### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON D ec em be r 6, 200 5 S es sio n

STA TE OF TEN NES SEE v. TER RA NC E WILKIN S and

CHR ISTOP HERHU GHLET T

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty Nos. 00-11193-94 Jose ph B . Dailey, Judge

No. W2003-03085-C CA-R 3-CD - F iled Fe bruary 8, 2006

The de fenda nts, Terrance Wilkins and Christopher Hug hlett, were convicted, r espec tively , of two counts of robbe ry

and two counts of a g g ravated robbe ry . Wil k i n s wa s sentenc ed to conse cutive te rm s o f f ou r y e ars fo r ea c h rob be ry c on vic tio n; andHu g hle tt w a s se nte nc e d to c on se c uti ve te rm s of ele ven y ear s for e ach a g g ravated robbe ry conviction. On appe al, W ilkins arg ues t hat t his court should consider a ll of t he claims raised by his motion for new t rial, even though it wa s untimely ; that the tr ia l c ou rt e rr e d in impo sin g c on se c uti ve se nte nc e s; andthat th e e vid e nc e is i ns uf fi c ie nt t o s us ta in the ve rd ic ts. Hu g hle tt argues on a pp e a l th a t th e te sti mon y

of a c od e fe nd a nt w a s n ot s uf fi c ie ntl y
corr oborate d; that the evidenc e is insuff icient to support his convictions; and that the trial court erre d in se ntencing

. Following our revie w, we aff irm the judgme nts of conviction of both defe ndants but

m o d i f y W i l k i n s ’ s e n t e n c e s t o b e s e r v e d c o n c u rr e n t l y, r a t h e r t h a n c o n s e c u t i v e l y.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed as Modif ied

A L AN E. G L EN N , J
., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and R O BERT W. W EDEMEYER , J J ., joined.

Robert Wils on J ones, Shelby CountyPublic Defe nder; Phy llis Aluko, Assi stant Publi c De fende r (on ap p ea l ); an d Michae l J ohnson, Assistant Publ ic Def ender (at trial) , for the a

ppellant, Ter

ranc e Wil kins. Cha rl e s Wa ldm a n, Me mph is, Te nn e sse e , f or the app e lla nt, Christ op he r H ug hle tt.

Pa ul G

. S u m m e r s , A t t o r n e y G e n e r a l a n d R e p o r t e r ; S e t h P

. K e s t n e r , A s s i s t a n tA t t o r n e y G e n e ra l; Wil liam L . Gibbons, District Attorney Gene ral; and Ray

L epone, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

F AC TS

Offic er Jeffe ry

Turner of the Memphis P o li c eD e p a r tme nt testified that on Dec ember 6, 1998, he re sponded to a robbe ry call, g oing to 988 Mississippi Boule vard, where he wa s flag g ed down by the two victims, Bria n Graham and J ames L ewis. He testified as to w hat the victims told him about the ro bb e ri e s a ndbe a tin g s:

I arrived on Mississ ippi Stree t, and the two victims, they wer e identified a s Brian Graham and James L ewis, flagg ed me down and advised they had bee n robbed. Mr. Graham had a

deep g ash in the t op of hi s head, and it was blee ding dow n the side of his chee k, and Mr. L ewis had a big g oose eg g on the very top of his head – swollen from being struck.

Th e y a dv ise d me that th e y

ha d me t ind ivi du a ls on a g a s statio n lot on El vis Presley . And they , themselves we re a rap g roup try ing to sell their CD’s. And the

s u s p ects we re say ing that they wer e a r ap g roup trying to se ll their CD’s. They

e xch a ng e d CD ’s , a nd

. . . th e su sp e c ts a dv ise d th a t th e y c ou ld h e lp th e m se ll the ir CD’s around town ; and if they followed them, they

would take them to locations wher e they

could sell their CD’s.

The victims followed th e s u s pects to 967 Porter. The suspects, all four
, exit ed their ve hicle – a ‘ 9 7 Ni ssan Path Finder , g ree n color. As the driver steppe d out of the Merc edes, two of the suspects struck the victim, Graham, over his head a nd threw him to the g round. Two of the other suspe cts then pulled out Victim No. 2, Mr . L e wi s, a ndstr

uc k h im o n to p of his he a d wi th a 38 0 – a [] se mi- a uto ma tic pis tol

. They forc ed the two victims to the rea r of 967 Porter, which is an a partment complex. They

forc ed them to the g round, took the ir jewelry and ca sh, and advised them that they

had to lay

there for f

ifteen minutes, and if

they called the police, they

wo uldc ome ba c k a ndkil l th e m.

Offic er Damien Kelly
, of t he Memphis Police Depa rtment, testified that he ha d investigated the robbe ry

of the two victims. He provided a list of members of the South Side Soldiers r ap g roup to other off

icer s investigating the c ase.

L ieutenant Anthony

Craig
, of t he Memphis Police Depa rtment, testified that he ha d shown both of the victims a sprea d of photog raphs, whic h included those of both de fendants. He said that Graham identified the de fenda nt, Christopher Hug hlett, and a c odefe ndant, Mario Colbert.

