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O3\ ^ xHH(FG(HH(d'h(YJDPSetBPJobNStylZwp60versSTR WDatPtPtYGYGC' (e T n]l 0$ +  YGt YGx YGd kYGh CYGl YG` YGp YG\ YG YG8 EYG YG<$ YF*  YG- QYG 1 YG YG eYG =YG YG0 YG4 YJ "YGT RYR{WP}10WP 6.0 caption{WP}11{WP}12{WP}16{WP}01"H~@' '" {WP}10 <<KK ..,,..,, TimesHHZHH~$(d(  ۶   ٬A 7 Xdd7A   Times Э  Helvetica     j ~`.@"HH~'H'" {WP}10 <<KK  TimesHHZHH~$(d(     Helvetica $Y@Y@Y@F'H' IHH'H' L'H' E'H'D$ 0h  ' '0h A u g u st 25, 1 9 983 C e c il W. C r o w s on&3 A p p e l l a te C o u rt' ' C' ' l' ' e' ' r' 'kY@Y@Y@j       0' '0 >IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE6ܶAT NASHVILLE6QܶMAY 1998 SESSIONQlܶlܶSTATE OF TENNESSEE,$*C.C.A. # 01C019707CC00283ܶ$Appellee,$$*BEDFORD COUNTYܶVS.$$$$*Hon. Charles Lee, Judge$' '$ܶ  зJACK LAYNE BENSON, $*(First Degree Murder and 0  ' '0ܶ  ܶ$Appellant.$$*Especially Aggravated Robbery)  ܶ  ܶ  ܶ,ܶ,:ܶ:Hܶ÷For Appellant: $$$For Appellee:HVܶVdܶGregory D. Smith, Attorney#$John Knox WalkupdrܶOne Public Square, Ste. 321$Attorney General and ReporterrܶClarksville, TN 37040ܶ$$$$$$Deborah A. Tullis ܶMichael D. Randles #$$Assistant Attorney GeneralܶAsst. Public Defender$$Cordell Hull Building, Second Floorܶ218 North Main $$$425 Fifth Avenue NorthܶShelbyville, TN 37160 $$Nashville, TN 37243ܶ ܶDonna Hargrove$$$W. Michael McCownܶAsst. Public Defender $$District Attorney GeneralܶSeventeenth Judicial District $215 E. College  ܶ105 South Main Street$$Fayetteville, TN 37334 ܶP.O. Box 1119$$$$$J  (  ( JܶFayetteville, TN 37334$$Robert G. Crigler !8Fܶ$$$$$$Asst. District Attorney GeneralJ!!) !!) Jܶ$$$$$$Bedford County Courthouse "9Gܶ$$$$$$One Public Square, Suite 100 #GUܶ$$$$$$Shelbyville, TN 37160$Ucܶ%cqܶ&qܶ'ܶOPINION FILED:__________________________(ܶ)ܶ *ܶ +ܶAFFIRMED ,ܶ -ܶ .ܶ/ܶGARY R. WADE, PRESIDING JUDGEV0  0 ' 'Vܶ   ͪ    ͫ ͷOPINION016' '0ܶ$$The defendant, Jack Layne Benson, was convicted of first degreemurder in the perpetration of a robbery and especially aggravated robbery. Tenn.Code Ann.  3913202 and Tenn. Code Ann.  3913403. The jury imposed a lifesentence for first degree murder. Tenn. Code Ann.  3913204. The trial courtimposed a Range I, consecutive sentence of twentyfour years for especiallyaggravated robbery. 76ܶ8ܶ$$The single issue presented for review is whether the trial court erredby ordering a consecutive sentence. We affirm the judgment of the trial court. :)ܶ;)Dܶ$$The facts are not in significant dispute. On January 10, 1996, thedefendant and the victim, Jody Butts, visited in the home of Mitchell Sturdevant. Atapproximately 11:25 P.M., the victim announced that he intended to leave and thedefendant asked for a ride. The two men left the Sturdevant residence togetherand, only a few minutes later, the body of the victim was found lying in the street infront of the defendant's residence.ADܶBܶ$$At 11:38 P.M., Officer Don Barber of the Shelby County PoliceDepartment was responding to a radio dispatch when he discovered the body in6 D 6the street. Medical testimony established that the victim died as a result of threestab wounds. Either of two of the stab wounds, one to the heart and one the lung,would have been fatal.GܶHܶ$$Between 11:30 and 11:40 P.M., Donna Addison noticed dark spots onthe front of the defendant's jacket and saw the defendant drop some money whichappeared to be stained with blood. He also informed her that he could not give hera ride to the store because he was driving someone else's vehicle. Ms. Addisondescribed the vehicle that the defendant was driving as a cream and red coloredChevrolet Blazer with tinted windows, a description that matched that of the vehiclethe victim was driving at the time he left the Sturdevant residence. OpܶPpܶ$$Less than thirty minutes later, Calvin Harris observed the defendantdriving the Blazer, a car he had never seen the defendant drive at anytime before. When Harris asked where the defendant had acquired the Blazer, the defendantsimply laughed. The defendant agreed to drive Harris to a motel, where policemade the arrest. The vehicle in the defendant's possession was identified as thatowned by the victim. The glove compartment and the center console had beenransacked and part of the console had been broken. Police found blood on thedriver's side door of the vehicle. Several items belonging to the victim, including6 HX 6items of identification, were found scattered in the rear of the Chevrolet Blazer. Police found the defendant in possession of the key to the Blazer. A piece of thebroken console and $11.00 in bills and coins, splattered with human blood, werefound in his right front pocket.  \ܶ]ܶ$$When there is a challenge to the length, range, or manner of serviceof a sentence, it is the duty of this court to conduct a de novo review with apresumption that the determinations made by the trial court are correct. Tenn.Code Ann.  4035401(d). This presumption is "conditioned upon the affirmativeshowing in the record that the trial court considered the sentencing principles andall relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The SentencingCommission Comments provide that the burden is on the defendant to show theimpropriety of the sentence.  fܶg ܶ$$Our review requires an analysis of (1) the evidence, if any, received atthe trial and sentencing hearing; (2) the presentence report; (3) the principles ofsentencing and the arguments of counsel relative to sentencing alternatives; (4) thenature and characteristics of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf; and (7) the6 tl  6defendant's potential for rehabilitation or treatment. Tenn. Code Ann.  4035  102, 103, and n  ܶ210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).o ܶp ܶ$$In calculating the sentence for a Class A felony conviction at the timeof these offenses, the presumptive sentence is the midpoint within the range if thereare no enhancement or mitigating factors. Tenn. Code Ann.  4035210(c). Ifthere are enhancement factors but no mitigating factors, the trial court may set thesentence above the minimum. Tenn. Code Ann.  4035210(d). A sentenceinvolving both enhancement and mitigating factors requires an assignment ofrelative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann.  4035210. The sentence may then be reduced within therange by any weight assigned to the mitigating factors present. Id. y ܶz ܶ$$Prior to the enactment of the Criminal Sentencing Reform Act of 1989,the limited classifications for the imposition of consecutive sentences were set outin Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supremecourt ruled that aggravating circumstances must be present before placement inany one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn.1987), the court established an additional category for those defendants convicted6   6of two or more statutory offenses involving sexual abuse of minors. There were,however, additional words of caution: $  ' '$ܶ   ͪ    ͫ ͷ$$[C]onsecutive sentences should not be routinely 6' 'imposed ... and ... the aggregate maximum ofconsecutive terms must be reasonably related to theseverity of the offenses involved.#  9#ܶ$ 9 G' '$ܶ  з ͪ    ͫ   ͷTaylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the G|' 'cautionary language. Tenn. Code Ann.  4035115. The 1989 Act is, in essence,the codification of the holdings in Gray and Taylor; consecutive sentences may beimposed in the discretion of the trial court only upon a determination that one or' 'more of the following criteria T{WP}11  1   O $$ "H~@'  '" {WP}10 <<KK  TimesHHZHH~$(d(       Helvetica ZZ  ~$~$  ~$~$ (d(     ZZ  ZZ  ~$~$  ~$~$     1  The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior'  'felony convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn.Code Ann.  4035115, Sentencing Commission Comments. $O֭ exist: 0 G  ' '0ܶ   ͪ    ͫ ͷ$$(1) The defendant is a professional criminal who has ' 'knowingly devoted himself to criminal acts as a majorsource of livelihood;# #ܶ ܶ$$(2) The defendant is an offender whose record ofcriminal activity is extensive; # &#ܶ & 4ܶ$$(3) The defendant is a dangerous mentally abnormalperson so declared by a competent psychiatrist whoconcludes as a result of an investigation prior tosentencing that the defendant's criminal conduct hasbeen characterized by a pattern of repetitive orcompulsive behavior with heedless indifference toconsequences; #  4 #ܶJ   6 Jܶ$$(4) The defendant is a dangerous offender whosebehavior indicates little or no regard for human life, andno hesitation about committing a crime in which the riskto human life is high;# #ܶ ܶ$$(5) The defendant is convicted of two (2) or morestatutory offenses involving sexual abuse of a minor withconsideration of the aggravating circumstances arisingfrom the relationship between the defendant and victimor victims, the time span of defendant's undetectedsexual activity, the nature and scope of the sexual actsand the extent of the residual, physical and mentaldamage to the victim or victims;# j#ܶjxܶ$$(6) The defendant is sentenced for an offensecommitted while on probation; or#x#ܶܶ$$(7) The defendant is sentenced for criminal contempt.##ܶܶTenn. Code Ann.  4035115(b).  ܶ ܶ ܶ$ ' '$ܶ   ͪ    ͫ ͷ$$In Gray, our supreme court had ruled that before consecutiveB' 'sentencing could be imposed upon the dangerous offender, as now defined bysubsection (b)(4) in the statute, other conditions must be present: (a) that thecrimes involved aggravating circumstances; (b) that consecutive sentences are anecessary means to protect the public from the defendant; and (c) that the termreasonably relates to the severity of the offenses.  ܶܶ$$In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court6  6reaffirmed those principles and ruled that consecutive sentences cannot berequired for any of the classifications "unless the terms reasonably relate to theseverity of the offenses committed and are necessary in order to protect the publicfrom further serious criminal conduct by the defendant." Id. at 938. The Wilkersondecision, which modified guidelines adopted in State v. Woods, 814 S.W.2d 378,380 (Tenn. Crim. App. 1991), governing the sentencing of dangerous offenders,described sentencing as "a human process that neither can nor should be reducedto a set of fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnoteomitted). $ ܶ$$As a Range I offender, the defendant was eligible for a fifteen totwentyfive year sentence for especially aggravated robbery, a Class A felony. Tenn. Code Ann.  3913403(b); Tenn. Code Ann.  4035112(a)(1). The trialcourt found no mitigating factors and two enhancement factors. The trial judgecalculated the sentence by beginning at midrange, because there are nomitigating factors, and added four years due to the enhancement factors. SeeTenn. Code Ann.  4035210(c); Tenn. Code Ann.  4035114. The length of thesentence is not in dispute.ܶܶ$$The defendant argues that "consecutive sentencing is unjust underthe facts...." Yet he concedes that he was on probation for another offense at the6   6time of these offenses, and thus Tenn. Code Ann.  4035115(b)(6) applies. %ܶ%@ܶ$$The record demonstrates that the defendant was convicted in Ohio in1988 of aggravated burglary. In 1990, he was convicted for receiving stolenproperty, drug abuse, and carrying a concealed weapon. In 1992, he wasconvicted for drug abuse and carrying a concealed weapon. In 1993, he wasconvicted for drug abuse and possession of drug paraphernalia. @ܶܶ $Now thirtythree years of age, the defendant is single and is the fatherof a daughter who is in the custody of her mother. At the time of sentencing, heprovided no support. The defendant has a sporadic work record, no militaryhistory, and no income or other resources. On September 26, 1995, the defendantwas convicted of simple possession of a Schedule VI controlled substance andsentenced to eleven months and twentynine days. He was on probational releasefor that offense at the time of this offense. ܶܶ$$When one or more statutory criteria is present, the imposition ofconsecutive sentences is within the discretion of the trial court. State v. Taylor, 739S.W.2d at 228. Even though the defendant was on probation for a misdemeanoroffense, the plain language of the statute authorizes a consecutive sentence. 6    6Wendell King, Jr., v. State, No. 01C019310CR00366 (Tenn. Crim. App., atNashville, Aug. 4, app. denied, (Tenn., Oct. 31, 1994). In our view, the aggregatelength of the sentences was warranted. ܶJ Q  Jܶ$$Accordingly, the judgment is affirmed. ܶ$' '$ܶ   ͪ    ͫ ͷ$$$$$$________________________________06' '0ܶ$$$$$$Gary R. Wade, Presiding Judge ܶܶCONCUR: ܶ .ܶ.<ܶ <Jܶ_____________________________ JXܶDavid G. Hayes, Judge Xfܶ ftܶ tܶܶ_____________________________ܶJerry L. Smith, Judge