# FILED June 3, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808- CR-00276 ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ DON ALD M ITCH ELL G REE N,) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT : FOR THE APPELLEE : JULIE A. MAR TIN PAUL G. SUM MERS P. O. Box 426 Attorney Generaland Reporter Knoxvill e, TN 37901-0426 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 RANDALL E. NICHOLS Distri ct Attor ney General ROBERT L. J OLLEY, JR. Assistant Attorney General City-County

Building Knoxvill e, TN 37902
ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L . SMI TH, J UDGE-2- ORDER
This is an appealas of ri ght from the judgment of the Knox County Cri minal Court. On June 14, 1994, Appel lant ple aded guilt y to aggrav ated robbe ry, misdemeanor theft, and failure to appear. Appellant received a t hirty year sentence foraggravated robbery, to be served concu rrently with an eleven m onths a nd twen ty nine day sentence for misdemeanortheft. T hese sente nces are to ru n con secu tively with the six year sente nce for failure to app ear. Appellant

concedes that hewas a Range III per sistent offender f

or aggravate d robbery. However, Appell ant argues that he should recei ve only t he minimum sentence for a Range II I aggravated robbery off ender, twent

y years. Appellant asserts that a tw enty ye ar sen tence for this offense woul d be suffi cient and t hat the trialcourt err

ed in imposing t he maximum sentence fo r a Range III aggravated robbery offender. However, after a carefulreview of the record and briefs i n thi s matter we are of

the opinion t hat the ju dgment of the t rial court shoul d be affirmed pursua nt to Rule 20, Rule s of the C ourt of Crim inal App eals. The standard of review for the appeal of a sentence imposed by the trial court is de novo with a presumption of correctness

for the determinations made by the tri al court. Tenn. Cod e An n. § 40-35 -401( d). Th is pres ump tion of c orrect ness is “conditi oned upon the affirm ative show ing in the record t hat the trial court considered the sentencing principles and a ll relevant facts and circum stances.” State v. Ashby 823 S.W. 2d 166, 169 (Tenn. 1991) . If t he rec ord shows that the court di d not consider

those factors , the sta ndard of review is strictly de novo . However, contrary to Appellant’ s asserti on, the recor d h ere indica tes that the trial court did, in fact, consider

these factors in making i ts determinat ion of the proper sentence. The trial court seem ed con vinced tha t, given Ap pellant’s pr ior crimina l record w ith no-3-

evidence showing potent ial for rehabili tation ot her than Appellant’s statements that he is remo rseful, a thirty y ear sentence as a Range I II offender was appropri ate. Appellant ha s not satisfied his burd en of proving tha t the sentence was impro per. Therefore, we will not dist urb the deci sion of the tri al court and af

firm pursuant to Rul e 20, Rul es o f t he Co urt of C ri mi nal Appea ls. It app earing that Ap pellan t is indigent, costs of t he appeal wil l be paid by the State of

Tennessee

______________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ NORMA MCGEE OGLE, JUDGE