            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             APRIL 1998 SESSION
                                                         July 31, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE,                 *    No. 01C01-9706-CR-00202 Clerk
                                                   Appellate Court

                 Appellee,          *    Davidson County

vs.                                 *    Hon. Thomas H. Shriver, Judge

JEFFREY AARON PEWITT,               *    (Consecutive Sentencing)

             Appellant.             *




For Appellant:                           For Appellee:

Jeffery A. DeVasher                      John Knox Walkup
Assistant Public Defender                Attorney General & Reporter
1202 Stahlman Building
Nashville, TN 37201                      Daryl J. Brand
(on appeal)                              Assistant Attorney General
                                         425 Fifth Avenue North
Jefferson Dorsey                         Cordell Hull Building, Second Floor
Assistant Public Defender                Nashville, TN 37243-0493
1202 Stahlman Building
Nashville, TN 37201                      Nicholas Bailey
(at trial)                               Assistant District Attorney General
                                         Washington Square, Suite 500
                                         222 Second Avenue North
                                         Nashville, TN 37201




OPINION FILED:___________________________


AFFIRMED


GARY R. WADE, JUDGE
                                        OPINION

               The defendant, Jeffrey Aaron Pewitt, indicted on four counts of

aggravated robbery, entered pleas of guilt to three counts of robbery, a Class C

felony. See Tenn. Code Ann. § 39-13-401. The trial court classified the defendant

as a Range II offender and imposed two concurrent nine-year sentences and a

consecutive sentence of six years. This effective sentence of fifteen years is to be

served consecutively to a previous sentence in which the defendant's release on

community corrections had been revoked.



               In this appeal of right, the defendant challenges the trial court's

imposition of consecutive sentences. We find no error and affirm the judgment of

the trial court.



               The state presented a summary of proof at the guilty plea hearing. On

April 3, 1996, Carolyn Sue Vick was walking across the parking lot of a Nashville

grocery store. As she approached the store entrance, the defendant reached from

the passenger side of a moving vehicle to snatch her purse. Ms. Vick was dragged

several feet before she let go of her purse. She required treatment for a head injury,

cuts and bruises. Later that afternoon, Ila Mae Bass was similarly robbed of her

purse by the defendant in a different Nashville grocery store parking lot. She also

suffered injuries requiring medical treatment.



               The next day, the police discovered that a car fitting the description of

the one used in the robberies was registered to Rhonda Brownlee, a co-defendant.

Ms. Brownlee, who had been arrested earlier that day on an unrelated offense,

described the two men she had allowed to drive her car. Later that day, police

observed Ms. Brownlee's car enter a grocery store parking lot. The individuals in


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the car matched the description provided by the victims and Ms. Brownlee. The

police followed the suspects from the grocery store to a nearby K-Mart. Shortly after

their arrival, the defendant leaned from the window of the moving vehicle to grab the

purse of Wendy Peplinski. After a brief pursuit, the police apprehended the

defendant and co-defendant Jenkins. The defendant admitted his involvement in

the three robberies.



             At the sentencing hearing, Ms. Vick recalled that she was dragged six

to ten feet before she was able to release her purse. She suffered a concussion,

contusions, and severe scratches on her back. Ms. Vick testified that the incident

had resulted in marked emotional trauma requiring treatment. As a result, she was

unable to continue her work. It was her opinion that the defendant should receive

mandatory drug rehabilitation treatment and some term of incarceration.



             At the sentencing hearing, Ms. Bass testified that she had just finished

loading her groceries into the trunk of her car when she was accosted from behind,

knocked down, and dragged by a car. She suffered a concussion, internal bleeding

on the brain, numerous scratches on her arms and ankle, and an injury to her hand.

Ms. Bass indicated that the emotional strain had been difficult and that she was

fearful of going out. She stated that she had been unable to sleep for two months

following the robbery and asked for a harsh sentence.



             Ms. Peplinski testified that as she walked through the K-Mart parking

lot, a car was driven beside her and an occupant grabbed her purse. She stated

that while she had suffered only minor bruises to her arm, she was fearful now and

limited her activities because of the incident. Ms. Peplinski asked that the

defendant be punished "to the fullest extent of the law."


