State of Tennessee v. Latoya Britton ( 2017 )

08/03/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 15, 2017
STATE OF TENNESSEE v. LATOYA BRITTON
Appeal from the Criminal Court for Sumner County
Nos. 116-CR-2013, 555-CR-2013 Dee David Gay, Judge
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No. M2016-01139-CCA-R3-CD
___________________________________
Defendant, Latoya Britton, appeals the trial court’s revocation of her community
corrections sentence and the imposition of additional consecutive sentencing and
confinement upon resentencing. Following our review of the record, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.
Christopher V. Boiano, Nashville, Tennessee, for the appellant, Latoya Britton.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Lawrence Ray Whitley, District Attorney General; Sidney Preston, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Background
On April 11, 2014, Petitioner plead guilty to two charges of theft of property
between $500 and $1,000, four counts of passing a forged check, and one count of felony
failure to appear in case nos. 116-CR-2013 and 555-CR-2013. The trial court ordered
partial consecutive sentencing and imposed an effective sentence of twelve years at 60%.
Defendant was ordered to serve two years in confinement and then be placed on
community corrections. She was also ordered to attend and complete “Synergy.” The
judgment forms contain the following: “[T]he State will file a Notice of Sentence
Enhancement if the defendant violates any Community Corrections supervision rules or
fails to complete Synergy.”
After being released to community corrections, a violation of community
corrections warrant was issued against Defendant on October 1, 2015, alleging that
Defendant “signed a voluntary admission for the use of Cocaine and Marijuana on
09/28/2015.” Amended warrants were issued against Defendant on October 14, 2015,
March 21, 2016, and April 4, 2016, alleging that Defendant “failed to report to the
community corrections office on 10/07/2015 as instructed;” Defendant “was charged with
Evading arrest and Theft of Merchandise on 03/20/2016 in Sumner County, TN;” and
Defendant “was charged with Theft of Merchandise on 03/30/2016 in Sumner County,
TN.” On February 12, 2016, the trial court filed an order releasing Defendant on an
“R.O.R” bond “due to her medical condition.” Defendant was ordered to immediately
report to her community corrections officer; comply with any rules and restrictions
imposed by community corrections; continue to stay in touch with her defense counsel;
refrain from using any drugs not prescribed by her physician; and “appear, as scheduled,
on February 18, 2016 at 8:30 a.m. for an ‘attorney & set’ in the above cases.” On
February 23, 2016, the State filed a notice of intent to resentence and a motion to
reconsider Defendant’s bond. A hearing on the State’s motion to reconsider bond was
held on March 4, 2016, and on March 8, 2016, the trial court filed an order to continue
the hearing to March 14, 2016. The order contains the following:
IT IS FURTHER ORDERED that in the interim, the Defendant shall be
required to report to the Community Corrections office each weekday
and [cooperate] with said office in their efforts to secure a placement for
the Defendant in a substance abuse treatment program; and
IT IS FURTHER ORDERED that in the event that Community
Corrections is able to secure a place for the Defendant in a substance
abuse treatment program, the Defendant shall enter said program.
A community corrections violation hearing was held on April 18, 2016. Deshawn
Vasser, a loss prevention associate for Walmart in Gallatin, testified that on March 30,
2016, he observed Defendant “selecting a ton of socks, placing them in her shopping
basket.” Mr. Vasser continued watching Defendant, and he saw her place the socks in
some plastic Walmart bags that she had, and she “carried the bags around like she paid
for the merchandise, and she walked out [of] the store without purchasing the items.”
Mr. Vasser said that Defendant walked out of the main doors to the store and “sat down
in the vestibule on the bench.” Mr. Vasser approached Defendant and introduced himself
as a loss prevention associate. He asked her to come back inside the store and speak to
him and a manager. He said, “[Defendant] proceeded to follow us and then she stopped
and was like, [‘]Y’all can have your merchandise back. I know how this goes. I didn’t
steal anything.[’] And she left.” Mr. Vasser testified that the total value of the
merchandise was $121.51. He contacted police, and Officer Moore came to the scene to
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investigate. He provided Mr. Vasser with a photographic lineup, and Mr. Vasser
identified Defendant as the person that he saw stealing the socks on March 30, 2016.
Jennifer Woodard is employed by Mid-Cumberland Community Corrections. She
began supervising Defendant on March 5, 2015. She filed the first community
corrections violation against Defendant on August 10, 2015, because Defendant tested
positive for cocaine. Defendant pled guilty to the violation on September 28, 2015, and
received “time served” and was placed back on community corrections. She was further
ordered to enter and complete a “Pro-Social Life Skills Class.” Ms. Woodard testified
that Defendant did not complete the class.
Ms. Woodard testified that Defendant reported to her after the revocation hearing
on September 28, 2015, and again tested positive for cocaine. At that time Defendant
signed a “voluntary admission” of the use of cocaine and marijuana. Ms. Woodard then
filed a violation report, and a community corrections violation warrant was issued on
October 1, 2015. Ms. Woodard testified that an amended community corrections warrant
was issued on October 14, 2015, after Defendant failed to report, and, also on March 21,
2016, after Defendant was charged on March 20, 2016, with evading arrest and theft of
merchandise. The offenses occurred on January 29, 2016, and she pled guilty to the
offenses on April 13, 2016. Ms. Woodard testified that a third amended violation was
filed against Defendant on April 4, 2016, for the theft from Walmart that occurred on
March 30, 2016.
Ms. Woodard testified that Defendant was picked up for the first community
corrections violation on February 11, 2016. She said, “And [Defendant] was ROR’ed
[released on own recognizance] that same day, and her medical condition was her
pregnancy.” Ms. Woodard had received an order from the trial court requesting that
Defendant report to Ms. Woodard and be screened upon her release from jail. Defendant
was thereafter drug tested on February 16 and 17, 2016. Both tests were positive for
cocaine and marijuana. Ms. Woodard testified that there was a hearing on March 4,
2016, on the State’s motion to reconsider Defendant’s bond. Ms. Woodard testified that
the hearing was continued until March 14, 2016, to allow Ms. Woodard “to work with
[Defendant] to get her placed into a substance abuse treatment center that would not only
benefit her but her child, as well.” Ms. Woodard testified that after the hearing on March
4, 2016, she and Defendant spoke for some time in the lobby. Ms. Woodard testified that
she explained to Defendant that “everyone just wanted her and her child to be safe and
that we would find her somewhere to go. She had already done some work on her own
and had some ideas of where she could go.” After March 4, 2016, Ms. Woodard never
saw Defendant. She said that Defendant did not appear in court on March 14, 2016, due
to medical issues. The hearing was continued until March 22, 2016, and “an FTA [failure
to appear warrant] was issued at that point.” Ms. Woodard testified that she had
attempted to contact Defendant after March 4, 2016. She said, “We’ve attempted several
home visits at [Defendant’s] last known address. We have attempted to contact family
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members of [Defendant]. We’ve been to several residences to simply get in contact with
[Defendant] without any luck.”
Ms. Woodard agreed that Defendant has an extensive criminal history and is a
career offender. She also agreed that Defendant had more than twenty felony
convictions. Ms. Woodard testified that Defendant was required to go to treatment after
her original sentencing hearing. She thought that Defendant did not attend that specific
treatment program due to her medical condition. Concerning her relationship with
Defendant, Ms. Woodard testified:
[Defendant], up until this point, she and I had a great relationship. I have
assisted her with several things. She knows that. And I have helped her
with work, outside of work, any way that I possibly could up until here
recently.
* * *
When she would violate on her drug tests and when a warrant would be in the
works, she would request treatment. Unfortunately, these last two times with her
pregnancy that she requested treatment, she absconded from the Court and from
supervision until her court date so we couldn’t get that completed for her.
On cross-examination, Ms. Woodard testified that Defendant initially reported as
ordered and was nice and very compliant. She said, “I didn’t have any issues out of
[Defendant] until a certain point. Up until she violated in August.” Ms. Woodard
testified that she did not attempt to get Defendant into a long-term treatment program
because of her medical condition, and Ms. Woodard was not sure what was going on with
Defendant. She agreed that Synergy is considered a long-term treatment program. Ms.
Woodard testified that a community corrections counselor would have been responsible
for getting Defendant into Synergy. She was not sure if Defendant ever met with a
counselor. Ms. Woodard testified: “Since she was released for medical reasons, we
would have waited until she was healthy enough to even go into Synergy.”
