        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 11, 2012

        STATE OF TENNESSEE v. MARQUES SANCHEZ JOHNSON

                   Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2568, 2010-D-3338 Steve Dozier, Judge



                  No. M2012-00169-CCA-R3-CD - Filed October 18, 2012


Appellant, Marques Sanchez Johnson, was indicted by the Davidson County Grand Jury for
four counts of burglary of a motor vehicle, six counts of theft of property, and one count of
evading arrest in two separate cases. Appellant pled guilty to two counts of burglary of a
motor vehicle and one count of theft in each case in exchange for a total effective sentence
of six years in the first case and twelve years in the second case as a Range IV, career
offender, with the trial court to determine after a sentencing hearing whether the sentences
would run concurrently or consecutively. After a hearing, the trial court ordered the
sentences to run consecutively, for a total effective sentence of eighteen years as a Range IV,
career offender. Appellant insists that the trial court erred by ordering consecutive sentences.
After a review of the record, the briefs, and the applicable authorities, we conclude that the
record supports the trial court’s determination that consecutive sentences were warranted
because Appellant had an extensive criminal record and was a professional criminal.
Consequently, the judgment of the trial court is affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and A LAN E. G LENN, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Marques Sanchez Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Factual Background
       In September of 2010, the Davidson County Grand Jury indicted Appellant for two
counts of burglary of a motor vehicle, two counts of theft of property, and one count of
evading arrest in Case No. 2010-C-2568. In November of 2010, Appellant was indicted for
two counts of burglary of a motor vehicle and four counts of theft of property in Case No.
2010-D-3338.

      In October of 2011, Appellant pled guilty to two counts of burglary of a motor vehicle
and one count of theft of property in Case No. 2010-C-2568. The remaining counts were
dismissed. In exchange for the guilty pleas, Appellant received a sentence of six years as a
Range IV, career offender on each count. The sentences were ordered to be served
concurrently to each other.

        Appellant also pled guilty to two counts of burglary of a motor vehicle and one count
of theft of property in Case No. 2010-D-3338. The remaining counts of the indictment were
dismissed. In exchange for the guilty pleas in this case, Appellant received sentences of six
years for the burglary convictions and twelve years for the theft of property conviction, again
as a Range IV, career offender.


      At the guilty plea hearing, the State stated that had the case gone to trial, the State
would have proven:

       [I]n 2010-C-2568 [the proof] would have been that on July 8 th , 2010, officers
       stopped [Appellant] - - I am sorry, officers observed [Appellant] enter into a
       black pickup truck owned by John Page and his father, another individual that
       I can’t read the name of, that was parked at Nashville Shores in Davidson
       County. [Appellant] walked away and then quickly entered a white pickup
       truck belonging to Donald Olson.

                Officers approached [Appellant] and attempted to take him into
       custody, he fled on foot and jumped into Percy Priest Lake in an attempt to
       allude capture despite repeated orders to stop. He was rescued by officers in
       a commandeered boat and was surrendered. He was then taken into custody,
       he was read his Miranda Rights, which he waived. When he was questioned,
       he stated that he was just trying to make some money. He further stated that
       he - - that he had seen the items that he had stole[n] on the seat and that he had
       used a crowbar to make entry.




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        The owners of the vehicles, Donald Olson and John Page, were able to
identify the property recovered from [Appellant]. [Appellant] was interviewed
again at Hermitage precinct and admitted to additional thefts at that time. The
total value of items taken from the black pickup truck was $769 and from the
white pickup truck was $250.

       In 2010-D-3338 had that case gone to trial, the State’s proof would
have shown that on July 4th , 2010 at approximately 6:54 in the evening Officer
Ted Whorly responded to a call at 4001 Bell Road. When he arrived at the
location, he met with the victims who advised that their vehicle had been
broken into and the dash was severely damaged when someone attempted to
remove the radio.

       The radio was stolen along with a Coach purse belonging to Lisa
Campbell, an Ipod phone, an Ipod Nano belonging to Lisa Campbell, and a
laptop computer. The laptop was the property of the US Department of
Defense. The total value of the property was $4,549 and the damage to the
dash of the vehicle was over $500.

         After [Appellant] was arrested at Nashville Shores in the previously
announced indictment, he was transported to Hermitage precinct where he was
interviewed . . . . At that time, after being advised of his rights again, he
agreed to being interviewed and admitted to breaking into that vehicle on July
4th , 2010. He admitted taking the laptop and admitted who he sold it to. The
computer from that case was recovered in a separate incident in addition to a
number of other items.

        Further the proof would show that on July 4th , 2010 at approximately 7
p.m., Officer Kimberly Rexford responded to a call at 4001 Bell Road, when
the officer arrived, she met with the victim, Louise Evervill, who advised that
he had parked his 2003 Suburban at that location at approximately 10:30 that
morning.

       The victim returned to his vehicle at about 7 p.m. finding that someone
had broken into the vehicle by forcing a tool into the lock on the passenger
side door. The victim’s Alpine Digital screen Dash Radio valued at
approximately $500 was missing and there was damage to the dashboard and
the door handle.




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              Four prints were lifted from the passenger side door by the officer.
       After [Appellant] was taken into custody at Nashville Shores for that incident,
       Detective - - when [Appellant] was interviewed at the Hermitage [precinct],
       the [Appellant] told officers that on July 4 th he broke into two vehicles, one
       being a silver car and one being a truck and he took the car stereos out of both
       vehicles. He also told detectives that he sold the victims’ property to another
       male. And based on the investigation, the officers note that [Appellant] had
       no authority to be in either vehicle.

       The trial court found a factual basis for the plea. After the guilty plea hearing the trial
court held a separate sentencing hearing because, as part of the negotiated plea agreement,
the trial court was to determine whether the sentences in the two cases would run
concurrently or consecutively.

       At the sentencing hearing, the trial court heard testimony from Appellant’s aunt,
Gwendolyn Lashell Stewart. She spoke fondly of Appellant but acknowledged that she
recalled him first getting into trouble at around the age of ten. She noted that he had a very
lengthy criminal history as both a juvenile and an adult. Ms. Stewart agreed that Appellant
primarily supported himself through crimes of theft.

       Angela Jones, Appellant’s mother, testified at the hearing. She stated that Appellant
lived with her for quite a while and was eager to help out his brothers and sisters. Appellant
even helped her get medication when insurance would not pay for it. Ms. Jones
acknowledged on cross-examination that Appellant had trouble as a juvenile, being placed
by the State in Richland Village, Woodland Hills, Wilder Youth Center, and Taft Youth
Development Center. She recalled that Appellant had been incarcerated several times as an
adult but explained that Appellant supported himself and his family in part by crimes of theft.

       The trial court ultimately ordered the sentences in the two cases to run consecutively
to each other, finding:

       Based upon the record and the proof presented at the sentencing hearing, the
       Court finds that [Appellant] does have an extensive record of criminal activity
       and is a professional criminal who has continually committed criminal acts as
       a major source of livelihood. See [T.C.A.] § 40-35-115. Furthermore,
       consecutive sentencing is necessary given the severity of the offenses
       committed and in order to protect the public from further criminal acts
       committed by [Appellant]. See State v. Wilkerson, 905 S.W.2d 933 (Tenn.
       1995). For the foregoing reasons, the Court orders the six (6) year sentence in
       2010-C-2569 to run consecutively to the twelve (12) year sentence in 2010-D-

                                               -4-
       3338 for an effective eighteen (18) year sentence at sixty percent (60%) to
       serve.


                                           Analysis

       On appeal, Appellant argues that the trial court improperly ordered consecutive
sentencing. Specifically, he insists that he committed nonviolent crimes motivated in part
by his desire to provide for his family and that his effective sentence is grossly
disproportionate to the crimes that he committed. The State disagrees, countering that the
record supports the imposition of consecutive sentences.


                                   Consecutive Sentences

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that:


       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;

       (2) The defendant is an offender whose record of criminal activity is extensive;

       (3) The 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) The 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-
T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

        As stated above, this section permits the trial court to impose consecutive sentences
if the court finds, among other criteria, that “the 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.” T.C.A. § 40-35-115(b)(4). However, before
ordering the defendant to serve consecutive sentences on the basis that he is a dangerous
offender, the trial court must find that the resulting sentence is reasonably related to the
severity of the crimes, necessary to protect the public against further criminal conduct, and
in accord with the general sentencing principles. See Imfeld, 70 S.W.3d at 708-09; State v.
Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995).

        With regard to consecutive sentencing, the trial court commented that Appellant’s
prior record was “extensive” and the court concluded that Appellant was a “professional
criminal who has continually committed criminal acts as a major source of livelihood.” In
our review, the record shows that Appellant unquestionably has an extensive criminal record.
His convictions include twelve convictions for driving on a suspended or revoked license,
two convictions for violating the driver’s license law, two convictions for reckless driving,
one conviction for facilitation of theft, one conviction for theft of property under $500, eight
convictions for theft of property over $1,000, one conviction for auto burglary, one
conviction for resisting arrest, three convictions for criminal impersonation, two convictions
for criminal trespass, two convictions for vandalism, one conviction for disorderly conduct,
one conviction for a weapons violation, two convictions for casual exchange, and eight
probation violations. The presentence report also listed at least forty additional offenses that
were charged but ultimately retired, nolle prossed, or dismissed. These convictions do not
even include Appellant’s juvenile record. We conclude that Appellant’s criminal history
alone is sufficient to support the imposition of consecutive sentences pursuant to Tennessee
Code Annotated section 40-35-115(b)(2). See also State v. Merl Wayne Medley, No. W2008-
00831-CCA-R3-CD, 2009 WL 4263671, at *18 (Tenn. Crim. App., at Jackson, Nov. 30,
2009), perm. app. denied, (Tenn. Apr. 14, 2010). However, the trial court also based its
decision on the fact that Appellant was a professional criminal who has knowingly devoted
his life to criminal acts as a major source of livelihood. Indeed, there was testimony in the
record that Appellant committed the thefts in part to provide for himself and his family. The
trial court’s conclusion on this point is also supported by the record. Appellant is not entitled
to relief on this issue.



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                                 Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.




                                   ___________________________________
                                   JERRY L. SMITH, JUDGE




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