FILED

June 3, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00276

)

Appellee, )

)

) KNOX COUNTY

VS. )

) HON. MARY BETH LEIBOWITZ

DONALD MITCHELL GREEN,) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MARTIN PAUL G. SUMMERS

P. O. Box 426 Attorney General and Reporter

Knoxville, TN 37901-0426

CLINTON J. MORGAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

RANDALL E. NICHOLS

District Attorney General

ROBERT L. JOLLEY, JR.

Assistant Attorney General

City-County Building

Knoxville, TN 37902

ORDER FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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ORDER

This is an appeal as of right from the judgment of the Knox County Criminal

Court. On June 14, 1994, Appellant pleaded guilty to aggravated robbery,

misdemeanor theft, and failure to appear. Appellant received a thirty year sentence

for aggravated robbery, to be served concurrently with an eleven months and twenty

nine day sentence for misdemeanor theft. These sentences are to run consecutively

with the six year sentence for failure to appear.

Appellant concedes that he was a Range III persistent offender for aggravated

robbery. However, Appellant argues that he should receive only the minimum

sentence for a Range III aggravated robbery offender, twenty years. Appellant

asserts that a twenty year sentence for this offense would be sufficient and that the

trial court erred in imposing the maximum sentence for a Range III aggravated

robbery offender. However, after a careful review of the record and briefs in this

matter we are of the opinion that the judgment of the trial court should be affirmed

pursuant to Rule 20, Rules of the Court of Crim inal Appeals. 

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 trial

court. Tenn. Code Ann. § 40-35-401(d). This presumption of correctness is

“conditioned upon the affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circum stances.” State v. Ashby

823 S.W. 2d 166, 169 (Tenn. 1991). If the record shows that the court did not

consider those factors, the standard of review is strictly de novo. However, contrary

to Appellant’s assertion, the record here indicates that the trial court did, in fact,

consider these factors in making its determination of the proper sentence. The trial

court seemed convinced that, given Appellant’s prior criminal record with no
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evidence showing potential for rehabilitation other than Appellant’s statements that

he is remorseful, a thirty year sentence as a Range III offender was appropriate.

Appellant has not satisfied his burden of proving that the sentence was improper.

Therefore, we will not disturb the decision of the trial court and affirm pursuant

to Rule 20, Rules of the Court of Criminal Appeals. It appearing that Appellant is

indigent, costs of the appeal will be paid by the State of Tennessee

______________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

NORMA MCGEE OGLE, JUDGE