### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs D

ecember 13,

2000

STATE OF TEN

NESSEE v. CLA

RENCE DAVI

S
Appeal from the Criminal Court for Davidson County No. 97-C-1933 Cheryl Blackburn, Judge

No. M2000-00480-CCA-R3-CD - Filed May 1, 2001

The Defendant,

Clarence Da vis, was convicted by a jury of pre meditated first degree murder and sent enced to a term of lif e imprison ment. On di rect appeal, this Cour t reduced th e Defendant's conviction to second degree murder and remanded the case for r e -sentencing. State v. Clarence Davis , No. 01C01-9811-CR-00451, 1999 WL 737873, at *1, Davidson County (Tenn. Crim. App., Nashville, September 22, 1999). After a sentencing hearing, the Defendan t was sentenced to the
m aximum term of twenty -five yea rs. The trial cour

t further order

ed the Defendan

t to serve this sentence consecutively

to a previously

imposed sentence

in a case wherein Defen

dant’s sentence

to community

corrections had been

revoked. The Defendant now appeals contending: 1) the trial court erred in imposing the maximu m sentence for se

cond degree mu

rder and 2) the tr

ial court erred

in ordering his sentence to run consecutively to a previously imposed sentence in an unrelated case. After a review of the record and applicable law, we affirm the length of the sentence and the order of c onsecutiv e sentencing, b ut remand for a de

termination of the

amount of pretria

l jail credit to which the Defendant is entitled. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed; Case Remanded for

a Determinati

on of Pretrial Jai

l Credit

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.
Karl Dean, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); Ralph W. Newman, As sistant Public Defe nder (at trial),

for the appellan

t, Clarence Davi

s
Paul G

. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General ; and Grad y Moore, Assistant District Attorney General, for the appellant, State of Tennessee.

OPINION2

In 1997, a Davidson Co unty jury convicted the De

fendant of preme

ditated fir st degree murder. Based up on the jur y’s verd ict, D efend ant wa s sent enced to li fe imp rison ment. In Defendant's first appeal, he challenged the sufficiency of the e vide nce supporting his first degree murder conviction. Defendant specifically argued that preme ditation had not been proven beyond
a reasonable doubt. In the direct appeal of Defendant’s conviction, this co

urt summarized the f

acts as follows:

In May of 1997, the appellant and his wife lived with the app ellant's mother-in-law, Corrine Bell, in Nashville. The backyard of the Bell residence joined the backyard

of Benjamin

Kirk. No fences or other barriers separated the y ards. On Memorial Day after

noon, May 26,

the appell ant and Ben Kirk visited with one another while relaxing in their backyards. During a portion of the afte rnoon, the appellant was pr

eparing to gr

ill for members of

his wife's family

that were arriving at the Bell residen

ce. After 5 p.m.,

the appell an t and Kirk we re joined by Kir k's friendJame s Bass. Both Ba ss and Kirk were p

rofessors at Ten

nessee State Uni vers ity.

Over the next “two and a half to three hour period of time” the appellan t traveled “back and forth” between his yard and Kirk’s y ard. During this period, Kirk, Bass, and the appellan

t routinely e

ngaged in conversation and thedrinking of Kirk’s Crown Royal whiskey. The appellant’s niece s who had arrived earlier for the barbequeventuredinto Kirk’s backyard to play with the appe llant's Rottweiler

dog that was running loose in Kirk’s yard. One of the nieces, approximately four years old, approached the three men at the table. Kirk placed the child on his knee

while preparing her

a hotdog. Bass o

bserved nothing

inappropriate

about Kirk’s behavior with the child.

Th ereafter , Kirk invited his wife to join the men outside. Kirk and the appellant continued to drink

Crown Royal. Abruptly, the appellant stood and beg an dancing to the music with a gun in his hand “swinging it from side to side” After a few minutes, the appellant stopped dancing and placed the gun inside the waistband of his pants. Bass testified that he witnessed no argument or hostility between Kirk andthe appellant. Feeling uncomfortable, however, in his pres ent surroundings, Bass left the Kirk’s [sic

] residence arou

nd 8:40 p.m.

Brenda Kirk, the wife of thevictim, testified that she remained inside for the majority of the time the three men were outside. However, that evening, Mrs. Kirk observed the appellant dancing in front of Mr. Bass but she did not notice a gun in the appellant’s hand. Finding his behavior odd, she returned indoors and went to bed around9 p.m. Sometime

after 11 p.m., he

r neighbor, Ms.

Bell, telephoned to inform her that something had happened to her husband. Mrs. Kirk, having awakened her daughter, ran downstairs and found her husband lying on the patio. Soon thereafter,3

the paramedics and the police arrived to find the victim deceased.

De tective Clifford Mann with M etro Police arriv

ed at the crime

scen e between 11:30 p.m.

and midnight. He assisted with the interviews of Ms. Bell and Mrs. Kirk. Th e crim e scene revealed three spent .380 shell casings. No one witnessedthe shooting, nor was any weapon ever discovered. After the shooting, the appellant unchained his dog, told his wife and mother-in-law what he had done, and walkedsix miles into downtown Nashville. Several days later, on June 3, 1997, the appellant was taken in

to cus tody. Follow

ing the appellan

t’s waiver of his constitutional rights, he provided the police with a detailed sta tement admitting h

is shooting of the victim. The appellant’s recorded statement, which was a crucial part of the State’s proof, was introduced into evidence at trial. Excerpts of the statement relevant to the iss

ue of premeditat

ion are as follows : [Kirk] hadbeen knowing me for eight years and it ain't like I'm no pe rfect stranger to him . . . [W]e were best buddies.

. . . So we was over there . . . an d then he gr abbed my little nieces, you know, he was cuddling them, you know, and I was sitting there watching him and then Coach Bass
was just smiling at him as he was fondling them . .

. And then I told them to go on back over there on their side of the yard and do what they gonna do, y ou know, play on over there . . . Kirk

persuaded

me and the Coach and kids to come on back over there again. . . . And he sat (name inaudible) on his knee fi rst and then he started fondling her . . . I sent them on back over there and we just kept on listening to music anddrinking a nd things . Then . . . everybody left . . . and me and him [Kirk] and Coach Bass was just sittin g there and I

got totalking to Kirk

about, you know, what he had been doing. . . . Coach Bass . . . [left] at that particular time.

. . . I figu red I was the re yo u know and it was my responsibility . . . to do something about it. . . . I didn’t have no intention of do ing nothi ng physica lly to him, I

just wanted. . . [to] communicate with him. Let him know how I feel so he can correc t himself.

. . . He got up--he stan

d up and I stand

up--you kno

w . . . we got in an h

eated argume

nt. He told me, what you talking about nigger.So he stood up and I stood up you know andthen that’s when Bass walked toward the door talking to his [Kirk’s] wife.... He pushed me cause I’ m trying to relate to him you know and he get hostile with me you4

know . . . I was trying

to communicate wit

h him. You know--I w

as trying t o tell him what he was doing--trying to make him see what he wa s doing.

. . . I keep my weapon on me. . . . Q: (Detective) And you had it on your s ide--while you was barbequing--when he aske d yo u to co me ove r the re? A: (Defendant) Yes, . . . I had come from the other side of town--on fortieth--and I just you know had it and hadn’t put it away.

. . . Q: (Detective) Now Clarence, why didn’t y ou, w hen y ou saw it was getting out of hand, andhe had done something to offend you, why didn’tyou leave and go to your house and call th

e poli ce an d rep ort hi m? A: (Defendan t) I don’t kno w. I just wasn ’t thinki ng.
Dr. BruceLevy, the medical examiner for Davidson County, testified that the victim exhibited two gunshot wound s, one to the right side of his face fracturing the bones of the skull and the other to his abdome

n piercing his ao

rta, intesti

n es, and backbone. The doctor testi fi ed that both wounds were potentially fatal. He stated that the gunshot wound to the abdomen was fired in contact range, i.e., where the

gun is in actual contact with the body when fired. The doctor determined the cause o f death to be hemorrhaging

from the gunshot wound to theabdomen. Th e toxicol ogy report revealed that th

e victim’s blood/al

cohol content was

.13 grams. From

this report, the doctor opined

that the victim had c

onsumed about a doz en “one-and-a -half
oun ce” s hot s of whi ske y.
State v. Clarence

Davis , 1999 WL 737873, at *1.

On appeal, this Court determined that while the evidence was insuffici ent to support a conviction for premeditate d first degree murde

r, the evidence

was sufficient to

support a conviction of second de gree murder. A s a result, the case was r emanded to t he trial cou rt for re-sen tencing.

The proof at the sentencing hearing consisted of the original trial record , the pr e-sentence report, two community corrections violation wa rran ts, and the indictments which led to the Defendant’s convictions for assault and aggravated assau lt and his placeme nt in community corrections.Based upon the evidence at the hearing and the facts presented

at trial, the trial court sentenced the Defendant, as a 100 % violent offender, to twenty -five (25) years for second degree5

murder. The second degree murder sentence was ordered to be served consecutively to Defenda nt’s prior sentences for th

e assault a nd aggravated assault convictions. The Defendant had been sentenced to concurrent terms for an effective sentence of four years on the aggravated assa ult and assault convictio

ns.
ANALYSIS

The Defendant conte

nds that the trial c

ourt erred i n imposing the maximum sentence, because the trial court misa

pplied one statutor

y enhance ment factor and f

ailed to apply

one statutory mitigating factor. The Defendant also argues that the trial court erred in orderi

ng him to serve the sentence for second degree murder consecutively to a previous sentence.

When a defendant challenges the length, range or manner of se rvice of a sentence, the reviewing court must conduct a de novo review on the r ec ord with a presumption that the determinations made by the trial court were correct. Tenn. Code Ann. § 40-35-401(d). We condition the presumption of correctness “up on t he affirmative showing in the record that the trial court considered

the sentencing

principles and al

l relevant facts

and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “[T]he trial court must place on the record its reasons for arriving at t he final sentencing decision, identify the mitigating and enha ncement factors found, state t h e specific facts supporting each enhancement factor found, and articul ate ho w the mitigating and enhancement

factors have been evaluated and balanced in determining the sentence.” State v. Jones , 883 S.W.2d 597, 599-600 (Tenn. 1994). The burden of showing that a sentence is improper is on the appealing par

ty. Tenn. Co

de Ann. § 40-35 -401( d) (se ntenc ing co mmis sion c ommen ts). In reviewing the record, this court must consider (a) the evidence at the trial and the sent encing heari ng, (b) the presentence report, (c) the principles of sentencing, (d) the arg umen ts of counsel, (e) the nature and characteristics of the offenses, and (f) the appellant's potential for re habilitation. See Tenn. Code Ann. § 40

-35-210; see also

Tenn. Code Ann. § 40-35-102 & 103.

The sentence range for a Range I of fender convicted of a Class A felony is between fifteen andtwenty-five years. Te nn. Code Ann. § 40-35-112(a)(1) (1997). Tennessee Code Ann o tated section 40-35-210(c) (1997) sets the presumptive sentence for a Class A felony at the midpointof the range (here

20 years),

if there are no e

nhancement or mit

igati ng factors. Where one or more enhancement

factors apply

but no mit

igating factors exist, the trial court may sentence above the presumptive sentence but still w ithinthe range. Id. § 40-35-210(d). Where both enhancement and mitigating fac

tors apply to

a Class A

fel ony, the trial court must start at the midpoint of the range, enhancethe sentence with in the range as

appropriate to th

e enhan cement factors, and then reduce the sentence within the ran ge as appropriate to the mitigating factors. Id. § 40-35-210(e). The weight afforded an en

hancement or mitig

ating factor is

left tothe discretion of

the trial court so

long as the trial court complies with the purposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported by the record. State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

The trial court found the following five statutory enhancing fac tors app licable to the6

Defendant’s conviction:
(1) The defendant ha

s a previous h

isto ry of crimin

al convictions or c

riminal behavior i

n addition to those necessary to establish the appropriate range; (8) The defendant has a previous history of unwillingness

to comply with the conditions of
a sen ten ce i nvo lvi ng re lea se i n th e com mun ity; (9) The defendant

possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense; (11) The fel ony resulted in death or bodily injury or inv

olved the threat o

f death or bodily injury to another person and the defendant has previously been convicted of a f elo ny t hat resulted in death or bodily injury; and
(13)(E) The fel ony was c ommitted while on any of the following forms of release if such release is from a prior felony : [a]ny other ty pe of release

status into the community under the direct or indirect supervision of the dep art men t of corr ect ion or l ocal gove rnm ent aut hor ity.

Te nn. Code Ann. § 40-35- 114 (1997). Additio nally, the tr

ial court found tha

t there were n o mitigating factors applicable to the Defendant’s case. On appeal , Defendant challenges the trial court’s application of en

hancing facto

r (8), as well

as the trial court’s rejection of mitigating factor (11) in Tenn. Code Ann. § 40-35-113.
First, the Defendant asserts that the trial court improperly relied upon statutory enhancement factor (8), that Defen

dant “has a

previous history of unwillingness to comply with the conditions of
a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8) ( 1997 ). We conclude that the record supports the application of factor (8). The record ref lects that violation warrants were sworn out against the Defendant f or violations of the

conditions of his co

mmunity corrections sentence imposed for the assault and aggravated assault convictions. The first warrant was on August 17,

1995, for the follo

wing violations:
1) Testing positive for alcohol on August 10, 1995. 2) Failing to secure and maintain full-time employment 3) Failing to make full and truthful reports to his case of fi cer and lyi

ng to Supervision Coordinator about an appointment with his case officer 4) Failing to attend an appoin tment with

his case officer on August 8, 1995, and failing to reschedule.

A secondwa rrant was sworn a gainst the Defe

ndant on Decembe

r 8, 1995 for testin

g positive to cocaine on November 29, 1995. Thus, although the violation warran

ts were not dispose

d of until after Defendant was arrested for first degree murde r, it is apparent that his community corrections
was revoked because of

the above violations, and not because of the murder charges in the present7

case. The trial court appropriately applied enhance ment factor (8) to Defendant’s case.
Next, the defendant asserts that the trial court should have lowered his sentence based upon Tenn. Code Ann. § 40-35-113(11), which provides for mitigation wher e “the defenda nt, althou gh guilty of a crime, committed

the offense

under such unusua

l circumstances t

hat it is unlikely

that a sustained intent to violate the law motivated the defendant's cond uct.” Initial ly, we note that the “intent”element in mitigating factor (11) specifically addre sses the defendant’s intent which motivated the conduct leading to the offense for which the defendant is being sentenced. Moreover,
we fin d th at t he D efen dan t ha s fa ile d to pres ent any evidenc e of “unusual circumstances,” which would warrant application of this mitigating factor.

The record shows that the Defendant exhibited an intent to engage in a potentiall y hostile confrontation with the victim concerning the victim’s alleged fondling of Defendant’s niece. The Defendant

was armed and had been

brandishing his weapon. Following the shooting, Defendant left the scen e, an d wa s ap preh end ed ei ght d ays later. More importantly, the medical examiner testified that the Defendant shot thevictim twice. One s hot was to the right side of the victim’s face and was potentially

fatal. A second shot was to the victim’s abdomen, with the gun ac tu ally touching the victim’s abdomen, and it proved to be fatal. The trial court found that these facts were sufficient to rejec tthe application of factor (11). The Defendant has failed to overcome the presumption o f correctness

afforded the trial court’s findings of fact, and was not entitled to any mitigation of his sentence based on this factor.

Fin all y, the Defendant a

rgues that t

he trial court

erred in orderi

ng that the sente

nce in this case be served consecutively to a sentence in an unr elated case. We disagree.

The Defendant

asserts that he received a more severe sentence when he was re sentenced, since the trial court spe

cifically d eclined to order consecutive sentences after his or igina l tria l. In support of his argument, the Defendant relies on North Carolina v. Pearce , 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). In Pe arce , the United States Supreme Court held that a harsher sentence after a new tria

l raises a presumption of “judicial vindictiveness,” which may be overcome by an affirmative showing on the record of the reasons for the harsher sentence. 395 U.S. at 725-26, 89 S. Ct. at 2080-81. I

n subsequent case

s, the Court clarified that

the presumption of

vindictiveness announced

in Pearce , “does not apply in every ca

se where a convicted defendant receives a higher sentence onretrial.” See Alabama v. Smith, 490 U.S. 794, 797, 109 S. Ct. 2201, 2204, 104 L. Ed. 2d 865 (1989) (quoting Texas v. Mc Cullough , 475 U.S. 134, 138, 106 S. Ct. 976, 979, 89 L. Ed. 2d 104 (1986). The Supre

me Court limited the application of Pearce to circumstances, “in which there is a ‘reasonable likelihood’ that the increase is the product of actual vindictiveness on the part of the
s entencing authority. Where there is no such reasonable likelihood, the burden remains upon th e defendant to prove actual vindictiveness.” Alabama v. Smith , 490 U.S. at 801, 109 S. Ct. at 2205 (citing Wasman v. United States , 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984)).

The Defendant also relies upon State v. James M. Coggins , No. 01 C01-9503-C R-00076, 1995 WL 649954, at *1, Davidson County (Tenn. Crim. App., Nashville, Nov. 2, 1995) for s upport.8

The defendant in Coggins was original ly sentenced to “20 years as a range one offender for count one; to 20 years a

s a range one offender for count three;to 35 years as a range two offender f or count four ; and to 50 years as a range three off ender for count five.” Id. In his original sen tence , Coggins’sentence

fo r count three was a concurrent sentence to count one, while his sentences for counts four and five were to run consecutively. Cogg ins received an effective sentence of 105 years and appealed his case to this Court. See State v. Coggins , C.C.A. No. 01C01-931 0-CR -0036 0 (Tenn. Crim. App., at Nashville, July 28, 1994).

In Coggins’ first appeal, this Court modified the attempted first degree murder convictions to convictions for attempted second degree murder. This Court further held that the trial court should have sentenced

Coggins as a Ran

ge I offen der, but upheld

the consecutive sentences imposed upon the defendant in c

ounts four and five. 1995 WL 649954 a t *1. The case wa

s re manded for resentenci ng. At the resentencing hearing, the trial court considered no additional evidence beyond that previously considered. Id. Coggins was sentenced to 20 years for count one and to nine years eachfor counts three, four and five. Additionally, Coggins was ordered to serve all of his sentences
con secu tiv ely. The effective sentence ordered at the resentencinghearing was 47 years. Id. Again, Coggins appealed his sentencing to this Court, and we held that the failure of the trial court to di sclo se, on the record, its reasons for incr

easing the def

endant’s punishme

nt from concurre

nt to con secutive sentencing, did not overcome the presumption of vindictiveness discussed in Pearc e
. Id. at * 2. Thus, we concluded that theadditional consecutive sentencing imposed at Coggins’ resentencing hearing was improper.

We find that

the case sub judice is distinguishable from Coggins and is not controlled by the holding in Pearce . Rather, we find t hat Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure andthe holding of Statev. Leach , 914 S.W.2d 104 (Tenn. Crim. App. 1995) control the outcome of this case. Rule 32(

c)(2) states as f

ollows:
Sentence When Defendant Has Prior Sentence Not Fully Served .--If the defendant has additional sentences not yet fully serve d as the result of convictions in the same c ourt or in other courts of this state and if this fact is made known to the court prior to sentencing, th

e court shall rec

ite this in the judgment setting sentence, and the sentenceimposed shall be deemed to be concurrent with the prior sentence
or sentences, unless it affirmatively appears that the new sentence beingimposed is to be served consecutively with the prior sentence or sentence s . The j udgment to make the sent ences consec utive or con current sha ll expli citly recite th e judge's
reasons therefor, and is reviewable on appeal. Should prior unserv ed in-state sentences not be calle

d to the attention of the trial judge by or on behalf of the defendant at the time of sentencing, and s et out in the judgment setting the new sentence, the new sentence shall be deemed to be consecutiveto any such undisclosed prior unserved sentence or sentences ; and t his rule shall also apply when the defendant is convicted of a misdemeanor while on parole from a prior sentence, and the parole is subsequently revoked. If the def endant has additional sentences or portions thereof to serve

, as the result of c

onviction in

other states or

in federal cour

t,9

the sentence imposed shall beconsecutive ther eto unless the cour

t shall determine in the exercise of its discretion that good cause exists

to run the sentence

s concurrently and explicitly so orders. (emphasis added)

In Leach , proceedings were initiated against the defenda nt fo r the revocation of probation ordered in two unrelated cases. At the d efendant’s probation revocation hearing, the trial judge found t hat the defendant had violated the terms of the probation he was ordered to serve in two unrelated convictions from Se

ptember 1992 and A

pril 1993. The trial judge determined that, when the defendant was given his April 1993 sentence, the defendant had failed to discl os e to the trial judge his prior Sept ember 1992 s entence. Th e trial jud ge, at the pro bation revo cation hear ing, found that the defendant’s

April1993 sentence was statutorily deemed to be consecutive to his unserved September199 2 sentence, due to the defendant’s failure to disclose this unserved sentence. See Tenn. R. Crim. P. 32(c)(2) . On appeal, this Court further observed that the record and the judgment setting the defendant’s April 1993 sentence also failed to mention the defendant’s September 1992 unserved sentence. Therefore, we affirmed the trial court’s order of conse cutive sentenci ng, pursuan t to Rule 32(c)(2).

Sim ila rly, at the time Defendant Davis was sentenced to life imprisonment followi ng hi s conviction for first degree murder, Defendant failed to di sclose his prior unserved sentence for assault and aggravated assault. The record reflects that, immediately upon rece i ving the jury’s verdict of guilty of

first degree m

urder, the trial c

ourt determined th

at the Defendan

t’s automat ic sentence was life imprisonme nt. The record also

indicates that the previous judgment for first degree murder did not mention Defendant’s unserved sentences for aggravated assault and a ssault. Under Rule 32(c)(2) and Leach , the Defendant’s failure to disclose his prior unserved sentence made his sentence for first degree murder consecutive to his prior sentences for assault andaggravated

assault. Thus, we find, contrar

y to the Def

endant’s argu

ment, that his orig

inal se nt ence was a consecutive sentence by law, and that the presumption of vindictiveness in Pearce does not apply.

We also note that the trial court’s grounds for ordering consecutive sentencing were proper. A trial court ha s the discretion to order consecutive sentencing if it finds that one or more of the required statutory criteria in Tenn. Code Ann. 40-35-115(b) exist. State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The trial court found that the Defenda

nt was an offende

r whose record of criminal activity

is extensive. Tenn. Co

de Ann. § 40-35-11 5(b)(2) (1997). The record suppo

rts the trial court’s finding that the Defendant had an extensive criminal background. He was 40 years oldwhen he committed t

he second degr

ee murder in

1997. His first conviction was for kidnapping in 1977 in California at age 21, and he received a sentence of seven y ears. Apparently, whil e on paro le in 1982, he received drug-related convictions in California. He was convicted o f misdemeanor

assault in Tennessee in 1990, and was placed on judicial diversion. In 1995, he was convictedin Tennessee for one count of aggravated assault and one count of misdemeanor

assault. In a span of twenty years, the Defendant has received convictionsfor at least threefelonies and four misdemeanors.

Th e trial court further found that the Defendant was a dangerous offender w hose behavior10

indicatedlittle orno regard for human life and no h

esitation about co

mmitting a crime

in which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4). However, when a trial court uses this factor, it must also deci de whethe r consecutive se ntences (1) rea

sonably rel

ate to the severi

ty of the offenses com

mitted; (2) se

rve to prot ect the public from further criminal conduct by the offender; and (3) are con gruent with ge

neral principle

s o f sentencing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The transcript of the re-sentencing hearing indicates that the trial court found that the facts of t

his case satisfied the elements in Wilkerson . The trial court did not err in orderin g consecutiv e sentencin g.
Fin all y, we note that, while the original judgment for first degree murder did not mention the Defendant’s prior sentences , it did give the De fendant jail cre

dit on the murder conviction extending from June 3, 199 7 to September 15, 1998. However, the judgment for the second degree murder conviction did not reflect the amount of jail credit, if any, to which the Defendant

is entitled. As we have discussed, pu rsuant to Rule 32(c)(2), Defendant’s sentence for first degree murde r had to be served consecutively to his sent ence for aggravated assault and assault. The record on appeal indicates that while the Defendant was awaiting trial fo r the homi cide, he was serving out the sentence for his assault an

d aggravate

d assault convicti

ons, for which his

community corrections had been revoked. At the re-sentencing hearing, the following colloquy occurred:

General Moore: Judge, if I could just clarify before I make any argu ment, my view of this is that there are two issues to beargued. One is the sentence to

be received in this case, and secondly, whether that should be consecutive or concurrent to the case, Number 95-B-754, on which he was serving a Community corrections sentence at the t

ime of his arrest.

Am I correc

t in that? The Court: Whatis the status of tha t sent ence ? It looks like it w

as, [sic] probation was sustained, [sic] placed into effect on 6/6 of ‘97. It was a four-year sentence, and he had 355 day

s of jail credit. Mr. Newma

n [Defens e Counsel] : Yes, Your Honor. M r. Davis advises me he

has served that se

ntence, so that is c

orrect. The Court: Okay, so that has been flattened, [sic] served. Mr. Newman: Did they par ole you, Mr.

Davis, to your new sentence, or what happened? Mr. Davis

[Defenda nt]: No, when [sic] I was doing the time, wh ile they was

[si c] h old ing m e in cus tod y. Mr. Newman: He h as n ever been rel ease d fr om c ust ody. The Court: I know that, but what I’m saying is you

had to meet the Parole Board at some poi

nt; did you not? Mr. Davis: Yeah, they told me to bring it on to

the Board, y ou know. They denied my parole base d on the nature of my -- The Court: Okay. How lo ng ago was tha

t? Mr. Davis: About two years ago. The Court: Was that before you were convicted?11

Mr. Davis: Yes, ma’am. The Court: Oka y, s o they denied it. D o you have any idea whe n you flattenedyour sentence or have y our flattened you sentence? Mr. Davis: November of last year. The Court: November of ‘99. Mr. Davis: Yes, ma’am. The Court: Oka y.
From the record, it is clear t

hat the Defend ant could not receive jail credit for the murder charge, if he was still

serving his four-year sentence for a ssault and aggravated

assault. This Court has held that Tennessee Code A nno tated section 40- 23-101(c) only

provides for cre

dit against a sentence if the reason for the incarceration arises from the offense for which the sente nce was imposed. See Abernathy , 649 S.W.2d 285, 286 (Tenn. Crim. Ap p. 1983); Trigg v. State , 523 S.W.2d 375, 376 (Tenn. Cr im. App. 1975). Acc ordingly, a defendant ca

nnot receive jai

l credit agains

t a sentence, while he is serving out the terms of a previously imposed sentenc e. In the present case, the Defendant would not have been entitled to receive jail credit until after

he had completely served his four-year sentence for assault and ag gravated assault. We therefore, r emand this case to

the trial court for a determination of the amount of jail credit to which the Defendant is entitled.
CONCLUSION

For the foregoing reasons, we affirm the twenty -five year sentence and the conse cutive sentencing imposed by the trial court. The case is remanded to the trial court fo r the purpose of allowing it to determine the jail credit to which the Defendant is entitled.

___________________________________ THOMAS T. WOODALL, JUDGE