At the sentencing hearing, Mrs. Harmon testified that someone broke into her 

home through her garage on June 6, 2012. Her television and coin containers were 

missing, along with a silver and pearl rosary. The rosary was a gift from her parents 

upon her graduation from nurse training. None of the stolen items were recovered and 

were valued at $802 by the insurance company. As a result of the burglary, Mrs. Harmon 

changed the locks at her home and insisted on carrying her cell phone with her at all 

times.

Mrs. Melvin also testified at the sentencing hearing. She was taking a nap on the 

afternoon of June 6, 2012, when she heard a soft knock on the door. Her dogs were 

barking. She thought at first that her son had forgotten his house key but soon realized 

that was not the case when she confronted Defendant in the hallway. Defendant was 

carrying her personal computer and work computer. Defendant informed the victim that 

his friend let him into the house and that his aunt lived in the house. Defendant was 

asked to leave. He refused. Mrs. Melvin tried to call 911, but Defendant took her phone. 

Mrs. Melvin tried to leave, but Defendant grabbed her by the arms and prevented her 

from leaving. He dragged her down the hallway and pushed her onto the bed. Defendant 

stood in the doorway of the bedroom and prevented her from leaving the room. 

Defendant asked Mrs. Melvin personal questions about her family and her possessions. 

He also threatened Mrs. Melvin, claiming that he would come back to burn down the 

house because he knew where she lived. Mrs. Melvin eventually convinced Defendant 

that she would stay put if he left her house. He finally agreed and left the house. Mrs. 

Melvin suffered bruises from the incident as well as the loss of her personal computer, 

work computer, telephone, and cash. The tangible items were valued at over $1,000. As 
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a result of the burglary, Mrs. Melvin had a security system installed in her home and 

underwent eight weeks of counseling to manage anxiety attacks and nightmares. 

Detective Kristy Inglish of the Murfreesboro Police Department testified that in 

2012, there were 919 aggravated burglaries in Murfreesboro. 

Defendant testified that he was seeking money to support his drug problem. He 

admitted that he was on parole at the time of the crimes and had recently quit his job to 

help babysit his girlfriend’s children. Defendant smoked marijuana and took opiates and 

heroin every day. He explained that he started using drugs when he was sixteen years of 

age and had attempted rehab several times but had not successfully completed a program 

of drug treatment. He expressed remorse for the incident and insisted that he did not 

intend to hurt anyone. 

Defendant’s presentence report indicated that Defendant was a twenty-five-yearold male with the following convictions from Sullivan County, Tennessee: two prior 

convictions for aggravated burglary, one conviction for theft of property valued at $1,000

or more, and one conviction for theft of property valued at $500 or more. With regard to 

these convictions from Sullivan County, Defendant received a four-year sentence that 

was suspended to supervised probation. Defendant’s probation was revoked due to 

technical violations. When Defendant was released from custody in January of 2009, his 

probation was reinstated and his supervision transferred to Pennsylvania via interstate 

compact. In June of 2010, Defendant was declared an absconder. According to the 

presentence report, Pennsylvania closed interest in the case and a warrant for a violation 

of probation was issued in Tennessee. Defendant was then arrested in Pennsylvania for 

burglary, criminal trespassing, and theft. The Tennessee violation of probation warrant 

was amended. Defendant was convicted of burglary in Pennsylvania and sentenced to 

serve between eleven months and fifteen days to one year and eleven months in prison. 

In March of 2011, Defendant was transported back to Tennessee where his probation was 

revoked. Defendant was released to parole in February of 2012. His release included 

residential treatment at First Things First in Murfreesboro. Defendant was unsuccessfully 

discharged from this program after one month. The offenses at issue herein were 

committed in June of 2012. Defendant’s parole was revoked in September of 2012. 

After a sentencing hearing, the trial court issued a comprehensive and thorough

sentencing order. In the order, the trial court noted the following items were considered 

in relation to sentencing:

[T]he evidence presented at the trial and sentencing hearing, the 

presentence report, the principles of sentencing and arguments made as to 

sentencing alternatives, the nature and characteristics of the criminal 

conduct involved, any evidence and information offered by the parties 
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regarding mitigating and enhancing factors, any statistical information 

provided by the Administrative Office of the Courts as to sentencing 

practices for similar offenses in Tennessee, any statement the Defendant 

made on his own behalf regarding sentencing, and the Defendant’s 

potential for rehabilitation or treatment.

(emphasis added). The trial court determined that Defendant was a Range II offender 

with respect to case number F68537 and a Range I offender with respect to case number 

F68538.1 The trial court applied the following enhancement factors: (1) Defendant has a 

previous history of criminal convictions or criminal behavior, in addition to those 

necessary to establish the appropriate range; and (13) at the time the felony was 

committed, the Defendant was released on parole. See T.C.A. § 40-35-114. The trial 

court declined to apply any mitigating factors. 

With regard to consecutive sentencing, the trial court found Defendant was “an 

offender whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). 

Additionally, the trial court denied alternative sentencing. As a result, the trial court 

sentenced Defendant as a multiple offender in case number F68537 to eight years for 

aggravated burglary and four years for theft of property valued at $1,000 or more. 

Defendant was sentenced as a Range I, standard offender to five years for aggravated 

burglary and to one year for theft in case number F68538. The trial court ordered the 

sentences in each count to run concurrently to each other but ordered the sentences in 

each case to run consecutively to each other. The total effective sentence is thirteen 

years. The sentences in both cases were to also run consecutive to Defendant’s Sullivan 

County sentence.

Defendant appeals. 

Analysis

On appeal, Defendant presents the following issue for our review: “Does the court 

violate a mandatory principle of sentencing, namely Tennessee Code Annotated section 

40-35-102(1), when it imposes a consecutive sentence based solely on criminal history 

instead of finding what was justly deserved for the seriousness of the offense?” 

Specifically, Defendant insists that he does not have an extensive criminal history, being 

convicted of a total of nine offenses on “only” three occasions. Additionally, he 

complains that the trial court failed to find that the crimes were terribly severe and that 

the punishment of consecutive sentencing was justly deserved. The State, on the other 

hand, argues that the trial court stated its reasons on the record and those decisions are 

 

1 The State failed to timely file a Range II notice in case number F68538.
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consistent with the principles and purposes of sentencing. Stated another way, the trial 

court’s decision is presumptively reasonable and Defendant is not entitled to relief.

When a defendant challenges the length, range, or manner of service of a sentence, 

this Court reviews the trial court’s sentencing decision under an abuse of discretion 

standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 

(Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies 

to “within-range sentencing decisions that reflect a proper application of the purposes and 

principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. 

Among the purposes and principles of sentencing is that the imposition of 

consecutive sentences must be “justly deserved in relation to the seriousness of the 

offense.” T.C.A. § 40-35-102(1). The length of the resulting consecutive sentence must 

“be no greater than that deserved for the offense committed.” T.C.A. § 40-35-103(2). 

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may 

order sentences to run consecutively if it finds any one of the following criteria by a 

preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly devoted 

the defendant’s life to criminal acts as a major source of livelihood; 

(2) The defendant is an offender whose record of criminal activity is 

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by 

a competent psychiatrist who concludes as a result of an investigation prior 

to sentencing that the defendant’s criminal conduct has been characterized 

by a pattern of repetitive or compulsive behavior with heedless indifference 

to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or 

no regard for human life, and no hesitation about committing a crime in 

which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses 

involving sexual abuse of a minor with consideration of the aggravating 

circumstances arising from the relationship between the defendant and 

victim or victims, the time span of defendant’s undetected sexual activity, 

the nature and scope of the sexual acts and the extent of the residual, 

physical and mental damage to the victim or victims;
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(6) The defendant is sentenced for an offense committed while on 

probation; or

(7) The defendant is sentenced for criminal contempt.

Only one of these criteria needs to exist in order to support the imposition of consecutive 

sentencing. State v. Pollard, 432 S.W.3d 851, 859-62 (Tenn. 2013). 

Our supreme court has recently held that “the abuse of discretion standard, 

accompanied by a presumption of reasonableness, applies to consecutive sentencing 

determinations . . . if [the trial court] has provided reasons on the record establishing at 

least one of the seven grounds listed in Tennessee Code Annotated section 40-35-

115(b)[.]” Pollard, 432 S.W.3d at 859-62. Thus, the imposition of consecutive 

sentencing is subject to the general sentencing principles that the overall sentence 

imposed “should be no greater than that deserved for the offense committed” and that it 

“should be the least severe measure necessary to achieve the purposes for which the 

sentence is imposed[.]” T.C.A. § 40-35-103(2) & (4). Further, “[s]o long as a trial court 

properly articulates reasons for ordering consecutive sentences, thereby providing a basis 

for meaningful appellate review, the sentences will be presumed reasonable and, absent 

an abuse of discretion, upheld on appeal.” Pollard, 432 S.W.3d at 862 (citing Tenn. R. 

Crim. P. 32(c)(1) (“The order [for consecutive sentences] shall specify the reasons for 

this decision and is reviewable on appeal.”)); see also Bise, 380 S.W.3d at 705. 

Defendant asserts that even if the trial court found that he meets the statutory 

criteria for consecutive sentences, the aggregate sentence is greater than that deserved for 

the offense committed. In his own words, Defendant did not get his “just desserts.” This 

theory belies the fact that the imposition of consecutive sentencing is entitled to a 

presumption of reasonableness where a trial court applies “within-range sentencing 

decisions that reflect a proper application of the purposes and principles of the 

Sentencing Act.” Bise, 380 S.W.3d at 707. The trial court imposed a sentence for each 

conviction within the applicable range of punishment. Further, the trial court identified 

its reason for imposing partial consecutive sentencing under Tennessee Code Annotated 

section 40-35-115(b), based on Defendant’s extensive criminal history. At sentencing 

and again on appeal, Defendant minimized his nine prior felony convictions and repeated 

failure at alternatives to incarceration, claiming instead that he was simply “not that good 

of a burglar” with a “horrible drug problem.” Most importantly, however, the trial court 

stated in its lengthy sentencing order that it considered the principles of sentencing. We 

are satisfied that the trial court considered the sentence to be justly deserved in relation to 

the seriousness of these offenses. Moreover, the Sentencing Act does not require a trial 

court to specifically state on the record that the sentence imposed is “justly deserved.” 

Because the trial court stated its reasons for ordering consecutive sentences, and those 

reasons are amply supported by the evidence, the trial court’s decision is presumptively 
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reasonable. Defendant has failed to show an abuse of discretion in imposing consecutive 

sentences, or that the aggregate sentence of thirteen years is greater than that deserved for 

the offenses of aggravated burglary, theft of property valued at $1,000 or more, and theft 

of property valued at $500 or more. Defendant is not entitled to relief.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

____________________________

TIMOTHY L. EASTER