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State v. Hickman12/20/1999
The defendant, Howard D, Hickman, after pleading guilty, appeals from the sentences he received from the Hickman County Circuit Court. He was sentenced, as a Range I standard offender, to three consecutive four year sentences for three Class D felony offenses, and three concurrent 11 month 29 day sentences for three Class A misdemeanors, for an effective sentence of 12 years. The defendant contends that the trial court erred in ordering consecutive service of his three felony convictions. We AFFIRM the sentences imposed by the trial court.
FACTS
On October 27, 1998, the defendant pled guilty to two counts of burglary, Class D felonies; one count of theft of property over $1000, a Class D felony; and three misdemeanors. The trial court sentenced the defendant after receiving the pre-sentence report and hearing argument from both sides; both the state and the defense relied upon the presentence report and elected not to call any additional witnesses. The trial court ordered the defendant to serve four years for each of the felonies, consecutive to each other, and to serve 11 months and 29 days for each of the misdemeanors, concurrent to the felonies.
The defendant was sentenced as a Range I offender despite his lengthy criminal history, as the state failed to file proper notice for enhancement. See Tenn. Code Ann. § 40-35-202. Considering the pre- sentence report, the trial court found three enhancement factors applicable:
(1)the defendant has a previous history of criminal convictions in addition to that necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1).
(2)the offenses were committed while the defendant was on probation. See Tenn. Code Ann. § 40-35-114(13)(C); and
(3)the defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8).
The trial court found no mitigating factors. Accordingly, the court ordered the defendant to serve four years, the maximum within the applicable range, for each offense. Further, the trial court ordered these sentences to run consecutively; in support of this order of consecutive service, the trial court found that:
(1)the defendant has an extensive criminal record. See Tenn. Code Ann. § 40-35-115(b)(2).
(2)the sentence was necessary to protect the public from further criminal activity by the defendant; and
(3)the sentence was reasonably related to the seriousness of the offenses.
ANALYSIS
The defendant argues that imposition of consecutive service was improper and excessive. We disagree.
When a defendant challenges the length or manner of service of a sentence, this Court's review of the sentence imposed by the trial court is de novo with a presumption of correctness. See 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. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review id de novo. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
The burden is upon the appealing party to show that the sentence is improper. See Tenn. Code Ann. § 40-35-401(d). In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:
(1) he evidence, if any, received at the trial and the sentencing hearing;
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