Br ian G r ah a m, o n e o f th e v ic ti ms a n d a r e s id e n t o f F lo r id a , te s ti f ie d th a t o n D e cembe r 6, 19 98
, he andJame s L e wi s h a d b e e n inMe mph is “ pr omo tin g so me mus ic ,” c on sis tin g of the ir-3-

“selling CD’s, putting up posters, . . . g etting [their] promotional stuff just to get [their] m usic out the re – w or

kin g tow arda

dis tr ibu tio n d e a l wi th a

ma jor c omp a ny .” He sa id the y ha d s top pe d at a T e xa c o s tati o n in M e mp h is a n d “ h e ar d s o me mu s ic p lay in g in a g r e e n N is s a n PathF in d e r [s ic ]” which Gr aham a

pproac hed to try

and sell some of his CDs. A man in the vehicle told Graha m that he wa s a m ember of a rap g roup ca lled the South Si de Soldiers and of fer ed to trade one of his CDs for one of Gra

ham’s. He told Graha m he could show him wher e he c ould sell some of his CDs. The man with whom Graham was ta lking c alled another per son, who arrived in a white Pathfinde r and said that he a lso was a membe r of the South Side Soldiers. Graham and L ewis followed the g ree n Pathfinder in their ve hicle and, a s they wer e tra veling
, the driver of t he P athfinder picked up other individuals. After both vehic les had stopped at a location on Porter Stre et, th er e we re “f o u r g uns pointed at [the victims] all of a sudden.” The men threw the victims “ down on the g round, and they jus t ba sic a lly

too k e ve rythi ng ou t of [the vic tim s’ ] p oc ke ts. ” Th e y too k G ra ha m’ s je we lry , h it h im in the head “ three or four ” times, and for ced him to show wher e other valuables w ere in his car. He said that all four me n had g uns and took a fifth one that Graham kept under the seat in his vehicle. Graham identified the de fenda nts, Wilkins and Hug hlett, as two of the r obbers. Gr aham sa id that defe ndant Hug hlett hit him “in the head with the g un three or four times.” He trie d to block one of the blo ws a nd“ me sse d u p” his e lbo w. As Gr a ha m trie d to blo c k a no the r o f the blo ws , h is f ing e rn a il was torn of

f, re sulting in his g etting ten stitches. Graham said that defe ndant Wil kins and another

ma n h a d L e wi s “do wn on the g ro un d, a nd on e of the m kic ke d him in the fa c e , an d an oth e r o ne hit him in the he a d a lso .” Whil e L e wi s w a s b e ing a tta c ke d, Gr a ha m “ wa s d ow n o n th e ground w ith [hi s] face f

lat on the conc rete with a gun to [hi s] back and a g un to [hi s] head, and i t . . . happene d so fast.” G raha m said that defe ndant Hug hlett and the other man went throug h his pockets, a nd one of them “ p r e s s e d ” a g u n in to h is s p in e

. G r a h a m s a id th a t d e f e n d a n t H u g h le tt w a s o n e o f th e men who assaulted him and Wilkins was one of those who assaulted L ewis. He said the robbe rs took “a lit tle mon e y ” a nd“ a

big he rring bo ne ne c kla c e ” fr om L e wi s. Af te r one of the ro bb e rs tol d th e vic tim s they had “f ive m i n u t es t o l ive,” the vic tims st arte d running and hea rd two g unshots. They

ran throug h an alley

and ac ross another

street whe re the y

waited until they thought the r obbers we re g one befor e ca lling 9-1- 1 from a pay phone. Af

ter the police arrived, the victims returne d to the robbery
sc e ne a nddis c ov e re d th a t G ra ha m’ s v e hic le ha d b e e n ta ke n. Gr a ha m sa id t

he po lic e re c ov e re d h is

car about three wee ks later.

The c harg es ag ainst codef endant Toric Ly les wer e dismiss ed prior to the trial. He w as ca lled by the Sta te a s a wi tne ss a nd te sti fi e d that po lic e of fi c e rs ha d c oe rc e d h im i nto g ivi ng a state me nt. He sai d t h at t h ey h ad thrown w ater in his face , slapped him, and ke pt him handcuffe d to a cha ir. Lyl e s a c k n o w l e d g e d t h a th e h a d g i v e n t h e f o l l o w i n g s t a t e m e n ta s t o th e r o b b e r y:

I wa s at th e Tex a c o o n E lvi s Pr e sle y a ndWinc he ste r p ump ing g a s in to m y Pa th F ind e r wh e n tw o g uy s c a me up a nd a sk e d me if I wa nte d to bu y a ra p CD

