            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1998         FILED
                                                       March 15, 1999

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,      )                            Appellate C ourt Clerk
                         )        No. 03C01-9712-CC-00547
     Appellee            )
                         )        HAMBLEN COUNTY
vs.                      )
                         )        Hon. JAMES E. BECKNER, Judge
WALTER LEE "STEVE" ALLEN )
and GARY L. HANEY,       )        (Robbery)
                         )
     Appellants          )



For the Appellants:               For the Appellee:

Laura D. Perry                    John Knox Walkup
Perry & Perry                     Attorney General and Reporter
Attorney for Appellant,
Gary L. Haney                     Ellen H. Pollack
503 North Jackson Street          Assistant Attorney General
Morristown, TN 37814              Criminal Justice Division
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
Edward H. Moody                   Nashville, TN 37243-0493
Asst. Public Defender
Attorney for Appellant,
Walter Lee Allen
1609 College Park Drive, Box 11   C. Berkeley Bell, Jr.
Morristown, TN 37813-1618         District Attorney General

Greg W. Eichelman                 Victor Vaughn
District Public Defender          Asst. District Attorney General
                                  510 Allison Street
                                  Morristown, TN 37814




OPINION FILED:

AFFIRMED IN PART; REMANDED IN PART



David G. Hayes
Judge
                                                 OPINION



        The appellants, Walter Lee “Steve” Allen and Gary L. Haney, appeal the

verdict of a Hamblen County jury finding them guilty of robbery, a Class C felony. At

the sentencing hearing, the trial court sentenced each appellant as range II multiple

offenders to the maximum applicable sentence of ten years. The appellants raise

three issues for our review in their appeal as of right: (1) challenges to the

identification process; (2) the sufficiency of the convicting evidence; and (3) the trial

court’s imposition of an “excessive” sentence and the imposition of consecutive

sentences.1



        After a review of the record and the applicable law, we affirm the judgment of

conviction for each appellant. Additionally, we affirm the trial court’s imposition of

ten year sentences for each appellant; however, as the State concedes, we hold the

trial court erred in ordering that the robbery conviction for each appellant be served

consecutive to a conviction in Jefferson County where no sentence had yet been

imposed. Accordingly, we remand this cause for judgments of conviction consistent

with these findings.



                                            BACKGROUND



        On July 13, 1997, Patricia Keith was employed as a clerk at the Kwik Shop

Market which is located adjacent to the Waffle House in Morristown. Shortly after 7

a.m. that morning, Ms. Keith heard the gas pumps start and went to the front of the

store to await the entrance of the customer. Two black males entered the store.

One man [Allen] wore a hooded “sweat jacket” inside out; and the other man

[Haney] wore a white tee shirt with red writing and a baseball cap. The two men


        1
          We note that the appellant Allen raised a Batson issue within his brief. However, the
appellan t conce ded that th e issue w as withou t merit an d withdrew it. Thus, we will not addre ss it.



                                                    2
went to the back of the store and began selecting various items. Ms. Keith became

suspicious of the men because one of the men was wearing a hood in the middle of

the summer. Thereafter, the customer at the gas pumps entered the store, paid for

his gasoline, and left. While the cash register was still open, the two men

approached the clerk and one of them said, “this is a holdup.” When Ms. Keith

turned around, a gun was lying on top of their merchandise. The shorter of the two

men picked up the gun and cocked it. In fear, Ms. Keith took the bills from the

drawer and placed them in a bag. Then, the two men fled the store in the direction

of the Waffle House. Ms. Keith sounded the store alarm and called the police. The

two men took $93 from the Kwik Shop Market. When the officer arrived, she related

what had happened; however, she did not feel that she would be able to identify the

men other than their height and clothing. She told the officer that they both tried to

hide their faces and that she could not see them very well.



        The following week, Detective Riner of the Morristown Police Department

requested that Ms. Keith come to the police station for a photographic lineup. She

testified that Riner read her the form on the back of the lineup and then she

identified the two men who robbed the store from two separate photographic arrays.

She identified the man from the first lineup quickly [Haney]; however, in identifying

the man from the second lineup [Allen], she hesitated “a little bit” but she was

certain it was him. Then she wrote the events of the crime on the bottom of the

form.



        Upon cross-examination, she acknowledged that, in her initial description to

the officer, she said that one of the men was five foot seven inches, one hundred

and seventy pounds and the other was five foot four inches, one hundred and fifty-

five pounds. She related that the top portion of the photographic identification form

was not filled out when she filled out the lower portion on either of the identification

forms. Although at trial she testified that the appellant Haney held the gun and


                                          3
cocked it, she had written on the identification form that the appellant Allen had the

gun. When Ms. Keith earlier testified at the preliminary hearing, she testified that

she had the faces of the two men correct, however, she had confused their bodies.

She noted no noticeable injuries to either man’s face. She read the notations on the

photographic identification forms into evidence and beside each appellant’s name

was the word “suspect.”



       On redirect examination, she testified that Detective Riner only read her the

instructions before she identified the appellants. He did not give her names of any

potential suspects nor did he point anything out to her. She stated that she has

never had any doubt as to the faces of the two men.



       James “Red” Long, the other customer at the Kwik Shop on the day of the

robbery, testified that he was filling his vehicle and two cans with gasoline. He

related that there were two other people in the store; but he could not identify them.

He described one man as being tall and the other short. He recalled that one of the

men wore a sweater with a hood and the other man wore a baseball cap. He could

only identify the man in the baseball cap as African-American. He did not view the

photographic lineup.



       Mark McElhaney, an officer with the Morristown Police Department, testified

that he responded to a police dispatch at 7:19 a.m. advising that a robbery had

occurred at the Kwik Shop Market. He unsuccessfully attempted to find the

suspects that matched the description given by Ms. Keith. Later, he turned the case

over to Detective Riner.



       Karen Webb, assistant manager at the Waffle House, testified that she was

working on the morning of the robbery. She stated that, while she was pulling the

blinds down, she saw two men walking around in the parking lot near the dumpster


                                         4
of the Kwik Shop. She observed that both men were black; one man was “real tall”

and the other man was much shorter. She described the clothing just as the other

witnesses but only observed the face of the taller man. Thereafter, she was asked

to view a photographic lineup. Ms. Webb only identified one of the men [Allen] from

the photographic lineup as the man she saw by the dumpster in the hooded

sweatshirt.



       On cross-examination, Ms. Webb stated that after viewing the photographic

lineup and identifying Allen, the officer provided her with the appropriate forms for

identification. On the photographic identification form, she stated that it was Mr.

Haney that she had seen and that she could not identify Mr. Allen. She said that

Detective Riner never pointed anyone out to her as a suspect. She explained that

after she identified them that she was told their names. She stated that both of the

appellants had been in the Waffle House earlier that morning. She had noticed

them because one of them was “extremely tall.” Although the record indicates some

confusion between the two appellants regarding Ms. Webb’s in-court identification,

neither the prosecution nor the defense clarified for the record which appellant was

allegedly misidentified.2



       Detective Steve Riner of the Morristown Police Department testified that he

compiled a photographic lineup during the investigative stage of the robbery. He

showed the lineup to both Ms. Keith and Ms. Webb. With regard to Ms. Keith, he

stated that she had no difficulty identifying the appellant Haney. He provided her

the other lineup and left the room. When he returned, she had identified the

appellant Allen. After she had identified both men from the lineups, he testified that



       2
        Q. (P rose cuto r): O kay, D o you s ee him here toda y?
       A. (Webb): Yes, sir. I do.
       Q. Where is he?
       A. The gentleme n beside Mr. Mood y, there (indicating).
       ...
       Q. (Mr. M oody): An d so no w which is correc t?
       A. (Webb): That gentleman, right there, (indicating) was the one I saw.

                                               5
he gave her the forms. He testified that he filled in the names and that she was not

informed of their names until after she had identified both appellants. He also

stated that he did not point out any potential suspects. He stated that he wrote the

word “suspect” beside each appellant’s name after Ms. Keith had identified them.

He stated that when he gave the form to Ms. Keith the top portion was blank. After

he filled out the top portion and before she filled out the bottom portion, he made

copies of the form.



       In defense of the appellant Allen, Penny Morgan testified that, at the time of

the robbery, the appellant Allen lived with her and her children. She stated that on

the morning of the robbery “[t]hat early in the morning, we were usually still in the

bed, but he was home on Sundays. . . . We were always home on Sunday.” She

had no specific recollection of that particular Sunday other than the kids were having

a swimming party. She continuously repeated, “if it was a Sunday, we were at

home.”



       Selina Haney, sister of the appellant Haney, testified that around 6:15 a.m.

on the morning of the robbery, she heard a knock at the window. The appellant

Allen was knocking on her brother’s window. After she saw the appellant Allen, she

proceeded to shower and get ready for work. She testified that her brother was

sleeping in that room and that he did not get up before she left for work at 6:55 a.m.

