### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Marc h 14 , 200 6
STA TE OF TEN NES SEE v. DA RR ELL E. POIN TER

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2004-C- 2237 Seth Norm an, Jud ge

No. M2005- 01743-CCA -R3-C D - F iled May 5, 2006

The De fenda nt, Darr ell E. Pointer, pled g uilty to two c ounts of ag g ravated robbe ry , and the tria l court sentenc ed him, as a R an ge I I I offe nder, to twe nty

y ear s in prison for ea ch count to be se rved
consec utively . On appe al, the De fenda nt contends that the trial c ourt err ed when it imposed
consec utive sentenc es. F inding that ther e exists no reversible e rror , we a ffirm the judg ments of the trial court. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and J OHN E VE R E TT W I L L I AMS , J J ., joined.

J eff rey A. DeV asher

(on appe al) an d Al l egra

Montgome ry

(at he aring ), Na shville, Tennessee , for the appe llant, Darr ell Eug ene Pointer.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B e nja min A. B a ll, As sis tant A tto rn e y Ge ne ra l; Vi c tor S. Joh ns on I I I , D ist

ri c t A tto rn e y Ge ne ra l; a nd Re ne e Er b, As sis ta nt Di stric t At torne y Ge ne ra l, for the a ppellee, State of

Tenne ssee.
OP IN ION

I. F acts
The De fenda nt ple d g uiltyto two counts of ag g ravated robbe ry . At the g uiltyplea he aring the trial court informed the De fenda nt that he had b ee n ch ar ged with eight counts of a g g ravated
ro bb e ry , w ith a

po ssi ble se nte nc e of e ig ht to thirty y e ars on e a c h co un t, a ndwi th a g g ra va te d a ssa ult , wh ic h c arrie s a po ssi ble se nte nc e of thr e e to fi ft e e n y e ars
. Th e Sta te sa id that, h a d th e c a se g on e to trial, the evide nce w ould prove: Speaking first to co- defe ndant ca se of B ill P otts and Darr [ell] Pointer. These c odefe ndants wer e involved in a se ries of a g g ravated robbe ries.-2- . . . . Mr . Po int e r i s p le a din g g uil ty to c ou nt tw o a nd c ou nt s ix of the ind ic tme nt. . . . [A] ll these matters oc curr ed her e in Davidson County during 2004.

. . . . Mr. Pointer is pleading g uilty to count two and c ount six , which is an e pisode that to ok pla c e on Ma y

the 4th , th e sa me c ou nt that Mr. P otts is ple a din g g uil ty to wh e n th e y

ro bb e d D e bo ra

h Jem e na z of mon e y by pla c ing he r int o f e ar w ith a de a dly
wea pon. . . . The poli ce beca me aware of a series of robberies and they

ended up a

rre sting Billy Potts for driving a

vehicle that had bee n reported stolen. During the cour se of their conta ct with Mr. Potts he ex plained that he wanted to ta lk to the detec tive about
sever al robbe ries that he ha d first-hand know l edge. Potts furnished de tails to a number of r obberie s, which he sta ted wer e committed by him and Dar

r[ell] Pointer.

Sub se qu e ntl y

the officer s in te rv ie we d M r. Poi nte r andhe a dmi tte d to
c omm itt ing the ro bb e ri e s, the on e s that he ’s ple a din g g uil ty to. Th e po lic e we re a lso able to find fing erprints of hi s at t he various locations. And as I say , both have made complete c onfessions.

Dar r[ell] Pointer will plead to count two and six as stated before , he will take 20 [y ear s] at 45 perc ent each. He is to have a sentenc ing he aring to decide w hether
or no t hi s te rm

sh ou ld be c on se c uti ve or c on c ur re nt o n th os e tw o 2 0 y e ar s e nte nc e s. At a subseque nt sentencing hearing, the Def endant testified that he wa s thirty -eig ht y ear s old,
a nd , p ri or to b e ing inc arc e rate d, he liv e d w ith his g rand mothe r a ndhe lpe d ta ke c are of he r. He sa id that befor e being arr ested he was work i n g fo r a tempora ry service wher e he w ent to jobs at
war ehouses doing g ener al labor, a nd he had w orked f or that ser vice f

or seve n or eigh t y ear s. The Def endant testified that he has two children, a g es ninetee n and eig hteen, a nd he had g raduated from hig h s c h o o l. H e w a s d ia g n o s e d“ ab o u t f iv e ” y e ar s a g o a s s u f

f e r in g f r o m d e p r e s s io n a n d b ipolar disorder a nd takes medic ation every day for these illnesses.

The De fenda nt admitted that he was addicted to cra ck cocaine a nd had bee n using the drug for se ven or e ight y ear s, but he first started using illega l drug s when he was eighte en. The Defe ndant
sa id that the c ri me s in whic h he wa s invo lve d we re his c o- de fe nd a nt’ s ide a , an d he we nt al on g wi th the se c ri me s b e c a us e of his c ra c k a dd ic tio n, a nd he us e d th e pr oc e e ds of the se ro bb e ri e s to pu rc ha se cra ck. The Def

endant sa id that he has ne ver rec eived trea tment for his addiction. He said that he felt sorry for what he had done

.-3-

The De fenda nt admitted that he had approximately six prior fe lony convictions and that he was ty pically under the influence of drug s when he committed those crimes. He admitted that he had previously

been se ntence d to probation and that he violated the terms of that probation.

On cr oss-examination, the Defe ndant ag ree d that it was not helpful t o his gr andmother w hen he eng ag ed in criminal behavior. The Defendant rec alled that when he committed these c rimes he woul d walk into an esta

blishment, order a

meatball sandw ich, and then show a g un and dema nd money , and he would take both the m oney and the sandwich when he left. The Defe ndant said that the long est period of

time that he was not in trouble w i t h t h e l aw was between 1996 or 1997 and 20 02 w h i l e h e w a s m arr i e d

. T h e D e f e n d a n te s t i m a t e d t h a th e h a d b e e n arr e s t e d ap p ro xima te ly fi ft e e n ti me s. Th e De fe nd a nt s a id tha t he sh ou ld n ot b e g ive n c on se c uti ve se nte nc e s b e c a us e he is a “g ood-hea

rted pe rson,” a nd the crimes were the re sult of him being on dr ug s.
Ba sed upon this evidence , the trial court found:

I ha ve loo ke d a t th is r e c or d. As ne ar as I c a n c ou nt [the De fe nd a nt] h a s si x previous fe lony

convictions, seven pr evious misdemeanor conviction[s] . I

find at least t hree probation violations in the matter. And it appe ars to me in Jul y of 2002 he re ceive d a three-y ear sentenc e, the actua l dispositi on date was actua lly in J anuary of ‘03, a three -y ear

sentenc e. This offe nse occ urre d in J une of ‘04, so obviouslyhe
was on some type of rele ase at the time he committed this offe nse. Un d er S ection 40-35-115 that would a

pply

. He’ s a profe ssional c riminal and his rec ord is extensive.

Sentence s will run consec utive one to the other

. I t is fr om this or de r tha t th e De fe nd a nt n ow app e a ls.

II. Ana lys is On appe al, the De fenda nt contends that the trial c ourt err ed whe n it impos ed conse cutive sentenc es bec ause he “mee ts none of the cri t er i a re l i ed upon bythe trial court to just ify the imposit ion of consec utive sentenc es.” A lternatively , he conte nds that a sentenc e of f orty y ear s is not the least seve re me asure nece ssary t o ac h ieve the pur

poses for w hich the sente nces w ere imposed and is not rea sonably

rela ted to the seve rity

of the off enses c ommitt ed.

Whe n a d e fe nd a nt c ha lle ng e s th e le ng th, rang e or the ma nn e r o f s e rv ic e of

a se nte nc e , it

is the duty of this court to conduc t a de novo r eview on the re cord w ith a presumption that “the determinations made by

the court from which the a ppeal is take n are corr ect.” Tenn. Code Ann. § 40-35-401( d) (2003) . This presumption is “conditioned upon the af firmative showing in the rec ord that th e tria l c o u r t c o n s id e r e d th e s e n te n c in g p r in c ip le s a n d a ll r e le v a n t f a c ts a n d c ir c u ms ta n c es.” State v. Ross, 49 S .W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W .2d 540, 543 (Tenn. 1999) ; State v. Ashby , 823 S.W

. 2 d 1 6 6 , 169 (Tenn. 1991) . The pre sumption does not apply to the leg al conclusions re ache d by the t rial court in sentenc ing a defendant or to the determinations made by the-4-

trial court whic h are predic ated upon unc ontroverte d fac ts. St ate v. De an , 7 6 S.W .3d 352, 377 (Tenn. Crim. App. 2001) ; State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Cr i m . App. 1994). I n conducting a de novo r eview of a sentenc e, we must consider: (a) any evidenc e rece ived at the t rial and/or sentenc ing hearing; ( b) the pr e se nte nc e re po rt ; ( c ) the pr inc ipl e s o f s e nte nc ing ; ( d) the arg ume nts of cou ns el rela tiv e to sentenc ing a lternatives; (e ) the na ture a n d ch ar ac t er istics of the offe nse; (f) any mitigating or enhanc ement fa ctors; (g ) any statements made by

the def endant on his or her own beha lf; and (h) the defe ndant’s potential or la ck of pote ntial for re habilitation or treatment. See Tenn. Code Ann. § 40- 35-210 (2003) ; State v. Tay lor, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001). The pa rty challeng ing
a se nte nc e imp os e d b y

the tr ia l c ou rt ha s th e bu rd e n o f e sta bli sh ing that th e se nte nc e is e rr on e ou s. Te nn . Co de An n. § 4 0- 35 -4 01 , Se nte nc ing Com m’ n Cm ts.

I n the ca se under

submissi on, we c onclude that ther e is ample e vidence t h at the trial court considere d the sentenc ing principles and a ll releva nt fac ts and circ umstances. The ref ore, w e re view its decision de novo with a pre sumption of corre ctness. Ac cording l y , s o l o n g as the trial court complied with the purposes a nd proce dure s o f t h e 1989 Sentencing Act and its finding s are supported by

the fa ctual re cord, this Court may n ot disturb this sentenc e eve n if we w ould have pr e fe rr e d a d if

fe re nt r e su lt. Se e Te nn . Co de An n. § 4 0- 35 -2 10 , Se nte nc ing Com m’ n Cm ts. ; State
v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the de fenda nt bear s the burden of showing that the sentenc e is improper. Te nn. Code Ann. § 4 0 -3 5 -4 0 1, Sentencing Comm’n Cm ts.; Ashby , 823 S.W .2d at 169.

Pur su a nt t o T e nn e sse e Cod e An no ta te d s e c tio n 4 0- 35 -1 15 (a ) ( 20 03 ), if a defend a nt i s convicted of

more than one criminal off ense, the court shall o rd er the sentenc es to run either
consec utively

or concur rently

. The trial court may order sentenc es to r un consec utively if the court finds by a pre pondera nce of

the evidence any one of certain criteria enumerated in Tenne ssee Code A n n o t a t e d s e c t i o n 4 0

- 3 5

- 1 1 5 ( b ) ( 1 )

- ( 7 )

. T h r e e o f t h o s e c r i t e r i a

ar e : ( 1 ) t h e d e f

e n d a n t is a profe ssional c riminal who has knowing ly devoted such defe ndant’s life to criminal ac ts as a major
source of livelihood; (2) the de fenda nt is an offe nder whose re cord of criminal ac tivityis ex tensive; and (3) the def

endant is sentenc ed for

an off ense c ommitt ed while on pr obation. Tenn. Code Ann. § 40-35-1 1 5 ( b ) ( 1 ) , ( 2 ) , & ( 6 )

. T h is Co u r t h a s p r e v io u s ly h e ldth a t th e te r ms “ p r o b a ti o n ” a nd “par ole,” a lthough similar, we re not sy nony mous for the pu rp o s es o f section 40-35- 115. State v. Fr ederick Parks, No. W1999-01357-CCA-R3-CD, 2000 WL 1672341, at *3 (Tenn. Crim. App., at J ackson, O ct. 27, 2000), no perm. app. filed (quoting State v. Pettus, 986 S .W.2d at 544). I n addition to the specific criteria in Tenne ssee Code Annotated se ction 40-35-115( b), conse cutive sente ncing is g uid e d b y t h e g e n e r a l s e n t e n c i n g p r i n c i p l e s p r o v i d i n g t h a t t h e l e n g t h o f a s e n t e n c e b e “ jus tly deser ved in re lation to the seriousness of the of fense ” an d “n o g reater than tha t deserve d for the offe nse committed.” Tenn. Code Ann. §§ 40-35-102( 1) and - 103(2); State v. I mfeld, 70 S.W.3d 698, 707 (Tenn. 2002)

. After revie wing the record, we conclude t hat t he evidence doe s not preponder ate a g ainst the trial court’ s finding that the Def endant’ s sentence s should run consec utively

. A findi ng of any one of the 40-35- 115 fac tors can justi fy the i mpositi on of consecutive sentences. The trial court did not-5-

err when it found t hat Tennessee Code Annotated se ction 40-35-115( b)(2) applied. The Def endant’ s pre- sentenc e re port and the te stimonyat the De fenda nt’s sentenc ing he aring indicated that the Def endant ha s had at least t hirteen prior convictions, including felonies a nd misdemeanors, dating back to 1984. Most re cently , the Def endant wa s convicted in 2004 for theft and, prior to that, he was convicted in 2002 of

felony ag g ravated assault, six separ ate misdemea nor theft c onvictions, and possession of drug para

pherna lia. The De fe n d ant has at least five other felony theft or bur g lary convictions, two misdemeanor the ft convictions, three felony probation violations, a misdemeanor criminal impersona tion conviction, a criminal trespass conviction, other drug convictions, and driving convictions. This is a sufficie nt basis for the tria l court’s de termination that the De fenda nt wa s a n o ff

e nd e r w ho se re c or d w a s e xten siv e a ndfo r i ts i mpo sit ion of c on se c uti ve sen ten ces
. Further, in our view , the ag g reg ate se ntence of forty y ear s is reasona

bly re l at ed t o the seve rity

of these off enses. The Def

endant is not entitled to relief on this iss ue.
III. Conclusi on
I n acc ordanc e with the for eg oing r easoning and authorities, we affirm the judg ments of the tr ia l c ou rt

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE