WPCh,Sthe document with the Note capti WP_TV07805672WP6)sportsntterxsIsWPTVWPC2 x-------------------------------------------------------------------- O @518M@51+1|@F& 6R{WP}10{WP}01Timesw{WP}12?l   M{WP}11   PWP 6.0 caption8{WP}22M{WP}16 \UN>(hH  Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@ DEDӀ"44n~<$H3|xHU:W,  AZ"Arial Regular 0(6(2:$ !     `   0  R 0DQ(#$  0  H: 0  :$   `   1    ݀Defendantsbrother,HoraceJarrett,wasindictedalongwithdefendantontwo(2)  countsofarson.Horacepledguiltytovandalismandreceivedasentenceofsix(6)daysanda$50fine.R 0D(3$ !   :5' B  !"  X XXXXX    Ad FILEDX X   August21,1998  CecilCrowson,Jr.NXX AppellateCourtClerk HU: i,cAZ"Arial Regular_ AQ  ! #%C<< C Level 1Level 2Level 3Level 4Level 5R 0D (3$ !  + B  dR 0D ($$   1  = D/ _''' dxd+ B P PdA D3 """"'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2. 3Q ` Corel WordPerfectxHH(FG(HH(d'hS:L BPSetBPJobNStylZwp60versWDatSTR PtPt:F:FD (~M ~y  J$F$ "t+ 2  +:F :F :F :F ):F {:F :F :F :F :F0 :F H:F\ :Fp :F :FH =:FP :FX! x:Ft" :Fx# :F|% S:F' :F( :F :>T :>PA:N s:><{WP}10{WP}12{WP}11WP 6.0 caption{WP}22{WP}16{WP}01"Hl' '" x{WP}10 <<KK ..,,..,, xTimes۪HHlHЫ x Helvetica(d(  { xl hj)%'$' x{WP}10 <<KK  xTimes x$F{WP}22 x Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 21, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk{     x x x0' '0 x"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 31, 1998 SESSIONFTTbbp$  p~' '$STATE OF TENNESSEE,8)0  ~~~' '0)"NO. 02C019710CC004180  ' '0$Appellee,~)$  ' '$)"HARDEMAN COUNTY0  ' '0VS.)0' '0)"!HON. JON KERRY' 'BLACKWOOD,$' '$BURL JARRETT,o)"JUDGE0' '0)$Appellant.{)"(Arson Sentencing)  &5&46y' '5ܪ6y  ЫFOR THE APPELLANT:04B44' '0BPDAVID CRICHTON$P^' '$111 W. Market Street0^l^^' '0P.O. Box 651lzBolivar, TN 380080651Rz zz ' 'RFOR THE APPELLEE:04B44' '0$BP' '$JOHN KNOX WALKUP0P^PP' '0Attorney General and Reporter^l$ lz' '$GEORGIA BLYTHE FELNER0!zzz' '0Assistant Attorney General"Cordell Hull Building, 2nd Floor#425 Fifth Avenue North$Nashville, TN 372430493%$&' '$ELIZABETH T. RICE0'' '0District Attorney General($)' '$JERRY W. NORWOOD0*' '0Assistant District AttorneyGeneral+"Hardeman County Courthouse,"0Bolivar, TN 380082359 00)0 G44)NNG 6y6y-0\.\j/jxJ0 x xx  HJܿ!ܿ$!' '$ x x x xOPINION FILED:  0"' '0#$%AFFIRMED&'( )JOE G. RILEY, *"JUDGEV +"0 " +0 H' 'V xͪ  Ы x x   xͬA 7VXXdXXd7A  x  Times ЭOPINION0,@[@' '0-[v$The defendant, Burl Jarrett, pled guilty for judicial sentencing in theHardeman County Circuit Court to one (1) count of arson, a Class C felony. Thetrial court sentenced him as a Range I offender to five (5) years imprisonment. t]The court further ordered that defendants sentence run consecutively to a prior@felony drug conviction. On appeal, defendant contends the trial court erred int](1) imposing an excessive sentence, and (2) ordering that his sentence runbvconsecutively to the prior drug conviction. After a thorough review of the record;before this Court, we find no reversible error. Therefore, we affirm the judgmentof the trial court. 6vi$7i' '$I08D' '09$In January 1997, defendant was indicted on two (2) counts of arson. Hesubsequently pled guilty in May 1997 to one (1) count of arson. At thersentencing hearing in May 1997, defendants probation officer testified that;defendant had been placed on probation in June 1995 for a state felony drugEconviction. Defendant was subsequently indicted in federal district court on fiveUU(5) counts of distribution of cocaine, alleged to have occurred in June 1996Fwhile defendant was on probation for the state drug offense. Defendantv'thereafter pled guilty in federal court to these five (5) offenses in February 1997and was awaiting sentencing. A revocation hearing was simultaneously6 RB H6conducted along with defendants sentencing hearing on the present offense. C$fIn his testimony, defendant admitted participation in the arson. He;testified that he fully cooperated with the FBI and ATF in connection with thisbvoffense. However, he acknowledged that he was scheduled to be a witness for""the state in his brothers trial for the present offense, but failed to appear in court' 'that day. xy{WP}11  1   / x%%  "Hl'  '" x{WP}10  <<KK  xTimes x~M{WP}12HHlH$  1   Defendants brother, Horace Jarrett, was indicted along with defendant on two (2)'  'counts of arson. Horace pled guilty to vandalism and received a sentence of six (6) daysand a $50 fine.%/֭0HcD' '0$qThe presentence report indicated that defendant had a state criminalrecord consisting of one (1) felony drug conviction, one (1) forgery convictionand seven (7) misdemeanor convictions, one (1) of which was cocaine related. [nThe report also notes that defendant had not yet been sentenced for the five (5)cocaine convictions in federal court.Mc$The trial court found as enhancement factors that (1) defendant had aLprevious history of criminal convictions, Tenn. Code Ann.  4035114(1); andF(2) defendant had a previous history of unwillingness to comply with theUconditions of a sentence involving release in the community, Tenn. Code Ann. .4035114(8). As mitigating factors, the trial court found that (1) defendants.conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann. ]4035113(1); and (2) defendant admitted his guilt, Tenn. Code Ann.  4035  E113(13). The trial court found that the enhancement factors outweighed themitigating factors and imposed a Range I sentence of five (5) years, one (1) yearshort of the maximum sentence. The trial court further revoked defendants6  W7 H6probation on his state drug conviction based upon his commission of the federaloffenses while on state probation. Y>$LThe trial court further found that defendants record of criminal activitywas extensive and ordered that defendants sentence run consecutively to theprobation revocation on the state drug conviction. Defendant now brings thisappeal.]>$^' '$II0_' '0`$fDefendant asserts that the trial court erred in imposing an excessive*sentence. Specifically, he alleges that the trial court placed too much emphasisLon an enhancement factor and erroneously failed to apply certain mitigatingfactors. He further argues that consecutive sentencing is inappropriate.$d g' '$A. Standard of Review0e g  g_' '0$This Courts review of the sentence imposed by the trial court is de novo z' 'with a presumption of correctness. Tenn. Code Ann.  4035401(d). This]presumption is conditioned upon an affirmative showing in the record that thetrial judge considered the sentencing principles and all relevant facts andIcircumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trialjcourt fails to comply with the statutory directives, there is no presumption of' 'mcorrectness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96 $' '(Tenn. 1997).m Z$jThe burden is upon the appealing party to show that the sentence is6 ZRn Z H6improper. Tenn. Code Ann.  4035401(d) Sentencing CommissionjComments. In conducting our review, we are required, pursuant to Tenn. CodeAnn.  4035210, to consider the following factors in sentencing:$q Z ' '$ xͪ  Ы x x   x$](1) [t]he evidence, if any, received at the trial and the sentencing Q' ' hearing; (2) [t]he presentence report; (3) [t]he principles of@sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)[e]vidence and information offered by the parties on theenhancement and mitigating factors in  4035113 and 4035  F114; and (6) [a]ny statement the defendant wishes to make in    his   own behalf about sentencing.#y F#$z F T' '$ xͪ  Ы x x   xB. Excessive Sentence0{ T o T' '0$Defendant contends that the court placed too much weight on his priorcriminal record as an enhancement factor. He also suggests that the trial courterred in failing to apply as mitigating factors that he assisted the FBI and the' 'UATF with information concerning the present offense. See Tenn. Code Ann.  ;' '4035113(9), (10).