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

ecember 13,

2000


### STATE OF TENNESSEE v. DAVID P RYOR GILLIARD
Appeal from the Circuit Court for Montgomery County No. 40280 John H. Gasaway, III, Judge

No. M1999-00771-CCA-R3-CD - Filed April 6, 2001

A Montgomery County jury convicted Defendant, David Pryor Gilliard, of theft

of property under $500 in value, and burglary of an automobile. As a result of these convictions, the trial court found the Defendant was in violation of a previously imposed four-year Community Corrections sentence. Following a sentencing hearing, the trial court sentenced Defendant as a Range II multiple offe nder to four (4) years for the burglary and eleven (11) months and twenty-nine (29) day s for the theft with the sentences to run c

oncurrently . The trial court a lso ordered that the theft and burglary sentences run consecutively to Defendant’s Community Correc tions violat ion, for an effective sentence of ei ght years.Defendant appeals as of right and challenges the length and manne r of service of his sentence. After a thoroug

h review of the r

ecord, we affi

rm the judgment of

the trial court. Tenn. R. App. P. 3 Appeal As Of Right; Judgment of the Circuit Court Affirmed
T HOMAS T. W OODALL , J., delivered the opinion of the c ourt, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.
Michael R. Jones, District Public Def ender; and Collier

W. Goodlett, Assistant Public Defender, for the appellant, David Pryor Gilliard.
Paul G. Summers, Attorney General & Reporter; Jennifer L . Bledsoe, AssistantAttorney Ge neral; John W. Carney, Jr., District Attorney General; and Hele n Y oung, Ass istant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. BACKGROUND The indictments in this case charged:2 COUNT 1:
That on the 6 th day of August, 199 8. . . .t he said DAVID PRYOR GILL IARD . . . unlawfully

, feloniously

and knowingly

did enter the 1984 Pontiac Trans-Am of Brittney Perkins, w ithou t her effective consent, with intentto commit theft, in violation of TCA 39-14-402.

. . . COUNT 2:

. . . .the said DAVID PRYOR GILL IARD . . . .unlawf

ully an d knowingly

did obtain or exerc is e control over pr operty, to w

it: Pioneer DEH- 225 A M/FM CD player, under the value of $500.00, being the property of Brittney Per kins , withou t effective con sent, with intentto deprive the said victim thereof, in violation of 39-14-103 and against the peace and dignity of the State of Tenne ssee.
On August 16, 1999, a jury convicted the Defendant for burglar y of an automobile, a Class E felony, and theft

of property under $500 in value, a Class A misdemeanor. The presentence report showedthat

the Defendant had been arrested twenty-six times, placed on pretrial diver sion for four related offenses and

convicted of two misdemeanors and four felonies, all involving some form of theft or burglary, including agg ravated burglary. At the sentencing hearing, the Defendant testified that he was a twenty-one-y ear old father of a two-year-old daughter. The D efendant admitted to the many charges and violations of probation, but stated that the 314 days he had currently served in jail, as a result of the instan t offenses,had taught him a lesson. The Defendant stated that he was prepared to beresponsible and stay outof trouble. Defe

ndant also stated t

hat his parents we

re willing to suppo

rt him and help him comply with any sentence involving re lease in the community.
II. SENTENCING
A. Enhancement Factors
In his firs t issue, Defendant argues that the trial court erred in apply ing enhancing factors wh ich were not applicable to his case. Specifically, Defendant cha llenges the trial court ’ s application of enhancement factors (1), (2) and (8) of Tenn. Code Ann. § 40-35-114.
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 record with a pr es umption that the determinations made by the t rial court were

correct. Tenn. Code Ann. § 40-35-401(d). We condition the presumption of correctness “upon the affirmative s howi ng in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 8233

S.W.2d 166, 169 (Tenn. 1991). “[T]he trial court must place on the record its reasons for arriving at the final sentenc

ing decision, ide

nti fy the mitigating and enhancement factors found, state the specific facts suppo rting each e nhancement factor found, and articulate how 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. Cod

e Ann. § 40-35-401 (d) (sentencing commission comments

). I n 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 arguments of counsel, (e) the nature and characteristics of the offenses, and (f) the appellant’s potential for rehabilitation

. Se e Tenn. Code Ann. § 40

-35-210; see also

Tenn. Code Ann. § 40-35-102 & 103.
The trial court found the following four statuto ry enhancement factors applicable to the Defendant’s case: (1) The defendant has a previous history of criminal convictions or cr imi nal behavior in addition to those necessary to establish the appropriate range ; (2) The Defendant was a leader in the commission of an offense involving two (2) or more crimi

nal actors; (8) The defendant has a previous histo

ryof unwillingness to comply with the conditions of a sentence involving release in the community; and (13)(E) The felony

was committed while

on any of the

following forms o

f release if such release is from a

prior felony: [a]ny other ty pe of release status into the community

under the di rect or indirect supervision of the department of corr ect ion or l ocal gove rnm ent aut hor ity.
Tenn. Code Ann. § 40 -35-11 4 (1997). The Defendant does not challenge the application of enhancing factor (13)(E).
Where one or more enha

ncement factor

s apply but no mitigating factors exist, the trial court may sentence abo ve the pr esumptive sentence but still within the range. See Tenn. Code Ann. § 40-35-210(d). Where both enhancement and mitigating factors apply to a Class E felony, the trial court must s tart at the minimum sentence in the range, enhance the sentence within the range as appropriate

to the enhancement fa

ctors and then re

duce the sentenc

e within the rang

e as appropriate to the mitigat ing factors. Tenn. Code Ann. § 40-35-210(e). The weight afforded an enhancement or mitig ating factor is left to the discretion of the trial court if the trial court complies with the purposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989 and the record supports its findings. State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995). Here, the trial court complied wit

h the sentencing

statutes and our r

eview is with a pre

sumption of corre

ctness.
We find that the trial court properly applied enhancement factor (1) , a previous h istory of criminal convictions or criminal behavior. The presentence report revealed a history of prior criminal convictions in addition to tho se n eces sar y to e sta bli sh t he ra nge. In or der t o cl ass ify a defendant as a Range II, multiple offender, the defendant must have a “minimum of two (2) but not4

more than four (4) pri

or felony c

onvictions within the

conviction class,

a higher class,

or within the next two (2) lower felony

classes.” Tenn. Code Ann. § 40-35-106(a)(1) (1997). At the sentencing hearing, the Defendant admitted to four prior felony convictions, which were relevant to establishing his range. The record indicates that the Defendant had one Class C felony conviction for aggravated burglary, two Class D felony c onvictions for burglary (not of a habitation) and one Class E felony conviction for burglary of an automobile. S ince the sentencing was for a Class E felony, any two of the felony convictions were sufficient to establish Defendant’s Range II status, leaving two felony convictions and two misdemeanors t o enhance Defe

ndant’s sentence. Thus, the trial co urt properly applied enhancement factor (1).
The Defendant furt

her claims that, be

cause he was not the leader in the commission of these offenses,enhancement factor (2) was misapplied. In response, the State argues that the Defendant has waived this issue, for failing to include the trial transcript in the appel late r ecord . We ag ree. It is the Defendant’s responsibility to include a complete record on appeal. Te nn. R. A pp. P. 24(b); Statev. Boling , 840 S.W.2d 944, 951 (Tenn . Crim. App . 1992). Without a complete record regarding the facts necessary to assess whether factor ( 2) was properly applied, we presume that the trial court wa s correct in it s ruling. See State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (holding that

a trial court’s ruling is presumed correct in the absence of an adequate record on appeal).
In addition, we note that the record provided to this Court contains a transcript of the sentencing hearing. At the sentencing h earing, the prosecutor submitted that there were four actors involved in the burglary and theft and that it was the Defendant’s idea to break into the car; he a

lso pickedthe car and mustered assistance from two juveniles and his co-def endant. The refore, the Stateargued that Defendan t's pa rticipation was sufficient to establish his role as a leader in the commission of these crimes. The trial court accepted this reasoning and properly applied enhancement factor (2). The Defendant argues that factor (8), a previous history of unwillingness to comply with the conditions of a sentence involving release in the community, sh ould not apply because his prior record was already considered

in the determi nation of h is offender status, i .e., the app ropriate ran ge for sentencing. However, the record does not reflect that this factor was used to classify Defendant as a Range II offender.

The only reference to Defendant’s Rang e II status is the

following colloquy between the tria

l court, the prose

cutor and the atto

rney for th

e Defendant: Ms. Young

[Prosecut

or]: We have filed a range notice in this mat ter, You r Honor, filed with

the court on June 29 th , alleging he is a range two offe nder . And with those different offense dates I think that satisfies the p roof on that matter.
Mr. Goodle

tt [Defens e Counsel] : It does. We don’ t dispute that.5

The Court: So, you are in agreement that he is a range two?
Mr. Goodlett: Yes, sir. Furthermore, the record clearly supports the application of fact or (8). At the sentencing hearing, Defendant admitted that onFebruary 5, 1997, he had been placed on two years of pretrial diversion for burglary. While on pretrial diversion, Defendant was convic ted of misdemeanor thef

t, a clear violation of his pretrial diversion, and sentenced to asuspended sentence of 11 months and 29 days on probation. The pr esenten ce report indicates that, in May of 1998, Defendant was convictedof Class C, D and E felony burglaries, and was found in violation of the probation imposed in his misdemeanor theft conviction. As a result, the Montgomery County Circuit Court sentenced the Defendant to

an effective se

ntence of four y

ears Community

Corrections for t

he burglaries,

and ordered the Defendant to

serve his eleven

mo nths and twenty-nine days sentence for the misdemeanor

theft conviction concurrent with the four-year sentence

. Thus, the record shows Defendant’s failure to comply with the conditi

ons of sentences inv olv ing r ele ase i nto the com mun ity. The trial court properly applied enhancement factor ( 8) to Defendant’s case.
B. Alternative Se

ntencing
The Defe nda nt c hal len ges t he t ria l co urt ’s d eni al o f al ter nat ive sen ten cin g. S peci fic all y, Defendant argues that the trial court erred in ordering him to serve his entire four-yea r sentence in the Tennesse e Department of Correction. We find that the Defendant has waived this issue by failing to cite

any authority in support of his arguments. Rule 27(a)(7) of the Tennessee Rules of Appellate Proce

dure requires a

defendant to pre

sent citations to

the authorities he

relies on for his arguments

in his brief. When a defendant fails to cite any authority in supporthis position the issue is waived. See Tenn. R. App. P. 27(a)(7) ; Tenn. R. Crim. P. 10( b); see also , State v. Chance , 778 S.W.2d 457, 462 (Tenn. Cri m. App. 1989); State v. Killebrew , 760 S.W.2d 228, 231 (T enn. Crim. App. 1988). Howev

er, despite Def

endant’s waiver

of this issue, we ch

oose to address it.
A defendant who meets the criteria of Tenn. Code Ann. § 40-35- 102(5) (1997) an d who is an especially mitigated or standard offe n der of a Class C, D, or E felony is “presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to contrary . ” Tenn. Code Ann. § 40-35-102(6). “ Evidence to the c

ontrary”, may include

proof that confin

ement is particularly

suited to provide an effective deterrence to others likely to commit similar offenses, or evidence that confinement is required to avoid depreciating the seriousness of the offense. State v. Dav is , 940 S.W.2d 558, 560 (Tenn. 1997); Tenn. Code Ann. § 40-35-103(1)(B) (1997). Thus , i n the face of s uffic ient evidence, the presumption favoring alternative sentencing may be rebutted. Further, defendants satisfying the criteria are no t automat ically entitled to alternative sentencing. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). Trial courts must examine the facts and circumstances of the case to determine whether alternative sentencing is appropriate. Id.
The Defendant, a Range II multiple offe nder, does not meet

