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State v. Cotham1/15/2004
On January 3, 2002, between 3:00 and 4:00 A.M., the defendant picked up the victim, Miranda Lynn Owen, at her workplace and took her to his motel room at Motel 6 on Trinity Lane in Nashville so that she would help him "pack his stuff." Apparently, the victim chose not to assist the defendant and an argument ensued. After knocking her onto the bed, the defendant struck the victim in the head, forced her to the floor, and kicked her "maybe four or five times." The defendant then choked the victim until she was unconscious and packed his belongings. When the victim regained consciousness, the defendant walked her to his car and drove to her residence, where she slept until she left for work that night. Because the victim complained of "blackouts . . . dizzy spells . . . seizures" while at her workplace, a co-worker took her to Baptist Hospital. Meanwhile, when the victim did not return to her residence, the defendant, identifying himself as Andrea Corey Howart, telephoned police to report the victim missing. He later explained that he provided the alias in order to avoid any possible probation violation and because, "I didn't see the relevance of him evening knowing my name." In September 2002, the defendant entered guilty pleas to criminal impersonation and simple assault.
In this appeal, the defendant asserts that the trial court erred by requiring that his sentences be served consecutively to a previous six-year sentence for an aggravated assault conviction. He also insists that he should have been granted an alternative sentence. The state contends that consecutive sentencing was appropriate because the defendant had an extensive record of criminal activity and was on probation at the time of the underlying offense. See generally State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995).
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). The presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Tennessee Rule of Criminal Procedure 32, which addresses sentencing where the defendant has prior unserved sentences, provides in pertinent part as follows:
If the defendant has additional sentences not yet fully served as the result of convictions in the same court or in other courts of this state and if this fact is made known to the court prior to sentencing, the court shall recite this in the jud
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