        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                       Assigned on Briefs November 17, 2015


                 STATE OF TENNESSEE v. MARIO THOMAS

                 Appeal from the Criminal Court for Shelby County
                   No. 13-04522    James C. Beasley, Jr., Judge




              No. W2015-00533-CCA-R3-CD - Filed February 3, 2016
                        _____________________________

The defendant, Mario Thomas, appeals the sentences imposed for his guilty pleas to the
offenses of aggravated robbery, attempted aggravated robbery, aggravated assault,
aggravated burglary, employing a firearm in the commission of a dangerous felony, and
possessing a firearm after having been convicted of a felony involving the use or
attempted use of violence. The defendant‟s sole allegation of error is that the trial court
should not have ordered his convictions for aggravated burglary and aggravated robbery
to run consecutively. After a thorough review of the record, we discern no error and
affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROGER A.
PAGE and ROBERT H. MONTGOMERY, JR., JJ. joined.

Stephen Bush, District Public Defender; and Phyllis Aluko (on appeal) and Michael J.
Johnson (at trial), Assistant District Public Defenders, for the Appellant, Mario Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Ann Schiller, Assistant District
Attorney General, for the Appellee, State of Tennessee.


                                       OPINION
                     FACTUAL AND PROCEDURAL HISTORY

      The defendant was charged in a six-count indictment with the offenses of which
he stands convicted. A jury was selected on November 17, 2014, and the trial
commenced the next day. On November 19, 2014, before the trial concluded, the
defendant entered guilty pleas to the charged offenses.

       The defendant refused to attend his sentencing hearing, and it was conducted in
absentia. The prosecution noted that the defendant had originally refused its twelve-year
offer but chose to plead guilty in the course of the trial. The plea colloquy is not part of
the record, but the prosecutor summarized the crimes by stating that the defendant had
been begging for money and that the three victims, Dominic Van Horn, John Brown, and
Laurel Cannito, initially gave him some money and then paid him to sweep the porch.
One of the victims gave the defendant a ride in the evening. Later that night, the
defendant entered the dwelling shared by the victims. According to the facts as
summarized in the presentencing report, Mr. Brown was woken at gunpoint by the
defendant, who was demanding his money. Mr. Van Horn came to investigate the noise.
The defendant took money from Mr. Van Horn‟s pocket and ordered both men to the
floor. Ms. Cannito then woke up and entered the room, and the defendant pointed the
gun at her. Mr. Brown took this opportunity to flee the house, and the defendant
followed. The defendant was identified later through his distinctive facial tattoos. The
presentencing report showed that the defendant had three prior convictions for aggravated
burglary and two prior convictions for theft of property over $1,000.

       The trial court found that the defendant had an “extensive history of criminal
convictions,” including three prior aggravated burglary convictions, two prior convictions
for theft of property over $1,000, and two misdemeanor theft convictions. The trial court
also found that the defendant was a dangerous offender whose behavior indicated little or
no regard for human life and that he had no hesitation about committing an offense where
the risk to human life was high. The trial court found that the circumstances of the
offenses were aggravated, as the defendant committed a home invasion and was only
thwarted from further crimes by the escape of one of the victims. The trial court cited the
defendant‟s multiple prior burglaries as proof that confinement was necessary to protect
society from the defendant‟s further criminal behavior. The trial court found that the
aggregate length of the sentences was reasonably related to the offenses.

       For the aggravated robbery of Mr. Van Horn, the defendant was sentenced to serve
fifteen years in prison. For the attempted aggravated robbery of Mr. Brown, the
defendant was sentenced to eight years. The defendant received a six-year sentence for
the aggravated assault of Ms. Cannito and a six-year sentence for the aggravated burglary
conviction. He was sentenced to ten years for employing a firearm during a dangerous
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felony and six years for being a felon in possession of a firearm after having been
convicted of a felony involving the use or attempted use of violence. Three of the
convictions were to run consecutively to one another: the fifteen-year conviction for
aggravated robbery, the six-year conviction for aggravated burglary, and the ten-year
conviction for employing a firearm during the commission of a dangerous felony. The
other convictions were ordered to run concurrently with all counts. The defendant‟s
aggregate sentence amounts to thirty-one years.



                                       ANALYSIS

        On appeal, the defendant contests only the trial court‟s decision to run certain
sentences consecutively. A trial court‟s sentencing decisions are generally reviewed for
abuse of discretion, with a presumption of reasonableness granted to within-range
sentences that reflect a proper application of the purposes and principles of sentencing.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Likewise, the “standard of appellate
review for consecutive sentencing is abuse of discretion accompanied by a presumption
of reasonableness.” State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). The
presumption of reasonableness applies only when the trial court has provided reasons on
the record establishing at least one of the seven statutory bases for imposing consecutive
sentences delineated in Tennessee Code Annotated section 40-35-115(b) (2010). Id. at
861. Tennessee Code Annotated section 40-35-115(b) allows a court to impose
consecutive sentences when “[t]he defendant is an offender whose record of criminal
activity is extensive” or when “[t]he 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)(2), (4). When the trial
court bases its decision to run sentences consecutively on the dangerous offender
category in Tennessee Code Annotated section 40-35-115(b)(4), it must make additional
findings as set out in State v. Wilkerson: that the aggregate sentence is “„reasonably
related to the severity of the offenses‟” and „„necessary in order to protect the public from
further criminal acts.‟” Pollard, 432 S.W.3d at 863 (quoting State v. Wilkerson, 905
S.W.2d 933, 938 (Tenn. 1995)). If the trial court fails to make the requisite findings, the
appellate court may either conduct a de novo review to determine whether there is an
adequate basis for the imposition of consecutive sentences or remand to the trial court so
that it may consider the appropriate factors and make the proper findings. Id. at 864.

       The defense concedes that the conviction for employing a firearm must run
consecutively to the underlying dangerous felony by law. See T.C.A. § 39-17-1324(e)(1)
(“A sentence imposed for a violation of subsection (a) or (b) shall be served consecutive
to any other sentence the person … is sentenced to serve for conviction of the underlying
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dangerous felony.”). Accordingly, he does not contest that his ten-year sentence for
employing a firearm during the commission of a dangerous felony must run
consecutively to his six-year sentence for aggravated burglary, the underlying felony.
However, he does object that both of these sentences were ordered to run consecutively
to his fifteen-year sentence for aggravated robbery. In support of its imposition of
consecutive sentences, the trial court found that the defendant had an “extensive history
of criminal convictions.” It further found that the defendant was “a dangerous offender
whose behavior indicates little or no regard for human life and that he had no hesitation
about committing this offense in which the risk to human life was high.” The trial court
found that, based on the defendant‟s past criminal behavior, extended confinement was
“necessary to protect society from his unwillingness to lead a productive life” and that
“the aggregate length of the sentence reasonably relates to the offense of which the
defendant stands convicted.” The trial court made the requisite findings under T.C.A.
section 40-35-115(b)(2), (4) and Wilkerson, and we accordingly grant the trial court‟s
findings a presumption of reasonableness. See Pollard, 432 S.W.3d at 863 (quoting
Wilkerson, 905 S.W.2d at 938). The trial court properly considered the purposes and
principles of sentencing during the hearing, and it imposed consecutive sentences after
finding that the statutory requirements were met. There is nothing in the record to show
that the trial court abused its discretion.

                                    CONCLUSION

      Based on the foregoing reasoning, we affirm the judgments of the trial court.




                                               _________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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