# FILED
August 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE, 1998 SESSION

STATE OF TENN ESSEE, ) No. 01C01-9705-CC-00171 ) Appellee ) ) Lincoln County vs. ) ) Honorable Charl es Lee, Judge DREXELL T. RIDLEY ) ) (Forgery and Theft of Propert y valued at Appellant. ) less than $500)

FOR THE APPE LLANT: FOR THE APPELLEE: WILLIAM C. ROBERTS, JR. JOHN KNOX WALKUP At trial and on Appeal Attorney General & Repor ter 404 James Robertson Parkwa y Parkway Towers, Suite 2121 Nashville, TN 37219 TIMOTHY F. BEHAN Assistant Attorney Gener al JOHN G. OLIVA Criminal Justice Div ision On Appeal 425 Fifth Ave. North 601 Woodland St. 2d Floor, Cordell Hull Bldg. Nashville, TN 37201 Nashville, TN 37243-0493 WIL LI AM MI CH AE L M cC OWN District Attorney General 215 E. College St. P. O. Box 878 Fayetteville, TN 37334

-0878 WEAKLEY E. BARNARD Assistant District A

ttorney General P.O. Box 904 Fayetteville, TN 37334

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 The grand jury returned two indictments agains t the defendant. In #008-95, his name is giv en as “Drexell Ri dley;” #036-95 names the defendant as “Drexell T. Ridley.” Other documents in the record spell the defendant’s first name as “Dre

xel.” We have u sed the name g iven in #03 6-95, “Dre

xell T. Ridley,” throughout this opinion. 2 OPINION In this direct ap peal, th e defen dant, Dre xell T. Rid ley, 1 challenges the sentences he received as result of his conviction in the Lincoln County Circuit Court fortwo counts of transfer of a forged instr ument and one count of theft of property valued at less than $500.00. The trial court sentenced him to six years and four years in the custody of the Department of Correction as a Range III, persis ten t offend er, for t he two forgery conv ictions and to nine months in the county jail for theft. The jury imposed andthe trial co urt approved fines of $750.00 on each conviction. The defendant must serve his sent ences consecutively. In this appeal, the defendant complains that the trial court applied non-statutory factor s in imposing consecutive sentences. We affirm the judgment of the trial court.

The state’s proof at trial demonst rates that sometime betw ee n a pproximat ely6:00 p.m. on Friday, Nov ember 18, 1994 and 11:00 a.m. on Saturda y, November

19, 1994, the dental office of Dr. Mack Hamilton in F ayetteville, Ten nessee, was burglariz ed and a checkbook was stol en. Later that Saturda y afternoon, the defendant cashed two che ck s in Fayettevill e grocery stores. Both checks bear the signature of Dr. Hamilton as payor, and the d efendant is named as payee. The defendant presented his driver ’s license as identification at both stores and received $375.00

in cash from one store and $375.00 in cash and merchandise from the other. The grandjury returned tw o indictmentscharging the defendant wi th burglary, theft of property valued at less than $50 0, two counts of forging a writing, and two counts of transferring a forged instrument. The cases were consoli dated fortrial, and the jury a

cquitted the defendant of burglary but found him guilty on the other five counts. The trial cou rt merged the two counts of forging a writing into the two counts of transferring a forged ins trument and sentenced the defendant to an effect ive sentence of ten years, 9 months on the three remaining convicti ons. The3

defendant challenge s neither the va lidity of his convictions nor the length of the individual sentences but cont ends that the t rial court faile d to make the f indings required to impose consecutive sentences.

When an accused challenges the length, range, or manner of service of a sentence, it is the du ty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are corr ect. Tenn. Code Ann. § 40-35-401(d) (1997). This presump tion is "c onditio ned upon the aff irmative showing in the recor

d that the trial court cons idered the sentencing principles and all relevant

facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduc ting our re vi ew, we mu st consider all the ev idence, the presentence report, the sentencing principles, the enhancing and mitigating factors, counsels’ arguments, the appellant’s statements, the nature andcha racter of the offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35- 103(5), -210(b) (1997); State v. Ashby , 823 S.W.2d at 169. The defendant has the burden of demonstrating that the sentence is improper. Id

. In the event the record fails to demonstrate the appropriate c onsideration by

the trial court, appellat

e review
o f t he sente nce is pur ely de novo . Id . If our review reflects that the trial court properlyco nsi dered all relevant factor s and the record adequately supports its findings of fact, this court must aff irm the se ntence e ven if we wou ld have preferred
a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing deter m ination, the trial court,at the conclusion of the sentencing hearing, d etermines the sentencing range, the specific sentence, and the propriety of imposing a sentence invol ving an alternative to total confinement. The trial court must consi der (1) any evidence presented at trial and the sentencing hearing, ( 2) the presentence report, (3) the sentencing principles . (4) the arguments of counsel, (5) any statements the defendant has made to the cour t, (6) the nature and characteristi cs of the offense, (7) any mitigating and enhancementfactors, and (8) the defendant’s amenability to rehabili tation. Tenn.2 (1) The defendant is a professional crimi nal who has knowingly devoted himself to criminal acts as a major source of livelih ood; (2) The defendant is an offender whose record of criminal activity

is extensive; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is hig h; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggravating circumstances arising from the relations hip between the defendant and victim or victims, the time span of defendant's undetected sexual activ ity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced fo r an offense committed while on probatio n; or (7) The defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b).
4 Code Ann. §§ 40-35-103 (5), and 40-35-210(a), (b ) (1997); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The tria l c ourt must begin with a presump tive minimum sentence. Tenn. Code Ann. § 40-3 5-210(c ) (1997). The sentence may then be i ncreased by any applic

able enhanceme nt factors and reduced in the light

of any applicable mitigating factors. Tenn. Code Ann. § 40-35- 210(d),(e) (1997). The trial court may, in its discreti on, impose c ons ecutive sentencing if it determines that one or

more of the criteria found in Tennessee Code Annotated section 40-35-1152 exist and if the consecutive sentences are in accord with the general purp oses and p rinciples of the Sentencing Reform Act of 1989. See Tenn. Code Ann. §§ 40-35-102, -103 ( 1997)

