### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 14 , 2002 Ses sion
STATE OF TENNESSEE v. DANIEL J AMES COSGROVE
Appeal from the Circuit Court for Bedford County No. 14878 William Charles Lee, Judge

No. M2001-02127-CCA-R3-CD - F iled November 15, 2002

The defendant, Daniel James Cosgrove, pled guilty in the Bedford County

Circuit Court to nineteen felonies and thirty -one misdemeanors. The trial court sentenced him to an ef fective sentence of twen ty -one ye ars and e

leven mon

ths, twent y- nine day s in confi nement to be serve d consec

utively to another sentence for which his probation was revoked. The defendant appeals, claiming that the trial court failed to apply

and weigh mitigating factor s properly and imprope rly ordered consecutive sentenc ing. We a

ffirm the judgmen ts of the tr

ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delive red the op inion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Me rr il yn Feirma

n, Nashvi ll e, Tenness ee (on a ppeal); Donna L

eigh Ha rgrove , Distric t Public Defender; and Andr

ew Jackso n Dearing, I II , Assi stant District Public Defender (at trial), for the appellant, Daniel James Cosgrove.

Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William Mic hae l McCowan , Distric t Attorne y General ; and Mich ael David Randles , Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION

This case relates to a series of offenses that the defendant committed from January to March 2001. At the guilty plea

hearing, the state presented the following factual account of

the crime s: In count 1, the defendant was charged with theft of property valued less than $500 after he was found in possession of property that ha d been taken fr

om a victim’s home. In counts 2 and 3, the defenda nt burglarized

a business and took property that was valued

at more than $10,000. During a pat down of the defe ndant, he was f

ound to ha

ve ten Dil audid tab lets and a syr inge on his perso n, giving

rise to charges of possession of a Schedule I I controlled substance

and drug paraphe rnalia in counts 4 and 5. In counts 6 and 7, the defendan t was charged with forg ing and passing a personal check that-2-

belonged to Debra Caldwell and for ging and cashing a man’s pay roll check. In count 8, the defendant was at a c ar wash

and took a

man’s walle t that conta ined o ver $6 00, re sult ing in a charge of theft ove r $500. I n counts 9, 10, and 11 , the def endant, who pretended to be a police officer, drove up to two Hispanic men, pointed a gun at them, and robbed one of them. For that conduct, he
was charged with the agg

ravated robbery

of one man, the aggrava

ted assault of the second man, and impersonation of a police officer. I n counts 12 and 13, the defendant broke into a man’s house at two different times in one day and took more than 500 video tapes an d a VCR, wh ich resulted in charges for theft of property valued over $1,000 but

less than $10,000 and theft of property valued less than $500. Counts 14 thr ough 1 8 resu lted f rom th e defen dant’ s lead ing th e poli ce on a h igh speedchase in Bedford

Co un ty. During the chase, the defenda nt’s wife and two young

children were in the car with him, and he wa s char ged with three counts of felony reckless endangerment, one count of evading arrest, and one c ount of failing to yie ld to an emerg en cy v ehicle. In counts 19 throu gh 24, the defendant forged and cashed

checks that were drawn on the ac count of Richard and Sally Ca st ee l. Fi na ll y, the defendant was charged with 26 counts of passing worthles s checkson his personal checking account whe n the account was closed or contained insufficient funds.

At the sentencing hearing, the the n twenty-three -year

-old defendant

testi fied that he was married and had a

four-y ear-ol d daughter and a three-y ear-old son. He said he becam e addict ed to Dilaudid and committed the c

rimes in qu estion in o

rder to buy D ilaudid

pills. He said that

he did not intend

to hurt or scare anyone but that Dilaudid h ad taken

control o f his life

and that h

e would lie, cheat, or

steal to get it. He said that he was injecting Dilaudid eig ht to ten times per day and tha t every couple of day s, he needed three hundred dollars to buy the dr ug. He said that his addiction had cost him his family, car, and home

. The defendant testified that in 1998, he donat ed a kidney to his fa ther and that before becoming addicte d to Dilaud id, he wor

ked in re stauran

ts, a fra mi ng busin ess, landscaping, and a sawmil l. He said that he did not need to spend the rest of his life in prison but that he nee de d rehabilitation. He said that since he hadbeen in jail, he had not taken any drugs and felt better. He said that he needed someone to teach h im ho w to say no and that he thoug ht in-patient treatment would hel p him. He sa

id he was sorry

for sca ring hisvictims.

On cross-e

xamination, th e de fendant acknowledged having prior convictions for misdemeanor

theft and aggravated bur

glary . He also acknowledged that he wa s on probation for the aggravated

burglary conviction when he committed the crimes in question. He said that during the time he was committing the current crimes, he was arrested and rele ased on bond twice. He said that each time he was released on bond, he c ommitted more crimes. He said he used all the money he could get from his crimes to buy drugs. Barry Cosgrove, the defendant’s father , testified that since the defendant had been in ja il, the defendant had changed. He said that the defendant needed to go throug h more changes but that he believedthe defendant when the defenda nt said he was willin g to ge

t treatme nt for his addiction and turn his life around. He said that helived in Wisconsin and that he was willing to help his son. He said that he wante d the trial court to consider the defendant’s ag e and addiction in sentencing the-3-

defenda nt. On cross-examination, Mr. Cosgrove acknowledged tha tthe defendant did a good job of hi di ng th e a dd ic ti on fr om hi s f am il y.
The state introduced into evidencethe defendant’s presentence re port, which shows that the defendant dropped out of hig

h school in

the elev enth

grade. According

to the report, the defendant didnot obtain his GED but attended a technical college. The defendant reported being in g ood physical and mental health and acknowledged smoking marijuana for several y

ears be forehe beca

me addictedto Dilaudi d. The re port show s that the d

efenda nt has nev er gott

e n t reatmen

t for his addiction. The report also reveals that the defenda nt was co nvicted o f theft of propert y valued le ss than $500 in 199 7 and ag grava ted burg lary

in 1998 and that

he was on probation for the agg ravated burgla ry when he c ommitted the curre nt offen ses.
The tr ial co urt se ntenc ed the defend ant as a Range I, s tanda rd offe nder t o the f ollo wing:

Count Offense Offense Classification Sentence

1 Theft of property

valued less than $500 Class A misdemeanor 11 months, 29 days at 75%
2 Burglary Class D felony 3 years

3 Theft of property

valued more than $10,000 but less than $60,000 Class C felony 5 years

4 Possession of a Schedule II drug with inten

t to resel l Class C felony 5 years

5 Possession

of drug paraphe rnalia Class A misdemeanor 11 months, 29 days at 75%
6 & 7 Forgery

less than $500 Class E felony 2 years f or each count
8 Theft of property

valued more than $500 but less than $1,000 Class C felony 2 years

9 Aggravated robbe

ry Class B felony 10 years
10 Aggr

avated a ssault Class C felony 5 years, 3 months
11 Criminal impersonation Class B misdemeanor 6 months at 75%
12 Theft of property

valued more than $1,000 but less than $10,000 Class D felony 3 years-4-

13 Theft of property

valued less than $500 Class A misdemeanor 11 months, 29 days at 75%
14 - 16 Felony reckless endangerment Class E felony 2 years f or each count
17 Evading

arrest Class D felony 4 years
18 Failing to y

ield to an emergency vehicle Class C misdemeanor 30 days at 75%

19- 24 Forgery Class E felony 2 years f or each count
25 - 50 Passing a

worthles s check l ess than $500 Class A misdemeanor 11 months, 29 days at 75% for each count

The trial court ordered that the defendant’s misdemea nor sentences (counts 1, 5, 11, 13, 18, and 25 throug

h 50) run c oncurre

ntly for an effectiv e sentence of el even mont hs, twenty

-nine da ys. The defendant’s forgery

sentences (counts 6 , 7, and 19 throug h 24) and sentenc e for the

ft of pro perty valued mo re than $500 but less than $1,000 (count 8) were to run concur rently for a

n effective sentence of two year s. The de fe ndant’s sentences for agg ravated robbery

(count 9); aggravate d assault (count 10); burglary

(count 2); theft of property valued more than$10,000 bu t less than $60,000 (count 3); and theft of property valued more than $1,000 but less than $10,000 (count 12),
were to run concurrently for an effectiv e sentence of te n ye ars. His s entence s for re ckle s s endangerment

(counts 14 through 16) and evading arrest (count 17) wer e to run concurrently

for an effectivesentence of

four y ears. A ll of these effec tive sente

nces we re to run consecu tively to each other and to the defendant’s five-y ear sentence for possession of a Schedule I I controlled substance withintent to resell (count 4) for a total of twenty -one y ears an d eleven

months, tw en ty- ni ne da ys in confinement. Finally , the trial court revoked the defendant’s proba tion that he had been serving for his pr ior agg ravated burglary conviction and ordered that he serve all of his new se ntences consecu tively to that four-ye ar sentence. The defendant a ppeals, claiming that the trial court failed to apply and weig

h mitigating factors properly and erred by

ordering consecutive sentencing

. Appellat e review o f sentencing is de novo on the record wi th a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comments to this section note, the burden is now on the def endant to show that the sentence is improper. This means that if the trial court followed the statutory sentencing

procedure, made findings of fact that are adequa tely supported in the rec ord, and gave due co nside ration and proper weight to the factors and

principles that

are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb

the sente nce eve n if a different result were prefe rred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which acc ompanies the trial court’s action i s conditioned upon the a

ffirmat ive showing in

the record that the trial court considered the sentenc ing-5-

principle s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review , the trial court must place on the record its reasons for ar riving at the final sentencing decision, identify the mitigating and e nhance ment facto r s found, state the specific facts supporting ea ch enhancement factor found, and a

r ticulate how the mitigating and enhanceme nt factors have been evaluated a nd balanced indetermining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in conducting a de novo review, we must co nsider ( 1) the ev idence, if any, rec eived at the trial and sentencing hearing, ( 2) the presentence report, (3) the pr inciples of senten cing and argume nts as to sentencing alternatives, (4) the nature and characteristic s of the c

riminal c onduct, (5) any mitigating

or statutory enhanc ement factors, (6) any statement that the defendant made on his own beha

lf, and ( 7) the pot

ential fo r rehab ilitation o

r treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d a t 168; State v. Mo ss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B, C, D, or E felon y unless there are enhancement fa ctors present. Tenn. Code Ann. § 40-35-21 0(c). Pr

ocedura lly, the trial

court is to

increase the sentence within the rang e based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating factor s. Tenn. Code Ann. § 40-35-210(d)-(e). The we ight to be afforded an

existing factor is left to the trial court’s discretion so long as it complies with the pur poses and p rinciples of the 1989 Sentencing Act

a nd its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commiss ion Comment s; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169. We note that the law provides no presumptive minimum for misdemeanor sentencing. See , e.g. , State v. Cr

easy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in misdemean o r sente ncing, the trial court must consider the purposes and principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(d).
First, the defe

ndant cla ims th at th e trial c ourt fail ed to appl y a nd give proper w eight to mitigating factor s. Specif ically , he claims that the tr ial cour t erred by r efusing to apply mitigating factor (1), that th e d ef en da nt ’s cr im in al co nd uc t n ei th er ca us ed no r t hr ea te ne d s er io us bo di ly i nj ur y, to his property cr

imes and his aggravated robbe r y and ag grav ated assault convictions. See Tenn. Code Ann. § 40-35-113(1). In addition, the def endant claims that

the trial court er red by failing to find that his drug addiction was a mitigating fa ctor. See Tenn. Code Ann. § 40-35-113(13). Th e state claims that

the trial court properly

applied and weighed mitigating fa ctors. We believe the trial court pr operly sentenc ed the defendant

. At the sentencing hearing, the tria l court applied enhancement factor (1), that the defendant has a previous history of

criminal convictions, to all of his convictions. See Tenn. Code Ann. § 30--6-

35-114( 1). In addi tion, the trial court applied enhancement factor (10) , that the defendant had no hesitation about

committing

a crime w

hen the r isk to human life was high, and factor (16), tha t he committed a crime u

nder cir cumstanc es in which the pote ntial for bodily injury to a victim w as gre at, to all of his sentences except those for his aggra vated robbery

and ag grava

ted assa ult convic tions. See Tenn. Code Ann. § 30-35-114(10), (16). Finally , the trial court applied enhancement factor (13), that the defendant committed the felonies wh i le on prob ation for a prior f

elony , and ga

ve it significant weight. See Tenn. Code Ann. § 30-35-114(13).

The trial cou

rt stated that it did n ot believ e mitiga ting fa cto r (1) c ould apply to the defend ant’s pr operty cr

ime sentences because “where the defendant’s conduct neither caused nor threatened

serious bodily injury

. . . is inherent

in every pr

operty cr ime [or] is included as an element of the offense.” The trial court noted, though, that if the mitigati ng fac tor applied to those c rimes, then the fac tor was w orth ver y lit tle weig ht. As tothe defendant’s claim that his drug addiction was
a mitigating fa ctor , the trial court strongly disagreed, finding that the defe ndant failed to get treatment for his dr

ug addi ction whe

n help was av ailable. After w eighing the appli cable enhancement

and mitigating factors, the trial court sentenc ed the defendant to at leas tthe midpoint in the rang e of punis hment for each fe lony convicti on and the

maxim um punishment for each misdemeanor.

Ini ti al ly, we note that because there is no prohibition aga inst “double mitigation,” the trial court erred b y c oncluding

that it would not appl

y mit igating factor (1) to the defenda nt’s prop erty crime sentences. State v. Stacy Allen Bullar d , No. E199 9-00796- CCA -R3-C D, Brad ley County , slip op. at 17 (Tenn. Crim. App. Mar. 15, 2000), app. denied (Tenn. Sept. 11, 2000). However, the trial court stated that if it were to apply that mitig ating f

actor, it would

give the factor very little wei ght. We do not beli eve that

the trial court’s error a s to miti gating factor (1) would ha ve changed the defendant’s propert

y c rime sent ences in this case. Moreover, we do not believe mitiga ting factor

(1) applies to the defendant’s aggr avated robbery

and aggravated a ssault convictions, be cause t he defendant’s use of a gun threatened serious bodily injury to his victims. We al so believe the trial court properly re

fused to find

that the defendant’s drug addiction was a mitiga ting factor. As noted by the trial court, the defendant committed fifty crimes over an extended period of time without seeking treatment for his drug problem. The defe ndant is not entitled to have hi s drug addiction applied as a mitigating factor and ha s not shown that the lengths of his sentences are improper.
Next, the defendant contends that the trial court erred by ordering him to serve

his effective sentences consecutively. He acknowledges that some

consecu tive sente ncing w as requi

red bec ause he committed some of his felony offe nses while he was on bond. See Tenn. R. Cr im. P. 32(c)( 3)(C) (providing for mandatory

consecutive sentencing when a de fendant commits a felony

while released
on bail for another offense and the defenda nt is convi cted of b oth offe nses). H owever , he clai ms that he should serve the rema

ining se ntencesconcurr

ently because an effective sente nce of twenty -five yearsand elev en months, twenty -nine da ys “in no rea sonably

way rela tes to the s e verity of the offenses committed” and does not reflect the def endant’s “true nature.”-7-

In o rde ring consecutive sentencing, the tr ial court took into account that some of the defendant’s sentenc es for f elony convicti ons had to

be served consecutively to other

sentences under Tenn. R. Crim. P. 32 (c)(3) (C). How ever, th e trial c ourt fail ed to state it s reasons for ordering additiona l consecutive sen

tencing . Never

theless, our de novo review reveals that any consecutive sentencing was appr

opriate in this case

because the defe ndant com

mitted fif ty c rimes, an extensive list, while he was on probation for his 1998 aggr avated burglary

conviction. See Tenn. Code Ann. § 40-35-115(b)(2), (6) (providing for consecutive senten cing if a defendant rec eives mult iple convictions and has a

n extensive

record of crimin al activi

ty a nd is sente

nced for an offe nse committed while on probation). Thus, we conclude that the trial court properly imposed an effective sentence of twenty-one

years, e leven months, twenty-nine day s and that the defendant has failed to demonstrate that he received an excessive sentenc e.
Based upon the foregoing and the record as a whole, we affirm the judgments of the trial court.

__________________________________ JOSEPH M. TIPTON, JUDGE