the criteria necessary to enjoy the presumption in favor

of alternative sentencing for the Class E felony involved in this case. See6

Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, the Defe ndant is not entitled to alternative sentencing, based on the sentencing consideration listed in Tenn. Code Ann. § 40-35-103 (1)(A) - (C) (1997). The Defendant’s long history of criminal conduct involving theft and burglary makes his confinement necessary, in order to protect society from further criminal acts by the D

efendant. See Tenn. Code Ann. § 40-35-103 (1)(A). Also, despite the Defendant’s contention, we find that his prev iou s in abi lit y t o comply with a Community Corrections sentence and pretria l diversion su pports th e trial court’s determination that alternative sentencing was inappropriate, and that the sentence imposed was the “least severe measure neces sary to ach ieve the purposes for which the sentence is imposed.” See Tenn. Code Ann. § 40-35-103 (1)(C) & (5).
C. Consecutive Sen

tencing Next, the Defendant st

ates, as an issue i

n his brief, that the

trial court erre

d in ordering him to serve the senten

ces consecutive

ly to his prior

sentences. As with the alternative sentencing issue, we note that Defendant’s failure to present an argument or

citeany authority concerning this issue, constitutes a waiver of the issue. Tenn. R. App. P. 27(a)(7); Tenn. R. Crim. P. 10(b). Furthermore, we find that the fa cts of this case support the imposition of consecutive sentencing. A

trial court has the

discretion to impose

consecutive sentences upon a determination that one or more of

the criteria in Tenn. Code Ann. 40-35-115 (b) exist. In the case at bar, the trial court relied upon Tenn. Code Ann. § 40-35-115 (b)(2) (the defendant is

an offender whose record of criminal activity is extensive) and (b)(6) (t he defendant is sentenced for an offense committed while on probati on) to order consecutiv e sentencin g. In its brief, the State concedes that the trial court’s consideration of Tenn. Code Ann. § 40-35-115(b)(6), as a basis for imposing consecutive sentencing, was inappropriate. However, the State contends that Defendant’s extensive criminal history provides a s ufficient b asis for up holding th e trial cour t’s order of consecutiv e sentencin g. We basically agree with the State’s argument. We note the record is somewhat unclear as to whether the Defendant was o

n probation or comm

unity corr ections for the prior misdemeanor theft conviction; the record is cle ar, however, tha

t he was serving

the felony s

entences on commu

nity corrections.
At the sentencing hearing, the trial court stated that it was applying Tenn. Code Ann. § 40- 35-115(b)( 6) because

the Defendant w

as on probation at t

he time he committe

d these offenses

. However, the record also i ndicates that th e Defendant was on community corrections for the burg lary convictions. In State v. Pettus , 986 S.W.2d 540, 545 (Tenn. 1999), our sup reme court held t hat a community

corrections sentence is not equivalent to a sentence of probation. Here, the record shows that the Defendant was placed on probation for eleven months and twenty- nine days for a misdemeanor

theft conviction. The Defendant violated this probation when he com mitted t he previously

discussed felony

burglaries, to w

hich he pled guil

ty. As a res

ult of these bu rglary convictions,

the record sug

gests that the De

fendant was orde

red to participa

te in a community corrections program, not only for the burglary convictions, but also as a condition t o his previous probation for the misdemeanor convictions.7

However, a trial court need only find the existence of one of the criteria listed in Tenn. Code Ann. § 50-3 5-115 (b). In the case sub judice , the Defendant has an extensive criminal record which dates back only to 1996. The Defendant’ s criminal activity includes three burglary convictions, one aggravated

burglary conviction

and two misdemeanor theft convictions. Therefore, we find that the Defendant’s record of crimin al activit y is exten sive and we affirm the imposition of consecutive sentencing based upon Tenn. Code Ann. § 40-35-115(b)(2).
III. CONCLUSION
In conclusion, we find that the trial court

properly applied enhancement factors (1), (2) a nd (8). We als o find that consecutive sentencing was appropriate because the Defendant’s c riminal activity wa

s extensive. We aff

irm the judgment o

f the trial court.

___________________________________ THOMAS T. WOODALL, JUDGE