           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

     STATE OF TENNESSEE v. WILLIAM RICKY WAYNE HERRELL

               Direct Appeal from the Circuit Court for Montgomery County
                      No. 39263, 40676   John H. Gasaway, III, Judge



                    No. M1999-02475-CCA-R3-CD - Decided June 23, 2000


The defendant, William Ricky Wayne Herrell, appeals his sentences resulting from his convictions
following guilty pleas to two counts of burglary, two counts of theft of property valued over one
thousand dollars, one count of obtaining a schedule IV drug by fraud, and one count of theft of
property valued under five hundred dollars. The defendant contends that his sentences are excessive
because the trial court erred in weighing the enhancement and mitigating factors and in imposing
consecutive sentences. We affirm the sentences imposed by the trial court.

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

TIPTON, J., delivered the opinion of the court, in which RILEY and GLENN, JJ., joined.

Sheri S. Phillips, Clarksville, Tennessee, attorney for appellant, William Ricky Wayne Herrell.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, William Ricky Wayne Herrell, appeals as of right his sentences resulting from
his convictions following guilty pleas to two counts of burglary, a Class D Felony; two counts of
theft of property valued over one thousand dollars, a Class D felony; one count of obtaining a
schedule IV drug by fraud, a Class D felony; and one count of theft of property valued under five
hundred dollars, a Class A misdemeanor. The trial court sentenced the defendant to three years, six
months for each of the burglaries and felony thefts; two years for obtaining a schedule IV drug by
fraud; and eleven months, twenty-nine days for the misdemeanor theft. The sentences for theft over
one thousand dollars are concurrent with each other, with the sentence for one of the burglary counts,
and with the misdemeanor sentence. The sentence for the second burglary count and the sentence
for obtaining a schedule IV drug by fraud are consecutive to each other and to the other counts for
an effective nine-year sentence . All counts are consecutive to a previous eight-year sentence in case
number 39263 in which probation was revoked for an aggregate sentence of seventeen years. The
defendant contends that the trial court erred in weighing the enhancement and mitigating factors and
in imposing consecutive sentences. We affirm the sentences imposed by the trial court.

         On August 6, 1998, the defendant pled guilty in case number 39263 to two counts of
burglary, two counts of theft of property valued over one thousand dollars, one count of vandalism
of property valued over one thousand dollars, and one count of theft of property valued under five
hundred dollars. The trial court imposed an effective eight-year sentence to be served on probation.
The defendant was indicted in case number 40676, the present case, for offenses committed between
October 2, 1998, and February 8, 1999. On March 31, 1999, the defendant’s probation supervisor
filed an affidavit stating that the defendant had violated the terms of his probation by being arrested,
failing to report these arrests, failing to provide proof of permanent employment, using intoxicants,
and failing to provide proof of payment of court costs and restitution. On April 5, 1999, the
supervisor filed a second affidavit alleging the same violations with the exception of the use of
intoxicants. The defendant waived his right to a probation violation hearing, and the trial court
revoked his probation on August 20, 1999. The trial court accepted the defendant’s guilty pleas in
case number 40676 on the same day.

        On October 14, 1999, the trial court conducted a sentencing hearing. It found that the
defendant admitted that he had violated the terms of his probation in case number 39263. It found
that the defendant committed each of the offenses in case number 40676 while on probation in case
number 39263. The presentence report was entered into evidence. The report reflects that the
defendant was twenty years old at the time of sentencing and had left high school after completing
the tenth grade. The defendant reported that he began using alcohol and drugs at age twelve. He
admitted that he was addicted to cocaine and valium and used those drugs daily. He stated that he
did not know if he would continue using cocaine and valium when released from jail. The defendant
was previously employed as a roofer, a finisher, and a dock worker, but each of those jobs ended
when he was arrested or due to his drug problem.

