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State v. Baker3/8/2002
Assigned on Briefs November 28, 2001
Pursuant to a bench trial, the appellant, Randall P. Baker, was convicted of one count of failure to appear, a class E felony. The trial court sentenced the appellant as a career offender to six years incarceration. On appeal, the appellant contests the trial court's order mandating that his sentence be served consecutively to another sentence not yet served. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
Norma McGee Ogle, J., delivered the opinion of the court, in which David H. Welles and Jerry L. Smith, JJ., joined.
OPINION
I. Factual Background
On August 22, 1999, the appellant was convicted of second offense driving under the influence (DUI) and of driving on a revoked licence. The appellant requested additional time before beginning service of his eighteen month sentence in order to "take care of" or "check on" his daughter. The trial court allowed the appellant until August 25, 2000, to report for service of his sentence. The appellant remained on bond in the interim. However, the appellant failed to report at the time designated by the court. The appellant was discovered, two or three weeks later, and brought in to begin serving his sentence.
Subsequently, pursuant to a bench trial, the court found the appellant guilty of failure to appear, a class E felony. See Tenn. Code Ann. § 39-16-609(e) (1997). At the sentencing hearing, after reviewing the available evidence, the trial court sentenced the appellant as a career offender to six years incarceration, with sixty percent of the sentence to be served in confinement. The trial court further noted that the appellant was an offender whose "criminal history is extensive" and ordered the instant sentence to be served consecutively to the appellant's eighteen month sentence previously imposed. The appellant now appeals the consecutive nature of this sentence.
II. Analysis
Appellate review of the length, range, or manner of service of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers 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 statement by the appellant in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997),-210 (2001 Supp.); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Moreover, we note that, because the record reveals that the trial court adequately considered sentencing principles and all relevant facts and circumstances, this court will accord the trial court's determinations a presumption of correctness. Tenn. Code Ann. § 40-35-401(d); Ashby,823 S.W.2d at 169. Regardless, the burden is on the appellant to demonstrate the impropriety of his sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
The appellant does not contest the length of his sentence or his designation as a career offender; rather, the appellant contends that the trial court erred by running his sentence for failure to appear consecutively to his previous eighteen month sentence. Tenn. Code Ann. § 40-35-115(b) (1997) provides that, if the appellant meets one of the listed criteria, a trial court may, in its discr
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