         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    August 1, 2006 Session

              STATE OF TENNESSEE v. MARCHELLO SIMPSON

                     Appeal from the Circuit Court for Hardeman County
                        No. 05-01-0072    J. Weber McCraw, Judge



                  No. W2005-02700-CCA-R3-CD - Filed November 6, 2006


The defendant, Marchello Simpson, pled guilty to aggravated assault, a Class C felony, and nolo
contendere to aggravated burglary, a Class C felony. The trial court sentenced the defendant as a
Range I, standard offender to six years for each of the convictions and ordered that the sentences be
served consecutively in the Department of Correction. On appeal, the defendant claims that the trial
court erred in ordering consecutive sentences based upon a finding that he was a dangerous offender.
We hold that no error occurred, and we affirm the trial court.

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

JOSEPH M. TIPTON , P. J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

Gary F. Antrican, District Public Defender, and David S. Stockton, Assistant Public Defender, (on
appeal); and C. Michael Robbins, Memphis, Tennessee, (at trial), for the appellant, Marchello
Simpson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Joe VanDyke, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

       The defendant was charged with attempted second degree murder, aggravated burglary, and
aggravated assault. He went to trial, but he entered into a plea agreement during the trial. The
prosecutor’s recitation of facts at the defendant’s plea hearing was as follows:

               Had this matter gone to a conclusion of trial, the State would have
               introduced proof that on or about the 15th day of September of 2004,
               the defendant in this matter, Marchello Simpson, entered the home of
               Robert Lanier at 115 Stevens Road here in Hardeman County. While
               there, he took five weapons from the Lanier home and threatened the
               homeowner when he was caught there. The defendant fled the scene
               in his gray Nissan automobile, and in the process of fleeing, was
               encountered by various officers from the Hardeman County Sheriff’s
               Department. In his attempt to flee, a chase ensued between the
               defendant in this matter and then deputy, Billy Davis, now Sergeant
               Davis of the Hardeman County Sheriff’s Department. The chase with
               Sergeant Davis began on Burnett Mills Road, went up Fish Lane,
               through the side, back and other side yards of a residence on Fish
               Lane, proceeded back on Fish Lane to Burnett Mills Road, at which
               point, a right turn was made taking them on Burnett Mills toward
               Highway 125.

                       In the process of rounding a corner – excuse me – of trying to
               negotiate a turn, the defendant lost control of his vehicle, went
               through a field type area in front of a church, flipped his vehicle,
               crashing his car. At that point, he exited the vehicle in an attempt to
               continue to gain his liberty, pulled three weapons out of the trunk of
               the car, one of which he attempted to chamber a round in by pulling
               back the slide on a semi-automatic shotgun, triggering the apparatus
               that would, in turn, chamber a round, then pointed that gun at Deputy
               Billy Davis. At that point, Deputy Davis opened fire on the
               defendant. The defendant was injured in that and taken by EMS to
               Air Wing where he was transported to The Med in Memphis. All of
               this did occur here in Hardeman County.

Defense counsel noted an exception to the state’s claim that the defendant “chambered a round” and
stated that the plea was “based upon objectively determined [sic] Sergeant Davis could have
reasonably and objectively been put in imminent fear of bodily harm” rather than any intent on the
defendant’s part to assault or kill anyone.

        At the sentencing hearing, the state presented the testimony of the aggravated burglary victim,
Robert Lanier, and of the aggravated assault victim, Billy Davis. Lanier testified that the defendant
threatened to shoot him during the burglary, although he admitted that he was unable to tell whether
an object the defendant had in his hand was a gun. Davis testified that after the defendant wrecked
his car, the defendant got a gun from the trunk and “put it toward the hip in a manner as if he was
chambering a round and then he pointed the gun in [Davis’s] direction.” Davis testified that he
thought the defendant was going to shoot him and that he shot the defendant.

        Lashauni Black testified that she and her two children lived with the defendant at the time
of the offenses. She said that the defendant’s mother and his sister and brothers lived locally.




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        The defendant testified that he did not go to Robert Lanier’s house on September 15, 2004,
did not steal guns from his house, and did not threaten to shoot Lanier. He testified that he did farm
work for Doug Mayfield and that he and Mayfield also sold guns. He said he was on his way to
Mayfield’s farm when Mayfield called him and told him “to go drop off something,” which the
defendant said referred to guns. The defendant testified that Mayfield told him to go to a store to
meet the person who was to buy guns. The defendant said that when he did so, the person he met
was Lanier, whom he had never met before this date. The defendant testified that he became
suspicious of Lanier and did not complete a transaction with Lanier. The defendant said that he
never showed the guns to Lanier. When asked on cross-examination how Lanier could have
furnished the serial numbers for the guns to an investigator on the morning of the crimes, the
defendant had no explanation.

         The defendant testified that after leaving the meeting with Lanier, a sheriff’s deputy followed
him. He said that as the deputy was following him, he passed a sheriff’s vehicle on the side of the
road, heard two shots, and fled. He said that a chase ensued and that he wrecked. The defendant
said that Davis told him to put his hands up and asked him where the guns were. The defendant
testified that he thought Davis was referring to the guns he had for sale. The defendant said that as
he took one of the guns from his trunk and threw it on the ground, he was shot in the face. The
defendant testified that he was not attempting to kill Davis and that he did not intend to threaten
Davis or to cause Davis to fear harm. The defendant said that he had received significant injuries
which required ongoing medical care.

        The defendant testified that he understood that if he were given an alternative sentence, he
would be required to follow the law, which would include getting out of the illegal gun business.
He said that he was in the process of applying for disability at the time he was incarcerated but that
he would attempt to find out whether he was able to work, and if so, he would get a job. The
defendant admitted that he had a juvenile record for aggravated assault involving a weapon but said
that he had not used a weapon in that offense.

        After receiving the proof, the trial court acknowledged the relevant considerations, found
enhancement factors regarding the defendant’s possession of a firearm during the offenses, the
defendant’s lack of hesitation to commit the crimes when the risk to human life was high, and with
respect to the aggravated burglary, the defendant’s commission of the crime under circumstances in
which the potential for bodily injury to the victim was great. The court noted the lack of mitigating
factors. The court imposed six-year terms for each of the two convictions and denied alternative
sentencing. The trial court also found that the defendant was an appropriate candidate for
consecutive sentencing because he was a dangerous offender.

         On appeal, the defendant claims that he should not have received consecutive sentences.
Appellate review of sentencing is de novo on the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission Comments to
this section note, the burden is on the defendant to show that the sentence is improper. This means
that if the trial court followed the statutory sentencing procedure, made findings of fact that are


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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).

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which
states in pertinent part that the court may order sentences to run consecutively if it finds by a
preponderance of the evidence 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). For dangerous offenders, “consecutive sentences
cannot be imposed unless the terms reasonably relate to the severity of the offenses committed and
are necessary in order to protect the public from further serious criminal conduct by the defendant.”
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see State v. Lane, 3 S.W.3d 456, 461 (Tenn.
1999). Rule 32(c)(1) of the Tennessee Rules of Criminal Procedure requires that the trial court
“specifically recite the reasons” behind its imposition of a consecutive sentence. See State v. Donnie
Thompson, No. M2002-01499-CCA-R3-CD, Maury County, slip op. at 5 (Tenn. Crim. App. Mar.
3, 2003) (reversing the trial court’s imposition of consecutive sentencing because it failed to make
a finding under Tennessee Code Annotated section 40-35-115(b) and the record did not support a
conclusion that the defendant met the consecutive sentencing prerequisites).

       In the present case, the court made the following observations on the record with respect to
consecutive sentencing:

                [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. The Court also finds
                all three of the following factors which are applicable: that the
                circumstances surrounding the commission of the offense are
                aggravated, the confinement for an extended period of time is
                necessary to protect society from the defendant’s unwillingness to
                lead a productive life, and the defendant’s resort to criminal activity
                in furtherance of his lifestyle and the aggregate length of the sentence
                reasonably relate[s] to the offenses to which the defendant stands
                convicted.

        In making its findings, the trial court appears to have applied the holding in State v. Woods,
rather than the more recent decision of the supreme court in State v. Wilkerson. Compare State v.
Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991) (delineating four-part test for classification
of dangerous offenders), with Wilkerson, 905 S.W.2d at 937 (limiting holding of Woods and
establishing that in addition to statutory criteria for dangerous offender classification found in T.C.A.
§ 40-35-115(b)(4), proof must show “that the terms imposed are reasonably related to the severity
of the offenses committed and are necessary in order to protect the public from further criminal acts
by the offender”). The issue on appeal, however, is whether we should modify the defendant’s


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sentences to reflect concurrent service based upon his claim that the trial court made inadequate
factual findings to support the consecutive sentencing determination. We conclude that the trial
court made sufficient findings supported by the record.

        The evidence of record reflects that during the course of his crime spree, the defendant
threatened to kill Robert Lanier, led law enforcement officers on a high-speed chase which also left
the roadway and ventured into residential yards, and pointed a gun at Deputy Davis. Neither death
threats nor use of a weapon were elements of either aggravated burglary or of the mode of aggravated
assault of which the defendant was convicted, but he used these threatening means to accomplish
his crimes. The record also reflects that the defendant supported himself, at least in part, through
the illegal sale of firearms, and his testimony indicated that this enterprise was organized and
ongoing. These facts amply demonstrate the defendant’s lack of regard for life, both his own and
that of others, his lack of hesitation to commit his crimes in the face of high risk to life, the severity
of the offenses in relation to the length of the effective sentence, and the need to protect the public
from the defendant. The evidence of record does not preponderate against the trial court’s
consecutive sentencing determination.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                         ____________________________________
                                                         JOSEPH M. TIPTON, PRESIDING JUDGE




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