. Consecutive sentences, however, should no t be routinely imposed ev en for the offender whose record of5

criminal activity

is extensive. Tenn. C

ode Ann. § 40-35-115, Sentencing Comm’n Comments; State v. Taylor , 739 S.W.2d 227, 230 (Tenn. Crim. App. 1987). Lengthy
consecu tive sentences may be imposed w hen such confinement is necessary to protect the public from a defendant with a lengthy history of criminal c

onduct, Tenn. Code Ann. § 40-35-102(1) (1997), and if the sentence is justly deserved in relation to the seriousness of the offense. Tenn. Code Ann. § 40-35-102(1) (1997) ; see also State v. Wilkerson , 905 S.W.2d 933, 937 -38 (Tenn. 1995) (court must find that
consecu tive sentences are re asonabl y related to the sever ity of the offenses committed and are necessary to protect the public f rom further criminal conduct).

In this instance, the trial court gav e due consideration to the evidence, applied mitigating and enhancing fac tors, explained why confinement was
nec essaryand addressed the reasons for i mposing consecutive sent ences. Therefore we review the defendant’s s entences with the presumption that the trial court’s findings are cor rect.

At the conclusion of the sentencing hearing, the trial judge found that the defendant’s record included at least five prior felony conv ictionsand sentenced him as a Ra nge III, persistent offender. See Tenn. Code Ann. § 40-35-107(a)(1 ) (1997). He also found three enhancement factors: (1) the defendant had a previous historyof criminal convictions or criminal behavior i n addition to those necessary to establis h the appropriate range, Tenn. Code Ann. § 40-35-114 (1) (1997); (2) th e defendant has a previous histor y of unwillingness

to comply with

the conditions of
a sentence involving

release into the community,Tenn. Code Ann. § 40-35-114(8) (1997); and (3) th e felony wa s committed while on parole from a prior felony conviction. Tenn. Code Ann. § 40-35-114(13)( B) (1997). As a mitigating factor, the trial judge found that thedefendant’s conduct neither caused n or threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1) (1997).6 The trial court held that confine ment was necessary in this instance to restrain a defendant who has a lon g history of criminal conduct and that
measur es le ss restrictive than confinement have been frequently and recently applied unsuccessfully to this defendant. Tenn. Code Ann. § 40 -35-103 (1)(A), (C) (1997). With resp ect to consecut ive sentencing, the trial court found that cr iminal activity had been a major source of the defend ant’s liv elihood a nd that the defendant was an offender whose recor d of criminal activity is ex tensive. See Tenn. Code Ann. § 40-35-115( a) (1), (2) (1997). Mor eover, the trial cour

t found that the aggregate

sentence bo re “a rational relationshi p to the provisions of the 1989 Sentencing Act.”

The record before us overw helmingly supports the trial cou rt ’s findings. The defendant’s record contains nine felony convictions including several forburglary. His juvenile record ex tends back to 1971 when he was thirteen years old. His parole has been revoked due to new arrests and convictions at least twice prior to these offenses. His employment record is spotty, andalthough the record indicatesthat he hasmade some effort to improve his job skills, he did not complet e the programs

in which he enrolled.The defendant argues that the trial court applied non-statutory enhancement f actors and considerations in deter mining his sentence. Apparen tly, he is referring to the trial court’s stat

ement that the defendant had spent his life “living off the

hard work of other people by stealing from them.” This remark
was made in reference to the trial c ourt’s determination that the d efendant was a professional criminal who knowingly devoted his life to criminal act s as a ma jor
source of livelihood pursuant to Tennessee Code Annotated se ction 40-35-115(1). The record overwhel mi ngly supports this conclusion as well as the court’s determination that the defendant is an offe nder whose record of criminal activity is extensive. Tenn. Code Ann. § 40-35-115(2). Moreover, the trial judge also found that lengthy confinement was necessary to

protect the public from this defendant’s criminal activity and that the overall senten ce of ten y ears and nine months is rationally related to the principles and purposes of the Sentencing Reform Act.3 We are unable to follow the defendant’s argument c oncerning State v. Marshall , 888 S.W.2d 786 (Tenn. Crim. App. 1994), to whi ch the trial court referred during sentencing. The trial court appropriately reli ed on Marshall to explain the different sentences he was imposing in the two forgery convictions, not to justify consecutiv e sentencing. See Marshall , 888 S.W.2d at 789.

7 Our de no vo revi ew of the record indicates that although the trial judge’s findings did not al ways track the precise language of the st atutes, he thoroughlyand carefully co nsidered the ap plicable princip les and made th e findings required by Tennes see law. 3 Those findin gs are supported by the record. The trial court did not err in o rdering th e defen dant to s erve his se ntences consecut ively.

We affirm the defendant’s sentences as imposed by the tri al court.

__________________________ CURWOOD W ITT, Judge CONCUR:

______________________________ JOE G. RILEY, Judge

______________________________ R. LEE MOORE, Spe cial Judge