FILED

March 5, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704-CC-00138

)

Appellee, )

)

) RUTHERFORD COUNTY

VS. )

) HON. J.S. DANIEL

ZACHERY L. BARNES, ) JUDGE

)

Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF RUTHERFORD COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM A. OSBORNE JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

201 West Main Street

Murfreesboro, TN 37130 GEORGIA BLYTHE FELNER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

WILLIAM C. WHITESELL

District Attorney General

3rd Floor, Judicial Building

Murfreesboro, TN 37130

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. § 39-14-402.

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OPINION

The Defendant, Zachery Leroy Barnes, appeals as of right pursuant to

Rule 3, Tennessee Rules of Appellate Procedure. Pursuant to a negotiated plea

agreement with the State, he pleaded guilty to six counts of burglary 1

 as a

Multiple, Range II offender and agreed to sentences of six years for each offense.

After a hearing, the trial court ordered that some of the sentences be served

consecutively, resulting in an effective sentence of eighteen years in the

Department of Correction. In this appeal, the Defendant argues that the trial court

erred by imposing consecutive sentences. We affirm the judgment of the trial

court.

The Defendant was indicted on several counts of burglary and theft which

occurred in the Murfreesboro area of Rutherford County between July 6, 1996,

and July 15, 1996. On July 6th, the Defendant burglarized his former employer.

During the commission of a burglary on July 13, 1996, an officer with the

Murfreesboro Police Department attempted to arrest the Defendant. After the

officer put a handcuff on one of the Defendant’s wrists, the Defendant managed

to escape. The Defendant committed four more burglaries before he was picked

up by police. Detective Lieutenant Jim Gage investigated the cases and

developed the Defendant as a suspect. The Defendant accompanied him to the

Murfreesboro Police Department where he made a full confession to all of the

burglaries. This included information about the burglary of Nesbitt House, of
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which the police were not yet aware. The Defendant was indicted for the

following offenses:

Indicted Offenses

Indictment Date/

Location

Count I Count II Count III Count IV

37778 7/14/96

Nesbitt

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

Assault Evading

Arrest

37782 7/15/96

Nott. Apts.

Burglary

37783 7/6/96

Mi-Tech

Burglary Theft

< $500

Vandalism

On October 14, 1996, the Defendant pleaded guilty to six counts of

burglary and agreed to six year sentences for each, the midrange of the sentence

length for burglary, a Class D felony, as a Range II, 35%, multiple offender. See

Tenn. Code Ann. §§ 40-35-101; 39-14-402(c). The other counts in the

indictments were dismissed. The plea agreement provided that the newly

imposed sentences would run consecutively to a prior, unserved sentence, with

the trial court to determine whether the new sentences would be served
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consecutively or concurrently. A sentencing hearing was conducted on

November 22, 1996.

The Defendant testified that the burglaries were motivated by his crack

cocaine addiction and that he was not thinking straight when he committed the

offenses. He chose to burglarize businesses to avoid hurting anyone. The

Defendant gave a voluntary confession because it was the right thing to do. He

requested help with his drug problem, but admitted that he had not previously

sought any treatment on his own. While in the Rutherford County Jail, the

Defendant achieved trusty status but lost it because of improper behavior with a

female trusty. He also admitted that he has had a number of prior convictions.

The presentence report indicates that the Defendant was 31 years old at

the time of sentencing, single, and the father of three children. He graduated

from Riverdale High School in Murfreesboro. He had been employed by Hodge

Manufacturing Company from 1987 to 1994. He committed other offenses in

1994 and was incarcerated, then was employed by Mi-Tech Steel after he was

released. He worked there from January, 1996, until his arrest for the current

offenses in July, 1996. The Defendant has had numerous convictions, most of

which occurred in 1994. These include three burglaries, one aggravated

burglary, two burglaries of automobiles, three thefts valued under $500, and one

conviction for forgery. The Defendant was on probation when he committed the

current offenses. 
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On the matter of consecutive sentencing, the trial court found that the

Defendant had an extensive prior criminal record and applied Tennessee Code

Annotated section 40-35-115(b)(2). The trial court also found that the Defendant

was on probation when he committed the offenses and applied Tennessee Code

Annotated section 40-35-115(b)(6) in support of consecutive sentencing. As a

result, the trial judge ordered that the offenses which occurred on July 14, 1996,

in indictments 37778, 37779 and 37780, to run concurrently to each other. He

ordered that the offense committed on July 13, 1996, in indictment 37781 run

consecutively to the offenses in 37778, 37779 and 37780. He ordered the

offense committed on July 15, 1996, to run consecutively to the other offenses.