She stated that her brother had a terrible cold that weekend, had a cast on his wrist,

and scratches on his face. She stated that when she left for work, the appellant

Allen had already left.



       Patricia Haney, the appellant’s mother, testified that the appellant Allen came

to her home the morning of the robbery. She told the appellant Allen that her son

was asleep and Allen walked off the porch. After she answered the door for Allen,

she went back and laid down on the couch until 9:00 or 9:30 a.m. without going by


                                         6
her son’s room. She prepared breakfast for her son, but he never came out his

room. Although she admitted she never saw him, she testified that he remained in

bed. She reiterated that her son had a cold, a cast on his wrist, and a scratch on his

face.



        Although the indictments charged the appellants with aggravated robbery, the

jury returned a guilty verdict for both appellants on the lesser charge of robbery.



                          I. IDENTIFICATION CHALLENGES



        In their first issue, the appellants challenge their identification by the

witnesses Patricia Keith and Karen Webb and the procedures employed by the

police in the identification process. The appellant Allen raises the identification

issue within the context of the trial court’s denial of his motion to suppress. The

appellant Haney challenges only his identification by the witness Keith and argues

that the “photographic identification was tainted by the actions of the Morristown

Police Department.”



        At this juncture, we are compelled to note that both appellants’ arguments are

misplaced. The appellant’s argue only that the line-up identification and the

preliminary hearing identifications should have been excluded because of their

“taint.” The relevant issue, however, is whether those alleged “tainted” out of court

identifications affected the witnesses in-court identifications.



        At the suppression hearing, Detective Riner testified that he read the form

instructions to Ms. Keith, and then he gave her two different photographic arrays

each containing one of the appellants. She identified both appellants and then the

identification forms were filled out by both Ms. Keith and Detective Riner. The word

“suspect” was then written beside both appellants’ names on the two different forms.


                                            7
       Ms. Keith explained that when she gave the description of the individuals just

after the incident that she was “very disturbed.” At that time she did not believe that

she would be able to identify the perpetrators. Upon viewing the photographic array,

she testified that she “instinctively . . . picked the first one . . . easily;” however, after

a “little bit” of hesitation [three to five minutes] she was certain that she identified the

second perpetrator. She also stated that the forms were filled out following her

identification of the appellants. She admitted that in General Sessions Court she

had said appellant Allen had the gun, however, she acknowledged that her error

was “in the identification of the bodies but not the faces. I did not get their bodies

right.” She stated that there was no doubt in her mind that these were the two

appellants who committed the robbery.



       At the conclusion of the hearing, the trial court denied the motion to suppress

Ms. Keith’s identification of the appellant. The trial court observed:

       These are good photo lineups. There is nothing peculiar or suggestive
       about any one person in the lineup. The only real issue here is
       whether there was some other suggestion made or if the testimony
       and statements of the witness are so inconsistent as to be conducive
       to misidentification. . . .
               [T]he uncontradicted testimony is that the witness did not look
       at the forms until after the identifications were made. Then the forms
       were filled out as to the word suspect. The witness did not see that
       form, did not see the word suspect until after the identification was
       made, and then she and the officer filled the form out together.
       There’s nothing that contradicts that, so there’s nothing suggestive
       about that.
               Her testimony has been a little bit inconsistent from the original
       statement made to the officer to the present time; but we’ve all been
       around long enough to know . . . that people’s focus and attention
       does not get to feet, legs, pants, [and] even shirts. We know from
       experience that people are so focused on faces and guns. . .[t]his
       witness is certain about that. Her opportunity to view the perpetrators
       was good even though they were trying . . . [to] hide themselves. They
       did not wear masks. She’s absolutely certain about the clothing and
       who wore what. Her description . . . is pretty accurate, considering all
       the facts and circumstances.
               Her level of certainty . . . is great here. She pointed to one
       defendant in one photo lineup and just without any hesitation made an
       identification. The other one, to her credit, she considered for a long
       time, and then she was certain . . . at the preliminary hearing . . . [and]
       today. Relatively little time elapsed between the crime and the
       confrontation with the photo lineups, not such a long time as to cause

                                            8
       failing of memory.
               And there’s certainly. . . not been a corruptive influence or
       suggestive identification.
               [T]his court . . . conclude[s] that the circumstances and factors
       were not conducive to misidentification.
               Certainly, . . . defense counsel can use any inconsistencies
       before the trier of fact to try to convince them that the credibility of
       identification should not be made. [I]t just goes to the credibility of the
       witness and not the legal admissibility of the evidence.


