        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 22, 2010

            STATE OF TENNESSEE v. DAVID SCOTT WINFREY

                 Appeal from the Criminal Court for Sumner County
              No. 819-2007, 41-2008, 848-2007   Dee David Gay, Judge




              No. M2009-02480-CCA-R3-CD - Filed November 10, 2010


The Defendant, David Scott Winfrey, pleaded guilty to twenty-nine Class A misdemeanors
consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts
of harassment, and fourteen counts of violation of an order of protection. Following a
sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine
days for each offense and ordered that ten of his violation of an order of protection sentences
run consecutively. In a previous decision, we remanded this matter for re-sentencing,
concluding that the trial court erroneously applied Tennessee Code Annotated section 39-13-
113(g). See State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL
2486180 (Tenn. Crim. App., Nashville, Aug. 14, 2009). The Defendant now appeals the
consecutive sentences imposed upon re-sentencing and contends that they are not in
accordance with our previous opinion in this matter. After reviewing the record, we affirm
the judgments of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Mike Anderson, Assistant Public Defender, Gallatin, Tennessee, for the appellant, David
Scott Winfrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Bryna Grant, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                           Factual Background
In the Defendant’s previous appeal, we summarized the underlying facts as follows:

        [The Defendant] and the victim were involved in a romantic
relationship. On April 23, 2007, the victim obtained an order of protection
against [the Defendant] after an altercation. Following the entry of the order
of protection, [the Defendant] continued to have contact with the victim. As
a result of incidents in June and July of 2007, [the Defendant] was indicted for
multiple offenses in connection with his contact with the victim. The Sumner
County Grand Jury indicted [the Defendant] for eleven counts that consisted
of the following: one count of aggravated criminal trespass, one count of
stalking, four counts of harassment, and five counts of violation of an order of
protection. As a result of incidents in August 2007, the Sumner County Grand
Jury also indicted [the Defendant] for one count of harassment and one count
of violation of an order of protection. As a result of incidents in December of
2007, the Sumner County Grand Jury indicted [the Defendant] for eight counts
of violation of an order of protection and eight counts of harassment.

       On April 10, 2008, [the Defendant] entered a no contest plea to all
twenty-nine Class A misdemeanors with which he was charged. The
indictments for the misdemeanor charges stem from three cases, 819-2007,
848-2007, and 41-2008. The following chart shows the case number, followed
by each count of the indictment with the date of the alleged offense and the
charge.

819-2007
Count 1       June 22, 2007                 Aggravated Criminal Trespass
Count 2       June 22-July 19, 2007         Stalking
Count 3       July 15, 2007                 Harassment
Count 4       July 15, 2007                 Violation of an Order of Protection
Count 5       July 16, 2007                 Harassment
Count 6       July 16, 2007                 Violation of an Order of Protection
Count 7       July 18, 2007                 Harassment
Count 8       July 18, 2007                 Violation of an Order of Protection
Count 9       July 19, 2007                 Harassment
Count 10      July 19, 2007                 Violation of an Order of Protection
Count 11      July 20, 2007                 Violation of an Order of Protection

848-2007
Count 1       August 12, 2007               Harassment

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       Count 2       August 12, 2007                Violation of an Order of Protection

       41-2008
       Count 1       December 6, 2007               Violation of an Order of Protection
       Count 2       December 6, 2007               Harassment
       Count 3       December 7, 2007               Violation of an Order of Protection
       Count 4       December 7, 2007               Harassment
       Count 5       December 8, 2007               Violation of an Order of Protection
       Count 6       December 8, 2007               Harassment
       Count 7       December 9, 2007               Violation of an Order of Protection
       Count 8       December 9, 2007               Harassment
       Count 9       December 10, 2007              Violation of an Order of Protection
       Count 10      December 10, 2007              Harassment
       Count 11      December 11, 2007              Violation of an Order of Protection
       Count 12      December 11, 2007              Harassment
       Count 13      December 12, 2007              Violation of an Order of Protection
       Count 14      December 12, 2007              Harassment
       Count 15      December 13, 2007              Violation of an Order of Protection
       Count 16      December 13, 2007              Harassment

               The twenty-nine misdemeanors consisted of one count aggravated
       criminal trespass, one count of stalking, thirteen counts of harassment, and
       fourteen counts of violation of an order of protection. On May 30, 2008, the
       trial court held a sentencing hearing to determine the length and manner of
       service of [the Defendant’s] sentence. At the conclusion of the sentencing
       hearing, the trial court sentenced [the Defendant] to eleven months and
       twenty-nine days for each of the twenty-nine misdemeanor convictions to be
       served at seventy-five percent. The trial court ordered that ten of the violation
       of an order of protection order [sic] sentences be run consecutively to each
       other and the remainder of the sentences to be run concurrently with each
       other. In addition, the trial court ordered [the Defendant] to serve three of the
       consecutive sentences and then be placed on supervised probation for seven
       years. [The Defendant] was to be given jail time credit for the roughly nine
       months he had served up until the time of sentencing.

State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL 2486180, at *1-2
(Tenn. Crim. App., Nashville, Aug. 14, 2009).

       In the Defendant’s original sentencing hearing, the trial court imposed consecutive
sentences for ten of the violation of an order of protection offenses and referred to Tennessee

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Code Annotated section 39-13-113(g) as authority to impose the consecutive sentences. See
id. at *3. The relevant portion of the statute states as follows:

               A violation of this section is a Class A misdemeanor, and any sentence
       imposed shall be served consecutively to the sentence for any other offense
       that is based in whole or in part on the same factual allegations, unless the
       sentencing judge or magistrate specifically orders the sentences for the
       offenses arising out of the same facts to be served concurrently.

Tenn. Code. Ann. § 39-13-113(g).

       However, in the Defendant’s direct appeal, we determined that the trial court
interpreted the statute incorrectly, noting that “[t]he statute states that a sentence imposed for
violating an order of protection ‘shall be served consecutively’ to any sentence imposed for
‘any other offense’ stemming from the same factual allegations.” Winfrey, 2009 WL
2486180, at *4 (emphasis in original). On remand, we stated that “the trial court may order
the sentences for the violation or [sic] an order of protection to run consecutively to any other
offenses which are based upon the same underlying facts.” Id.

        On October 30, 2009, the trial court re-sentenced the Defendant and imposed the
following sentences: In case 819-2007, counts 1 through 11 are to run concurrently, but
consecutive to count 1 (harassment) in case 848-2007; Count 2 (violation of an order of
protection) from case 848-2007 is to run consecutively to count 1 from case 848-2007
(harassment); Counts 1 (violation of an order of protection) and 2 (harassment) from case 41-
2008 are to run concurrently with each other, but consecutive to the other sentences imposed;
Counts 3 (violation of an order of protection) and 4 (harassment) from case 41-2008 are to
run concurrently with each other, but consecutive to the other sentences imposed; Counts 5
(violation of an order of protection) and 6 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed; Counts 7
(violation of an order of protection) and 8 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed; Counts 9
(violation of an order of protection) and 10 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed; Counts 11
(violation of an order of protection) and 12 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed; Counts 13
(violation of an order of protection) and 14 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed; and Counts 15
(violation of an order of protection) and 16 (harassment) from case 41-2008 are to run
concurrently with each other, but consecutive to the other sentences imposed. Thus, the



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Defendant received an effective sentence of ten years, to be served as follows: three years
to serve, followed by seven years on supervised probation. The Defendant now appeals.

                                        Analysis
      The Defendant contends that the trial court erred when it ordered that ten of his
twenty-nine sentences run consecutively.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or 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). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-
302, which provides in part that the trial court shall impose a specific sentence consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See Tenn.
Code Ann. § 40-35-302(b). Misdemeanor sentencing is designed to provide the trial court
with continuing jurisdiction and a great deal of flexibility. See State v. Troutman, 979
S.W.2d 271, 273 (Tenn. 1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997). One convicted of a misdemeanor, unlike one convicted of a felony, is not entitled to
a presumptive sentence. See State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the
court is required to provide the parties with a reasonable opportunity to be heard as to the
length and manner of service of the sentence. See Tenn. Code Ann. § 40-35-302(a). The
trial court retains the authority to place the defendant on probation either immediately or after
a time of periodic or continuous confinement. See Tenn. Code Ann. § 40-35-302(e).

        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:

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             (1) The defendant is a professional criminal who has knowingly
       devoted the 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.

These criteria are stated in the alternative; therefore, only one need exist to support the
appropriateness of consecutive sentencing.

       No additional proof, beyond what was offered at the Defendant’s original sentencing
hearing, was presented at the October 30, 2009 re-sentencing hearing. After hearing
arguments at the re-sentencing hearing, the trial court found by a preponderance of the
evidence that the Defendant’s record of criminal activity was extensive. Based on that factor,
the court found that consecutive sentencing under Tennessee Code Annotated section 40-35-
115(b)(2) was “warranted and justified.”

       In reaching its finding that the Defendant’s criminal activity was extensive, the trial
court noted that, although the Defendant had been charged with, and pleaded guilty to,

                                             -6-
twenty-nine offenses, the State presented evidence that the Defendant had committed many
more crimes for which he had not been charged. The trial court stated that from July 15,
2007 to July 19, 2007, the Defendant called the victim, and therefore, violated the order of
protection, at least fifty-two times. The court recalled that on December 6, 2007, it reminded
the Defendant that he was not to have any contact with the victim. However, the court found
that, from December 6, 2007 to December 14, 2007, the Defendant violated the order of
protection 1,270 times when, from jail, he called the victim’s home 185 times, made 224
calls to her work, and called her cell phone 861 times. The trial court also noted that, at the
original sentencing hearing, Detective Wes Martin of the Sumner County Sheriff’s
Department, “testified that the total of all calls from November 29th [was] 2,848 calls.
That’s extensive. That’s a violation of three court orders and each one of those calls is a
violation of an order of protection.” Finally, the trial court said, “I find that the record is
replete with extensive criminal activity, and I don’t know what extensive criminal activity
is if this isn’t.”

       In our previous opinion in this matter, we stated the following:

       Outside of the requirements of Tennessee Code Annotated section 39-13-
       113(g), a trial court may impose consecutive sentencing upon a determination
       that one or more of the criteria set forth in Tennessee Code Annotated section
       40-35-115(b) exists. However, in this case, none of the criteria applies to the
       Appellant.

State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL 2486180, at *4
(Tenn. Crim. App., Nashville, Aug. 14, 2009). The Defendant argues that because we stated
in his previous appeal that none of the consecutive sentencing criteria applied to him, and the
proof at his first and second sentencing hearing was the same, then the sentence imposed by
the trial court at his re-sentencing hearing was not “in accordance with the previous opinion
of this Court.” Upon reviewing the transcript of the first sentencing hearing, we believe a
more accurate characterization of events is that, because it relied erroneously on Tennessee
Code Annotated section 39-13-113(g), the trial court did not make any specific findings on
the record regarding the applicability of the consecutive sentencing criteria, not that none of
them applied to the Defendant. As noted above, on remand, the trial court made a specific
finding that consecutive sentencing was warranted because the Defendant’s record of
criminal activity is extensive. Upon review, we conclude that the record supports this finding
and that the Defendant is not entitled to relief on this issue.

                                       Conclusion
       Based on the foregoing authorities and reasoning, we affirm the sentences imposed
by the trial court.

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      _________________________________
      DAVID H. WELLES, JUDGE




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