### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 19, 2001 Session STATE OF TENNESSEE v. DONALD W. RHEA, JR. Direct Appeal from the Criminal Court for Davidson County No. 99-C-2233 J. Randall Wyatt, Jr., Judge

No. M2000-02299-CCA-R3-CD - Filed July 27, 2001

The Appellant, Donald

W. Rhea, Jr. was indicted on one count of aggravated robbery and one count of attempted aggravated robbery stemming from a single

criminal episode. Pursuant to a plea agreement,

Rhea pled guilty

to the lesser offe

nses of robbery

and attempt to commit rob bery. Following a sentencing he aring, the Davi

dson County Cr

iminal Court s en tenced Rhea to the maximum sen tence of six years for robbery and three years for attempted robbery . The co urt , finding Rhea’s history of criminal activity extensive, further ordered that

these sentences be served con secu tiv ely, for an effecti ve sentence of n

ine years i n the Department o

f Correction. Rhe

a appeals to this court, conten

ding that the tria

l court erred in o

rdering conse

cutive sentence

s. After review of the record, w

e affirm. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.
D AVID G. H AYES , J., delivered the opi nion of the court, i

n which T HOMAS T. W OODALL , J. an d L. T. LAFFERTY , S R .J., joined. Michael J. Flanagan, Nashville, Tennessee, for the Appellant, Donald W. Rhea, Jr.
Paul G. Summers, Attorney General and Reporter; Michael Moor e, Solicitor General; E lizabeth B. Mar ney, Assistant Attorney General; Dan Ha

mm, Assist ant Di strict Attorney General, for the Appellee, State of Tennessee.

OPINION Factual Backgrou

nd
The facts at the sentencing hearing established that in July 1999, fourtee n-year-old Trad Staecker, accompanied by his mother, Deborah, attended a late night movie. Enroute home, Mrs

. Staecker stopped at

a service station to purchase gasoline. As Trad Staecker pumped the gasoline, he noticed the Appellant rumm aging throug

h a blue car that w

as parked behind

their own vehicle-2-

on the service stati

on premises. The Appellant approached the Staeckers and asked for a cigarette. When the Staeckers inf

ormed the Appella

nt that they d

id not smoke, the App

ell ant dem anded money. Mrs. Staecker replied that she only had a checkbook. The Appellant then became violent and threatened to “blow up t he F— ing car.” Mrs.Staecker stated that she was going to call the police. The Appellant replied, “Oh, you can’t do a damn thing about it. You don’t know wh

o I am. The police can’t do a goddamn thing about it.”
TradStaecker went toward the gas station in an at tempt to get h

elp. However, the station attendant had locked all

of the doors, preventing Trad from entering the station. Nonetheless, Trad continued to shout for the attendant to call the police. Meanwhile, Mrs. St aecker was att

empting to obtain the license plate number from the Appellant’s vehicle. The Appellant attacked

Mrs. Staecker, knocking he r to the gr ound. He then took her checkbook and began choking her. When Trad became aware of his mother’s situation, he immediately returned to confront he r attacker. The Appellant warned Trad that “he had a knife and that he would kill the

two of [them] right then and there.”
A bystander came forward and ordered that the A ppe llant “l eave that woman a nd her child alone.” At

this point, the attendant unlocked the doors enabling Trad and Mrs. Staecker to enter the station. Two UPS employees also approached, shouting at the Appellant

to “leave them alone.” The Appellant then dr

opped the checkb

ook and fled behin

d a Waffle House r

estaurant. The Appellant was found hiding behind the Waffle House where he was arrested. At the time police took him into custody, the Appellant was ar med w ith “two knives and a putty knife.” Even after his arres

t, the Appellant co

ntinued with his thre

ats to kill the Staec

kers.
The Appellant’s father, Donald Rhea, Sr., testified that the Appellant has had a drug and alcohol abuse problem sinc e he was six

teen. Mr. Rhea, Sr., explained, however, that since the incident, the Appellant has made improvement. Indeed, Mr. Rhea, Sr., had not

seen his son under the influenc e of either drugs

or alcohol since h

is arrest on the ins

tant charges.

