IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 20, 2015

STATE OF TENNESSEE v. DONALD BIGGS, ALIAS

Appeal from the Criminal Court for Knox County

Nos. 102471, 102551, 102552, 102553, 102554, 102792 Steven W. Sword, Judge

No. E2014-01650-CCA-R3-CD – Filed September 30, 2015

The Defendant, Donald Biggs, alias, appeals as of right from his guilty-pleaded 

convictions for four counts of aggravated robbery, two counts of theft by shoplifting, and 

one count of attempted aggravated robbery. See Tenn. Code Ann. §§ 39-12-101, -13-

402, -14-103, -14-105, -14-146. Following a sentencing hearing, the trial court sentenced 

the Defendant to twenty-two years each on two aggravated robbery convictions. The trial 

court ordered that the Defendant serve these two sentences consecutively. The 

Defendant’s remaining sentences were ordered to be served concurrently, resulting in a 

total effective sentence of forty-four years. The sole issue presented for our review is 

whether the trial court erred when it imposed partial consecutive sentences. Following 

our review, we conclude that the trial court abused its discretion when it imposed partial 

consecutive sentences, and the judgments of the trial court are, therefore, reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, J., joined. THOMAS T. WOODALL, P.J., filed a separate dissenting opinion.

Rachel Leanne Wolf, Knoxville, Tennessee, for the appellant, Donald Biggs, alias.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; 

Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Defendant’s convictions arose from a string of robberies and thefts that 

occurred in Knox County in September 2013. The factual bases underlying these 
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convictions were presented over the course of three guilty plea submission hearings, as 

detailed below.

I. April 21, 2014 Guilty Plea Submission Hearing

On April 21, 2014, the Defendant pled guilty to two counts of aggravated robbery 

in case number 102471. The trial court reserved sentencing pending the resolution of the 

Defendant’s remaining cases. The State provided the following factual accounts

underlying the offenses.

On September 11, 2013, the Defendant entered Confectionista’s Kitchen on 

Chapman Highway, where Emily Herndon was working. The Defendant approached the 

counter and ordered a cookie. As Ms. Herndon was “ringing him up,” the Defendant 

pulled out what Ms. Herndon believed to be a gun and demanded money. Ms. Herndon 

gave the Defendant money, and he fled the scene. Ms. Herndon called 911 and was able 

to provide a description of the Defendant to the police.

On September 12, 2013, Amanda Lauderdale was working at Lee’s Market when 

the Defendant entered the store. The Defendant purchased a pack of gum with a $20 bill. 

After Ms. Lauderdale gave the Defendant his change, the Defendant told Ms. Lauderdale 

that she “shorted [him] $10.” Believing him, Ms. Lauderdale re-opened the cash drawer 

and gave the Defendant $10. Later that day, Ms. Lauderdale realized that she had not in 

fact shorted the Defendant money but that he had tricked her into giving him an 

additional $10.

Shortly thereafter, the Defendant returned to Lee’s Market where he again 

purchased a small item. After receiving his change, he again stated that Ms. Lauderdale 

had shorted him, but this time Ms. Lauderdale asserted that she had given him the 

appropriate amount of change, and he left the store.

The Defendant returned to Lee’s Market for a third time later that day. The 

Defendant placed an item for purchase on the counter, and when Ms. Lauderdale opened 

the cash drawer, the Defendant pulled out a weapon, which she believed to be a gun, 

pointed it at her, and demanded money. The Defendant took the money and left the store. 

Ms. Lauderdale called 911 and was able to provide a description of the Defendant to the 

police.
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II. May 14, 2014 Guilty Plea Submission Hearing

On May 14, 2014, the Defendant pled guilty to aggravated robbery in case number 

102554. In support of that charge, the State asserted that on September 13, 2013, the 

Defendant entered Spring Hill Market, where he placed a pack of gum on the counter for 

purchase. At that point, the Defendant pulled out a gun, pointed it at the cashier, Ciara 

Mitchell, and demanded money. After taking approximately $100, he fled. Ms. Mitchell 

was able to look out the store’s window and get the Defendant’s license plate number, 

which she provided to the police.

III. June 23, 2014 Guilty Plea Submission Hearing

The trial court convened again on June 23, 2014, and the Defendant entered guilty 

pleas in his remaining four cases. In case number 102792, the Defendant pled guilty to 

misdemeanor theft. The State gave the following factual account for the offense: The 

Defendant entered a Wal-Mart garden center on May 15, 2013, loaded several bags of 

potting soil onto his truck, and drove away without paying. The items were valued at 

$428.

In case number 102551, the Defendant pled guilty to misdemeanor theft. Pursuant 

to that charge, the State alleged that the Defendant entered an Exxon gas station on 

September 10, 2013, waited for an employee to step away from the counter, opened the 

cash register, and stole $225 directly from the cash drawer.

The Defendant also pled guilty to attempted aggravated robbery in case number 

102553 for events that took place on September 14, 2013. On that date, the Defendant 

entered a “Marathon Favorite Market” and took two pieces of candy to the counter for 

purchase. When the cashier opened the cash register to complete the sale, the Defendant 

reached across the counter and attempted to take money from the drawer. The cashier 

closed the drawer on the Defendant’s hand, and the Defendant then pulled out what the 

cashier described as a handgun. The cashier grabbed for the handgun, a brief struggle 

ensued, and the handle of the gun broke apart. The Defendant immediately fled the 

scene. The “handgun” was recovered and was determined to be a plastic toy gun, which 

the Defendant had also used in each of the previous robberies.

Finally, in case number 102552, the Defendant pled guilty to aggravated robbery. 

On September 14, 2013, the Defendant entered a Subway restaurant and ordered a 

cookie. When the cashier opened the cash register to complete the sale, the Defendant 
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reached over the counter and attempted to take money from the cash drawer, while 

simultaneously using his other hand to pull a handgun1from his waistband. The cashier 

closed the drawer on the Defendant’s hand, and the Defendant told the cashier “to give 

him the money or he would f--king kill [him].” The Defendant took $80 from the drawer 

and fled the business. 

IV. June 30, 2014 Sentencing Hearing

After classifying the Defendant as a Range III, persistent offender, see Tennessee 

Code Annotated section 40-35-107, the trial court sentenced the Defendant to twenty-two 

years in case number 102471, to be served at eighty-five percent. In case number 

102552, the trial court sentenced the Defendant to an additional twenty-two years and 

ordered that sentence be served consecutively to the sentence in case number 102471. 

The trial court ordered the Defendant’s remaining sentences be served concurrently to 

case number 102471, resulting in a total effective sentence of forty-four years to be 

served at eighty-five percent. 

Before imposing these partial consecutive sentences, the trial court found that the 

Defendant was an offender who had an extensive criminal history and that the Defendant 

was on probation when he committed these new offenses. The presentence report 

reflected that the Defendant had previous convictions for evading arrest, forgery, 

speeding, and reckless driving, as well as multiple convictions for theft of property, 

casual exchange, and possession of marijuana and cocaine. Also, the Defendant admitted 

that he was on probation for a misdemeanor offense at the time he committed these new 

offenses. The trial court noted that, considering the “overriding principle of finding a 

sentence that is justly deserved and . . . that fits the offense,” it would be inappropriate to 

order the Defendant’s sentences consecutively on all convictions. However, the court did 

find that ordering two of the aggravated robbery sentences to be served consecutively 

resulted in “a fair and just sentence in this case.” It is from this decision that the 

Defendant now timely appeals.

ANALYSIS

On appeal, the Defendant contends that the trial court erred by ordering that his 

sentence in case number 102552 run consecutively to his sentence in case number 

102471 because his “criminal history does not rise to the level necessary” to qualify for

 

1 The Defendant had apparently purchased another plastic gun after the first broke during the Marathon 

robbery.
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consecutive sentencing, his “status on probation does not rise to the level necessary” to 

qualify him for consecutive sentencing, and “[c]onsecutive [s]entencing results in a 

sentence length greater than that deserved for the offense committed.” The State 

responds that the trial court correctly determined that the Defendant met two criteria for 

consecutive sentencing pursuant to Tennessee Code Annotated section 40-35-115(b), that 

the trial court properly considered the total length of the sentences weighed with the 

severity of the underlying offenses, and, therefore, that the trial court did not abuse its 

discretion in imposing partial consecutive sentences.

Our supreme court has 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)[.]” State v. Pollard, 

432 S.W.3d 851, 860-61 (Tenn. 2013). Thus, the imposition of consecutive sentencing is 

subject to the general sentencing principle 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[.]” 

Tenn. Code Ann. § 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.” Id. 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 State v. Bise, 380 S.W.3d 682, 705 (Tenn. 2012). 

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;
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(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 the 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;

(6) The defendant is sentenced for an offense committed while on 

probation; or

(7) The defendant is sentenced for criminal contempt.

Because these criteria are stated in the alternative, only one need exist to support the 

imposition of consecutive sentencing.

Here, the trial court imposed partial consecutive sentences after finding that the 

Defendant was an offender whose record of criminal activity was extensive.2 The trial 

court expressly articulated the reasons underlying this determination, including that the 

Defendant had a “very long criminal history going back into the [1980’s]” and that the 

Defendant had previously been on probation and parole and had been in and out of 

prison. Although we agree that the Defendant was eligible for consecutive sentencing, 

we nevertheless conclude that the trial court abused its discretion when it ordered partial 

consecutive sentencing that resulted in a total effective sentence of forty-four years. 

Considering the circumstances of the offenses—that the robberies were committed with a 

toy gun, no one was injured, and two of the victims knew the gun was plastic—and also 

considering the Defendant’s age of forty-nine and complete lack of previous violent 

offenses, we conclude that the trial court erred by imposing partial consecutive sentences. 

Although the trial court considered the applicable principles before sentencing the 

Defendant, we conclude that it violated those principles in two respects: (1) a sentence of 

forty-four years to be served at eighty-five percent is in effect a sentence of life 

imprisonment and is not “justly deserved in relation to the seriousness of the offense,” 

see Tenn. Code Ann. § 40-35-102; and (2) a total effective sentence of forty-four years is

not the “least severe measure necessary to achieve the purposes for which the sentence is 

 

2 Additionally, the Defendant was on probation when he committed these offenses.
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imposed,” see Tenn. Code Ann. § 40-35-103. It appears from the record that the 

Defendant was already serving a twelve-year sentence at the time of sentencing for these 

convictions. Imposition of a sentence that will confine the Defendant until age seventy 

will certainly protect the public from the Defendant and serve to appropriately punish 

him for his crimes.

CONCLUSION

Based on the foregoing and the record as a whole, the trial court’s imposition of 

partial consecutive sentences is reversed, and this case is remanded for the entry of 

judgment forms reflecting that the Defendant’s sentences are to be served concurrently.

_________________________________ 

D. KELLY THOMAS, JR., JUDGE