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State v. White3/12/1999
The State appeals the sentencing decision of the Circuit Court of Chester County following the appellee's guilty pleas to two violations of the Motor Vehicle Habitual Offenders Act and one count of misdemeanor possession of marijuana. The appellee, Luther Wayne White, received a sentence of two years as a range one standard offender for each habitual offender conviction and eleven months and twenty-nine days for the marijuana conviction. The trial court ordered the appellee to serve six months of each sentence followed by supervised probation. The State appeals contending the trial court erred by (1) sentencing the appellant to the incorrect sentencing range; (2) granting partial probation; and (3) ordering concurrent sentences.
After review, we find the State's contentions to be meritorious. The judgments of the trial court are reversed and the appellee's sentences are modified as ordered below.
BACKGROUND
On June 13, 1996, the appellee was arrested for violation of the Motor Vehicle Habitual Offenders Act. On September 29, 1997, he was again cited for violation of the MVHO Act and for misdemeanor drug possession. The appellee pled guilty to all three offenses on March 4, 1998. Prior to the sentencing hearing, the State filed notice to seek enhanced punishment as a range II offender and also moved for consecutive sentences.
This court's review of the length, range, or manner of service of a sentence is de novo with a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is only applicable if the record demonstrates that the trial court properly considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The record does not reflect that the trial court considered the relevant principles of sentencing; accordingly, the presumption is not afforded.
Upon our de novo review, we are required to consider the evidence heard at trial and at sentencing, the presentence report, the argument of counsel, the nature and characteristics of the offense, any mitigating and enhancement factors, the defendant's statements, and the defendant's potential for rehabilitation. Tenn. Code Ann. § 40-35-102, -103(5), -210(b) (1997). The burden is on the appellant to show that the sentence imposed was improper. Ashby, 823 S.W.2d at 169; State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).
The record establishes the appellee's extensive list of criminal convictions from 1987 to the present. Evidence presented at the sentencing hearing indicates approximately sixteen prior convictions including the following: (1) 1987, felony conviction for possession with intent to sell marijuana, sentenced to two years; (2) 1987, misdemeanor possession of cocaine; (3) 1989, conspiracy to sell interstate stolen motor vehicles, see 18 U.S.C. § 371, sentence of three years; (4) 1989, six counts interstate transporting of stolen vehicles, see 18 U.S.C. § 2312, sentence of two years; (5) 1994, violation of Motor Vehicle Habitual Offender Act, a class E felony, sentence of three years as a range II multiple offender; (6) 1994, DUI, first offense; (7) 1994, reckless endangerment; and (8) and other traffic related offenses.
In addition, the appellee has a previous history of unwillingness to comply with the conditions of probation. The record reflects that his federal probation was violated in July of 1993. The appellee's May 1994 conviction for violation as an habitual motor vehicle offend
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