He further explai

ned to the court that the App

ellant “blacks ou

t” on alcohol and needs treatment. On cross-examination, Mr. Rhea conceded that

the Appellant was on probation for the offense of burglary of an automobile when he committed the instant crimes. He also admitted that the Appellant has had several alcohol related convictions.
Th e Appellant testified that since his arrest on the current charges, he had been “wor kin g regularl y.” He added that he has consumed alcohol, but only on one occasion. The Appel lan t explained that on the night of the instant offe

nses, he was extre

mely intoxicat

ed and could not re

call the events preceding his arrest. The Appellant admitted to the court that he needs help regarding

his alcohol problem.
The pre-sentence report submitted to the court reveals that

the twenty-six-year-old Appellant is a high school graduate and is employed as a painter . He is the father of two young childr en an d resides with them and their mother, his girlfr iend. The Appellant admits to having an alcohol-3-

problemand the presentence report reflects that, in 1998, he completed a twenty-one day prog

ram at the Buffalo Valley

treatment facil

ity. The Appe

llant has a history of prior criminal convictions including burglary, assault, reckless endanger ment, forger

y, and numerous DUI and driving on suspendedlicense convictions. Moreover, at the t ime the present offenses were committed, the Appellant was on probation for burglary of an automobile. This probated sen tence was subseq

uently revoked. The court’s imposition of consecutive sentences wa s based upo n the Appellant’s history of extensive criminal activity.
Sentencing
The Appellant conten

ds that the trial co

urt erred in imposi

ng consecutiv

e sentences. Spe cif ica lly, he asserts that the trial court faile

d to consider that “

the aggreg

atesentence imposed should be no greater than that deserved for the of fense committed and should be the least severe measure necessary to achieve the purpose for which the sentence is imposed.” Accordingly, he avers that a sentence of nine years is beyond what would be deserved considering all of the fa cts and circumstances of this case.
This Court’s review of the length, range, or manner of service of a sentence is de novo with a presump tion that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35- 401(d ) (1997). This pres umption is only

applicable if the

record demonstr

ates that the tr

ial cour t properly considered relevant sentencing principles. State v. Ashby , 82 3 S.W.2d 166, 169 (Tenn. 1991). Notwithstanding, the burden is on the Appellant to show that the sentence imposed was improper. Id. ; Statev. Fletcher , 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing Comm’n Comments, Tenn. Code Ann. § 40-35-401(d). A trial court may order sentences to run consecutively if the court finds that

one or more of the statutory criteria exists by a preponderanc e of the evidence. See Tenn. Code Ann. § 40-35-115(b) (1997). The trial court ordered consecutive sentences based upon its finding that the Appellant has an ext ens ive reco rd o f cri min al a cti vit y. See Tenn. Code Ann. § 40-35-115(b)(2). In addition to the finding of statutory criteria, the general principles of sentencing require that the trial court find that the length of the Appellant’s sentence is “justly deserved in relation to the seriousness of the offense” and “should be no greater th an that deserved for the offense committed.” State v. Lane , 3 S.W.3d 456, 460 (Tenn. 1999) (

cit ing Tenn. Cod e Ann. § 40-35-102(1) and Tenn. Code Ann. § 40-35- 103(2)).
The App ell ant ’s c rim ina l hi sto ry cons ists of thirteen prior convictions, nine of which occurred in t he two yea

rs preceding the instant offenses. Thus, the record clearly supports the trial court’s findings and the i mposition of consecutive sentences. Moreover, although not found by the trial court, the recor d supports the finding of fa ctor (6), “[t]he de

fendant is senten

ced for an offe

nse committed while on probation.” SeeTenn. Code Ann. § 40 -35 -11 5(b )(6 ). A ccor din gly, we conclude that the aggregate sentence of nine years was

reasonably related to the seriousness of the offenses and was not greate

r than that deser

ved for commission

of these offense

s.-4-

The judgment of the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE