State v. Marshall Simon ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
SEPTEMBER 1999 SESSION
October 29, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9902-CC-00069
Appellee, )
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKWOOD,
MARSHALL A. SIMON, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JEANNIE KAESS PAUL G. SUMMERS
520 Ridgeway Drive Attorney General and Reporter
Bolivar, TN 38008
J. ROSS DYER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
JAMES W. FREELAND
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
Defendant, Marshall A. Simon, pled guilty to aggravated burglary and felony
evading arrest. After a sentencing hearing, the trial court sentenced the defendant
to consecutive terms of five years for aggravated burglary and two years for felony
evading arrest. In this appeal as of right, the defendant contends the trial court
erred in:
1. sentencing the defendant to the two-year maximum for
felony evading arrest; and
2. requiring that the sentences be served consecutively.
After a careful review of the record, we AFFIRM the judgment of the trial court.
I. FACTS
Defendant participated in the burglary of a home at approximately 2:00 a.m.
on April 15, 1998. A security camera captured his actions, and an alarm alerted the
police. While en route to the scene, an officer met defendant’s vehicle coming
toward him at a high rate of speed on the wrong side of the road. Defendant’s
vehicle ran off the road, and defendant fled. Defendant was subsequently arrested.
II. SENTENCING
Defendant pled guilty to aggravated burglary, a Class C felony, and
felony evading arrest, a Class E felony. The trial court sentenced the defendant as
a Range I standard offender to consecutive sentences of five years for aggravated
burglary and two years for felony evading arrest. Defendant contends his felony
evading arrest sentence is excessive, and that he did not qualify for consecutive
sentencing. We disagree.
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A. Standard of Review
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d
803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.
1991). However, if such factors do exist, a trial court should start at the minimum
sentence, enhance the minimum sentence within the range for enhancement factors
and then reduce the sentence within the range for the mitigating factors. Tenn.
Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court
as long as the trial court complies with the purposes and principles of the
sentencing act and its findings are supported by the record. State v. Moss, 727
S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.
App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see
Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
B. Sentence for Felony Evading Arrest
The trial court applied two enhancement factors. First, the trial court found
the defendant had a previous history of criminal convictions. See Tenn. Code Ann.
§ 40-35-114(1). Specifically, defendant had four prior felony convictions, two driving
on revoked license convictions and a traffic offense. Second, the trial court found
defendant had a previous history of unwillingness to comply with conditions of a
sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8).
Specifically, defendant had previously been resentenced on a community
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corrections violation. The trial court properly applied both of these enhancement
factors. We also note that the present offenses were committed while defendant
was on community corrections for prior felonies. See Tenn. Code Ann. § 40-35-
114(13)(E).
In mitigation, the trial found that the defendant’s conduct neither caused nor
threatened serious bodily injury, and that he admitted guilt. See Tenn. Code Ann.
§ 40-35-113(1), (13). We note, however, that defendant’s conduct in evading arrest
did indeed threaten serious bodily injury; therefore, this mitigating factor is
inapplicable.
The weight to be given enhancement and mitigating factors is determined by
the trial court. We see no reason to disturb the trial court’s imposition of the two
year sentence for felony evading arrest.
This issue is without merit.
C. Consecutive Sentencing
Defendant contends the trial court erred in ordering these sentences to be
served consecutively. A court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that:
...
(2) [t]he defendant is an offender whose record of criminal activity is
extensive; [or]
...
(4) [t]he defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing
a crime in which the risk to human life is high.
Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912 (Tenn.
Crim. App. 1995). Furthermore, the court is required to determine whether the
consecutive sentences are reasonably related to the severity of the offenses
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committed, and serve to protect the public from further criminal conduct by the
offender. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However,
Wilkerson only applies to the “dangerous offender” category. State v. Lane, _____
S.W.2d _____ (Tenn. 1999).
The trial court found that the defendant had an extensive record of criminal
activity. See Tenn. Code Ann. § 40-35-115(b)(2). As stated, in addition to the
present offenses, defendant had four prior felony convictions and other
misdemeanor convictions. The trial court also found the defendant committed the
felony evading arrest by driving at a high rate of speed on the wrong side of the
road so as to endanger the lives of the officers seeking to arrest him. See Tenn.
Code Ann. § 40-35-115(b)(4). We conclude a proper statutory basis existed for the
imposition of consecutive sentencing.
The trial court further found that it was necessary to protect the public from
future criminal conduct by the defendant. Although the trial court did not make a
specific finding that the aggregate sentence reasonably related to the severity of the
offenses, upon our de novo review we conclude that this Wilkerson factor has been
satisfied as it relates the “dangerous offender” category. Wilkerson, 905 S.W.2d at
939.
Accordingly, we conclude the trial court did not err in imposing consecutive
sentences. This issue is without merit.
IV. CONCLUSION
Based upon our review of the record, we AFFIRM the judgment of the trial
court in all respects.
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____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
DAVID G. HAYES, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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