. I tol d them that I

didn’t want to buy

it, but mypartne r might be intere sted in it. The two g uy s w a lke d o ff

a nda sk e d me if

I kn e w w he re some weed was . I tol d th e m my p ar t n er might know whe re some w as, and the y asked me for some w hiskey too. I called [Colbert] on his cell phone. I t o ld [ Colbert] t hat I had some ra

ppers that-4-

wanted to ta lk to him. [C olbert] sa id that he was on his w ay up to w here we was [sic ] to t a lk t o th e m.
[Colb e rt ] pul le d u p in a re nte d Mo nte Carl o or Ma lib u, on e – it wa s c re a m. Delinis (phonetic) was in the c ar w ith [ Colbert] and her two kids. [C olbert] got out and walked up to me and the t wo dudes [ the victims] . [C olbert] and the two dudes talked about the music, the tapes, a nd CDs. Me and [Colbert] g ot into my truck, a nd the tw o d ud e s f

oll ow e d u s in the Me rc e de s. De lin is dr ov e of f in [Colb e rt ]’s c ar. Me and [Colber t ] l ed the two dudes to Mr. Hill’s house on Porter Street. He ’s the bootleg g er. The taller dude and [Colbert] went into Mr. Hill’s window and boug ht two p i n t s o f T en nessee Whis key . Then we led the two dudes ba ck on the top of Porter Stree t and W alker . We all got out, starte d drinking and smoking wee d. I didn’t drink no whiskey . I don’t drink.

[The defe ndants], Voleny
, and Tinker wer e already there when we pulled up. [Colb e rt ] turne d to [the de fe nd a nts ] an d w his pe re d s ome thi ng . [D e fe nd a nt H ug hle tt] pulled out his twe nty -five and rac ked it. [C olbert] told the two dudes to g et on the g round. The little short dude laid down.

[Colb e rt ] ha d th e ta ll d ud e by the c oll ar w ith his nin e mil lim e te r o n h im.

[C olbert] told hi m to just stand there and not to move.

[Defenda nt Hug hlett] patted down the short dude on t he g round and took a revolve r fr om the short dude’s side.

[The defe ndants] st arte d kicking the short dude be cause he had a g un.

Me a ndTi nk e r s tart e d c ir c lin g the Me rc e de s a ndthe n s e arc he d it

. [C olbert] pu ll e d th e ta ll d u d e o v e r to th e c ar

. [C o lb e r t] a s k e d th e ta ll d u de wher e his money was at in the car. The tall dude pointed in the g love box. Iopened the g love, and ther e wa s a .380 in the holster. I tried to g et it, but it was stuck.

[C olbert] handed me his nine millimeter, and I held it on the tall dude.

[Colb e rt ] g ot the .3 80 ou t.

[Defenda nt H u g h le tt ] t o ldth e d u d e s to ru n , a n d th e y r a n th r o u g h the apartments on Porter Street. As the two g uy s w as [ s i c] running , [Defenda nt Hug hlett] shot two tim es in the air to make them run fa ster.-5- After the two dudes ran off, Tinke r d ro v e the c ar of f and pa rked it on L emo[y ]ne Owens Colleg e lot.
Me and [Colbert] got in my truck. [Col b er t ] d rove dow n to my house on Gr a ve s. De lin is was wai tin g on us . [Co lbe rt ] ha d b ro ug ht the du de ’s brie fc a se thi nking the re wa s a

lot of mon e y in i t. He too k it wi th him , an d him an d De lin is l e ft

. Spe c ia l Agent For d K . Wil so n o f the F e de ra l B ur e a u o f Inv e sti g a tio n te sti fi e d th a t T oric Ly les had na med def

endant Wilkins as one of those invol v ed in the robbe ry . The identity of the other pa rticipants al re ad ywer e known to Ag ent Wils on. He sa id that L y les’s statement wa s consistent with those of the two victims.
The only defe nse witness wa s the defe ndant, Christopher Hug hlett, w ho said that he wa s not involved in the offe nses.

AN AL YSI S

On appe al, Wilki ns arg ues t hat t he evidence is insufficient to support his convictions and that the tr ia l c ou rt

e rred in ord eri ng c on se c uti ve se nte nc ing . F urthe r, he arg ue s th a t th is c ou rt sh ou ld consider these issues even though his motion for ne w trial wa s untimely . Hug hlett arg ues that the evidenc e is insufficient to support his convictions, that the testimony of Toric Ly l es was not sufficie ntly

corr oborate d, and that the tria l court er red in sentencing . The State disag ree s with eac h of these a rg uments.

I. Wilk ins’ Untime ly Motion for New T rial

Th e Sta te arg ue s th a t th e de fe nd a nt h a s w a ive d c on sid e ratio n of his iss ue s on app e a l be c aus e he untimely

filed his motion for a new trial and his notice of appea l. T ennesse e Rule of Criminal Pr oc e du re 33 (b ) p ro vid e s tha t a motio n for ne w tri a l “sh a ll be ma de

. . . with in thi rt y day s of the date the orde r of se ntence is entere d.” This provision is mandatory
, an d the time for f iling may not be extended. See Te nn. R. Crim. P . 45(b); see also State v. Martin, 940 S.W .2d 567, 569 (Tenn. 1997)

. The thi rty -day provision is jurisdictional, and an untimely motion is a nullity . State v. Dodson, 780 S.W .2d 778, 780 (Tenn. Crim. App. 1989). The untimely filing of a motion for new trial deprive s th e d e f e n d a n t o f th e o p p o r tu n it y to ar g u e o n ap p e a l a n y is s u e s th a t s h o u ld h a v e b e e n r a is e d in the motion for new tria l. Martin, 940 S.W .2d at 569. Unlike t he action this court may take f ollowing the untimely

filing of the notice of appea l, w e do not ha ve the authority to waive the untimely

filing of a motion for new trial. See Te nn. R. App. P. 4(a); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Cr im. Ap p

. 1 9 8 0 )

. H o w e v e r , i n o u r d i s c r e t i o n , w e m a y t ak e n o t i c e o f p l a i n e rr o r w h i c h a f f e c ts a

su bs ta nti a l r ig ht o f the de fe nd a nt w he re it m a y be ne c e ssa

ry to do sub stanti a l justi c e

. Te nn . R. Cr im. P. 52(b); State v. J ohnson, 980 S.W .2d 414, 418 (Tenn. Crim. App. 1998)

. On appe al, the def

endant r ai s es t h e two cla ims which may be conside red e ven thoug h not raised in a timely motion for new tria l, that the evidenc e is insufficient to sustain the convictions and-6-

the trial co u rt err ed in sentenc ing. A ccor dingly , we will consider the issues which Wilkins raises

on app e a l.

II. Su ff iciency of the Evid ence

Def endant Wilkins was convicted of two counts of robbe ry , the elements of which are set out in Tenne ssee Code A nnotated sec tion 39-13-401(a ): “Robbery is the intentional or knowing theft of prope rty

from the pe rson of a nother by violence or

putting the pe rson in fe ar.” Def endant Hu g hle tt w a s c on vic te d o f t wo cou nt s of a g g ra vate d r ob be ry , th e e le me nts of wh ic h a re se t ou t in Tenne ssee Code A nnotated sec tions 39-13-401(a) and 39-13- 402(a) : “Robbery is the intentional or knowing theft of property from the pe rson of a nother by violence or

putting the pe rson in fea r . . . [a]c c omp lis he d w ith a

de a dly we apo n o r b y

dis play of

a ny art ic le us e d o r f

a sh ion e d to le a d th e vic tim to rea sonably

believe it to be a deadly wea pon or [w] here the victim suff ers serious bodily

injury .” Both de fenda nts claim that the evidenc e is insufficient to sustain their c onvictions.

I n con s i d er i n g t hese c laims, we apply the fa miliar rule that whe re suf ficienc y of the convicting evidenc e is cha lleng ed, the r eleva nt q u es t i o n of the re viewing court is “whe ther, a fter viewing the evidence in the light most favor able to the pr osecution, any ratio na l tr ie r of fa c t c ou ld have f ound the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L . Ed. 2d 560, 573 (1979); see also Tenn. R. App. P. 13(e) (“F indings of g uilt in criminal actions whether by the t ri al co urt or jury

shall be set aside if the

e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the fi nd ing s b y th e trie r o f f a c t of g uil t be y on d a

re a so na ble doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All que stions involving the cr edibilityof witnesses, the w eig ht and value to be g iven the evidenc e, and all fa ctual issues ar e re solved by the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A g uiltyverdic t by the jury , approve d by the trial judg e, ac cre dits the testimonyof the witnesse s for the State and re solves all conflicts in fa vor of the theory

of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (Tenn. 1973) . Our supre me court stated the rationale for this rule:

This well-settled rule rests on a sound f oundati o n

. T h e trial judge and the jury see the witnesses fac e to f ace , hear their testimony and observe their deme anor
on the stand. Thus the trial judge and jury are the primary instrumentality

of justice t o d e t e r m i n e t h e w e i g h ta n d c r e d i b i l i t y t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the tri al fo ru m alone is t here human atmosphere and the totality of the e vidence

c a nn ot b e re pr od uc e d w ith a writt e n r e c or d inthi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumption of innoc en ce with which a defe ndant is initi ally

cloake d and re place s it with one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.-7-

At tr ia l, thevic tim , B ri a n Gr a ha m, te sti fi e d that de fe nd a nt Hu g hle tt h it h im o n th e he a d w ith a pistol and took his jewelry and money

. Additionally , he said his ca r had be en take n and identified defe ndant W ilkins as t he robber who struck the victim, J ames L ewis, and took a neckla ce and money from him. I n his statement, Ly les said that both defe ndants had kicke d “the short [victim] ” as he was
on the g ro un d. Th is ev id ence is su ff ic ie nt f or a re a so na ble jury to c on c lud e that th e de fe nd a nts committed the offe nses of whic h they wer e convic ted.

