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State v. Lazaro9/18/2001
s sentences to be served consecutively. We disagree.
When an accused challenges the length, range, or the manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). The presumption of correctness 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). This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The burden is on the defendant to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments.
Concerning Defendant's consecutive sentences, Tennessee Code Annotated section 40-35-115 is the statutory authority concerning sentencing determinations for defendants with multiple convictions. Essentially, the statute provides that the court may order sentences to run consecutively if it finds by a preponderance of the evidence that one or more of the statutory criteria exists. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1997). Defendant asserts that none of the factors enumerated in section 40-35-115 apply to his case. We disagree.
Initially, we note that at the time of commission of the offenses which are the subject of this appeal, Defendant was on probation for his conviction of first offense driving while license revoked. According to the record, the "greatest concern" of the trial court was Defendant's prior record. The concern appears justified. Defendant's prior criminal record contains two convictions for failure to appear, in addition to the prior convictions for DUI and driving while license revoked which caused his most recent convictions to have "second offense" status. In addition, we note that Defendant was still on probation for his first offense DUI when he was arrested on February 17, 1999, for his first offense of driving while license revoked. The instant convictions represent the second time that Defendant has committed offenses while on probation for prior crimes. In ordering consecutive sentencing, the trial court emphasized it was "clear that some substantial punishment s going to be necessary to deter him from doing this again."
In sum, we concur with the trial court's determination that consecutive sentencing is proper in Defendant's case. Although we question whether Defendant's record of criminal activity is sufficiently "extensive" to warrant consecutive sentencing, resolution of this issue is not necessary because factor (6), allowing consecutive sentencing based on offenses committed while on probation, clearly applies. See Tenn. Code Ann. § 40-35-115(2), (6) (1997). Since the statute provides that the trial court may order sentences to run consecutively if it finds by a preponderance of the evidence that only one of the statutory criteria exists, the trial court's order imposing consecutive sentences in Defendant's case is justified based on the circumstances presented. Defendant is not entitled to relief on this issue.
Conclusion
For the foregoing reasons, the trial court's judgment is AFFIRMED.
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