IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED JANUARY SESSION, 1998 March 5, 1998 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9704-CC-00138 ) Appellee, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J.S. DANIEL ZACHERY L. BARNES, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF RUTHERFORD CO UNTY

FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM A. OSBORNE JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter West Main Street Murfreesboro, TN 37130 GEORGIA BLYTHE FELNER Assistant Attorney General Fifth Avenu e North Nashville, TN 37243 WILLIAM C. WH ITESELL District Attorney General 3rd Floor, Judicial Building Murfreesboro, TN 37130

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defendant, Zachery Leroy B arnes, a ppeals as of right p ursuan t to Rule 3, Tennessee Rules of Appellate Procedure. Pursuant to a negotiated plea agreement with the State, he p leaded guilty to six cou nts of burglary 1 as a Multiple, Range II offender and agreed to sentences of six years for each offense.

After a hea ring, the trial court ordered that some of the sentences be served consecu tively, resulting in an effective sentence of eighteen years in the Department of Correction. In this appeal, the Defenda nt argues that the trial court erred by imposing consecutive sentences. We affirm the judgment of the trial court.

The Defenda nt was indicted o n several coun ts of burglary and the ft which occurred in the Murfreesbo ro area of Rutherford County between July 6, 1996, and July 15 , 1996 . On Ju ly 6th, the Defe ndan t burgla rized h is former employer.

During the commission of a burglary on July 13, 1996, an officer with the Murfreesbo ro Police Dep artment attem pted to arrest the Defendant. After the officer put a handcuff on one of the Defendant’s wrists, the Defendant managed to escap e. The Defendant committed four more burglaries before he was picked up by police. Detective Lieutenant Jim Gage investigated the cases and developed the Defendant as a suspect. The Defendant accompanied him to the Murfreesboro Police Department where he made a full confession to all of the burglaries. This inclu ded infor mation about the bu rglary of Nesbitt House, of

Tenn. Code Ann. § 39-14-402.

-2- which the police were not yet aware. The Defendant was indicted for the following offenses:

Indicted Offenses Indictment Date/ Coun t I Coun t II Coun t III Coun t IV Location 37778 7/14/96 Burglary Theft Nesb itt < $500 House 37779 7/14/96 Burglary Theft Lebeau < $500 Apts.

37780 7/14/96 Burglary Allen House 37781 7/13/96 Burglary Theft Assa ult Evading Pittard < $500 Arrest School 37782 7/15/96 Burglary Nott. Apts.

37783 7/6/96 Burglary Theft Vandalism Mi-Tech < $500

On October 14, 1996, the Defendant pleaded guilty to six counts of burglary and agreed to six year sentences for each, the midrange of the sentence length for burglary, a Class D felony, as a Rang e II, 35% , multiple o ffender. See Tenn. Code Ann. §§ 40-35-101; 39-14-402(c). The other counts in the indictme nts were dismissed. The plea agreement provided that the ne wly imposed senten ces wo uld run co nsecu tively to a prior, unse rved sen tence, w ith the trial court to determine whether the new sentences would be served

-3- conse cutively or concurrently. A sentencing hearing was conducted on November 22, 1996.

The Defendant testified that the burglaries were motivated by his crack cocaine addiction and that he was not thinking straight when he committed the offenses. He chose to burglarize businesses to avoid hurting anyone. The Defendant gave a voluntary confession because it was the right thing to do. He requested help with h is drug proble m, bu t adm itted tha t he ha d not p reviou sly sought any treatment on his own. While in the Rutherford County Jail, the Defendant achieved trusty status but lost it because of improper behavior with a fema le trusty. He also admitted that he has had a number of prior convictions.

The pres entence rep ort indicates that the Defendant was 31 years old at the time of sentencing, single, and the father of three children. He graduated from Riverd ale High School in Murfreesboro. He had been employed by Hodge Manufacturing Company from 1987 to 1994. He committed other offen ses in 1994 and was incarcerated, then was employed by Mi-Tech Steel after he was released. He wo rked the re from Jan uary, 1996, until his arrest for the current offens es in July, 1996. The Defendant has had numerous convictions, most of which occurred in 1994. These include three burglaries, one aggrava ted burglary, two burglaries of automobiles, three the fts valued under $500, and one conviction for forgery. The Defendant was on probation when he committed the current o ffenses.

-4- On the matter of consecutive sentencing, the trial court found that the Defendant had an exten sive prior criminal reco rd and applied Tennessee Code Annotated section 40-35 -115(b)(2). The trial court also found that the Defendant was on probation when he committed the offenses and applied Tennessee Code Annotated sectio n 40-3 5-115 (b)(6) in suppo rt of consecutive sentencing. As a result, the trial judge ordered that the offenses which occurred on July 14, 1996, in indictme nts 377 78, 377 79 and 37780 , to run con currently to each o ther. He ordered that the offens e com mitted on Ju ly 13, 19 96, in in dictment 37781 run conse cutively to the offenses in 37778, 37779 and 37780. He ordered the offense committed on July 15, 1996, to run consecutively to the other offenses.

Finally, in recognition of the Defendant’s cooperation with the police, the trial judge ordere d that th e offen se in ind ictme nt 377 83 sh ould run concurrently to the other offenses. The result was an effective eighteen-year sentence.

In this ap peal, the Defend ant argues tha t the trial court erred by imposing consecu tive sentences. When an accused challenges the length, range, or the manner of service of a sente nce, 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 -35-4 01(d) . This p resum ption is "conditioned upon the affirm ative showing in the record that the trial court considered the sentencing principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, this court must consider: (a) the eviden ce, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and argum ents as to -5- sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not m odify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

W e first note that the determination of the length of the sentences imposed was made pursua nt to the ne gotiated p lea agre emen t. The Defendant contends that the trial court erred by failing to consider a sta tutory mitigating factor, nam ely, that he neith er cause d nor thre atened serious b odily injury. See Tenn. Code Ann. § 40-35-113(1). He also argues that the trial judge did not consider that the offenses were motivated by his cocaine habit. We find this argument to be unpersuasive. The application of statutory m itigating factors is relevant when setting the length of a sentence and the factors must be considered by the trial court. Tenn . Cod e Ann . § 40-3 5-210 (b)(5). H ere, ho weve r, each spec ific sentence had alre ady bee n agree d upon . The trial co urt was only considering the issue of consecutive sentences. That proce dure is governed by Tennessee Code Annotated section 40-35-115. Specifically, that provision states: “If a defendant is convicted of more than one (1) criminal offense, the court shall order -6- sentences to run consecutive ly or con curren tly as pro vided by the criteria in this section.” Tenn. Code Ann. § 40-35-115(a)(emphasis added). The trial court considered the factors in section 40-35-115(b). Nothing requires the trial judge to specifically consider m itigating factors when considering co nsecutive sentences, although these factors may be relevant to the decision . We do note that, although no t required, the tria l judge did ac coun t for the D efend ant’s cooperation with the police when o rdering one c ount to run con currently.

There fore, this issu e is withou t merit.

The Defendant also argues that the trial cou rt inapp ropria tely considered the fact that he evaded arrest as a reason to mandatorily impose con secutive sentences pursuant to Rule 32(c)(3)(B) of the Tennessee Rules of Criminal Procedure. He argues that this provision should not apply. Although the trial judge mentioned the fact that the De fendant evad ed arrest, nothing in the record indicates that this provision was relied upon in imposing consecutive sentences.

Thus , this issue h as no m erit.

The trial judge articulated on the record that he relied upon Tennessee Code Annotated se ction 40-35-11 5 (b)(2) and (b)(6) w hen he ord ered consecu tive senten ces. It is clear from this re cord tha t the Defe ndant is an offender whose record of criminal activity is extensive and that the Defendant was being sentenced for an offense com mitted while on probation. Tenn. Code Ann. § 40-35-115(b)(2) and (6); see State v. Tuttle , 914 S.W.2d 926, 933 (Tenn. Crim.

App. 1995). T hese fa ctors auth orize the trial court to conside r consecutive sentences as a part of his dis cretion ary au thority. W hen a defen dant fa lls within the statutory classifications for eligibility to be considered for consecu tive -7- sentencing, the only remaining considerations are whether (1) the sentences are necessa ry in order to protect the public from further misconduct by the defendant and (2) "the term s are rea sonab ly related to th e severity of the offen ses." State v. Wilkerson, 905 S.W .2d 933, 938 (Tenn. 199 5).

The trial court clearly had a basis for conclud ing that conse cutive sentences are necess ary to protect the pu blic. These offen ses were committed while the defendant was on intensive probation, thus, he has demonstrated a lack of amenability for rehabilitation. The fact that the Defendant chose to violate a position of trust by burglarizing the business of his employer is of special concern. See State v. Moore , 942 S.W .2d 570 , 574 (T enn. C rim. App . 1996).

Furthermore, the Defendant has a serious crack cocaine addiction which he has been unsuccessfu l in getting treatment for on his own. Therefore, we cannot conclude that the trial court erred or abused his discretion by imposing consecutive sentences in this case.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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