III . C or r obo r at ion of Ly le s’ s St at e m e nt

Def endant Hug hlett arg ues on appe al t h at t h e stateme nt of Ly les implicating him in the offe nses was not suff

iciently corr oborate d. This claim di scounts the t estimony of the victim, Brian Graham, which the jury

obviouslybelieved, that one of the me n who attac ked and r obbed him was Hug hlett and that the four robber s were acting in conce rt.
Our supre me court expl ained in S tate v. Shaw, 37 S.W.3d 900 (Tenn. 2001), the evidenc e require d to sustain the confe ssion of another linking the def endant to the c rime cha

rg ed:

“[ T ] h er e m u s tb e s o m e f ac tt es t i fi ed t o , en t i re l y

i n d ep en d en t o f t h e a cc o m p l i ce 's testimony , which, take n b y i t s el f, leads to the infe renc e, not only that a cr ime has been committed, but also that the def endant is implicated in it; and this independent

co rr o b o ra t i v e t es t i m o n y

m u s tal s o i n c l u d e s o m e f ac tes t ab l i s h i n g t h e d ef

en d an t 's identity . This corrobor ative evide nce may b e d irec t or entirely circ umstantial, and it n e e d n ot b e a de qu a te , in a ndof its e lf , to su pp ort a c on vi cti on ; it is su ff ic ie nt t o meet the r equire ments of the rule if it fairly and leg itimately

tends to connec t the defe ndant with the commission of the crime c harg ed. It i s n ot nece ssary that the

corr oboration extend to every part of the acc omplice' s evidenc e.”

I d. at 903 (quoting State v. Big bee, 885 S.W.2d 797, 803 (Tenn. 1994) ).

I n this matter, the statement of L y les implicating H ug hlett was cor roborated by

Graham’s inc ou rt ide nti fi c a tio n o f Hu g hle tt a s on e of the ro bb e rs . A c c or din g ly , w e c on c lud e that th is c la im i s without merit.

IV . Se nt e nc ing

Bo t h d ef en d an t s ar gu e t h at t h e t ri al co u rt erre d i n i m p o s i n g co n s ec u t i v e s en t en ci n g. Def endant Hug hlett arg ues, as we ll, that the t rial court erre d in imposi ng sentenc es of e leven y ear s fo r e a c h o f h is c on vic tio ns ; a ndwe fi rs t w ill c on sid e r this c la im.

When an ac cused c halleng es the leng th and manner of ser vice of

a sente nce, it is the duty

of this court to conduct a de novo revie w on the re cord w ith a pres u m p t i o n t h at “the determinations made by the court from w h i ch t h e appeal is taken ar e cor rec t.” Tenn. Code A nn. § 40-35-401( d) (2003). This pre sumption i s “conditioned upon the a ffirmative showing in the rec ord that the trial-8-

c o u r tc o n s i d e r e d t h e s e n t e n c i n g p r i n c i p l e s a n d a l l r e l e v a n t f a c t s a n d c i r c u m s t a n c e s

. ” S t a t e v

. A s h b y, 823 S.W .2d 166, 169 (Tenn. 1991) . The pre sumption does not app l y t o t h e l egal c onclusions

rea ched by the trial court in sentenc ing the acc used or to the de terminations made by the trial court wh ic h a re pr e dic ate d u po n u nc on tr ov e rt e d f a c ts. Sta te v. B utl e r, 90 0 S. W.2 d 3 05 , 3 11 (T e nn . Crim. App. 1994); State v. Smith, 891 S .W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bone stel, 871 S.W .2d 1 6 3
, 1 6 6 ( T e n n

. Crim

. A p p

. 1 9 9 3 )
, o v e rru le d o n o th e r g r o u n d s b y St a te v

. H o o p er, 29 S.W .3d 1, 9 (Tenn. 2000)

. Howeve r, t his court is require d to g ive g reat weig ht to the trial court’s determination of controverted facts as the t rial court's de termination of these fac ts is predicate d upon t h e w i t n es s es ’ d em ea n o r a n d ap p ea ra n ce wh en t es t i fy i n g.

I n conducting a de novo revie w of a sent en ce , t h is court must consider (a ) any evidenc e
rec eived at the trial and/or se ntencing heari n g, (b) the presente nce r eport, (c ) the princ iples of sentenc ing, ( d) the a

rguments of c ounsel relative to sentencing alternatives, (e) the nature and char acte ristics of the offe nse, (f) any mitigating or enha nceme nt fac tors, (g ) any statements made by the ac cused in his ow n behalf
, and (h) the acc used' s potential or lack of potential for r ehabilitation

or tr e a tm e n t. T e n n

. Co d e A n n

. § § 4 0

- 3 5

- 1 0 3
, - 2 1 0 ( 2 0 0 3 ) ; St a te v

. T a y lo r , 6 3 S. W. 3 d 4 0 0 , 411 (Tenn. Crim. App. 2001)

. The pa rty challeng ing the sentenc e imposed by the trial court has the burden of establishing that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401, Sente ncing Commi ssion Cm ts.; Ashby , 823 S.W .2d at 169. I n t h i s ca s e, the de fendant has the burde n of illustrating the sentenc e imp os e d b y

the tr ia l c ou rt

is e rr on e ou s.