$ o ' '$1.0  q' '0$At the time of sentencing, defendant had a prior criminal recordconsisting of two (2) state felony convictions and seven (7) misdemeanors. @Furthermore, defendant had pled guilty in February 1997 to five (5) federal drugEcharges and was awaiting sentencing. Although the arson was committed priorUto the commission of some of the other offenses, a sentencing court can3consider criminal behavior which occurred prior to the sentencing hearing asUevidence of a previous history of criminal convictions under Tenn. Code Ann. 4035114(1), regardless    of whether    the criminal behavior occurred before or6 I  H6after the commission of the offense under consideration. State v. John AllenmChapman, C.C.A. No. 01C019604CC00137, Grundy County (Tenn. Crim.]App. filed September 30, 1997, at Nashville). Although defendant claims that[nthe trial court placed too much weight upon this factor, the weight to be givenjenhancement and mitigating factors is discretionary with the trial court. State v.33Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The trial court did not errin placing great weight upon this enhancement factor.$  ' '$2.0  ' '0$UDefendant also claims that he assisted the FBI and the ATF by giving9information concerning the present offense, and this should have been' 't]considered to mitigate defendants sentence. See Tenn. Code Ann.  4035 ' ' /113(9), (10). Defendant testified that he cooperated fully with the federal]authorities, including giving details about the offense. However, there is noother evidence in the record that defendant did, in fact, cooperate fully with thet]federal authorities. Nor does defendant point to any evidence which wouldsupport the application of these mitigating factors other than defendants$assertions. We further note that defendant did not appear in state court to testifyv'at his brothers trial for the subject offense. We, therefore, cannot conclude thatmthe trial court erred in failing to apply Tenn. Code Ann.  4035113(9) and (10);as mitigating factors. Even if the trial court should have accorded some weightv'to the alleged cooperation, we still conclude that the five (5) year sentence wasappropriate.$ K' '$3.bKfKR KRf H' 'b$EWe find no error in the trial courts application of enhancement andmitigating factors in imposing defendants sentence. Therefore, we concludethat defendants Range I sentence of five (5) years for a Class C felony wasappropriate. This issue is without merit.$v' '$C. Consecutive Sentencing0l' '0$Defendant further argues that consecutive sentencing was inappropriateUin this case. Consecutive sentencing is governed by Tenn. Code Ann. N40-35-115. The trial court may order sentences to run consecutively if it finds byja preponderance of the evidence that one or more of the required statutorycriteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).  x x Helvetica xFurthermore, the court is required to determine whether the consecutivesentences (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, 905S.W.2d 933, 939 (Tenn. 1995).  $.The trial court found that defendant had an extensive criminal history andEimposed consecutive sentences on th x x Helvetica xat basis. Tenn. Code Ann.  4035  t]115(b)(2). Defendant had fourteen (14) prior convictions, consisting of six (6)felony drug convictions, a conviction for forgery and numerous misdemeanors. tDefendants record of criminal activity is extensive within the meaning of Tenn.' 'OCode Ann.  4035115(b)(2). See State v. Baker, 956 S.W.2d 8, 18 (Tenn.' 'Crim. App. 1997).$ ' '$$Furthermore, upon our de novo review, this Court finds that consecutiveNR R H' 'Nsentences are  x x Helvetica xreasonably related to the severity of the offenses committed,serve to protect the public from defendants further criminal conduct, and arecongruent with the general principles of sentencing. x x Helvetica x State v. Wilkerson, 905bvS.W.2d at 939. In the interim between the commission of the present offenseand his conviction, defendant was convicted of six (6) felony drug offenses. TheFfive (5) federal offenses were committed while defendant was on probation forEthe state felony drug offense. Furthermore, although the defendant testified that it wont never happen no more, defendant has developed a pattern ofrrepeatedly violating and ignoring the law. Consecutive sentencing wasappropriate. $This issue has no merit.77RRmm$' '$III0 ' '0 $qWe conclude that the trial court properly sentenced the defendant;therefore, the judgment of the trial court is affirmed. *$ *E' '$b E`ER ER ` H' 'b xͪ  Ы x x   x$$$$$$$ ÿ0p~p' '0$$$$$$$JOE G. RILEY, JUDGE~CONCUR:     x x x x   PAUL G. SUMMERS, JUDGE &&44BBPP^^l x x x x $lz' '$DAVID G. HAYES, JUDGE