Sharon Harris is an LPN with the Sumner County Jail. She testified that
Defendant was thirty weeks pregnant at the time and taking the drug Makena once a
week to stop her from going into pre-term labor. She also noted that “there is some
question about the heart of the unborn child.” Ms. Harris testified that Defendant had
recently spent time at Vanderbilt Hospital for symptoms of a stroke but no “stroke-related
incident” had been confirmed. She said that Defendant had some left or right side
weakness “that is an unknown cause at this time.”
The forty-two-year-old Defendant testified that she spent two years in confinement
and was released a “couple of days early” due to an abnormal EKG. She was placed on
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Community Corrections and required to complete the Synergy program. When asked if
she completed Synergy, Defendant testified:
No. When I got - - just from my initial paperwork at Community
Corrections, My PO, she was looking through my paperwork and she
was seeing where I had to go to Synergy. She was telling me that they
had a drug class, that I would have to do a drug class there as part of my
probation also. Nothing really came up with me hearing anything about
Synergy anymore after that.
I didn’t initiate any other conversation because I didn’t know that it was
my responsibility to get into Synergy myself. I thought it was part of
what my PO – I thought maybe that if I could have those classes that I
didn’t have to go to Synergy. I didn’t know, sir. I just know that she
said it was part of - - when she was going through my paperwork and I
was signing all this stuff, just initial this, this is my first visit with
Community Corrections, she told me about Synergy.
Defendant admitted that she is a drug addict and that she has been an addict for
“20-something years.” She felt that long-term treatment is probably necessary for her
recovery. Defendant testified that she had been talking to her “TennCare counselor
trying to figure out what my options would be with me being pregnant trying to get
somewhere for me and my baby to go to where they accept mother and baby.” She said
that her biggest concern was that her baby was not “thrown to the State[.]” She also
noted that she had been to a cardiologist, and her unborn child’s heart was “good.”
Defendant testified that she did not want to be sent to prison because did not want to be
away from her other children or her grandchildren again. Defendant admitted that she
had used drugs while she was pregnant, but she now wanted to get healthy for the baby.
She wanted to make sure that the baby “gets a chance.”
On cross-examination, Defendant said that she would like to try long-term
treatment or drug court. Defendant admitted that when she appeared on April 11, 2014,
for her sentencing hearing, she told the trial court that she wanted treatment and that she
had never been given an opportunity for treatment. She said that she did not go to
Synergy as ordered because she did not know that it was her responsibility to “do the
footwork” to go there. Defendant thought that she spoke with someone at Synergy before
her sentencing hearing, and she had been accepted into the program on the condition that
she was released from jail. After the sentencing hearing, Defendant was released on
community corrections. Defendant testified:
It was part of the plea agreement, Synergy, and me and Ms. Woodard
talked about it. But she said that she was going to check with her, the
woman that does the treatment there and see what that was about since it
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was part of my plea agreement. It didn’t say in my plea agreement,
[Defendant] you are responsible for going and calling this man back and
letting him know that you are out and going back - - going to Synergy.
Defendant said that she and Ms. Woodard never discussed Synergy any further. She said,
“I was already going to be on Community Corrections, and she said I was already going
to be going to drug classes there.” Defendant testified that she did her “own work” trying
to get into a treatment program that was covered by TennCare. She did not contact Ms.
Woodard about getting into another program. Defendant admitted that she did not attend
any Alcoholics or Narcotics Anonymous meetings while she was on release.
Defendant testified that she spoke with Ms. Woodard after court on March 4,
2016. She did not speak with her again after that day even though the trial court had
ordered her to report to Ms. Woodard daily and to meet all the conditions for community
corrections. Defendant agreed that she has an extensive criminal history dating back to
May 22, 1999. She said that her criminal history began with forging checks. Defendant
was incarcerated from 2001 until 2008. She agreed that she had well over twenty felony
convictions, some of which were federal charges. Defendant testified that she did not
attempt to find a job while on community corrections because she had applied for
disability. She had been living with her daughters while on community corrections.
Defendant admitted that she stole some items from Target on January 29, 2016, and
attempted to return them for a gift card. She pled guilty to the offense on April 13, 2016.
Defendant did not dispute Mr. Vasser’s testimony concerning the theft at the Gallatin
Walmart that occurred on March 30, 2016.
Upon questioning by the trial court, Defendant testified that she smoked one
marijuana joint at the age of 16, and she began using “hard drugs” when she was 18.
