        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 11, 2012

                STATE OF TENNESSEE v. MYRON LEE WEBB

                 Appeal from the Circuit Court for Lincoln County
          Nos. S1000081, S1100069, and S1100075     Robert Crigler, Judge


              No. M2011-02181-CCA-R3-CD - Filed September 25, 2012


Following the defendant’s open guilty pleas to two counts of driving under the influence
(“DUI”) (fifth and sixth offenses), see T.C.A. § 55-10-401(2008); three counts of driving
while his license was revoked (“DWLR”) (one fourth and two fifth offenses), see id. § 55-10-
504; one count of violating the implied consent law, see id. § 55-10-406; one count of
violating the open container law, see id. § 55-10-416; and one count of reckless driving, see
id. § 55-10-205, the Lincoln County Circuit Court imposed an effective sentence of eight
years’ incarceration as a Range II, multiple offender. On appeal, the defendant challenges
the length and alignment of the sentences. Discerning no error, we affirm the judgments of
the trial court.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and A LAN E. G LENN, JJ., joined.

Donna Orr Hargrove, District Public Defender; and William J. Harold, Assistant Public
Defender, for the appellant, Myron Lee Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Charles Crawford, District Attorney General; and Hollyn Eubanks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On July 20, 2010, the Lincoln County grand jury charged the defendant, Myron
Lee Webb, in case number S1000081, with DUI (fifth offense), DWLR (fourth offense),
violation of the implied consent law, violation of the open container law, and reckless driving
for offenses surrounding his stop for speeding on January 26, 2010. While on bond for these
offenses, the defendant was arrested twice more for driving offenses. In case number
S1100069, the grand jury charged the defendant with DWLR (fifth offense) for his driving
without a license occurring on March 3, 2011. In case number S1100075, the grand jury
charged the defendant with DUI (sixth offense) and DWLR (fifth offense) for a March 24,
2011 arrest. On July 19, 2011, the defendant entered guilty pleas to each count of the
indictments, leaving the sentencing decision to the discretion of the trial court.

              At the September 6, 2011 sentencing hearing, the defendant’s mother testified
that much of the defendant’s criminal behavior stemmed from his “turn[ing] to drinking”
following the deaths of his siblings in 2003 and 2005. She asked the trial court to place the
defendant on some form of alternative release so that he could attend inpatient treatment for
alcohol abuse. On cross-examination, the defendant’s mother admitted she was not aware
of the defendant’s 11 alcohol-related convictions that occurred prior to 2003. Likewise, she
was unaware of the defendant’s 2001 federal conviction of counterfeiting.

               The defendant testified and expressed his desire to attend substance abuse
treatment so that he could “become a law-abiding productive citizen.” On cross-
examination, he acknowledged his absconding from a halfway house and his 2002 promise,
via a guilty plea in federal court, that he would “never break the law again.”

               The trial court found that the defendant qualified as a Range II, multiple
offender for the felony DUI counts and imposed the following sentences, resulting in a total
effective sentence of eight years’ incarceration:


 No. S1000081

 count one         DUI, fifth offense        4 years                 – concurrently with
                                                                     counts two, three and
                                                                     five of S1000081
                                                                     – concurrently with
                                                                     S1100069
                                                                     – consecutively to
                                                                     S1100075

 count two         DWLR, fourth offense      11 months 29 days

 count three       implied consent           11 months 29 days

 count four        open container            $50 fine only

 count five        reckless driving          11 months 29 days


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 No. S1100069

 count one         DWLR, fifth offense        11 months 29 days

 No. S1100075

 count one         DUI, sixth offense         4 years                  – concurrently with
                                                                       count two of
                                                                       S1100075
                                                                       – consecutively to
                                                                       S1000081

 count two         DWLR, fifth offense        11 months 29 days

              On appeal, the defendant argues that the imposition of four-year sentences for
the DUI counts and their consecutive alignment resulted in too harsh a sentence. The State
contends that the record supports the trial court’s sentencing determination.

               When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d). This presumption, however, “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 appealing party, in this case the defendant, bears the burden of establishing impropriety
in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n Comments; see also Ashby, 823
S.W.2d at 169. If our review of the sentence establishes that the trial court gave “due
consideration” to the appropriate “factors and principles which are relevant to sentencing
under the Act, and that the trial court’s findings of fact . . . are adequately supported in the
record, then we may not disturb the sentence even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Appellate review
of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to consider:

              (1) The evidence, if any, received at the trial and the sentencing
              hearing;

              (2) The presentence report;

              (3) The principles of sentencing and arguments as to sentencing
              alternatives;

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              (4) The nature and characteristics of the criminal conduct involved;

              (5) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              At the outset, we note that the record reflects the trial court’s consideration of
the appropriate sentencing principles and the facts and circumstances of the case. As a
Range II, multiple offender, the defendant faced a sentencing range of two to four years for
each DUI conviction. See id. § 40-35-112(b)(5). The trial court increased the lengths of the
DUI sentences beyond the statutory minimum two-year sentence to the maximum four-year
sentence based upon its findings concerning the defendant’s “previous history of criminal
convictions” and “fail[ure] to comply with the conditions of a sentence involving release into
the community.” See id. § 40-35-114(1), (8). As catalogued in the presentence investigation
report and also noted by the trial court, the defendant possessed an “[e]xtremely extensive”
criminal history encompassing over 20 years of criminal behavior. During that time frame,
the defendant garnered 14 charges for failing to appear and also absconded from a halfway
house during the pendency of his federal counterfeiting charges. His record also includes
two probation revocations. In our view, the record more than amply supports the trial court’s
application of enhancement factors. We conclude that the trial court’s increase of each
sentence to the four-year statutory maximum was appropriate in this case.

             As to the defendant’s challenge concerning the imposition of consecutive
sentences, when a defendant is convicted of multiple crimes, the trial court, in its discretion,
may order the sentences to be served consecutively if it finds by a preponderance of the
evidence that a defendant falls into one of seven categories listed in Tennessee Code
Annotated section 40-35-115. They are:



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              (1) The defendant is a professional criminal who has knowingly
              devoted such defendant’s life to criminal acts as a major source
              of livelihood;

              (2) The defendant is an offender whose record of criminal
              activity is extensive;

              (3) The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a result
              of an investigation prior to sentencing that the defendant’s
              criminal conduct has been characterized by a pattern of
              repetitive or compulsive behavior with heedless indifference to
              consequences;

              (4) 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;

              (5) The defendant is convicted of two (2) or more statutory
              offenses involving sexual abuse of a minor with consideration
              of the aggravating circumstances arising from the relationship
              between the defendant and victim or victims, the time span of
              defendant’s undetected sexual activity, the nature and scope of
              the sexual acts and the extent of the residual, physical and
              mental damage to the victim or victims;

              (6) The defendant is sentenced for an offense committed while
              on probation; or

              (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997).

              The trial court imposed partially consecutive sentences based upon its finding
that “[t]he defendant is an offender whose record of criminal activity is extensive.” See
T.C.A. § 40-35-115(2). The record supports this finding because the exhibits to the
sentencing hearing reflect the defendant’s prolific history of criminal convictions spanning
over 20 years. Moreover, the defendant committed his sixth offense DUI while on bond for

                                             -5-
the fifth offense DUI. Thus, consecutive sentences were mandatory for those offenses. See
Tenn. R. Crim. P. 32(c)(3)(C) (requiring consecutive service of “a sentence for a felony
committed while the defendant was released on bail and the defendant is convicted of both
offenses”). We conclude that the trial court’s alignment of sentences in this case was proper.

              The judgments of the trial court are affirmed.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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