        The presentence report reflects that in addition to his convictions in case number 39263, the
defendant had prior convictions for reckless driving in Montgomery County in March 1999 and two
counts of reckless endangerment with a deadly weapon, DUI, evading arrest, and reckless driving
in Christian County, Kentucky, in August 1998. He had convictions for three traffic offenses as
well. The report states that the defendant has a juvenile record, consisting of two adjudications of
reckless endangerment for which he spent time in a wilderness camp. The report contains the victim
impact statement of Beau Battles, the owner of a pharmacy burglarized by the defendant. Mr.
Battles requested that he receive restitution and that the defendant spend the maximum sentence in
incarceration. At the sentencing hearing, the defendant said that he was sorry for hurting anyone.
He said that he was on drugs at the time he committed the offenses and was not thinking of the effect
of his actions on others. He requested the opportunity to receive treatment for his drug addiction.

        The trial court noted that the defendant was to be sentenced as a Range I offender pursuant
to his plea agreement. It applied the following enhancement factors:
        (1) The defendant has a previous history of criminal convictions or criminal behavior
        in addition to those necessary to establish the appropriate range; [and]

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       (13) The felony was committed while on any of the following forms of release if
       such release is from a prior felony conviction:
       ....
               (C) Probation[.]

Tenn. Code Ann. § 40-35-114(1), (13)(C). In mitigation, the court applied mitigating factor (1), the
“defendant’s criminal conduct neither caused nor threatened serious bodily injury.” Tenn. Code
Ann. § 40-35-113 (1). Under mitigating factor (13), it gave the defendant credit for avoiding the
expense and necessity of trial by pleading guilty. Tenn. Code Ann. § 40-35-113(13). The court
found the defendant eligible for consecutive sentences because of his extensive record of criminal
activity and because he committed the offenses in case number 40676 while on probation. Tenn.
Code Ann. § 40-35-115(b)(2),(6). The trial court imposed an effective nine-year sentence
consecutive to the eight-year sentence that the defendant received when his probation was revoked.

        We note that at the sentencing hearing, the trial court classified count nine, obtaining a
schedule IV drug by fraud, as a Class E felony. Obtaining a schedule IV drug by fraud is a Class
D felony, for which a two-to-four-year sentence may be imposed upon a Range I offender. Tenn.
Code Ann §§ 40-35-112(a)(4), 53-11-402(b)(1). The defendant referred to the offense as a Class D
felony in his petition requesting the trial court to accept his guilty pleas, and the judgment of
conviction for count nine correctly classifies the offense as a Class D felony. Despite the court’s
classification error, the two-year sentence imposed by the trial court for count nine is the minimum
sentence within the appropriate range.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), -402(d). As the Sentencing
Commission Comments to these sections note, the burden is now on the appealing party to show that
the sentencing is improper. 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).

        However, "the presumption of correctness which accompanies the trial court's action 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). In this respect, for the purpose of meaningful appellate review,

       the trial court must place on the record its reasons for arriving at the final sentencing
       decision, identify the mitigating and enhancement factors found, state the specific
       facts supporting each enhancement factor found, and articulate how the mitigating
       and enhancement factors have been evaluated and balanced in determining the
       sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

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        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-
102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

        The sentence to be imposed by the trial court for a Class D felony is presumptively the
minimum sentence in the range when no enhancement or mitigating factors are present. See
Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the sentence within
the range based upon the existence of enhancement factors and then reduce the sentence as
appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). The weight to be
afforded an existing factor is left to the trial court's discretion so long as it complies with the
purposes and principles of the 1989 Sentencing Act, and its findings are adequately supported by
the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727
S.W.2d at 237; see Ashby, 823 S.W.2d at 169. The law provides no presumptive minimum for
misdemeanor sentencing. See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.
1994). However, in misdemeanor sentencing, the trial court must consider the purposes and
principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(d).

        The defendant contends that his sentences are excessive. Although he does not challenge
the application of the enhancement and mitigating factors, he argues that the trial court erred in
the weight it assigned to these factors. He also contends that consecutive sentences are improper
because the trial court enhanced his sentences to the high end of the range and because it did not
find that consecutive sentences were appropriate based upon the severity of the offenses and the
necessity of deterring crime and protecting the public. The state contends that the sentences are
proper.

        Initially, we note that the record does not include a transcript of the guilty plea hearing in
case number 40676 at which the convicting evidence would have been presented by stipulation or
testimony. In order for us to conduct a proper de novo review, the guilty plea hearing transcripts
should be made a part of the record on appeal. The defendant must prepare a transcript of the
evidence that is necessary to convey a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal. T.R.A.P. 24(b). Absent a record of the
guilty plea hearing, at which evidence relevant to sentencing is often provided, we are unable to
perform a complete de novo review.


        Nevertheless, the weight to be given the enhancement and mitigating factors is within the
trial court’s discretion. Moss, 727 S.W.2d at 237. The defendant contends that the enhancement
factors did not outweigh the mitigating factors so greatly as to justify a sentence above the
middle of the range. He points to the fact that his previous criminal history consists entirely of
non-violent offenses. To the contrary, the record fully supports the trial court’s weighing of the


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factors. The number of prior offenses, including seven prior felony convictions, and the
defendant’s admitted daily drug abuse, which constitutes criminal behavior, justifies giving great
weight to enhancement factor (1). Furthermore, we believe that the defendant’s convictions for
two counts of reckless endangerment with a deadly weapon involve at least the potential for
violence. The trial court did not err in imposing sentences above the middle of the range.

        Consecutive sentencing is also appropriate. The imposition of consecutive sentences
does not exclude enhancement within the range, but instead, if supported by the evidence, both
are options available to the trial court in crafting the appropriate sentence. See Tenn. Code Ann.
§ 40-35-115, Sentencing Commission Comments (noting that although § 115 permits
consecutive sentencing, the trial court also has other options such as enhancing within the range);
 State v. McKnight, 900 S.W.2d 36, 56-57 (Tenn. Crim. App. 1994) (noting that consecutive
sentencing and enhancement within the range are both options available to the trial court).
Furthermore, our supreme court has held that the trial court must make findings on the record
that an extended sentence is justified due to the severity of the offenses and the necessity of
protecting the public only when the trial court imposes consecutive sentences because the
defendant is a dangerous offender under Tenn. Code Ann. § 40-35-115(b)(4). State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999). In Lane, the supreme court re-examined its holding in State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995). 3 S.W.2d at 460-61. It observed that the required
findings in Wilkerson stemmed from the fact that the dangerous offender category is the most
subjective and hardest to apply of all of the § 115(b) categories. Id. The court noted that the
other categories were self-limited, which prevented their application in situations where
consecutive sentencing did not advance the sentencing principles. Id. Subsection (2) and
subsection (6), in particular, are both objective. The trial court did not err in imposing
consecutive sentences based upon these categories without making further findings regarding the
severity of the sentence and the necessity of protecting the public.

         In any event, the trial court stated that it contemplated all of the sentencing principles in
arriving at the defendant’s sentences. In Wilkerson, the supreme court held that “the Sentencing
Reform Act requires the application of the sentencing principles set forth in the Act . . . in all
cases. The Act requires principled justification for every sentence, including, of course,
consecutive sentences.” 905 S.W.2d at 938. Among those principles are that the sentence
imposed “should be no greater than that deserved for the offense committed,” and “should be the
least severe measure necessary to achieve the purposes for which the sentence is imposed.”
Tenn. Code Ann. § 40-35-103(2), (4). The defendant’s criminal history and his inability to abide
by the terms of his probation bear directly upon his amenability to rehabilitation. The defendant
has not shown that the trial court erred by imposing consecutive sentences.

         Based upon the foregoing and the record as a whole, we affirm the sentences imposed by
the trial court.




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