Defendant testified that within two years she was a drug addict. She never sought drug
rehabilitation for her addiction. Defendant thought that she went to “Buffalo Valley” in
the old jail in Marshall County for something. Defendant admitted that she had
previously absconded from parole after she was released on May 23, 2008, for charges
unrelated to this case. The trial court noted that Defendant had a total of forty-five felony
convictions. Defendant asked the trial court to place her in a long-term treatment
program and to get her out of Gallatin because Gallatin is her “down fall.”
Analysis
Defendant argues that the trial court erred in revoking her community corrections
based on criminal acts that were known at the time community corrections was granted.
She also contends that the trial court abused its discretion by ordering additional
consecutive sentencing and not granting “alternative sentencing or granting another
probationary period[.]”
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The decision to revoke a community corrections sentence or probation rests within
the sound discretion of the trial court and will not be disturbed on appeal unless there is
no substantial evidence to support the trial court’s conclusion that a violation has
occurred. State v. Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991) (applying the probation
revocation procedures and principles contained in Tennessee Code Annotated section 40-
35-311 to the revocation of a community corrections placement based upon “the similar
nature of a community corrections sentence and a sentence of probation”). The trial court
is required only to find that the violation of probation or community corrections occurred
by a preponderance of the evidence. See T.C.A. § 40-35-311(e); see also id. § 40-36-
106(e)(3)(B). In reviewing the trial court’s findings, it is our obligation to examine the
record and determine whether the trial court has exercised a conscientious judgment
rather than an arbitrary one. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991).
Concerning Defendant’s community corrections revocation and resentencing, the
trial court in this case made the following findings:
I find that [Defendant] has violated the terms of her Community
Corrections sentence, and in making this finding, I find that she has also
been convicted of two crimes which triggers the second sentence to go
into effect under the law. Both of these six-year sentences at 60 percent
will be revoked and your sentence on the probation revocation
violations, because you’ve been convicted of a crime while you’re on
consecutive sentences, those sentences will be ordered to serve and the
total effective sentence will be 12 years at 60 percent in the state
penitentiary. Now, you will be given your appropriate jail credits for
these sentences.
Secondly, the State of Tennessee has filed a notice to seek enhanced
punishment. As I noted earlier, with 45 felony convictions, the
defendant’s sentence can’t be enhanced in an E felony more than six
years at 60 percent. However, there is consecutive sentencing to be
considered in one case. In Case No. 116-2013, there was one felony
conviction with a sentence of six years at 60 percent. In Case No. 555-
2013 there were one, two, three, four, five, six convictions, E felonies,
all six years at 60 percent that ran concurrently with each other but
consecutively to the other case giving her an effective sentence of 12
years.
Should this Court consider consecutive sentencing with the batch of
felonies that were committed on Case No. 555? The Court can’t help but
notice the long criminal history here. And if this Court orders
consecutive sentencing, then there must be a factor from 40-35-115
present to justify the imposition of consecutive sentencing.
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There are different factors that our legislature has set out in 40-35-115.
And if any of those apply, it should be. And I am considering that the
defendant is an offender whose record of criminal activity is extensive.
In considering that factor of the consecutive sentencing statute at 40-35-
115, we start out with the fact that she said that she started using drugs at
18, 19, 20. 22 years of violating the law.
Now, it’s a real problem with this Court when our citizens think, well,
what are you doing? How can you hold that against me? I have no
convictions from that. But if you wade through the spin and what the
world tells you, you see the naked truth of violating the law on a
consistent basis by using marijuana and cocaine for 22 years. And out of
that 22 years spans 17 years of 45 felony convictions.
And then, while this Court is bending over backwards to try to help her
and her baby that is unborn she’s arrested for a crime on January 29th,
2016. And I quote from the affidavit, “The defendant was observed on
video entering the business without any items and going to the baby
section of the store. The defendant put a baby car seat, a rocking seat,
and a breast pump into a shopping cart. The defendant then went to the
customer service desk to return the items that she never purchased.”
And this is unbelievable. She tells the court today that she had a Target
card and she only got the Target card because she stole the stuff.