       As pronounced by the United States Supreme Court, a violation of due

process has occurred if the court finds that the identification procedure was so

suggestive as to give rise to a very substantial likelihood of irreparable

misidentification. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972); United

States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); Gilbert v. California, 388 U.S.

263, 87 S.Ct. 1951 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 (1967).

This standard has been adopted by our state’s supreme court. See Bennett v.

State, 530 S.W.2d 511, 512-515 (Tenn. 1975); Sloan v. State, 584 S.W.2d 461,

466-470 (Tenn. Crim. App. 1978); Proctor v. State, 565 S.W.2d 909, 911-912 (Tenn.

Crim. App.), perm. to appeal denied, (Tenn. 1978); Rippy v. State, 550 S.W.2d 636,

639-640 (Tenn. Crim. App. 1977). “[R]eliability is the linchpin in determining the

admissibility of identification testimony [pursuant to principles of due process].”

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253 (1977). A finding that

the pre-trial identification was unreliable will also require the exclusion of a

subsequent in-court identification by the same witness. Id. See also State v.

Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1994); State v. Davis, 872 S.W.2d 950, 956 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1993); Sloan, 584 S.W.2d at 470. The court must view the totality of

the circumstances. Proctor, 565 S.W.2d at 911-912. In Biggers, 409 U.S. at 199-

200, 93 S.Ct. at 382, the Supreme Court announced factors to be considered in

determining whether a violation of due process has occurred:

       (1) the opportunity of the witness to view the criminal at the time of the
       crime;

       (2) the witness’ degree of attention at the time of the crime;


                                           9
        (3) the accuracy of her prior description of the criminal;

        (4) the level of certainty demonstrated at the confrontation; and

        (5) the time elapsed between the crime and the confrontation.

See also Philpott, 882 S.W.2d at 400. Unless the evidence preponderates against

the judgment, the trial court’s findings of fact following a suppression hearing are

conclusive on appeal. Davis, 872 S.W.2d at 956. In the instant case, the record

clearly supports the trial court’s findings. Although the State’s witness at times was

inconsistent in her testimony, the trial court properly noted that these inconsistencies

only went to the credibility of the witness’s identification and not the reliability of the

photographic identification. The testimony was undisputed that the word “suspect”

was written after the witness made the identifications and there exists no evidence

to the contrary. Therefore, viewing the totality of the circumstances, the trial court

properly denied the motion to suppress. This issue is without merit.



                             II. SUFFICIENCY OF THE EVIDENCE



        Next, the appellants contend that the evidence is insufficient to sustain their

convictions for robbery. 3 Specifically, they emphasize (1) Ms. Keith’s inability to

identify her assailants immediately following the robbery; (2) her inaccurate physical

descriptions; (3) her misidentification at the preliminary hearing of which appellant

had the gun; (4) the word “suspect” written on the photographic identification form

beside the appellants’ names; (5) Ms. Webb’s misidentification at trial of appellant

Allen; and (6) the lesser verdict rendered by the jury indicating reasonable doubt.

They assert that the lineup is “questionable” and “so suggestive and conducive to


        3
           The appellant Allen challenged the trial court’s denial of his motion for judgment of
acquittal following the State’s case in chief. We note this issue is waived because the appellant
testified and offered evidenc e in his own defens e rather th an rest h is case. See State v.
Cam pbe ll, 904 S.W .2d 608 ( Tenn . Crim. A pp.), perm. to appeal denied, (Tenn . 1995); State v.
Sm ith, 735 S.W.2d 859, 862 (Tenn. Crim. App. 1987). We note that this does not waive the
defendant’s right to present evidence in his defense at trial nor does it waive his right for a later
sufficien cy review. See State v. Johnson, 762 S.W .2d 110, 1 15 (Te nn. 1988 ), cert. denied, 489
U.S. 1091, 109 S.Ct. 1559 (1989); Tenn. R. Crim. P. 29(a). If the defendant chooses to proceed
with his defense, the defendant has only waived th e review o f the qua ntum of eviden ce, i.e., sole ly
that eviden ce pres ented in the State’s ca se in chief .

                                                  10
mistaken identity” rendering the trial testimony unreliable and inadmissible. Thus,

they argue that, without the identification testimony, the evidence is not sufficient for

a rational trier of fact to find them guilty beyond a reasonable doubt.



       A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the

sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is

entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Viewing

the evidence under these criteria, it is this court’s responsibility to affirm the

conviction if the proof was sufficient for any rational trier of fact to have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App.

P. 13(e).



       In State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), this

court held that the testimony of a victim identifying the perpetrator is sufficient in and

of itself to support a conviction. See also State v. Shelton, No. 01C01-9505-CC-

00144 (Tenn. Crim. App. at Nashville, Mar. 22, 1996), perm. to appeal denied,

concurring in results only, (Tenn. Nov. 12, 1996). Moreover, the credibility of

eyewitness testimony identifying the accused as the perpetrator of the criminal

offense for which he stands trial is a question of fact for the determination of the jury

upon consideration of all competent proof. Strickland, 885 S.W.2d at 87 (citing

State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)); see also State v.


                                          11
Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).



       The victim, Keith, identified both appellants on three occasions: (1) from a

police photo lineup; (2) at the preliminary hearing; and (3) finally at trial. The

witness, Webb, identified both appellants as having been in the Waffle House on

the morning of the robbery and on direct examination identified Allen as the person

she saw behind the Kwik Market. Although testimony of the the State’s witnesses

contained some inconsistencies, counsel for both appellants thoroughly cross-

examined these witnesses regarding their ability to perceive, recall, and identify the

appellants. Additionally, although both appellants presented an alibi defense, i.e.,

the testimony of Allen’s ex-girlfriend and the mother and sister of Haney, the jury, by

returning a guilty verdict, accredited the testimony of the State’s witnesses. We

conclude that the evidence is sufficient for a rational trier of fact to find the

appellants guilty beyond a reasonable doubt. This issue is without merit.




                                    III. SENTENCING



       In their final issue, the appellants contend that the trial court’s imposition of

the maximum sentence of ten years was excessive. Moreover, the appellants

contend that the trial court erred by ordering this sentence to run consecutively to a

sentence that had not yet been imposed in another county. Both appellants were

sentenced as Range II Multiple Offenders for robbery, a Class C felony, for which

the range of punishment is six to ten years. See Tenn. Code Ann. § 39-13-401;

Tenn. Code Ann. § 40-35-112(b)(3) (1997). Both appellants received the maximum

ten year sentence. This court’s review of the length, range, or manner of service of

a sentence is de novo with a presumption that the determination made by the trial


                                          12
court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is only

applicable if the record demonstrates that the trial court properly considered relevant

sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Here,

the presumption applies. The burden is on the appellant to show that the sentence

imposed was improper. Sentencing Commission Comments, Tenn. Code Ann. §

40-35-401(d).



                                    A. Walter Lee “Steve” Allen



        The record reflects that this appellant Allen is twenty-seven years old,

unmarried, and has a high school education. No present employment or history of

employment is contained within the presentence report. The appellant Allen admits

to alcohol abuse. He has a lengthy prior criminal history from 1989 to the present

including the following convictions: aggravated burglary, theft over $1,000, DUI and

leaving the scene of an accident. Additionally, he has two misdemeanor convictions

of public intoxication and two convictions for thefts under $500. He has also been

previously revoked while on probation and parole.



        With regard to enhancement factors, the trial court applied, “previous history

of criminal convictions in addition to those necessary to establish the appropriate

range,” see Tenn. Code Ann. § 40-35-114(1) (1997), and “previous history of

unwillingness to comply with the conditions of a sentence involving release in the

community.” See Tenn. Code Ann. § 40-35-114(8). The trial court applied no

mitigating factors. Appellant Allen argues that the court misapplied the first

enhancement factor because it was already utilized to establish the appellant as a

multiple offender. This argument is misplaced. When the State filed its notice to

seek punishment as multiple offender4, it relied only upon his convictions for


        4
          Under Tenn. Code Ann. § 40-35-106(a)(1) (1997), a multiple offender has “[a] minimum
of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher
class, or w ithin the nex t two (2) lowe r felony clas ses . . .”

                                                 13
aggravated burglary and theft over $1,000. A plethora of convictions beyond these

two existed for the trial court to use in support of this enhancement factor.



