# FILED March 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704- CC-00138 ) Appellee, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J.S.DANIEL ZACHERY L. BA RNES, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF RUTHERFORD CO UNTY FOR THE APPELLANT : FOR THE APPELLEE : WILLIAM A. OSBORNE JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 201 West Main Street Murfreesboro, TN 37130 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM C. WH ITESELL Distri ct Attor ney General 3rd Floor, JudicialBuilding Murfreesboro, TN 37130
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 Tenn. Code Ann. § 39-14-402. -2- 

# OPINION

The Defendant, Zache ry Leroy B arnes, a ppeals as of right p ursuan t to Rule 3, Tennessee Rules of Appellate Procedure. Purs uant to a negoti ated plea agre emen t with the State, he p leaded guilty to six cou nts of burglary 1 as a Multipl e, Range II offender and agreed to sentences of six years for

each offense. After a hea ring, the trial court orde red that some of the sentences be s erved consecu tively, resulti ng in an effective sentence of e ighteen year s in the Department of Correcti on. In thi s appeal, t he Defenda nt argues that the trial court e rred by i mp osing consecutive sentences. We affirm the judgment of the trial court.

The Defenda nt was indicted o n several coun ts of burglary and the ft which occurred in the Murfreesbo ro area of Ruther ford County bet

ween July 6, 199 6, and July 15 , 1996 . On Ju ly 6th, the Defe ndan t burgla rized h is formeremployer. During the commission of a burglary

on July 13 , 1996, an officer with the Murfreesbo ro Police Dep artment attem pted to arre st t he De fendant. Af ter the officer put a handcuff

on one of the Defenda nt’s wri sts, the Defendant managed to escap e. The Defendant committed f our more burglar ies before he was picked up by police. Detective Lieutenant Jim Gage investigated t he case s an d developed the Defendant as a suspect. The Defendant accompanied him to t he Murfr eesboro Police Depart ment where he made a fullconfession to all of th e burglaries. This inclu ded infor mation about t he bu rgla ry of Nesbi tt House, of-3-

which the poli ce were not yet aware. The Defend ant was indi cted for t he following offenses:

Indicted Offenses Indictment Date/

Location Coun t I Coun t II Coun t III Coun t IV 37778 7/14/96

Nesb itt House Burglary Theft < $500 37779 7/14/96

Lebeau Apts. Burglary Theft < $500 37780 7/14/96

Allen House Burglary
37781 7/13/96

Pittard School Burglary Theft < $500 Assa ult Evading Arrest 37782 7/15/96

Nott. Apts. Burglary 37783 7/6/96

Mi-Tech Burglary Theft < $500 Vandalism

On October 14, 1996, the Defendan t plead ed guilt y to six counts of burglary and agreed to si x year sentences for each, t he midrange ofthe sentence length forburglary, a Class D fel ony, as a Rang e II, 35% , multiple o ffender. See Tenn. Code Ann. §§ 40-35-101; 39 -14-402(c). The other counts i n the indictme nts were dismissed. The plea agreement prov ided that the ne wly imposed senten ces wo uld run co nsecu tively to a prior, unse rved sen tence, w ith the trialcourt to det ermine whether t he new sentences would b e serve d-4-

c onse cutively or concurrent ly. A sentencing heari ng was condu cted o n November 22, 1996.

The Defendant testifi ed that the burglari es were motivated by his crack cocaine addicti on and that he was not thinki ng straight when he committed the offenses. He chose to burgl arize bus inesses to avoid hur ting anyone. The Defendant gave a voluntary confession beca use it wasthe right thi ng todo. He requested hel p with h is drug proble m, bu t adm itted tha t he ha d not p reviou sly sought any treat ment on his own. While i n the Rutherford County Jai l, the Defendant achieved trusty status but lost it because of improper behav ior wit h a fema le trusty. He also admit ted that he has had a number of prior convict ions.

The pres entence rep ort indicates that th e Defendant was 31 years old at the time of sentencing, si ngle, and t he father of three chil dren. He graduated from Riverd ale High School in Mur freesboro. He had been employed by Hodge Manufacturi ng Compa ny f rom 1 987 t o 199 4. H e co mm itted oth er offen ses in 1994 and was incarcerated, then was employed by Mi-Tech Steel after he was released. He wo rked the re fr om Jan uary , 1996, unti l his ar rest for the current offens es in July, 1996. The Defendant has had numerous convict ions, most of which occurred in 1994. These incl ude three burgl aries, one aggrava te d burglary, two burglaries of automobiles, three the fts valued under $500, and one convicti on forforgery. The Defendant was on probat ion when he committed t he current o ffenses.-5- On the matter of

consecutive sentencing, the tri al court f ound that the Defendant had an exten sive prior criminal reco rd and applied TennesseeCode Annotated section 40-35 -115(b)(2). The trialcourt als o found that the Defendant was on probation when he committed the of fenses and applied Tennessee Code Annotated sectio n 40-3 5-115 (b)(6) in suppo rt of consecutive sentencing. As a result, the tri al judge ordered t hat the off enses which occurr

ed on July 14, 1996, in indictme nts 377 78, 377 79 and 37780 , to run con currently to each o th er. H e ordered that the offens e com mitted on Ju ly 13, 19 96, in in dic t ment 37781 run conse cuti vely to the offenses in 37778, 37779 and 37780 . He ordered t he offense committed on July 15, 19 96, to run consecutively to the other offenses. Finally, in recogni tion of t he Defendant’s cooperation wi th the pol ice, thetrial judge ordere d that th e offen se in ind ictme nt 377 83 sh ould run concurrently to the other offenses. The resul t was an effective ei ghteen-year sentence.

In this ap peal, the Defend ant argues tha t the trial court erred by i mposing consecu tive sentences. When an accused chall enges the lengt h, range, or the manner of servi ce o f a sente nce, thi s court has a dut y to conduct a de novo review of the sentence with a presumption that the determinat ions made by the trialcourt are cor rect. Tenn. Cod e An n. § 40 -35-4 01(d) . This p resum ption is "conditi oned upon the affirm ative showing in the record that the trial court considered the sentencing pr incipl es and all r elevant facts and circums tances ." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the eviden ce, if any , received at the trial and t he sentencing hearing; (b)the presentence report; (c) the principl es of sentenc ing an d argum ents as to-6-

sentencing alternativ

es; (d) the nature and characterist ics of the cri minal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fendant made on his own behalf; and (g) the potenti al or lack o f potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having given due considerat ion and properweight to t he factors and princi ples set out under the sentenci ng law, and thatthe tri al court's findings of fact are adequately supported by t he record, t hen we may not m odify t he senten ce even if we would have preferred a dif ferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

We first note that t he determinati on of the l ength of thesentences imposed was made pursua nt to the ne gotiated p lea agre emen t. The Defendant contends thatthe tri al court er red by fail ing to consider a sta tutory mitigating factor, nam ely, thathe neith e r cause d nor thre atened serious b odily injury. See Tenn. Code Ann. § 40-35-113(1) . He also argues that the t rial judge did not consider t hat the offen ses were m otivated by his cocai ne habit. We find this argument to be unpersuasive. The applicati on of stat ut ory m itig ating fac tors is relevant

when setting the length of a sentence and t he factors must be considered by

the tri al court. Tenn . Cod e Ann . § 40-3 5-210 (b)(5). H ere, ho weve r, each spec ific sentence had alre ady bee n agree d upon . The trial co urt w as only consideri ng the issue of consecutive sentences. That proce dure is governed by Tennessee Code Annotated sect ion 40-35-115. Specifically, that prov ision stat es : “If a defendantis convi cted ofmore than one (1) criminal of fense, the court shal l order-7-

sentences to run cons ecutive ly or con curren tly as pro videdby the criteria in this section .” Tenn. Code Ann. § 40-35-115(a)(emphasi s added ). The trial court considered the facto rs in sect ion 40-35-115( b). Nothi ng r equires the tri al judge to specifically consider m itigating factors when considering co nsecutive sentences, although t hese factors may be relevant

to the decision . We do note that, although no t re quire d, the tria l judge did ac coun t for the D efend ant’s cooperation with the police when o rdering one c ount to run con currently. There fore, this issu e is withou t merit.

The Defendant also ar gues that t he trial cou rt inapp ropria tely considered the fact that he evaded arrest as a reason to mandator ily impose con secutive sentences pursua nt to Rule 32 (c)( 3)(B) of the Tennessee Rules of Cri minal Procedure. He argues that t his provi sion s hould not appl y. Alth ough the tri al judge mentioned the fact that the De fendant evad ed arrest, nothing in the record indicates that thi s provisi on was relied upon in imposing consecutive sentences. Thus , this issue h as no m erit.

The trialjudge arti culated on t he record that he relied upon Tennessee Code A nnotated se ction 40-35-11 5 (b)(2) and (b)(6) w hen he ord ere d consecu tive senten ces. It is clear from this re cord tha t th e Defe ndant is an offender whose record of criminal activi ty is ex tensive and t hat the Defendant was being sentenced for an offense com mitted while on probation. Tenn. Code Ann. § 40-35-115(b)(2) and (6); see State v. Tuttle , 91 4 S. W.2d 9 26, 933 (Ten n. C ri m. App. 1995). T hese fa ctors auth or ize the trial court to conside r consecutive sentences as a part of his dis cretion ary au thority. W hen a defen dant fa lls within the statutor

y classi ficati ons for eli gibility to be con sidere d for consecu tive-8-

sentencing, the only remaini ng considerat ions are whethe r (1) t he sentences are necessa ry in order to pr otect the public f rom further misconduct by t he defendant and (2) "the term s are rea sonab ly related to th e severity of the offen ses." State v. Wilkerson , 905 S.W .2d 933, 938 (Tenn. 199 5).

The trial court clearly had a basis for conclud ing that conse cutive sentences are necess ary to protect the pu blic. These offen ses were committed while the defendant was on i ntensive pr obation, t hus, he has demonstrated a lack of amenab ilit

y for reha bilit

ation. The fact that t he Defendant chose to violate a positi on of trust by burg larizi ng the business of his employer is of speci al concern. See State v. Moore , 942 S.W .2d 570 , 574 (T enn. C rim. App . 1996). Furthermore, the Defendant has a seri ous crack cocai ne addicti on which he has been unsu ccessfu l in get ting tr eatment for on hi s own. Therefore, we cannot conclude that the trial c o urt erredor abused his di scretion by imposing consecutive sentences in t his case.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, J UDGE