Unbelievable. She was given a refund card because she stole it, and she
tricked Target, and she got away with it. But once Target realized the
defendant did not enter the building with the merchandise, they canceled
the gift card. She was contacted and asked to come back to the business,
and she replied that she was going to beat the charge. The officer
instructed the defendant to remain in the store to get the citation book
out, and she got into a vehicle and left. While this Court was bending
over backwards to help her and her unborn child.
And then we hear testimony today of Deshawn Vasser from Wal[]mart
in Gallatin. After she was arrested on this case, while she was on
Community Corrections, while this Court was bending over backwards
she walked into Wal[]mart in Gallatin about 4:07 p.m. She put a bunch
of clothing into a basket. She bagged it up like she had paid for it. She
passed a register and an EAS system and she sat down there in the
vestibule when the store officer caught up with her. She was asked to
come back in. She came in and [gave] the merchandise back, set them
down, and then she promptly walked out.
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She was given Community Correction sentences in Sumner County on
September 1st, 2001, for similar charges. She was revoked on those
charges on February 4th, 2002. Now, while she was on Community
Corrections she received convictions for 30 counts of forgery in
Marshall County. She received an effective sentence of 12 years at 60
percent to serve in the Tennessee Department of Corrections. She was
eventually granted parole 5/23/2008. She absconded supervision on
8/3/2009 after being served with a parole warrant, and she was
eventually sent to serve the remainder of her sentence in the Tennessee
Department of Correction.
January 23rd, 2014, she appeared before me and was sentenced again 12
years at 60 percent for various crimes. On 4/11/14 she appeared before
this Court again for a sentencing hearing. She was ordered to enter and
complete Synergy after serving two years in the Sumner County Jail,
which equals 18 months. She was ordered released on Community
Corrections. She was released early from that sentence because of health
reasons. First probation violation warrant was issued again four months
- - within four months she tested positive for cocaine. She was released
the same day that she was arrested because of heart complications.
On 9/28/2015 she entered a plea of guilty and was returned to
Community Corrections for the remainder of this sentence despite all of
this record here and ordered to complete Pro-Social Life Skills. Second
violation was issued on 10/01/15 after she reported and signed an
admission for the use of cocaine and marijuana. And amended petition
was filed 10/14/15 after she failed to report.
Sometime during this period of time she became pregnant. She
continued to use marijuana; she continued to use cocaine. On 3/4/16 a
motion to reconsider her no bond [sic] was heard, and I released her and
ordered her to report to the Community Corrections officer daily, seek
drug treatment. She again failed to report and contact the officer.
Everybody in this justice system was bending over backwards to help
her.
On 3/20/16 the defendant was arrested for evading arrest and theft of
merchandise. 3/22/16 defendant failed to appear and a capias was issued
for her arrest. 3/30/16 another warrant was issued for theft of
merchandise by the Gallatin Police Department and another amended
warrant was issued.
Is the defendant an offender whose record of criminal activity is
extensive? The answer is yes. She has 45 felony convictions, two
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misdemeanor convictions, while she was asking for help and the Court
was trying to give her help in this court. All this spans 17 years. She
committed felonies while she was on Community Corrections
supervision; she committed crimes while she was pregnant.
This Court has no alternative than to find that the defendant is an
offender whose record of criminal activity is extensive. This society can
not put up with this conduct and this unborn child deserves to live,
[Defendant].
The trial court ultimately ordered Count 11 in case no. 555, six years at 60 percent,
to run consecutively to the other cases, and “that will run consecutively to the 12 years at
60 percent. [Defendant’s] total sentence in the state penitentiary will be 18 years at 60
percent.”
Defendant first argues that the trial court erred in revoking her community
corrections because the trial court based the revocation “on criminal acts that were known
to it at the time probation was granted.” State v. Stubblefield, 953 S.W.2d 223, 225
(Tenn. Crim. App. 1997). Appellant’s prior violations which resulted in changes to his
community corrections and probation on the same sentence do not constitute “criminal
acts known at the time probation was granted.” State v. Leman Earl Russell, Jr., No.
W2012-02161-CCA-R3-CD, 2013 WL 3807964, at *4 (Tenn. Crim. App. July 17, 2013).
Defendant argues that the trial court improperly considered proof presented in support of
her original community corrections violation warrant, as well as the three amended
warrants. She further argues that the trial court improperly considered her continued use
of cocaine and marijuana and her failure to follow the previous order for her to seek
admittance into a rehabilitation program. She further asserts: “As such, the trial court
improperly considered criminal conduct committed by [Defendant] prior to the
aforementioned dates of release (September 28, 2015 and March 4, 2016) as a basis for
revocation.”
However, the record shows that trial court did not abuse its discretion in revoking
Defendant’s community corrections sentence. The trial court relied on evidence that
occurred after the hearing on March 4, 2016, in support of its decision to revoke
community corrections, rather than Defendant’s prior criminal record, as argued by
Defendant. The trial court ordered Defendant to enter a drug treatment program, and she
was ordered to meet with her community corrections officer. Defendant failed to do
either of those things, and she continued to use drugs. The trial court also considered that
the evidence was sufficient to support the allegations set forth in the community
corrections violation warrant filed on March 21, 2016, concerning the shoplifting incident
at Target which resulted in Defendant’s subsequent convictions for shoplifting and
evading arrest. Furthermore, the evidence was sufficient, and Defendant did not dispute,
to show that Defendant was shoplifting at the Gallatin Walmart on March 30, 2016.
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Although the trial court recited Defendant’s prior criminal record, it was in the context of
determining consecutive sentencing and whether Defendant was an offender whose
record of criminal activity was extensive. Defendant has been given several attempts at
rehabilitation and to complete her community corrections sentence, and these attempts
have failed. “[A]n accused, already on probation, is not entitled to a second grant of
probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. At Nashville, Feb. 10,
1999), perm. app. denied (Tenn., June 28, 1999). The trial court did not err in this case
by ordering Defendant to serve her sentence by incarceration.
Next, as for the trial court’s order of partial consecutive sentencing, we find that
the trial court did not abuse its discretion. After finding a violation of a defendant’s
community corrections, the “court may resentence the defendant to any appropriate
sentencing alternative, including incarceration, for any period of time up to the maximum
sentence provided for the offense committed, less any time actually served in any
community based alternative to incarceration.” T.C.A. § 40-36-106(e)(4). If the trial
court resentences a defendant to a more severe sentence than originally imposed, it must
conduct a sentencing hearing in accordance with the 1989 Sentencing Act. See State v.
Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998). When a trial court does not alter
“the length, terms or conditions of the sentence imposed,” a new sentencing hearing is
not required. T.C.A. § 40-36-106(e)(2); see State v. Samuels, 44 S.W.3d 489, 493 (Tenn.
2001).
Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In
sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
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minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
T.C.A. § 40-35-210(c).
Our supreme court has also extended the standard of review enunciated in Bise,
abuse of discretion with a presumption of reasonableness, to consecutive sentencing
determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). Tennessee Code
Annotated section 40-35-115 sets forth the factors that are relevant in determining
whether sentences should run concurrently or consecutively. The trial court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of
the seven statutory factors exist. T.C.A. § 40-35-115(b). Imposition of consecutive
sentences must be “justly deserved in relation to the seriousness of the offense.” T.C.A.
§ 40-35-102(1). The length of the resulting sentence must be “no greater than that
deserved for the offense committed.” T.C.A. § 40-35-103(2).
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may
order sentences to run consecutively if it finds any one of the following criteria by a
preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood;
(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 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;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
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victim or victims, the time span of defendant’s undetected sexual
activity, 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 for an offense committed while on
probation;
or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b).
In Pollard, the court reiterated that “[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” 432 S.W.3d at 862. “So long as a trial
court properly articulates its reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id.; Bise, 380 S.W.3d
at 705.
The trial court in this case properly found that Defendant is an offender whose
record of criminal activity is extensive. This factor alone supports consecutive
sentencing. “This factor has been interpreted to include not only the convictions
presently before the sentencing court but also prior offenses.” State v. Palmer, 10
S.W.3d 638, 647-49 (Tenn. Crim. App. 1999). The record shows that Defendant has 45
felony convictions, and her prior criminal history of convictions spans seventeen years.
Defendant was charged with additional felonies for theft and evading arrest at Target and
Walmart. Defendant admitted that she has used drugs since the age of 18, and she
continued to use drugs after being released on community corrections. This issue is
without merit.
CONCLUSION
We conclude that the trial court did not abuse its discretion in revoking
community corrections, ordering incarceration, and increasing the effective sentence by
ordering additional consecutive sentencing. Accordingly, the judgments of the trial court
are affirmed.
________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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