State v. Michael Harvey ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
February 20, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9701-CC-00049
Appellee, )
) Madison County
V. )
) Honorable Franklin Murchison, Judge
MICHAEL D. HARVEY, )
) (Sentencing)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
J. Colin Morris John Knox Walkup
Attorney at Law Attorney General & Reporter
204 West Baltimore
P.O. Box 1623 Janis L. Turner
Jackson, TN 38302-1623 Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry Woodall
District Attorney General
Donald H. Allen
Assistant District Attorney General
State Office Building, Suite 201-A
P.O. Box 2825
Jackson, TN 38302
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Michael D. Harvey, pled guilty to two counts of aggravated
burglary, theft of property over $1000, and theft of property under $500. In
September 1996 the trial court sentenced the defendant as a Range I, standard
offender, to six years for each count of the aggravated burglary, four years for
the theft of property over $1000, and eleven months and twenty-nine days for the
theft of property under $500. All of the appellant’s sentences were to run
concurrently.
The appellant presents the following issues for our review: first, whether
his sentence was excessive and second, whether the trial court erred by ignoring
the presumptions of minimum sentencing. We affirm.
The appellant’s argues that the trial court erred in applying the maximum
sentence for each of his felony cases. He contends that the trial court did not
comply with Tennessee Code Annotated § 40-35-102(2) (Supp. 1996), which
assures “fair and consistent treatment of all defendants by eliminating unjustified
disparity in sentencing and providing a fair sense of predictability of the criminal
law and its sanctions.” The appellant asserts that the trial court should have
sentenced him to the minimum sentence on each conviction because he is a
Range I, standard offender. Therefore, he maintains that he should have
received the presumptive minimum sentence on each count of aggravated
burglary, which would have been three years, and the presumptive minimum
sentence for theft of property over $1000, which would have been two years.
The appellant does not contest his sentence for the theft of property under $500.
The state argues that the trial court properly sentenced the appellant. It
asserts that Tennessee Code Annotated § 40-35-210(d) (Supp. 1996) allows
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the trial court to start with the minimum sentence and then enhance the sentence
if there are enhancement factors. The state asserts that the trial court found
several enhancing factors and no mitigating factors, and thus, the appellant’s
sentence for each conviction was at the top of the range. The state further notes
“that the enhancing factors justified sentencing the defendant at the top of the
range” in light of the fact that the trial court ordered the sentences to run
concurrently, not consecutively.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1990). However, this presumption is conditioned on an affirmative
indication in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
The appellant bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and
(f) the appellant’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103(5) (1990), 40-35-210(b) (Supp. 1996).
The trial court has the “authority to consider whether or not the effective,
total sentence will meet the principles and purposes of the Sentencing Reform
Act when assessing what weight applies to those factors which affect both the
length of each sentence for the involved offenses and the consecutive
sentencing decision.” State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.
1994).
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The trial court did not err in sentencing the appellant to the top of the
range for each of his convictions. Based on the record before us, the trial court
followed the principles of sentencing. The trial court based its decision on the
appellant’s extensive criminal history under Tennessee Code Annotated § 40-
35-114(1) (Supp. 1996) and the appellant’s unwillingness to comply with
probation conditions while on probation in the past under Tennessee Code
Annotated § 40-35-114(8) (Supp. 1996). The trial court also noted the
seriousness of the crimes the appellant had committed as a juvenile. Finding no
error mandating reversal, we affirm the trial court’s judgment.
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_______________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
DAVID G. HAYES, Judge
____________________________
JOE G. RILEY, Judge
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