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              The defendant testified that since his arrest he had taken responsibility

for his crimes and that he was "glad" he was caught because, otherwise, he would

not have known how to stop his destructive behavior. He voluntarily provided police

with a statement fully describing the offenses. The defendant testified that his father

died when he was eight and that he had experienced a bitter relationship with his

family. While acknowledging that he started using drugs and alcohol at the age of

sixteen and had a lengthy criminal record, he expressed remorse for his lifestyle and

drug habit. Since being incarcerated, the defendant had completed the Life Line

Program, a drug rehabilitation and behavior modification program. At the time of

sentencing, he was an intern with the program and worked with other individuals

who had similar problems. The defendant maintained that he had experienced no

disciplinary problems in jail or at Life Line. He is enrolled in computer classes

through the jail and has maintained a 3.7 grade point average. The defendant

stated that he intended to continue with the drug rehabilitation program upon his

release and would devote his time to drug prevention among young people. He

expressed shame for his actions.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.




                                           4
              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in

this case demonstrates that the trial court followed Ashby and made adequate

findings of fact.



              In calculating the sentence for Class B, C, D, or E felony convictions at

the time of these offenses, the presumptive sentence is the minimum within the

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement factors but no mitigating factors, the trial court

may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A

sentence involving both enhancement and mitigating factors requires an assignment

of relative weight for the enhancement factors as a means of increasing the

sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced

within the range by any weight assigned to the mitigating factors present. Id.



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,


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additional words of caution:

                 [C]onsecutive sentences should not routinely be imposed
                 . . . and . . . the aggregate maximum of consecutive
                 terms must be reasonably related to the severity of the
                 offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself 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;

                 (7) The defendant is sentenced for criminal contempt.

        1
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

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Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938.



              At the sentencing hearing, the trial judge found that the defendant had

thirty-four prior arrests, eighteen misdemeanor convictions, two felony convictions,

and seven violations of probation. The trial judge denied a grant of probation on the

basis that the defendant was unlikely to perform well given his extensive criminal

history. The trial judge enhanced each sentence by applying the following factors:

the defendant had a number of previous convictions, he had a history of

unwillingness to comply with release to the community, and he committed these


                                          7
offenses while on probation. Tenn. Code Ann. § 40-35-114(1), (8), and (13). The

trial court then imposed concurrent, enhanced sentences of nine years on counts

one and three. The defendant received a six-year sentence for count four, to be

served consecutively to count three.



              The trial judge imposed consecutive sentencing based on two

grounds: the defendant's prior record and his commission of these offenses while

on probation. Tenn. Code Ann. § 40-35-115(b)(2), (6). The defendant contends

that the trial court improperly applied Tenn. Code Ann. § 40-35-115(b)(6) because

he committed these offenses while serving a sentence on community corrections

not probation. A panel of this court has concluded that this provision may be

applied by the trial court as a basis for consecutive sentencing regardless of the

distinction between community corrections and probation. State v. Jabbaul Pettus,

No. 01C01-9602-CC-00056 (Tenn. Crim. App., at Nashville, Jan. 30, 1997), app.

granted, (Tenn., Sept. 22, 1997). The supreme court, however, has granted review

on this issue. Accord State v. Larry G. Hart, No. 02C01-9406-CC-00111 (Tenn.

Crim. App., at Jackson, June 28, 1995), as clarified on petition to rehear, (July 26,

1995); but see State v. James F. Brown, No. 01C01-9412-CC-00419 (Tenn. Crim.

App., at Nashville, Aug. 11, 1995) (holding the probation factor was an inappropriate

basis for consecutive sentencing given the substantial differences between

probation and community corrections).



              In our view, consecutive sentencing was warranted regardless of

whether the trial court correctly applied Tenn. Code Ann. § 40-35-115(b)(6). "[T]he

trial court's reliance on alternative factors in its determination to impose consecutive

sentences is permissible." State v. Kenny Dewayne Covington, No. 01C01-9401-

CR-00010, slip op. at 3-4 (Tenn. Crim. App., at Nashville, Oct. 6, 1994), app.


                                           8
denied, (Tenn., Jan. 3, 1995). The Sentencing Commission Comments authorize

consecutive sentences "in the discretion of the court if the court finds one or more of

the criteria set forth in [Tenn. Code Ann. § 40-35-115(b)]." (Emphasis added).

Here, the trial court found that the defendant had an extensive criminal record.

Tenn. Code Ann. § 40-35-115(b)(2). The record supports this finding. The

defendant has engaged in criminal conduct since the age of twenty and has

accumulated twenty convictions and seven probation violations in seven years. The

nature of the defendant's crimes have become progressively more serious. Here,

his conduct caused both physical and emotional injuries to his victims. Our

conclusion is that a consecutive sentence is warranted based on the defendant's

extensive criminal record.



       Accordingly, the judgment of the trial court is affirmed.



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:


_______________________________
Thomas T. W oodall, Judge


_______________________________
L. T. Lafferty, Special Judge




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