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State v. Cross12/6/1999
n. Code Ann. § 40-35-115(b)(2) and that the defendant was on probation pursuant to Tenn. Code Ann. § 40-35-115(b)(6). The trial court found that the defendant was on probation, for purposes of consecutive sentencing, because the defendant was serving a community corrections sentence when he committed the offenses in this case. Tenn. Code Ann. § 40-35-115(b)(6) provides: " he court may order sentences to run consecutively if the court finds by a preponderance of the evidence that . . . he defendant is sentenced for an offense committed while on probation." Although "consecutive sentencing for persons who commit offenses while on community corrections seems just as appropriate as consecutive sentencing for persons who commit offenses while on probation[,]" State v. Pettus, 986 S.W.2d 540, 544 n.9 (Tenn. 1999), the Supreme Court recently held that "the legislature did not intend a community corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(6)." Id. at 544. Therefore, in this case the trial court erred when it found that the defendant was on probation at the time he committed the offenses.
The trial court was correct, however, in determining that the defendant had an extensive criminal record. Tenn. Code Ann. § 40-35-115(b)(2) states: " he court may order sentences to run consecutively if the court finds by a preponderance of the evidence that . . . he defendant is an offender whose record of criminal activity is extensive." The trial court specifically found five prior felony convictions for the purposes of determining that the defendant was a persistent offender. Furthermore, the presentence report contains a record of numerous other convictions. The defendant's record was clearly extensive within the meaning of the statute. See Powers v. State 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996)(holding four prior convictions supported trial court's finding the defendant had an extensive criminal record under the statute); see also State v. Chrisman 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994)(finding four prior felony convictions and numerous traffic convictions supported trial court's finding of an extensive criminal record).
The defendant also contends that the trial court erred by refusing to consider the requirements of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In Wilkerson, the Supreme Court found that, in order to sentence a defendant to consecutive sentences because he was a "dangerous offender" under Tenn. Code Ann. § 40-35-115(b)(4), a trial court must find (1) the sentences were necessary to protect the public from further misconduct by the defendant and (2) the terms of the sentence were reasonably related to the severity of the offenses. Id. at 938. Those considerations, however, are only mandatory when the trial court imposes consecutive sentences on "dangerous offenders." State v. David Keith Lane, No. 03-S-01-98020CC00013 (Tenn. Sept. 27, 1999). In this case, the trial court sentenced the defendant consecutively because he had an extensive criminal record; thus, Wilkerson does not apply. This issue has no merit.
Accordingly, the judgment of the trial court is AFFIRMED.
JERRY L. SMITH, JUDGE
CONCUR: GARY R. WADE, PRESIDING JUDGE JAMES CURWOOD WITT, JR., JUDGE
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