        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 10, 2012

              STATE OF TENNESSEE v. CORNELIUS PHILLIPS

            Direct Appeal from the Circuit Court for Lauderdale County
                   Nos. 8905, 8906     J. Weber McCraw, Judge


                 No. W2011-00652-CCA-R3-CD - Filed April 17, 2012


The defendant, Cornelius Phillips, pled guilty in the Circuit Court of Lauderdale County in
two separate cases to two counts of aggravated burglary, two counts of theft of property over
$1000, and one count of attempted aggravated burglary, for which he received an effective
sentence of sixteen years in the Department of Correction. On appeal, he argues that the trial
court erred by failing to consider applicable mitigating factors and the principles of
sentencing in setting the lengths of the sentences and by inappropriately ordering consecutive
sentencing. Following our review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Amber F. Sauber, Brownsville, Tennessee, for the appellant, Cornelius Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       On October 4, 2010, the Lauderdale County Grand Jury returned two indictments
against the defendant, charging him in case number 8906 with aggravated burglary and theft
over $1000, based on his July 5, 2010 burglary and theft of items from the home of Joseph
Walker; and in case number 8905 with aggravated burglary, theft over $1000, and attempted
aggravated burglary, based on his July 8, 2010 burglary and theft of items from the home of
William Drew and his attempted burglary of the home of Herman Reviere.

       On February 16, 2011, the defendant pled guilty to the indicted offenses in both cases,
leaving his sentences to the trial court’s later determination. At the February 23, 2011
sentencing hearing, the parties agreed that the defendant was a Range II, multiple offender,
which made him subject to a four- to eight-year sentence for the Class D felony of attempted
aggravated burglary, to a six- to ten-year sentence for the Class C felony of aggravated
burglary, and to a four- to eight-year sentence for the Class D felony of theft over $1000.

       The twenty-six-year-old defendant testified that he had three children, ages nine,
seven, and six, whom he visited regularly prior to his confinement. He acknowledged that
he committed the instant offenses only one week after having been released from
confinement on supervised probation in another case, and he expressed his remorse for his
actions, testifying that he was willing to pay restitution to the victims. He said he had
submitted four different job applications during the week since his release on supervised
probation but had not been able to find employment due to his criminal record. He blamed
his criminal record, which included a number of burglary and theft convictions, on his
addiction to cocaine and expressed his belief that he needed a drug rehabilitation program
in order to overcome his addiction and turn his life around.

        The defendant testified that, were he to be granted release into the community, he
intended to live with his father, who had recently moved back to Tennessee from Georgia to
help him. He stated that he had never committed a felony involving serious bodily injury,
was not carrying any kind of weapon at the time he committed the instant offenses, and
immediately abandoned his attempt to take property from one of the homes when he realized
that the residents were present. The defendant said that he wanted to live a law-abiding life
and believed that with the support of his father, he would be successful in completing drug
treatment and securing employment.

       On cross-examination, the defendant acknowledged that his criminal record included
several violations of probation.

        A letter of apology that the defendant had written to the assistant district attorney,
along with the defendant’s presentence report, which reflected that the defendant had eight
prior felonies and four misdemeanors, were admitted as exhibits to the hearing.

       At the conclusion of the hearing, the trial court found the following enhancement
factors applicable to the offenses: the defendant’s previous history of criminal convictions
or criminal behavior in addition to those that placed him in the appropriate range, and the
defendant’s previous failures to comply with the conditions of a sentence involving release

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into the community. See Tenn. Code Ann. § 40-35-114(1), (8) (2010). The trial court found
one applicable mitigating factor: that the defendant’s conduct did not cause or threaten
serious bodily injury. See id. § 40-35-113(1). Applying great weight to the applicable
enhancement factors, the trial court sentenced the defendant as a Range II offender in case
number 8905 to concurrent terms of six years for the attempted aggravated burglary
conviction, eight years for the aggravated burglary conviction, and six years for the theft of
property conviction. The trial court sentenced the defendant in case number 8906 to
concurrent terms of eight years for the aggravated burglary conviction and six years for the
theft conviction. Finding that the defendant had committed the felonies while on probation,
the trial court ordered that the sentences in each case run consecutively to each other, for a
total effective sentence of sixteen years in the Department of Correction.

                                         ANALYSIS

        The defendant contends that the trial court erred in setting the length of the sentences
by not considering applicable mitigating factors such as his expressions of remorse, his desire
for drug rehabilitation, and the fact that he pled guilty, as well as the appropriate principles
of sentencing, including that “the sentence imposed should be the least severe measure
necessary to achieve the purpose for which the sentence is imposed.” He further contends that
the trial court erred by ordering that the sentences in each case be served consecutively to each
other. In support, he cites State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995), for
the proposition that “the aggregate sentence imposed should be the least severe measure
necessary to protect the public from a defendant’s future criminal conduct and should bear
some relationship to a defendant’s potential for rehabilitation.” The State responds by arguing
that the sentences should be affirmed because the trial court properly considered all criteria
required by the sentencing statute, imposed sentences within the applicable ranges, and
explained its reasons for imposing the sentences. We agree with the State.

        When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record “with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2010). This presumption 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). The presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to the
determinations made by the trial court which are predicated upon uncontroverted facts. State
v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).



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        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles
of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature
and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses, (h) any statements made by the accused in his own behalf, and
(i) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-103, -210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

       In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

       If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles set out under sentencing law, and the trial court’s findings of fact are adequately
supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

         Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of a number of statutory criteria
applies, including that “[t]he defendant is sentenced for an offense committed while on
probation.” Tenn. Code Ann. § 40-35-115(b)(6).

       The record reveals that the trial court, in imposing the sentences, appropriately
considered the relevant principles of sentencing, including the defendant’s potential for
rehabilitation and his desire for drug treatment, as well as whether measures less severe than
confinement had been applied to the defendant and whether confinement was necessary to
protect society from the defendant. The trial court’s ruling states in pertinent part:

               The Court also puts great emphasis on your prior criminal history and the
       prior actions and character of the defendant. Next, the Court considers whether
       or not the defendant might reasonably be expected to be rehabilitated, his

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       potential or lack of potential for rehabilitation, including the risk that during
       any period of probation, you might commit another crime. Again, the Court
       weighs heavily upon this because while on probation you did commit other
       crimes.

               Likewise, the Court considers whether or not it will reasonably appear
       that he will abide by the terms of probation. He’s indicated that he does not
       abide by probation. The Court also considers whether or not the interest of
       society in being protected from possible future criminal conduct by defendant
       is great. The Court does find that it’s great. Again, for the record, while on a
       short release he victimized two different families. There have been measures
       less restrictive than confinement attempted on the defendant that ha[ve] been
       unsuccessful.

              [The defendant] talked about needing some rehab. There have been
       avenues available for you to go to rehab. You just did not choose those. You
       had those out there while you were on probation. I know you can speak with
       your probation officer. They can assist you in finding the appropriate
       rehabilitation. You had that available and you did not seek that.

        The record also supports the trial court’s order of consecutive sentencing based on its
finding that the defendant was on probation at the time he committed the offenses. The
defendant himself acknowledged that he had been out of jail less than one week on supervised
probation in another case, in which his probation had already been revoked and reinstated
once, when he committed the offenses. We agree with the State that Desirey, which the
defendant cites in support of his argument against consecutive sentencing, is distinguishable
from the case at bar. In that case, this court reversed the trial court’s order of consecutive
sentencing, observing that the record did not contain substantial evidence to support a finding
that the aggregate length of the defendant’s sentence was necessary to protect the public from
his further criminal conduct and that the record showed that the defendant, who was gainfully
employed and had successfully completed a term in a halfway house, had “substantial
potential for rehabilitation.” 909 S.W.2d at 33. In this case, by contrast, the defendant was
unemployed, had a substantial criminal history, and had repeatedly violated his probation in
prior cases. We, therefore, affirm the trial court’s sentencing determinations.




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                                        CONCLUSION

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


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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