       After conducting de novo review, we conclude that the trial court properly

applied the appropriate enhancing factors and agree that no mitigating factors apply

in this case. When the sentencing court finds only enhancement factors applicable

without any mitigating factors present, the court may set the sentence above the

minimum in the range but still within the range. See Tenn. Code Ann. § 40-35-

210(d). Thus, we conclude that the appellant’s ten year sentence for robbery is

justified. This issue is without merit.



                                   B. Gary L. Haney



       The appellant Haney is twenty-six years old, single, and dropped out of

school in the ninth grade after being expelled. The presentence report reflects a

history of alcohol and drug abuse. The record contains no indication of current

employment or of an employment history. This appellant also demonstrates an

extensive criminal history from 1989 to the present including: aggravated robbery,

two aggravated burglaries, attempted burglary of an automobile, burglary of an

automobile, and three thefts over $500. Additionally, the appellant has numerous

misdemeanor convictions for resisting arrest, evading arrest and several offenses

involving alcohol and related offenses. The appellant’s probation has been revoked

on three occasions.



       When determining the appropriate sentence, the trial court applied the

following enhancement factors for the appellant’s conviction of robbery: (1) “[t]he

defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range,” see Tenn. Code

Ann. § 40-35-114(1); (2) “the defendant was a leader in the commission of an


                                          14
offense involving two (2) or more criminal actors,” see Tenn. Code Ann. § 40-35-

114(2); (3) “the defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community,” see Tenn. Code Ann.

§ 40-35-114(8); and (4) “the felony was committed while on probation for another

felony,” see Tenn. Code Ann. § 40-35-114(13). The trial court applied no mitigating

factors and imposed the maximum ten year sentence.



       Upon de novo review, we conclude that the trial court correctly applied the

appropriate enhancement factors. Furthermore, we agree that no mitigating factors

applied to this appellant. Accordingly, we affirm the trial court’s imposition of the

maximum sentence of ten years for this appellant. This issue is without merit.



                          IV. CONSECUTIVE SENTENCES



       Both appellants challenge the trial court’s order requiring that their respective

robbery convictions be served consecutive to a robbery conviction in Jefferson

County. The record reflects that, on the date of the appellants’ sentencing hearings

in this case, both appellants had been convicted in Jefferson County of aggravated

robbery. However, the sentencing hearing for that conviction had not been held and

thus no sentence had been imposed.



       In support of their argument, the appellants cite State v. Thompson, 565

S.W.2d 889 (Tenn. 1977) and State v. Arnold, 824 S.W.2d 176 (Tenn. Crim. App.

1991). The State concedes that the trial court erred in imposing the robbery

convictions consecutive to the Jefferson County convictions. We agree. In

Thompson, 565 S.W.2d at 890, the supreme court held that consecutive sentences

may only be ordered in conjunction with a previously imposed sentence. (Emphasis

added). This court has held that “the last sentencing court should have the

responsibility to determine whether or not a sentence should be served


                                         15
consecutively.” Arnold, 824 S.W.2d at 178 (citing State v. Stafford, 368 N.W.2d 364,

366 (Minn. App. 1985)). “The consecutive sentencing is no less in futuro even

though the ‘conviction’ existed at the time of the sentencing.” Arnold, 824 S.W.2d at

178 (citing State v. White, 18 Ohio St. 3d 340, 481 N.E.2d 596, 598 (1985)).



       Therefore, we conclude that the trial court erred by imposing the ten year

sentences consecutive to pending sentencing decisions to occur in futuro for both

appellants. However, we find no error in the trial court’s decision to run appellant

Haney’s sentence consecutive to the outstanding seven year sentence for theft in

Cocke County. At the sentencing hearing, the trial court found that Haney’s criminal

activity was extensive and that he was on probation at the time the present offense

of robbery was committed. Tenn. Code Ann. § 40-35-115(2) and (6) (1997). We

conclude that consecutive sentences are necessary to protect the public from the

possibility of the appellant Haney’s future criminal conduct and the aggregate



sentence is reasonably related to the severity of the present offenses. See State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



                                  V. CONCLUSION



       The judgments of convictions for both appellants are affirmed. Moreover, we

affirm the trial court’s imposition of the ten year sentence for each appellant;

however, we hold the trial court erred in imposing consecutive sentences for the

appellants with regard to the pending sentences in Jefferson County. The appellant

Haney’s consecutive sentence with Cocke County is affirmed.



       This case is remanded for entry of judgments of conviction consistent with

this opinion.




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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




___________________________________
JERRY L. SMITH, Judge


___________________________________
JAMES CURWOOD WITT, JR., Judge




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