### 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 Crim inal Court for Knox County

Nos. 10247 1, 102551, 102552, 102553, 102 554, 102792 Steven W. Sword, Judge

No. E2014

- 01 650

- CCA

- R3

- CD

– Filed September 30, 2015

The Defendant, Donald Biggs, alias, appeals as of right f rom 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 ordere d 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 abuse d its discretion when it imposed partial consecutive sentences, and the judgment s of the trial court are , therefore, reversed

.

Te nn. R. App. P. 3 Appeal as of Right; Judgment s of the Criminal Court Reversed

D. K ELLY T HOMAS

, J R

. , J., delivered the opinion of the court, in which C AMILLE R.

M C M ULLEN , J., joined. T HOMAS T. W OODALL , 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 At torney 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- 2

-

convictions wer e 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 ple d guilty to two counts of aggravated robbery

in case number 102471. The tr ial court reserved sentencing pending the resolution of the Defendant’s remaining cases. The State provided the following factual account s underlying the offenses.

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

, wh ere 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 h e 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 r ealized 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. La uderdale called 911 and was able to provide a description of the Defendant to the police.- 3

- 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

pu rchase. 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 nu mber, 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 f

our 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 truc k, 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

, w aited 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 tak e 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 cas hier 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 aggrav ated 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- 4

-

reached over the counter and attempted to take money from the cash drawer, while simultaneously using his other hand to pull a handgun 1 from 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, t he trial court sentenced the D efendant 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 tria l 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 senten ces, the t rial 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 evadin g 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.

ANALYS IS

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.- 5

-

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 Stat e 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 weighe d 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 o f 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 b asis 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 th is 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 crimin al 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;- 6

-

(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about co mmitting a crime in

which the ri sk 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 defend ant’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 defend ant 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

Def endant 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 pl astic

— 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 be fore 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 se riousness of the offense

, ”

s ee 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.- 7

-

imposed, ” s ee 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 th e 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