        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville April 23, 2013

            STATE OF TENNESSEE v. CARLOS PONCE DeLEON

                  Appeal from the Circuit Court for Bedford County
                          No. 17294 F. Lee Russell, Judge




                  No. M2012-01517-CCA-R3-CD - Filed May 24, 2013


The Defendant, Carlos Ponce DeLeon, entered best interest guilty pleas to theft of property
valued at $1000 or more but less than $10,000, a Class D felony, two counts of automobile
burglary, Class E felonies, theft of property valued at more than $500 but less than $1000,
a Class E felony, and two counts of theft of property valued at $500 or less, Class A
misdemeanors. See T.C.A. §§ 39-14-402, 39-14-103, 39-14-105 (2010). He was sentenced
as a Range II, multiple offender to six years for the theft of property valued at $1000 or more
but less than $10,000 conviction, four years for each automobile burglary conviction, three
years for the theft of property value at more than $500 but less than $1000 conviction, and
eleven months and twenty-nine days for each theft of property valued at $500 or less
conviction. The trial court ordered partial consecutive sentencing for an effective ten-year
sentence. On appeal, the Defendant contends that his effective sentence is excessive. We
affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.

Donna Orr Hargrove, District Public Defender, and Michael J. Collins, Assistant District
Public Defender, Shelbyville, Tennessee, for the appellant, Carlos Ponce DeLeon.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       This case relates to the theft of various tools, work equipment, electronic devices, and
personal items from multiple vehicles. According to the State’s recitation of the facts at the
guilty plea hearing,

       [o]n March 15, 2011 . . . Jesse Lang of Shelbyville reported that his vehicle in
       a driveway had been broken into and an amplifier, GPS unit, sunglasses and
       in-dash CD player valued at $1800 was stolen.

              Then on March 18, 2001, Officer Tory Moore of the Shelbyville Police
       Department was dispatched to the King Arthur Trailer Park, which is fairly
       close in proximity to where Mr. Jesse Lang lived. . . . Officer Moore spoke
       with Phillip Grant who advised that a motorcycle helmet had been stolen from
       his pickup.

              A witness, Leslie Driver, gave a description of the vehicle he had seen
       in the area and a description of the individual that he had seen remove the
       helmet from the pickup. That description was sent out to other officers.
       Sergeant Wilkerson with the Shelbyville Police Department . . . arrived on the
       scene and . . . located a vehicle that matched that description exiting
       Whispering Oaks Subdivision with a garden tiller in the back of the driver’s
       side of the vehicle. The driver was holding the door closed because it would
       not close due to the tiller.

              The vehicle was stopped; it was determined that Mr. Carlos Ponce
       DeLeon was the driver of that vehicle. Mr. Driver was brought to the scene[,]
       and he did identify Mr. Ponce DeLeon as the person he had seen get into Mr.
       Grant’s vehicle and take the helmet. Mr. Grant was able to positively identify
       the helmet as being the helmet that was removed from his pickup. . . . [The]
       helmet was valued at less than $500.

             [T]he tiller was determined to belong to Mr. Charles Bolby. Mr. Bolby
       confirmed that the tiller had been stolen and . . . was valued at $500 to $1000.

             Also in the vehicle were located a chain saw and . . . girls golf clubs
       which later [were] determined to belong to Ms. Mary Bleta Shavers. Ms.
       Shavers said those were valued at $500 or less and that they were hers. . . .
       Mr. Ponce DeLeon did not have permission to have those items.



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        At the sentencing hearing, the presentence report was received as an exhibit. The
report showed previous convictions for three counts of theft of property valued at $500 or
less, two counts of marijuana possession, two violations of the driver’s license law, drug
possession, failure to appear, automobile burglary, and illegal possession of a debit card. The
report showed multiple probation revocations and a previous termination of pretrial
diversion. The Defendant prepared a written statement for the presentence report, which
said,

       I was involved in buyin[g] and selling stuff. I know now that some of the
       these items were stolen. I’m truly sorry for any inconvenience I’ve helped
       cause to anyone. I’ve been incarcerated for 13 months day for day [and] have
       learned a lot. I never intend on making any of the same mistakes again. My
       freedom is too important and me being incarcerated hurts people I love. Once
       again I’m very sorry.

        Mr. Grant’s victim impact statement stated that the theft caused him to distrust
everyone and asked that the Defendant’s punishment fit his crimes. Mr. Bolby’s victim
impact statement reflected that he and his wife were afraid inside their home, that they kept
the doors locked at all times, and that his wife no longer wanted to stay home by herself. He
stated that his wife was scared and became nervous when unknown vehicles drove past their
home.

