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State v. Blackburn10/19/2001
tioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the trial court fails to comply with the statutory directives, there is no presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). In reviewing the record before us, the trial court in this case clearly followed the appropriate sentencing procedure; therefore, we will review the defendant's sentence with a presumption of correctness.
The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors in sentencing:
(1) he evidence, if any, received at the trial and the sentencing hearing; (2) he presentence report; (3) he principles of sentencing and arguments as to sentencing alternatives; (4) he nature and characteristics of the criminal conduct involved; (5) vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) ny statement the defendant wishes to make in the defendant's own behalf about sentencing.
Tennessee Code Annotated section 40-35-115(b) provides that a court may order sentences to run consecutively if the court finds by a preponderance of the evidence that
(1) he defendant is a professional criminal who has knowingly devoted such defendant's life to criminal acts as a major source of livelihood;
(2) he defendant is an offender whose record of criminal activity is extensive;
(3) he defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;
(4) he defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;
(5) he defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;
(6) he defendant is sentenced for an offense committed while on probation; or
(7) he defendant is sentenced for criminal contempt. See also State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
Furthermore, in the event the trial court finds that the defendant is a "dangerous offender," it must also determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
In ordering the sentences to run consecutively, the trial court first found that this defendant had an extensive record of criminal activity. As the record indicates, when the defendant was eighteen years old he was convicted of assault, driving on a revoked license, aggravated burglary, and criminal trespass. At age nineteen, he was convicted of driving on
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