Finally, in recognition of the Defendant’s cooperation with the police, the trial

judge ordered that the offense in indictment 37783 should run concurrently to the

other offenses. The result was an effective eighteen-year sentence.

In this appeal, the Defendant argues that the trial court erred by imposing

consecutive sentences. When an accused challenges the length, range, or the

manner of service of a sentence, this court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the

trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presum ption is

"conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances."

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to
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sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We first note that the determination of the length of the sentences imposed

was made pursuant to the negotiated plea agreement. The Defendant contends

that the trial court erred by failing to consider a statutory mitigating factor, nam ely,

that he neither caused nor threatened serious bodily injury. See Tenn. Code

Ann. § 40-35-113(1). He also argues that the trial judge did not consider that the

offenses were motivated by his cocaine habit. We find this argument to be

unpersuasive. The application of statutory mitigating factors is relevant when

setting the length of a sentence and the factors must be considered by the trial

court. Tenn. Code Ann. § 40-35-210(b)(5). Here, however, each specific

sentence had already been agreed upon. The trial court was only considering

the issue of consecutive sentences. That procedure is governed by Tennessee

Code Annotated section 40-35-115. Specifically, that provision states: “If a

defendant is convicted of more than one (1) criminal offense, the court shall order
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sentences to run consecutively or concurrently as provided by the criteria in this

section.” Tenn. Code Ann. § 40-35-115(a)(emphasis added). The trial court

considered the factors in section 40-35-115(b). Nothing requires the trial judge

to specifically consider mitigating factors when considering consecutive

sentences, although these factors may be relevant to the decision. We do note

that, although not required, the trial judge did account for the Defendant’s

cooperation with the police when ordering one count to run concurrently.

Therefore, this issue is without merit.

The Defendant also argues that the trial court inappropriately considered

the fact that he evaded arrest as a reason to mandatorily impose consecutive

sentences pursuant to Rule 32(c)(3)(B) of the Tennessee Rules of Criminal

Procedure. He argues that this provision should not apply. Although the trial

judge mentioned the fact that the Defendant evaded arrest, nothing in the record

indicates that this provision was relied upon in imposing consecutive sentences.

Thus, this issue has no merit.

The trial judge articulated on the record that he relied upon Tennessee

Code Annotated section 40-35-115 (b)(2) and (b)(6) when he ordered

consecutive sentences. It is clear from this record that the Defendant is an

offender whose record of criminal activity is extensive and that the Defendant was

being sentenced for an offense committed while on probation. Tenn. Code Ann.

§ 40-35-115(b)(2) and (6); see State v. Tuttle, 914 S.W.2d 926, 933 (Tenn. Crim.

App. 1995). These factors authorize the trial court to consider consecutive

sentences as a part of his discretionary authority. W hen a defendant falls within

the statutory classifications for eligibility to be considered for consecutive
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sentencing, the only remaining considerations are whether (1) the sentences are

necessary in order to protect the public from further misconduct by the defendant

and (2) "the terms are reasonably related to the severity of the offenses." State

v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

The trial court clearly had a basis for concluding that consecutive

sentences are necessary to protect the public. These offenses were committed

while the defendant was on intensive probation, thus, he has demonstrated a lack

of amenability for rehabilitation. The fact that the Defendant chose to violate a

position of trust by burglarizing the business of his employer is of special

concern. See State v. Moore, 942 S.W .2d 570, 574 (Tenn. Crim. App. 1996). 

Furthermore, the Defendant has a serious crack cocaine addiction which he has

been unsuccessful in getting treatment for on his own. Therefore, we cannot

conclude that the trial court erred or abused his discretion by imposing

consecutive sentences in this case.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE