# FILED
March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 03C01-9712-CC-00547 Appellee ) ) HAMBLEN COUNTY vs. ) ) Hon. JAMES E. BECKNER, Judge WALTER LEE "S

TEVE" ALLEN ) and GARY L. HANEY, ) (Rob bery) ) Appellants )
For the Appellants : For the Appellee : Laura D. Perry John Knox Walkup Perry & Perry Attorney General and Repor ter Attorney for A

ppellant, Gary L. Haney Ellen H. Pollack 503 North Jackson Street Assistant Attorney Gener al Morristown, TN 37814 Criminal Justice Div ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Edward H. Moody Nashville, TN 37243-0493 Asst. Public Defender Attorney for A

ppellant, Walter Lee Allen 1609 College Park Dri

ve, Box 11 C. Berkeley Bell, Jr. Morristown, TN 37813- 1618 District Attorney General Greg W. Eichelman Victor Vaughn District Public Defender Asst. District Attor ney General 510 Allison Street Morristown, TN 37814

OPINION FILED: AFFIRMED IN PART; REMANDED IN PART
David G. Hay

es Judge1 We note that the appel lant Al len rai sed a Batson issue wit hin his brief. However , the appellan t conce ded that th e issue w as withou t merit an d withdrew it. Thus, we will not addre ss it. 2 OPINION
The appellants, Walter Lee “Steve” Allen and Gary L. Haney, appeal the verdict of a Hamblen County jury finding them gui lty of robbery, a Cl ass C felony. At the sentencing hearing, the trial court sentenced each appellant a s range II multiple offenders to the maximum applicable sen tence of ten years. The appellants raise three issues for our rev iew in their appeal as of right: (1) challeng es to the identification process; (2) the sufficiency of the convic ting evidence; and (3)

the trial court’s im position of an “exc essive” se ntence a nd the im position of conse cutive sentences. 1

After a review of the rec ord and the applicable law , we affirm the judgment of conviction for each appella nt. Additionally, w e affirm the trial court’s i mposition of ten year sentences for each appel lant; however, as the State concedes, we hold the trial court erred in o rdering that the robbery conviction for each appell ant be served consecutive to a convi ction in Jefferson County w here no sentence had yet been imposed. Accordingly , we remand this cause for j udgments of conviction consi stent with these findings.

BACKGROUND
On July 13, 1997, Patrici a Keith was employed as a clerk at the Kwik S hop Market which is located adjacent to the Waf fle House in Morristown. Shortly after 7 a.m. that morning, Ms. Keith heard the gas pumps start and went to the front of the store to await the entranc e of the customer. Two black mal es entered the store. One man [Allen] wore a hooded “ sweat jacket” insid e out; and the other man [Haney] wore a w

hite tee shirt with r

ed writing and a basebal l cap. The two men3

went to the back of the sto re and began selecting various items. Ms. Ke ith became suspicious of the men because one of the men w as wearing a hood in th e middle of the summer. Thereafter, the customer at the gas pumps entered the stor e, paid for his gasoline, and left. While the cash r egister was stil l open, the two men approached the clerk and one of them sai d, “this is a holdup.” When Ms. Keith turned a round, a gun was lying o n top of their mer chandis e. The sh orter of the two men picked up the gun and cocked i t. In fear, Ms. Keith took the bills from the drawer and placed them in a bag. Then, the two men fled the sto re in the direction of the Waffle House. Ms. Keith sounded the store alarm a nd called the police. The two men took $93 from the Kwik Shop Market. When the officer arrived, she related what had happened; however, she did not feel that she woul d be able to identify the men other than their height and clothing. She told the officer that they both tried to hide their faces and that she coul d not see them very w ell.
The following week, Detective Riner of the Mor ristown Police Depar

tment requested that Ms. Keith c ome to the police station for a photog raphic lineup. She testified that Riner read her the form on the back of the lineup and then s he identified the two men who r obbed the store from two separat e photographic arrays

. She identified the man from the first li neup quickly [Haney ]; however, in identi

fying the man from the second lineup [Allen] , she hesitated “a little bit” but she was certain it was him. Then she wrote the events of the crime on the bottom of the form.
Upon cross-examination, she acknowledged that, i n her initial descript ion to the officer, she said that one of the men w as five foot seven inches, one hundred and seven ty pounds and the o ther was f ive foot f our inche s, one hu ndred an d fiftyfive pounds. She related that the top portion of the photographic identification form was not filled out when she filled out the lower po rtion on either of the identification forms. Although at trial s he testified that the appellant Hane y held the gun and4

cocked it, she had written on the identification form that the appellant Allen had the gun. When Ms. Keith earlier testified a t the preliminary heari ng, she testified that she had the faces of the two men corr ect, however, she had c onfused their bodies. She noted no noticeable injuri es to either man’s face. She read the notations on the photographi c identifica tion forms into evidence and beside ea

ch appellant

’s name was the word “suspect.”

On redirect examination, she testified that Detectiv e Riner only read her the instructions before she identi fied the appellants. He did not g ive her names of any potential suspects nor did he point anything out to her. She stated that she has never had any doubt as to the faces of the two men.
James “Red” Long, the other customer at the Kwik Shop on the day of the robbery, testified that he was filling his vehicle and two cans with gasoline. He related that there were t wo other people in the stor e; but he could not identify them. He described one man as being tall and the other short. H e recalled that one of the men wore a sweater with a hood and the other man wore a baseball cap. He could only identify the man in th e baseball cap as African-Amer ican. He did not view

the photographic lineup.
Mark McElhaney, an officer with the Morristow

n Police Department, testified that he responded to a police dis patch at 7:19 a.m. advising that a robbery had occurred at the Kwik S hop Market. He unsuccessfull y attempted to find the suspects that matched the description given by Ms. Keith. Later, he turned the case over to Detective R iner.
Karen Webb, assistant manager at the Waffle House, testified that she w as working on the morning of the robbery. She stated that , while she was pul ling the blinds down, she saw

two men walking ar

ound in the parking lot near the dumpster2 Q. (P rose cuto r): O kay, D o you s ee him here toda y? A. (Webb): Yes, si r. I do. Q. Where is he? A. The gentleme n beside Mr. Mood y, there (indicati ng).

. . . Q. (Mr. M oody): An d so no w which is correc t? A. (Webb): That

gentl eman, righ t ther e, (i ndicat ing) was

the one I saw. 5 of the Kwik Shop. She observed that both men were black; one man was “real tall” and the other man was much short er. She described the clothi ng just as the other witnesses but only o bserved the face of the taller man.Thereafter, she was asked to view a photographi c lineup. Ms. Webb only identified one of the men [Allen] from the photographic lineup as the man she saw by the dumpster in the hooded sweatshirt.

On cross-examination, Ms. Webb stated that after viewing the photographic lineup and identifying Al len, the officer provided her with the appropriate forms for identification. On the photographic identification form, she stated that it was Mr. Haney that she had seen and that s he could not identify Mr. Allen. She said that Detective Riner nev

er pointed anyone out to her as a suspect. She explained that after she identified them that she w as told their names. She stated that both of the appellants had been in the Waffle House earlier that morning. She had noticed them because o ne of them was “extremel

y tall.” Although th e record in dicates some confusion between the two appel lants regarding Ms . Webb’s in-court identification, neither the prosecution nor the defense clarified for the record which appellant was allegedly misidentified. 2

Detective Steve Ri ner of the Morristown Pol ice Department testified that he compiled a photographic lineup during the investigative stage of the robbery. He showed the lineup to both Ms . Keith and Ms. Webb. With regard to Ms. Keith, he stated that she had no difficulty identifying the appellant Haney. He provided h er the other lineup and left the room. When he returned, she had identified the appellant Allen. After she had i dentified both men from the lineups, he tes tified that6

he gave her the forms. He t estified that he filled in the names and that she was not informed of their names until after she had identified both appellants. He also stated that he did not point out any potential suspects. He st ated that he wrote the word “suspect” besi de each appellant’s name after Ms. Keith had identified them. He stated that when he gav e the form to Ms. Keith the top por tion was blank. After he filled out the top portion and before she filled out the bottom portion, he made copies of the form.
In defense of the appellant Allen, Penny Morgan testified that, at the time of the robbery, the appellant Allen lived with her and her children. She s tated that on the morning of the robbery “[t]hat early in the morni ng, we were usual ly still in the bed, but he was home on Sundays.. . . We were always home on Sunday .” She had no specific recollectio n of that particular Sunday other than the kids were hav ing a swimming party. She continuously repeated, “if it was a Sunday, w e were at home.”
Selina Haney, sister of the appellant Haney, tes tified that ar

ound 6:15 a.m. on the morning of the robbery,she heard a knock at the window. The appellant Allen was knocking on her brother’s window. After she saw the appellant Allen, she proceeded to shower and ge t ready for work. She

testified that her brother w as sleeping in that room and that he did not get up before she left for w ork at 6:55 a.m. She stated that her brother had a terrible cold that w eekend, had a cast on his wr ist, and scratches on his face. She s tated that when she left for w ork, the appellant Allen had already left.

Patricia H aney, the ap pellant’s m other, testi fied that the a ppellant Al len came to her home the morning of the robber y. She told the appellant Al len that her son was asleep and Allen w alked off the porch. After she answ ered the door for Allen, she went back and laid dow n on the couch until 9:00 or 9:30 a.m. without going by7

her son’s room. She prepared breakfast for her son, bu t he never came out his room. Although she admitted she never saw him, she testified that he remained in bed. She reiterated that her son had a cold, a cast on his wrist, and a scratch on his face.
Although the indictments char ged the appellants with aggravated robbery , the jury returned a gui lty verdict for both appellants on the lesser char ge of robbery.

I. IDENTIFICATION CHALLEN GES
In their first issue, the ap pellants challenge their identification by the witnesses Patricia Keith and Karen Webb and the procedures employed by the police in the identification process. The appellant Allen r aises the identification issue within the contex t of the trial court’s denia l of his motion to suppress. The appellant Haney challeng es only his identificati on by the witness Keith and argues that the “photogra phic iden tificat ion was tai nted by th e actions of the Mo rristown Police Department.”
At this juncture, we are compelled to note that both appellants’ argume nts are misplaced. The appellant’s arg ue only that the line-up i dentification and the preliminary hearing identifications should have been excluded because of their “taint.” The relevant issue, however, is whether those alleged “tainted” out of court identifications affected the witne sses in-court identifications.
At the suppression hearing, Detective Riner testified that he read the f orm instruct ions to Ms. Keith, an d then he gave her two d iffere nt photo graphic ar rays each containing one of the appellant s. She identified both appellants and then the identification forms were filled out by both Ms. Keith and Detective Riner. The word “suspect” was then written beside both appellants’ names on the two different forms.8 Ms. Keith explained that when she gave the description of the individuals just after the incident that she w as “very distur

bed.” At that time she did not believe that she would b e able to identif y the perpe trators. Upon viewing the phot ographic array, she testified that she “insti nctively . . . pic ked the first one . . . easily;” however, after a “little bit” of hesitati on [three to five minutes] she w as certain that she identified the second perpetrator. She also stated that the forms were fill ed out following her identification of the appellants. S he admitted that in General Sessi ons Court she had said appellant Allen had the gun, however, she acknowledged that her err or was “in the identificati on of the bodies but not the faces. I did not get their bodies right.” Sh e stated that the re was no do ubt in he r mind tha t these wer e the two appellants who committed the r obbery.
At the conclusion of the hearing, the trial court denied the mo tion to suppress Ms. Keith’s identificati on of the appellant. The trial cour t observed: These ar e good pho to lineup s. There is nothin g peculiar or suggesti ve about any one person in the lineup. The only real issue here is whether there was so me other suggestion made or if the testimony and stat ements o f the witn ess are so inconsis tent as to be condu cive to misidentification. . . . [T]he uncontradicted testimony is that the witness di d not look at the forms until after the identificat ions were

made. Then the fo rms were filled out as to the w ord suspect. The witness did not see that form, did not see the word sus pect until after the identificati on was made, and then she and the officer filled the form out together. There’s nothing t hat cont radicts t hat, so th ere’s not hing sugges tive about that. Her testimony has been a l ittle bit inconsistent from the original statement made to the officer to the present time; but we’ve all

been around long enough to know . . . that people’s focus and attention does not get to feet, legs, pant s, [and] even shirts. We know from experience that people are so focused on faces a nd guns. . .[t]his witness is certain about that. Her opportunity to view the perpetrators was good even though they were tryi ng . . . [to] hide themselv es. They did not wear masks. She’ s absolutely certain ab out the clothing and who wore what. Her description . . . is pretty accurate, considering all the facts and circumstances. Her level of certainty

. . . is great here. S he pointed to one defendant in one photo lineup and just w ithout any hesitation made an identification. The other one, to her credit, she considered for a long time, and then she was certa in . . . at the preliminary hearing . . . [and] today. Relatively

little time elapsed betw een the crime and the confrontation with the photo lineups, not such a long time as to ca use9 failing of memory. And there’s certainly . . . not been a corruptiv e influence or suggestive identific

ation. [T]his court . . . conclude[s] that the circumstances and f actors were not conducive to misidentification. Certainly, . . . defense c ounsel can use any inconsi stencies before the trier of fact to try to convince them that the cr edibility of identification should not be made. [I ]t just goes to the credi bility of the witness and not the lega l admissibility of the ev idence. As pronounced by the United States Supreme Court, a vi olation of due process has occurred if the court finds that the identif ication procedure was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375 (1972) ; United States v. Wade , 388 U.S. 218, 87 S.Ct. 1926 (1967 ); Gilbert v. California , 388 U.S. 263, 87 S.Ct. 1951 (1967); Stovall v. Denno , 388 U.S. 293, 87 S.Ct. 1967 (1967 ). This standard has been adopted by our state’s supreme court. See Bennett v. State , 530 S.W.2d 511, 512-515 (Tenn. 1975); Sloan v. State , 584 S.W.2d 461, 466-470 (Tenn. Crim. App. 1978); Proctor v. State , 565 S.W.2d 909, 911-912 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1978); Rippy v. State , 550 S.W.2d 636, 639-640 (Tenn. Crim. App. 1977). “[R]eliability i s the linchpin in determini ng the admissibility of identification testimony [pursuant to principles of due process].” Manson v. Brathwait

e , 432 U.S. 98, 114, 97 S.Ct. 2243, 2 253 (1977). A finding that the pre- trial i dentific

ation w as unrel iable w

ill als o requi re the ex

clusio n of a subsequent in-court identi fication by the same witn ess. Id. See also State v. Philpott , 882 S.W.2d 394, 400 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994); State v. Davis , 872 S.W.2d 950, 956 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993); Sloan , 584 S.W.2d at 470. The court must view the totality of the circumstances. Proctor , 565 S.W.2d at 911-912. In Biggers , 409 U.S. at 199- 200, 93 S.Ct. at 382, the Supreme Court announ ced factors to be considered in determining whether a v iolation of due process has occurred: (1) the opportunity of the w itness to view the criminal at the time of the crime; (2) the witness’ deg ree of attention at the time of the cri me;3 The appellant Allen chal lenged the t rial co urt’s deni al of hi s motion for ju dgment of acquittal fol lowing t he State’ s case in chief. We note this i ssue is waive d because the appel lant testified and offered evidenc e in his own defens e rather th an rest h is case. See State v. Cam pbe ll , 904 S.W .2d 608 ( Tenn . Crim. A pp.), perm. to appeal de nied , (Tenn . 1995); State v. Sm ith , 735 S.W.2d 859, 862 (Tenn. Cr im. App. 1987). We note that this does not waive the defendant’s right t

o present evi dence in his defense at trial nor does it wai

ve his ri ght for a l ater sufficien cy review. See State v. Johnson , 762 S.W .2d 110, 1 15 (Te nn. 1988 ), cert. deni ed , 489 U.S. 1091, 109 S. Ct. 1559 (1989) ; Tenn. R. Cri m. P. 29(a). I f the defendant chooses to proceed with hi s defense, the defendant has only waived th e review o f the qua ntum of eviden ce, i.e. , sole ly that eviden ce pres ented in the State’s ca se in chief

. 10 (3) the accuracy of her prior description of the criminal; (4) the level of certai nty demonstrated at the confrontati on; and (5) the time elapsed betwee n the crime and the confrontation. See also Philpott , 882 S.W.2d at 400. Unless th e evidence preponderates against the judgment, the trial court’s findings of fact following a suppression hearing are conclusive on appeal. Davis , 872 S.W.2d at 956. In th e instant case, the record clearly supports the t rial court’s findings . Although the State’s w itness at times was inconsistent in her testi mony, the trial court pr operly noted that these inc onsistencies only went to the credi bility of the witness’s identification and not the r eliability of the photographic identification.The testimony was undis puted that the word “suspec t” was written after the witness made the identifications and there exists no evidence to the contrary. Therefore, viewing the totality of the circumstances, the trial court properly denied the motion t o suppress. This issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE
Next, the appellants contend that the evidence is insuff icient to sustain their convictio ns for rob bery. 3 Specifically, they emphasize (1) Ms. Keith’s inability to identify her assailants i mmediately following the robbery; (2) her i naccurate physical descriptions; (3) her misidentification at the preli minary hearing of whi ch appellant had the gun; (4) the word “suspect” written on the photographic identification form beside the appellants’ names; ( 5) Ms. Webb’s misidentification at tri al of appellant Allen; and (6) the lesser verdict rendered by

the jury indicating

reasonable doubt. They assert that the lineup i s “questionable” and “s o suggestive and conduc ive to11

mistaken identity” rendering the trial testimony unreliable and inadmissible. Thus, they argue that, without the identification testimony , the evidence is not sufficie nt for a rational trier of fact to find th em guilty beyond a r easonable doubt.
A jury convictio n removes the presumption of innoc ence with which a defendant is initially cloaked and replaces it w ith one of guilt, so that on appeal , a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, thi s court does not reweig h or reevaluate the evi dence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). On appeal, the State is entitled to the strongest l egitimate view of the e vidence and all reasonabl e or legitimate inferences w hich may be drawn there from. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (199 3). Viewing the evidence under these cr iteria, it is this c

ourt’s responsibility

to affirm the conviction if the proof w as sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (199 5); Tenn. R. App. P. 13(e).

In State v. Strickland , 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), this court held that the testimony of a victim identifying

the perpetrator is sufficient in and of itself to support a convic tion. See also State v. Shelton , No. 01C01-9505-CC00144 (Tenn. Crim. App. at Nashv ille, Mar. 22, 1996), perm. to appeal denied , concurring in results only , (Tenn. Nov. 12, 1996). M oreover, the credibil ity of eyewitness testimony

identifying the accused a s the perpetrator of the crimi nal offense for which he stands trial is a question of fact for the determination of the jury upon consideration of all competent proof. Strickland , 885 S.W.2d at 87 (citing State v. Crawford , 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)); see also State v.12

Williams , 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).

The victim, Keith, identified both appellants on t hree occasi ons: (1) fro m a police photo lineup; (2) at the preliminary hearin g; and (3) finally at trial. The witness, Webb, identified both appellants as having been in the Waffle House on the morning of the robbery and on direct examination ide ntified Allen as the person she saw behind the Kwi k Market. Although testimony of the the State’s wi tnesses contained some inconsistencies, counsel for both appellants thoroughly crossexamined these witnesses regarding their abi lity to perceive, recall, and identify the appellants. Additionally , although both appellants pr esented an alibi defense, i.e. , the testimony of Allen’s ex -girlfriend and the mother and sister of Haney, the jur y, by
retu rn in g a

gu il ty ve rd ic t, accr ed it ed th e t esti mo ny

of th e S ta te ’s wi tn es se s. We conclude that the evidence i s sufficient for a rational tri er of fact to find the appellants guilty bey

ond a reasonable doubt. This iss ue is without merit.

III. SENTENCING
In their final issue, the appel lants contend that the trial court’s imposition of the maximum sentence of ten years was excessive . Moreover, the appell ants contend that the trial court erred by ordering this sentence to run consecuti vely to a sentence that had not yet been imposed in anoth er county. Both appellants were sentenced as Range II Multiple Offenders for robbe ry, a Class C felony, for which the range of punishment is six to ten years. See Tenn. Code Ann. § 39-13-401; Tenn. Code Ann. § 40-35-112(b)(3) (1997). Both appellants rec eived the maximum ten year sentence. This cour t’s review of the len gth, range, or manner of ser vice of a sentence is de novo

with a presumption that the determination made by the tri al4 Under Tenn. Code Ann. § 40-35- 106(a)(1) ( 1997), a multi ple offender has “[a] mini mum of two (2) bu t not more than f our (4) pri or felony

convicti ons withi n the conviction class, a higher class, or w ithin the nex t two (2) lowe r felony clas ses . . .” 13 court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presum ption is only applicable if the record demonstr ates that the trial court pr operly considered rel evant sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Here, the presumption applies. The burden is on the app ellant to show that the sentence imposed was improper. Sent encing Commission Comments, Tenn.Code Ann. § 40-35-401(d).

A. Walter Lee “Steve” Allen

The record reflects that this appellant Allen is twenty-seven years old, unmarried, and has a high sc hool education. No present empl oyment or history of employment is contained within the presentence report.The appellant Allen admits to alcohol abuse. He has a le ngthy prior crimi nal history from 1989 to the pr esent including the followi ng convictions: ag gravated burglary, theft over $1,000, DUI and leaving the scene of an acci dent. Additionally, he has two misdemeanor convic tions of public intoxication and t wo convictions for th efts under $500. He has also been previously rev

oked while on probation and parole.
With regard to enhancemen t factors, the trial court applied, “previous history of criminal convictions

in addition to those necessar y to establish the appropr iate range,” seeTenn. Code Ann. § 40-35-114(1) ( 1997), and “previous his tory of unwillingness to c

omply with the conditi ons of a sentence involvi ng release in the community.” See Tenn. Code Ann. § 40-35-114(8). The trial court applied no mitigating factors. Appellant Allen argues that the court misapplied the f irst enhancement factor because it was already utilized to establish the appe llant as a multiple offender. This argument is misplaced. When the State filed its notice to seek punishment as multiple offender 4 , it relied only upon hi s convictions for14

aggravated burglary and theft over $1,000. A plethora of convictions beyond these two existed for the tr

ial court to use in suppor t of this enhancement factor.

After conduc ting de novo review, we conclude that the trial court properly applied the appropriate enhancing factors and agree tha t no mitigating factors apply in this case. When the sentencing court f inds only enhancement factors applicable without any mitigating factors present, the cour t may set the sentence above the minimum in the range but stil l within the range. See Tenn. Code Ann. § 40-35- 210(d). Thus, we conclude that the appellant’s ten year sentence f or robbery is justified. This issue is w ithout merit.

B. Gary L. Haney
The appellant Haney is tw enty-six years

old, single, and dropped out of school in the ninth grade after being expelled. The presentence rep ort reflects a history of alcohol and drug abuse. The record contains no i ndication of current employment or of an employment his tory. This appellant als o demonstrates an extensive criminal h istory fro m 1989 to the prese nt includ ing: aggrava ted robb ery, two aggravated bur

glaries, attempted burgl ary of an automobile, burgl ary of an automobile, and three thefts over $500. Additionally, the appellant has numerous misdemeanor convictions for resisting arrest, e vading arrest and sev

eral offenses involving alcoho l and related offenses. The appellant’s probation has been revoked on three occasions.
When determining the appropriate sentence, the t rial court applied the following enhancement factors for the appellant’s convic tion of robbery: (1) “[

t]he defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range,” see Tenn. Code Ann. § 40-35-114(1); (2) “ the defendant was a leader in the commission of an15

offense involving two (2) or more criminal actors,” see Tenn. Code Ann. § 40-35- 114(2); (3) “the defendant has a pr evious history of unw

illingness to comply

with the conditions of a sentence involving release in the community,” see Tenn. Code Ann. § 40-35-114(8); and (4) “ the felony was committed w hile on probation for another felony,” see Tenn. Code Ann. § 40-35-114(13). The trial court applied no mitigating factors and imposed the maximum ten y ear sentence.
Upon de novo

review, we c

onclude that the trial court correctly applied the appropriate enhancement factors. Furtherm ore, we agree that no mitigating factors applied to this appellant. Ac cordingly, we a

ffirm the trial court’s impos ition of the maximum sentence of ten years for this appellant. This issue is without merit.

IV. CONSECUTIVE SENTENCES
Both app ellants c hallenge the trial c ourt’s ord er requirin g that the ir respect ive robbery conviction s be served consecutiv e to a robbery convic

tion in Jefferson County. The reco rd reflects tha t, on the date o f the appella nts’ sentencin g hearings in this case, both appellants had been convicted in Jefferson C ounty of aggravated robbery. Howev

er, the sentencing hearing for that conviction had not been held and thus no sentence had been imposed.
In support of their argument, th e appellants cite State v. Thompson , 565 S.W.2d 889 (Tenn. 1977) and State v. Arnold , 824 S.W.2d 176 (Tenn. Crim. App. 1991). The State concedes that the trial court erred in imposin g the robbery convictions consecutiv

e to the Jefferson County convi ctions. We agree. In Thompson , 565 S.W.2d at 890, the supreme court held that consecutive sentences may only be ordered in conjunction with a previously imposed sentence . (Emphasis added). This court has held that “the last sentencing cou rt should have the responsibility to det

ermine whether or not a se ntence should be served16

consecutively.” Arnold , 824 S.W .2d at 178 (citin g State v. Stafford , 368 N.W.2d 364, 366 (Minn. App. 1985)). “ The consecutive sentencing is no less in futuro even though the ‘conviction’ existed at the time of the sentencing.” Arnold , 824 S.W.2d at 178 (citing State v. White , 18 Ohio St. 3d 340, 481 N.E.2d 596, 598 (1985)).

Therefore, we conclude that the t rial court erred by imposing the ten year sentences consecutive to pending sentencing decisions to occur in futuro for both appellants. However, we find no error in the trial court’s decisi on to run appellant Haney’s sentence consecutive to the outstanding seven year sentence for thef t in Cocke County. At the sent encing hearing, the tr

ial court found that Haney’s criminal activity was extensive and that he was on probation at the time the present offense of ro bb er y w as co mm it te d. Te nn . C od e A nn . § 40 -3 5- 11 5( 2) an d ( 6) (1 99 7) . We conclude that consecutive sentences are necessary to protect the public from the possibility of the appell ant Haney’s future crimin al conduct and the aggreg ate
sentence is reasonably r elated to the severity

of the present offenses. See State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995).

V. CONCLUSION
The judg ments of convictio ns for bo th appel lants are affirm ed. Moreo ver, we affirm the trial court’s impos ition of the ten year sentence for each appellant; however, we hold the trial court erred i n imposing consecutive sentences for the appellants with regar

d to the pending sentences in J efferson County. The appellant Haney’s consecutiv

e sentence with Cocke C ounty is affirmed.
This case is remanded for entry of judgments of conviction con sistent with this opinion.17 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JERRY L. SMITH, Jud ge

___________________________________ JAMES CURW OOD WIT T, JR., Judge