# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 03-C-01-9509-CC-0 0272 ) ) Morgan County v. ) ) E. Eugene Eblen , Judge ) ) (Sentencing) BENNY SLUDER, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Walter B. Johnson, II John Knox Walkup Assistant Public Defender Attorney General & Repor ter P.O. Box 334 500 Charlotte Avenue Harriman, TN 37748-0334 Nashville, TN 37243-0497 OF COUNSEL: Eugene J. Honea Assistant Attorney Gener al Joe H. Walker 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 P.O. Box 334 Harriman, TN 37748-0334 Charles E . Hawk District Attorney General P.O. Box 703 Kingston, TN 37763-0703 Frank A. Harvey Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED:____________________________
AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

This court previousl y rendered an opinion in this case. The opinion was filed in Knoxville on February 12, 1997. The appellant, Benny Sluder (defendant), filed a Rule 11, Ten ne ssee Rules of Appellate Procedure, application for permission to appeal in the
s upreme court . The application was g ranted and the cause remanded to this court with instructions

to consider whether the trial court properly ordered the defendant to serve his sentence consecutively to the sentence he was serv ing when he committed the offense. After a thorough examination of the r ecord, the briefs of

the parties, and the law governing the issue presented for review, it is the opinion of this court that the judgment of the trial court should be affirmed. The defendant entered a plea of guilty to possessing marijuana while an inmate in
a correctional institution. Tenn. Code Ann. § 39-16-201. When the of fense occurred, the defendant was incarcerated in the Morgan County Reg ional Correctional Facility. O n January 18, 1992, correctional officers found 27.5 grams of marijuana in the defendant’s possession. The trial court sentenced the defendant pursuant to a plea agreement. The parties agreed the defendant was a Range III persistent offender, the sentence to be impos ed was confinement for ten (10) years i n the Department of Correction, and the question of whether the sentence should be served consecutively to the sentence he was serving when he commit ted the offense would be submitted to the t rial court for determination. The court ordered the sentence imposed to be serv ed consecutively to the sentence he was se rving. A ftera d e novo review of this iss ue pursuant to the mandate of Tenn. Code Ann. § 40-35-401(d), this court is of the opinion t he trial court did not abuse its discretion by requiringthe two sentences to be ser ved consecutively . The defendant wastrafficking in marijuanainside theprison. Given these circumstances, this court believes the defendant committed an extremely ser ious offense. In addition, the defendant had been convicted of seven prior felonies. Unfortu nately, the defendant is b eyond the rehabilitativ e stage in view of hi s prior historyof criminal convictions . Confinement in a prison did not

deter the defendant from3

continu ing to enga ge in crimi nal activi ty. This c ourt is of the opinion the defendant qualifies for consecutive sentenci ng bec ause he has a n extensive record o f criminal activity . Tenn. Code Ann. § 40-35- 115(b)(2). Furthermo r e, the facts in this case meet the criteria set forth in State v. Wilkerson , 905 S.W.2d 933 (Te nn. 1995).

_____________

______________________ ________

_ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ DAVID G. HAY ES, JUDGE