         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 14, 2006

                STATE OF TENNESSEE v. DARRELL E. POINTER

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2004-C-2237     Seth Norman, Judge



                      No. M2005-01743-CCA-R3-CD - Filed May 5, 2006


The Defendant, Darrell E. Pointer, pled guilty to two counts of aggravated robbery, and the trial court
sentenced him, as a Range III offender, to twenty years in prison for each count to be served
consecutively. On appeal, the Defendant contends that the trial court erred when it imposed
consecutive sentences. Finding that there exists no reversible error, we affirm the judgments of the
trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Jeffrey A. DeVasher (on appeal) and Allegra Montgomery (at hearing), Nashville, Tennessee, for
the appellant, Darrell Eugene Pointer.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Renee Erb, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

         The Defendant pled guilty to two counts of aggravated robbery. At the guilty plea hearing
the trial court informed the Defendant that he had been charged with eight counts of aggravated
robbery, with a possible sentence of eight to thirty years on each count, and with aggravated assault,
which carries a possible sentence of three to fifteen years. The State said that, had the case gone to
trial, the evidence would prove:

       Speaking first to co-defendant case of Bill Potts and Darr[ell] Pointer. These co-
       defendants were involved in a series of aggravated robberies.
               ....

                Mr. Pointer is pleading guilty to count two and count six of the indictment.
       . . . [A]ll these matters occurred here in Davidson County during 2004.

               ....

               Mr. Pointer is pleading guilty to count two and count six, which is an episode
       that took place on May the 4th, the same count that Mr. Potts is pleading guilty to
       when they robbed Deborah Jemenaz of money by placing her into fear with a deadly
       weapon. . . .

               The police became aware of a series of robberies and they ended up arresting
       Billy Potts for driving a vehicle that had been reported stolen. During the course of
       their contact with Mr. Potts he explained that he wanted to talk to the detective about
       several robberies that he had first-hand knowledge. Potts furnished details to a
       number of robberies, which he stated were committed by him and Darr[ell] Pointer.

               Subsequently the officers interviewed Mr. Pointer and he admitted to
       committing the robberies, the ones that he’s pleading guilty to. The police were also
       able to find fingerprints of his at the various locations. And as I say, both have made
       complete confessions.

               Darr[ell] Pointer will plead to count two and six as stated before, he will take
       20 [years] at 45 percent each. He is to have a sentencing hearing to decide whether
       or not his term should be consecutive or concurrent on those two 20 year sentences.

        At a subsequent sentencing hearing, the Defendant testified that he was thirty-eight years old,
and, prior to being incarcerated, he lived with his grandmother and helped take care of her. He said
that before being arrested he was working for a temporary service where he went to jobs at
warehouses doing general labor, and he had worked for that service for seven or eight years. The
Defendant testified that he has two children, ages nineteen and eighteen, and he had graduated from
high school. He was diagnosed “about five” years ago as suffering from depression and bipolar
disorder and takes medication every day for these illnesses.

         The Defendant admitted that he was addicted to crack cocaine and had been using the drug
for seven or eight years, but he first started using illegal drugs when he was eighteen. The Defendant
said that the crimes in which he was involved were his co-defendant’s idea, and he went along with
these crimes because of his crack addiction, and he used the proceeds of these robberies to purchase
crack. The Defendant said that he has never received treatment for his addiction. He said that he
felt sorry for what he had done.




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       The Defendant admitted that he had approximately six prior felony convictions and that he
was typically under the influence of drugs when he committed those crimes. He admitted that he had
previously been sentenced to probation and that he violated the terms of that probation.

         On cross-examination, the Defendant agreed that it was not helpful to his grandmother when
he engaged in criminal behavior. The Defendant recalled that when he committed these crimes he
would walk into an establishment, order a meatball sandwich, and then show a gun and demand
money, and he would take both the money and the sandwich when he left. The Defendant said that
the longest period of time that he was not in trouble with the law was between 1996 or 1997 and
2002 while he was married. The Defendant estimated that he had been arrested approximately
fifteen times. The Defendant said that he should not be given consecutive sentences because he is
a “good-hearted person,” and the crimes were the result of him being on drugs.

       Based upon this evidence, the trial court found:

               I have looked at this record. As near as I can count [the Defendant] has six
       previous felony convictions, seven previous misdemeanor conviction[s]. I find at
       least three probation violations in the matter. And it appears to me in July of 2002
       he received a three-year sentence, the actual disposition date was actually in January
       of ‘03, a three -year sentence. This offense occurred in June of ‘04, so obviously he
       was on some type of release at the time he committed this offense. Under Section
       40-35-115 that would apply. He’s a professional criminal and his record is extensive.

               Sentences will run consecutive one to the other.

It is from this order that the Defendant now appeals.

                                            II. Analysis

        On appeal, the Defendant contends that the trial court erred when it imposed consecutive
sentences because he “meets none of the criteria relied upon by the trial court to justify the
imposition of consecutive sentences.” Alternatively, he contends that a sentence of forty years is not
the least severe measure necessary to achieve the purposes for which the sentences were imposed
and is not reasonably related to the severity of the offenses committed.

        When a defendant challenges the length, range or the 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) (2003). 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. Ross, 49 S.W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999);
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 a defendant or to the determinations made by the


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trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377
(Tenn. Crim. App. 2001); 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). In conducting a de novo review of a
sentence, we 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 statements made by the defendant on his or her own behalf; and (h) the
defendant’s potential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-
35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party challenging
a sentence imposed by the trial court has the burden of establishing that the sentence is erroneous.
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

        In the case under submission, we conclude that there is ample evidence that the trial court
considered the sentencing principles and all relevant facts and circumstances. Therefore, we review
its decision de novo with a presumption of correctness. Accordingly, so long as the trial court
complied with the purposes and procedures of the 1989 Sentencing Act and its findings are
supported by the factual record, this Court may not disturb this sentence even if we would have
preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts.; State
v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the
burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; Ashby, 823 S.W.2d at 169.

        Pursuant to Tennessee Code Annotated section 40-35-115(a) (2003), if a defendant is
convicted of more than one criminal offense, the court shall order the sentences to run either
consecutively or concurrently. The trial court may order sentences to run consecutively if the court
finds by a preponderance of the evidence any one of certain criteria enumerated in Tennessee Code
Annotated section 40-35-115(b)(1)-(7). Three of those criteria are: (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;
and (3) the defendant is sentenced for an offense committed while on probation. Tenn. Code Ann.
§ 40-35-115(b)(1), (2), & (6). This Court has previously held that the terms “probation” and
“parole,” although similar, were not synonymous for the purposes of section 40-35-115. State v.
Frederick Parks, No. W1999-01357-CCA-R3-CD, 2000 WL 1672341, at *3 (Tenn. Crim. App., at
Jackson, Oct. 27, 2000), no perm. app. filed (quoting State v. Pettus, 986 S.W.2d at 544). In addition
to the specific criteria in Tennessee Code Annotated section 40-35-115(b), consecutive sentencing
is guided by the general sentencing principles providing that the length of a sentence be “justly
deserved in relation to the seriousness of the offense” and “no greater than that deserved for the
offense committed.” Tenn. Code Ann. §§ 40-35-102(1) and -103(2); State v. Imfeld, 70 S.W.3d 698,
707 (Tenn. 2002).

        After reviewing the record, we conclude that the evidence does not preponderate against the
trial court’s finding that the Defendant’s sentences should run consecutively. A finding of any one
of the 40-35-115 factors can justify the imposition of consecutive sentences. The trial court did not


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err when it found that Tennessee Code Annotated section 40-35-115(b)(2) applied. The Defendant’s
pre-sentence report and the testimony at the Defendant’s sentencing hearing indicated that the
Defendant has had at least thirteen prior convictions, including felonies and misdemeanors, dating
back to 1984. Most recently, the Defendant was convicted in 2004 for theft and, prior to that, he was
convicted in 2002 of felony aggravated assault, six separate misdemeanor theft convictions, and
possession of drug paraphernalia. The Defendant has at least five other felony theft or burglary
convictions, two misdemeanor theft convictions, three felony probation violations, a misdemeanor
criminal impersonation conviction, a criminal trespass conviction, other drug convictions, and
driving convictions. This is a sufficient basis for the trial court’s determination that the Defendant
was an offender whose record was extensive and for its imposition of consecutive sentences.
Further, in our view, the aggregate sentence of forty years is reasonably related to the severity of
these offenses. The Defendant is not entitled to relief on this issue.

                                          III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the judgments of the
trial court.

                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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