        The presentence report showed that the Defendant obtained his GED and completed
a class in ornamental horticulture. The Defendant reported good mental health, although he
had previous problems with depression. He reported good physical health, although he had
a history of seizures and a previous back injury caused by a car accident. The Defendant
reported receiving treatment for his seizures and back pain, but the medical facilities reported
never treating the Defendant. The Defendant stated that he drank alcohol but not to excess.
The Defendant reported that he used pain medication to treat his back pain, that he initially
had a prescription for the medication, that he lost his insurance, and that he began getting the
medication from friends. He denied abusing pain medication.

       The Defendant reported that he had never met his father, who was incarcerated for
second degree murder, and that his stepfather was verbally abusive, addicted to drugs, and
refused to find employment. His mother and stepfather divorced when he was eighteen years
old, and his mother and brother lived in Ohio. He was single, had no children, and had no
family in Tennessee. He claimed that he did not have a residence and that he stayed with
friends. The presentence report showed previous employment with Lifestyle Staffing and
Krystal restaurants.



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       The Defendant expressed remorse to the trial court for the harm he “helped cause” and
said he was not a bad person. He admitted associating with the wrong people and making
bad decisions.

        The trial court found that the Defendant had previous convictions for theft of property
valued at $500 or less, theft of property valued at $1000 or more but less than $10,000,
violating the driver’s license law, drug possession, failure to appear, automobile burglary,
and illegal possession of a debit card. The court found that the Defendant received probation
for theft of property valued at $1000 or more but less than $10,000 in 2003 and automobile
burglary in 2004 and that his probation was revoked in each case. The court also found that
the Defendant was on probation for a theft-related offense when the instant offenses
occurred.

       The trial court found that mitigating factors (1) and (13) applied. See T.C.A. §§ 40-
35-113(1) (2010) (“The defendant’s criminal conduct neither caused nor threatened serious
bodily injury”) and -113(13) (“Any other factor consistent with the purposes of this
chapter”). The court stated that although no serious bodily harm was caused by the thefts and
the Defendant did not prolong the proceedings by choosing a trial, it did not give factors (1)
and (13) significant weight because there was “strong evidence” of the Defendant’s guilt.

       The trial court found that enhancement factors (1), (8), and (13) applied. See T.C.A.
§§ 40-35-114(1) (2010) (“The defendant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range”), -114(8)
(“The defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community”), and -114(13) (“At the time the felony was
committed, . . . [the defendant was] released on probation”). The court stated that
enhancement factor (8) applied because of the Defendant’s previous failed attempts at
probation and that factor (13) applied because the Defendant was on probation for theft of
property valued at $500 or less when the instant offenses occurred.

        The trial court sentenced the Defendant as a Range II, multiple offender based on his
previous convictions for theft of property valued at more than $1000 but less than $10,000
and automobile burglary. The court sentenced him to six years for theft of property valued
at more than $1000 but less than $10,000, four years for each automobile burglary, three
years for theft of property valued at more than $500 but less than $1000, and eleven months
and twenty-nine days for each theft of property valued at $500 or less. The court found that
the Defendant had an extensive criminal record and that the instant offenses were committed
when the Defendant was on probation. The court ordered that the convictions for the theft
of property valued at $1000 or more but less than $10,000, the first automobile burglary, and
the first theft of property valued at $500 or less be served concurrently. The court also

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ordered that the convictions for the second automobile burglary, the theft of property valued
at more than $500 but less than $1000, and the second theft of property valued at $500 or less
be served concurrently. The sentences for counts one, two, and five were ordered to be
served concurrently but connectively to counts six, seven, and eight for an effective ten-year
sentence. This appeal followed.

       The Defendant contends that his sentence is excessive. He argues that the
“punishment imposed does not fit the crime.” The State responds that the trial court did not
abuse its discretion by sentencing the Defendant to an effective ten-year sentence. We agree
with the State.

        The Tennessee Supreme Court adopted a new standard of review for sentencing in
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Currently, length of sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence 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) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation
or treatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d 68 at 706. We must apply
“a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. “[A] trial
court’s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court within
the appropriate range should be upheld.” Id.

       We conclude that the trial court properly sentenced the Defendant. The record reflects
that the trial court followed the statutory sentencing procedure, made findings of fact
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. The sentences are
within range, and the court considered the enhancement and mitigating factors supported by
the evidence. Regarding consecutive sentencing, the Defendant was on probation at the time

                                              -5-
the instant offenses were committed. This factor provides a proper basis for consecutive
sentencing. See T.C.A. § 40-35-115(b)(6) (2010) (“The defendant is sentenced for an
offense committed while on probation”); State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003) (concluding that the criteria for consecutive sentencing “are stated in the
alternative; therefore, only one need exist to support the appropriateness of consecutive
sentencing”). In any event, the trial court also found that the Defendant had an extensive
record of criminal activity. See T.C.A. § 40-35-115(b)(2). The presentence report showed
previous probation revocations and multiple convictions for theft- and drug-related offenses.
The record supports the Defendant’s sentences, and he is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.




                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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