As to the sentenc ing of defe ndant Hug hlett, the trial court c onducted a n extensive sentencing hear ing, d is c u s s in g w ith c o u n s e l i n d e tail th e d e f e n d a n t’ s p r e s e n te n c e r e p o r t. A c c o r d in g to the report, Hug hlett claimed that he had not be en involved in the offe nses. His prior convic tions were as follows: Marc h 12, 2002, theft up to $5 0 0
, $ 6 00 fine; January 4, 2000, violation of the open container law, $50 fine ; J anuary

4, 2000, obstructing a hig hway or other pa ssag eway , $50 fine; June 16, 1999, theft up to $ 5 0 0
, $250 fine; and O ctober 3, 1996, possession of drug s, one day confine ment, $250 fine. A cc o rd i n g to the report, Hug hlett said that he had be en tre ated f or de pr e ssi on fro m Novembe r 3 , 1 99 5, to A pril 1 7, 19 96 , w he n h e wa s “ de te rm ine d to be me nta lly disabled.” H e said that he had droppe d out of school in 1993, when he was in the tenth g rade , and that he had ne ver be en employ ed. Rec ords from the U niversity of Tenne ssee He alth Science Center stated that whe n Hug hlett was discharg ed from partial hospit alization on November 3, 1995, he was suffe ring from “de pression which [had] a paranoid, delusional quality to it.” I n re s p o nse to a question from t he court, Hug hlett’s counsel a dvised that Hug hlett had stopped taking his prescribed medication.

I n sentenc ing H ug hlett, the trial court applied enhanc ement fa ctor (1) , based upon his prior convictions, and fa ctor (10) , that the def endant ha d no hesitation to c ommit the crimes. See Te nn. Code Ann. § 40-35- 114(1), ( 10) (2003) . Considering the mitigation fa ctors which H ug hlett arg ued should be applied, the c ourt noted that Hug hlett’s medical r ecor ds showed he ha d been treated for ment a l h e a lth p r o b le ms f r o m 1 9 9 5 to 1 9 9 7 a n d th a t, a c c o r d in g to th o s e r e c o r d s , h e h a d smoked-9-

“marijuana seve ral times a day , every day
, since the ag e of six teen,” and had smoked cra ck coc aine

as we ll. The court e x plained that a de fendant would be cr edited with a m i t i gat ing f actor if the defe ndant, “onc e diag nosed, ag g ressively pu rs u es a prog ram of a ddressing those problems . . . stay ing a way

from drug s and alc ohol, looking for work.” As to eac h of Hug hlett’s ag g ravated

ro bb e ry c on vic tio ns , t he tr ia l c ou rt se nte nc e d h im t o e le ve n y e ars , w ith the rang e be ing e ig ht t o twelve y ear s for a Rang e I offe nder c onvicted of a Class B fe lony . See Te nn. Code Ann. § 40-35- 112(a) (2).

On app e a l, H ug hle tt a

rg ue s that the tr ia l c ou rt e rr e d in fi xing e a c h s e nte nc e a t e le ve n y e ars

. First, he c laims that the court should not have considere d the convictions which he had betwe en the commission of the crimes whic h are the basis for this appea l and his se ntencing for them. How ever , as explained in State v. Way ne Micha el Fuller , No. E1999-01676- CCA-R3-CD, 2000 WL 1156625, at *3 (Te nn. Crim. App. Aug . 16, 2000), “[t] hat ar g ument has bee n advanc ed and r ejec ted numerous times.” Thus, we c onclude that e nhance ment fac tor (1) w as applica ble. He doe s not assert that the trial court e rre d in apply ing f actor (10) but ar g ues that the c ourt g ave e nhance ment fac tors (1) a nd (10) undue weig ht and “c ompletely disreg ard[ed]” the evide nce of his mental disorder. In fac t, as we ha ve set out, the court considere d the defe ndant’s diag nosed mental problem but c oncluded it was not a mitigating fac tor bec ause, prio r t o t h e crimes, the de fendant had discontinued his medical treatment, had ce ased taking his medic ation at some point, and had been a reg ular user of marijuana and coc aine f

or a period of y ear s. The weig ht g iven to an enhanc ement fa ctor is left to the discr etion of the trial c ourt, assuming the court complied with the purposes a nd principles of the sentenc ing a ct and its findings a

re supported by

the re cord. State v. Z ong e, 973 S.W .2d 250, 259 (Tenn. Crim. App. 1997). We conc lude that the trial c ourt did not err in a pply ing e nhan ce m en t fa ct o r (10) or in not considering the def

endant’ s ment al p roblem as a mitigating fac tor. Further, we conclude that the

r e c o r d s u p p o r t s t h e s e n t e n c e s o f e l e v e n ye ar s f o r t h e d e f e n d a n t ’ s c o n v i c t i o n s o f

a g g r a v a t e d r o b b e r y.

As for the consec utive sentenc ing of Hug hlett, the t ri al co u rt found that Te nnessee Code An no ta te d sec tio n 40- 35 -1 15 (b )( 4) wa s app lic able : “ Th e de fe nd a nt i s a da ng e ro us of

fe nd e r w ho se be ha vio r i nd ic a te s li ttl e or no re g ardfo r hu ma n lif

e , a ndno he sit a tio n a

bo ut c omm itt ing a

c ri me in wh ic h th e ri sk

to h uman li fe is h ig h. ” Cr ite ri on (4 ) ha s be e n sp e c if ic a lly dis c us se d by ou r s up re me court in State v. Wilkerson, 905 S.W .2d 933 (Tenn. 1995) , wher e the c ourt held:

[T] he imposition of consecutive s en t en ce s on an off ender found to be a

dang erous
o ff en d erre q u i re s , i n ad d i t i o n t o t h e a p p l i ca t i o n o f ge n er al p ri n ci p l es o f s en t en ci n g, the findi ng that an extended sente nce is ne cessa ry to protect the public a g ainst further

c ri min a l c on du c t by

the de fe nd ant andthat th e c on se c uti ve se nte nc e s mu st

rea sonably

relate to the seve rity

of the off enses c ommitt ed.

I d. at 939. This requi re m en t o f additi onal finding s has bee n rec ently limit ed to criterion (4). See State v. L ane, 3 S.W.3d 456, 461 (Tenn. 1999)

.

I n concluding that Hug hlett should serve his sentenc e s c o n s e c u ti v e ly
, th etr ial court discussed at leng th t h e l et t er written by the victim, Bria n Graham, explaining the c ontinuing phy sical and-10-

psy cholog ical ef

fec ts of the crimes on him. The court revie wed the severity of the offe nses, with the victims held at g unpoint, “pistol-whipped, . . . told to run for their lives, . . . then to he ar shots fire d, [and] not knowing w hat was coming next, has traumatized, certainly
, Mr. Graham and has af fec ted him for the re st of his life.” We conc lude that t he re cord supports the trial court’s f indings that d e f e n d a n tH u g h l e t t ’ s s e n t e n c e s s h o u l d b e s e r v e d c o n s e c u t i v e l y.

As to defe ndant Wilki ns, the trial court ordere d that his two sentence s of four y ear s be ser ved

consec utively , finding that “the m ajority of his livelihood was made f rom criminal conduc t” and

ex p l ai n i n g i t s re as o n i n g:

Yo u h a ve a

ma n w ho is e xpe lle d f

ro m sc ho ol i n th e nin th g ra de af te r h is seventh or e ighth board sus pension. He is expelled from school not bec ause he had a 65 I Q and was incapa

ble of doing the work; he wa s expelled from school with an 85 I Q f ull y c apa ble of do ing the wo rk ; bu t fo r o the r r e a so ns that are n’ t sp e c if ie d in the letter, he g ets kicked out of sc hool in the ni nth g rade ; and not once, but twice, a s a juvenile, is convic ted of selling drug s – o ff en s es which, if a n adult, would have be e n f e lon ie s.
He g raduates on to his adult rec ord and is a g ain convicte d of selling drug s as
a n a du lt a nd is arr e ste d on nu me ro us oc c a sio ns a nd c on vic te d of po sse ssi on of dr ug s; and, in fa ct, is arr ested two or three times and convicte d of obstructing a passa g eway
or a hig hw a y , w hic h I

wo uldsu bmi t, v ie we d in thi s c on te xt with a ll o f thi s a s a backg round, would be f

urther pr oof of a n individual – would be consistent with an ind ivi du a l w ho is i n th e bu sin e ss o f s e lli ng dr ug s.

. . . .

. . . Bu t with three f

elony drug convictions, sever al misdemeanor drug

c on vic tio ns , a ndthe n th re e ob str uc tin g a pa ssa g e way

or hi ghway
, . . . I

thi nk it’ s a very rea sonable inferenc e – and an individual who gets ex pelled from school in the ninth gr ade, and his sole employ ment has bee n as a dishwa sher at a fa st food restaur ant – I think a rea sonable infere nce is that the majority of his livelihood was from criminal activities; that is s elling dr ug s – involvement in the drug world and the dr u g b u s i n e s s –t h e s a l e o f d ru g s

. I t h i n k a p e r s o n w o u l d b e i n d e n i a l t o s ug g e st otherwise. I

th in k it w o u ldb e n a iv e to s u g g e s t o th e r w is e

. I f a p e r s o n g o t a

rr e sted

a ndc on vic te d o ne tim e fo r si mp le posse ssi on of mari hu a na

be c a us e he wa s a t a

conce rt on Mud I sland, that would be one thing . Or if he g ot arre sted for obstruc ting a hig hway

beca use he ha d a flat tire and that was his only arr est, and he was
o t h er wi s e e m p l o y ed fu l l t i m e at a m ea n i n gfu l em p l o y m en t , t h at wo u l d b e o n e t h i n g. But whe n y ou view all of the se diffe rent thing s toge ther, the only conclusion I

think that is reasona

ble from a ll of that is that was the major sourc e of his livelihood, and I ’m so finding

.-11-

We f ull y c on c ur wi th the tr ia l cou rt ’s vie w that, b a se d u po n th e de fe nd a nt’ s c on vic tio ns , it appea red likely that he derived a portion of his income, mea g er thoug h it appare ntly was, fr om the illega l sal e o f drug s. Howeve r, the State did not prese nt proof showing that the def endant ha d

re c e ive d inc ome fr om the se sa le s or that he ha d sup po rt e d hims e lf wi th i t. In St a te v. Gr e g Ha rris, No . E 20 03 -0 28 34 -C CA -R 3- CD , 2 00 5 WL 41 90 82
, a t *2 0 (T e nn

. Cr im. Ap p. F e b. 23 , 2 00 5) , th is court set out a numbe r of c ases c onsidering application of the conse cutive sente ncing fac tor that the de fe nd a nt w a s a

pr of e ssi on a l c ri min a l:

State v. Desire y , 909 S.W .2d 20 (Tenn. Crim. App. 1995) (a ff i rm ing c onsecutive sentenc es base d upon proof that the def endant ha d no other e mploy ment and g rossed $200,000 per w eek f

rom his gambling business); State v. F elix M. L eac h, No. M2001-02258-CCA-R3-CD, W illiamson County (Tenn. Crim. App. Nov. 15, 2002) app. denie d (Tenn. Ma

rch 17, 2003) (conc luding t h at conse cutive sente nces w ere pr op e r b a se d o n de fe nd a nt ha vin g mul tip le c on vic tio ns fo r drug sa le s d a tin g ba c k to when he was a juvenile and defe ndant' s admission that his involvement in the drug trade is to provide extra wee kly income of $3500) ; State v. Cli ffor d L eon F arr a, No. E20 0 1 -0 2 2 3 5 -C C A- R 3 -C D, S u l l i v an C o u n t y (T en n

. C ri m . App. Dec . 10, 2003 .) app. denied (Tenn. May 10, 2004) (conc luding consec utive sentenc ing appropriate base d

on defe ndant' s tax returns showing income rang ing from $0 to $5000 while def endant continued to pay for home mortg ag e, cars, coins, motor scooters, g un collection, and a lea se on a motor home) ; State v. Frank Michae l Vu k el i ch, No. M1999-00618-CCA-R3-CD, Da vidson County(Te nn. Crim. App. Sept. 11, 2001) app. denied (Tenn. Apr. 1, 2002) (concluding that evidenc e established the def endant

was a profe ssional criminal when the rec ord indicated the de fendant was a ma jor

mari juana de a le r f or se ve ra l y e ars a ndus e d th e pr oc eeds to partial ly fi na nc e his leg itimate business and purcha se a house and a boat).

Howeve r, t h e co u rt al s o noted that, in case s where the State had not provide d that the defe ndant actually lived on the i lleg al proceeds, the defe ndant could not be view ed as a profe ssional

c ri min a l, f

or pu rp os e s o f c on se c uti ve se nte nc ing :

Sta te v. Paul A nth on y

B uc kn e r, No . M 20 03 -0 17 43 -C CA -R 3- CD , H a mil tonCou nty (Tenn. Crim. App. F eb. 25, 2004) ( holding that d espi te def endant' s numerous convictions of fe lony

sale of dr u g s, two assaults, criminal trespa ss, possession of drug para pher n alia, malicious mischief, f raud, posse ssion of a g ambling de vice, thre e counts of driving on a re voked license , and seve ral mot o r v eh i cle violations , the

re c or d d id not ind ic a te his c ri min a l a c ts w e re a ma jor so ur c e of his liv e lih oo d) ; State

v. Jef fr e y Smith, No . E 20 02 -0 11 47 -C CA -R 3- CD , H a mil tonCou nty (T e nn . Crim. App. Marc h 18, 2003) (holding that a def endant was not a profe ssional c riminal for purposes of c onsecutive se ntencing when the pr esente nce report indicated only two prior convic tions occurring se vera l y ear s befor ehand)

.

I d.-12-

Acc ording ly , the court in Harris de termined that “[b] eca use the state failed to pr ove that the defe ndant committed numerous criminal acts or that any criminal ac ts provided a majo r s o u rce of his livelihood, we conclude that consec utive sentenc es we re unw arr anted.” I d.

We rea ch the same conclusion in this m atter a nd rema nd with instructions that the sentence s
o f d e f e n d a n tW i l k i n s b e s e r v e d c o n c u rr e n t l y.

CO NC LU SION

Ba sed upon the for eg oing a uthorities and rea soning, w e af firm the judg ments of conviction of both defe ndants but modify defe ndant Wilki ns’ sentenc es to ref lect that t h ey ar e to be served

c o n c u rr e n t l y.

___________________________________ ALAN E. GL

ENN, JUDGE