# FILED
August 25, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9707-CC-00283 Appellee, * BEDFORD COUNTY VS. * Hon. Charles Lee , Judge JACK LAYNE BENSON, * (First Degree Mur der and Appellant. * Especial ly Aggravate d Robbery)

For Appellant : For Appellee : Gregory D. Smith, At

torney John Knox Walkup One Public Square, Ste. 321 Attorney General and Repor ter Clarksville, TN 37040 Deborah A. Tullis Michael D. Randles Assistant Attorney Gener al Asst. Public Defender Cordell Hull Buildi ng, Second Floor 218 North Main 425 Fifth Avenue North Shelbyville, TN 37160 Nashville, TN 37243 Donna Har grove W. Mic hael McCo wn Asst. Public Defender District Attorney General Seventeenth Judicial Di strict 215 E. College 105 South Main Street Fayetteville, TN 37 334 P.O. Box 1119 Fayetteville, TN 37

334 Robert G. Crigler

Asst. District Attor

ney General Bedford County Courthouse One Public Square, Suite 100 Shelbyville, TN 37160

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Jack Layne Benson, w as convicted of first degr ee murder in the perpetration of a r obbery and especially

aggravated robbery . Tenn. Code Ann . § 39-13-202 and Tenn. Co

de Ann. §

39-13-4 03. The j ury imp

osed a li fe sentence for first degree murder. Tenn. Code Ann . § 39-13-204. The trial court imposed a Range I, consecutive sentence of twenty-four years for especially aggravated robbery

.

The single issue presented for review is w

hether the trial court er red by ordering a consecutiv

e sentence. We affirm the judgment of the trial court.
The facts are not in significant dispute. On January 10, 1996, the defendant and the victim, Jody Butts, visited in the home of Mitchell Sturdevant. At approximately 11:25 P.M ., the victim announced that he intended to leave and the defendant asked for a ride. The two men left the Sturdevant residence together and, only a few minutes later, the body of the victim was found lying in the street in front of the defendant's residence.

At 11:38 P.M., Officer Don Barber of the Shelb y County Police Department was responding to a radio dispatch when he discovered the body i n the street. Medical testimony established that the vic tim died as a result of three s tab wounds. Either of two of the stab wounds, one to the heart and one the lung, would have been fatal.

Between 11:30 and 11:40 P.M., Donna Addison noticed dark spots on the front of the defendant 's jacket and saw the defendant drop some money which appeared to be stained with b lood. He also informed her that he could not give her3 a ride to the store because he w as driving someone els e's vehicle. Ms. Add ison described the vehicle that the defendant was drivi ng as a cream and red color ed Chevrolet Blazer with tinted windows, a description that matched that of the vehicle the victim was dri

ving at the time he left the Sturdevant residence.
Less than thirty minutes l ater, Calvin Harr is observed the defendant driving the Blaz

er, a car he had never seen the defendant drive at anyti me before. When Harris asked where the defendant had acq uired the Blazer, the defendant simply laughed. The defendant agreed to drive Harris to a motel, where police made the arrest. The vehicl e in the defendant's possession w as identified as that owned by the victi m. The glove compartment and the c enter console had been ransacked and part of the console ha d been broken. Police found blood on the driver's side door of the vehicle. Several items belonging to the v ictim, including items of identification, wer e found scattered in the rear of the C hevrolet Blazer. Police found the defendant in possession of the key to the Blazer. A piece of the broken console and $11.00 in bills and coins, splattered with human blood, were found in his right front pocket

.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.4 Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In calculat ing the sent

ence for a Cl ass A felony convicti on at the time of these offenses, the presum ptive sentence is the midpoint within the range if there are no enhancement or mitigati ng factors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement factors but no mitigating factors, the tr ial court may set the sentence above the minimum. Tenn. Code An n. § 40-35-210(d). A sentence involving both enhanc

ement and mitigating factors requires an assignment of relative weight

for the enhancement factors as a means of inc reasing the sentence. Tenn. Code An n. § 40-35-210 . The sentence may then be redu ced within the range by any weight as

signed to the mitigating factors present. Id.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case, our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution :

[C]onsecutive sentences s hould not be routinely impos ed ... and ... th e aggrega

te maximum of c

onsecutiv

e terms1 The first four criteri a are found in Gray . A fifth category i n Gray , based on a specific number of prior felony conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35- 115, Se ntencing Co mmission C ommen ts. 5

must be reasonably related to the severity of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

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

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, 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 involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; or (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).6 In Gray , our supr eme cour t had rule d that be fore con secutive sentencing could be imposed upon the dangerous offender, as now defined by subsection (b)(4) in the statute, other conditions mus t be present: (a) that the crimes involved ag gravating circ umstances; (b) that consecuti ve sentences are a necessary means to protect the public from the def endant; and (c) that the term reasonably relates to th e severity of the offenses.

In State v. Wilkerson , 905 S.W.2d 933 (Te nn. 1995), our high court reaffirmed those principles and r uled that consecutive senten ces cannot be required for any of the classifications "unless the terms reasonably relate to the severity

of the offenses committed and are necessary in order to protect the publ ic from further serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision, which modified guidelines adopted in State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), gover ning the sentencing of danger ous offenders, described sentencing as "a human process that neither can nor should be r educed to a set of fixed and mechanical rules." Wilkerson , 905 S.W.2d at 938 (footnote omitted).

As a Range I offender, the defendant was eligible for a fifteen to twenty-five yea r sentence for especially aggravated robbery , a Class A felony. Tenn. Code Ann. § 39-13-403(b); Tenn. C ode Ann. § 40-35-112(a)(1). The trial court found n o mitigating fac tors and two enha ncement fac tors. The trial ju dge calculated the sentence by beginning at mid-rang e, because there are no mitig ating factors, and added four years due t o the enhancement factors. See Tenn. Code Ann. § 40-35-210(c); Tenn. Code Ann. § 40-35-114 . The length of the sentence is not in dispute.

The defendant argues that "consecutiv e sentencing is unjust under the7 facts...." Y

et he concedes

that he was

on probation

for another offe nse at the ti me of these offenses, and thus Tenn. Code Ann. § 40-35- 115(b)(6) applies.

The record demonstrates that the defe ndant was convicted in Ohio in 1988 of aggravated burgl ary. In 1990, he was c onvicted for receivi ng stolen property, drug abuse, a nd carrying a conceal ed weapon. In 1992, he was convicted for drug abuse and carry ing a concealed weapon. I n 1993, he was convicted for drug abuse and possession of dru g paraphernalia.

Now thirty-thr

ee years of age, the defendant is s ingle and is the father of a daughter who is in the custody of her mother. At the time of sentencing, he provided no suppo rt. The de fendan t has a spo radic work re cord, no m ilitary his tory, and no income or other resourc es. On September 26, 1995, the defendant w as convicted of simple possess ion of a Schedule VI controlled s ubstance and sentenced to eleven months and twenty-nine days. He was on probational release for that offense at the time of this offense.

When one or more statutory criteria i s present, the imposition of consecutive sentences is within the discreti on of the trial court. State v. Taylor, 739 S.W.2d at 228. Even though the defendant was on pr obation for a misdemeanor offense, the plain language of the statute authorizes a consecuti ve sentence. Wendell King, Jr., v. State , No. 01C01-9310-CR-00366 ( Tenn. Crim. App., at Nashville, Aug. 4, app. denied , (Tenn., Oct. 31, 1994). In our view, the aggr

egate length of the sentences was warranted.8 Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Jerry L. Smith, Judge