          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE

              SEPTEMBER SESSION, 1999

                                                                   FILED
STATE OF TENNESSEE,           )    C.C.A. NO. E1999-
                        00044-CCA-R3-CD                      December 6, 1999
                              )                              Cecil Crowson, Jr.
      Appellee,               )                             Appellate Court Clerk
                              )
                              )    BLOUNT COUNTY
VS.                           )
                              )    HON. D. KELLY THOMAS, JR.
ARTHUR COPELAND,              )    JUDGE
                              )
      Appellee.               )    (Direct Appeal- Class A Misdemeanor)




FOR THE APPELLANT:                   FOR THE APPELLEE:
ROBERT W. WHITE                      PAUL G. SUMMERS
404 Ellis Avenue                     Attorney General & Reporter
Maryville, TN 37804
                                     ELLEN H. POLLACK
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     MIKE FLYNN
                                     District Attorney General

                                     WILLIAM REED
                                     Assistant District Attorney
                                     363 Court Street
                                     Maryville, TN 37804



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                     OPINION
                      The appellant, Arthur Copeland, was convicted by a Blount

Coun ty jury of one (1) coun t of simple assa ult, a Class A m isdemea nor. The trial

court sentenced him to eleven (1 1) months and twenty-nine (29) day s in the

county jail and ordered tha t the ap pellan t’s sen tence for ass ault run cons ecutive ly

to his sentence for a prior aggravate d robbery conviction.             On appeal, the

appellant claim s that th e trial co urt erre d in (1) im posin g sen tence imm ediate ly

after the jury rendered its verdict without affording the appellant a separate

sentencing hearing; and (2) orderin g con secu tive sen tence s. After thorou ghly

reviewing the rec ord be fore this Cour t, we co nclud e that th ere is n o evide nce in

the record to support the trial court’s imposition of consecutive sentences.

Therefore, this case is remanded to the trial court for another sentencing hearing.



                                            I.



       The appellant was convicted for striking Willia m G oodw in on th e side of his

face with a han dgun. A fter the jury ren dered its ve rdict, the trial court proceeded

to sentence the appellant for his conviction of simp le assault. After a brief

discussion regarding whether the ap pellan t’s sen tence shou ld run c oncu rrently

or consecutively to his p rior conviction for aggra vated robbe ry, defense counsel

stated to th e trial court:

       of cours e, we w ould n aturally prefer them to run con currently. If
       we’re not going to be able to agree with the State on that issue,
       quite honestly, I’m not – I didn’t really come here prepared for
       sentencing today. I’d like to – if it’s going to be a question of
       whether it’s going to be consecutive or concurrent, then I’d like a
       chance to prepa re and have a prese ntenc e repo rt so we could look
       at differen t factors that wo uld be relevant. I can’t just on my client’s
       behalf, althou gh the Cour t may h ave a re al goo d idea of wha t it
       wants to do, I hate to just agree to consecutive sentencing.

The trial court then immediately imposed sentence. The court found that the

appellant had an exten sive criminal history and had several prior convictions for

violent offens es.    In m aking this determination, the trial court referenced a



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presentence report prepared for sentencing on a prior offense. The trial court

sentenced the appellant to eleven (11) months and twenty-nine (29) days and

ordered that this sentence run consecutively to his sentence for aggravated

robbery. From the trial court’s imposition of sentence, the appellant now brings

this ap peal.



                                            II.



                                            A.

         This Court’s review of the sentence imposed by the trial court is de novo

with a presu mption of correctn ess. Tenn. Code Ann. § 40-35 -401( d). Th is

presumption is conditioned upon an affirmative showing in the record that the trial

judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.

1997).

         The burden is upon the appealing party to show that the sente nce is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting o ur review, we are require d, pursu ant to Te nn. Co de Ann . §

40-35-210, to consider the following factors in sentencing:

         (1) [t]he evidence, if any, received at the trial and the sentencing
         hearing;

         (2) [t]he pre senten ce repo rt;

         (3) [t]he principles of sentencing and arguments as to sentencing
         alternatives;

         (4) [t]he nature and characteristics of the criminal conduct involved;

         (5) [e]vidence and information offered by the parties on the
         enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
         and

         (6) [a]ny statem ent the defen dant w ishes to ma ke in th e defe ndan t's
         own behalf about sentencing.


                                            -3-
         Consec utive sentencing is governed by Tenn. Code Ann. § 4 0-35-11 5. A

trial court may order sentences to run consecutively if it finds that one or more of

the statutory criteria exists by a p repond erance of the evide nce. Te nn. Code

Ann. § 40-35-11 5(b); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App.

1995).



                                                    B.

         It appears that the trial court ordered consecutive sentences based upon

a finding that the appellant was “an offender whose record of criminal activity is

extensive .” Tenn . Code Ann. § 40-35 -115( b)(2). T his is cle arly an app ropriate

basis upon which to impose consecutive sentences.

         Howeve r, the trial court made its finding while referencing a presentence

report believed by the trial judge to have been prepared for the appe llant’s

sente nce for a prior conviction. This presentence report is not in the record

before this Court. Despite repeated efforts by this Court to supplement the

record with the prior presentence report, we have been informed by the Blount

Coun ty Circuit Court Clerk’s Office and by the appellant’s probation officer that

such p resente nce rep ort does not exist.

         Genera lly, under this Court’s standard of review, we would presume that

the trial court’s findings are correct. Tenn. Code A nn. § 40-35-4 01(d). However,

there is no evidence in the record to support the trial court’s decision to impose

consecu tive sentences in this case. Therefore, this case must be reman ded to

the trial court for resentencing.1 See Tenn. Code Ann. § 40-35-401(c). Upon

resentencing, the trial cour t is not precluded from considering the propriety of

consecu tive senten cing. However, if the trial court determ ines that conse cutive

sentences are appropriate, that conc lusion mus t be su pporte d by ev idenc e in the

record.



   1
     The appellant also raises the issue whether the trial court erred in refusing a separate sentencing
hearing . Typically, one w ho is con victed of a misde mea nor is not s tatutorily entitled to a s eparate
senten cing hea ring. See Tenn. Code Ann. § 40-35-302(a). However, because we must remand for
resente ncing, this is sue is ren dered m oot.

                                                   -4-
                                       III.



      There is no evidence in the record to support the trial court’s imposition of

consecu tive sente nces in this case. Accordingly, the judgment of the trial court

is reversed, and the case is remanded to the trial court for resentencing.



                                       ______________________________
                                       JERRY L. SMITH, JUDGE




CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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