         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 7, 2001

                   STATE OF TENNESSEE v. ERIC D. THOMAS

                      Appeal from the Criminal Court for Shelby County
                      Nos. 97-08123,24,25,27   Joseph B. Dailey, Judge



                      No. W1999-00337-CCA-R3-CD - Filed June 26, 2001


The Defendant, Eric D. Thomas, pled guilty to four counts of robbery and was sentenced to six years
for each conviction. The sentences were ordered to run consecutively, which ruling the Defendant
now appeals. The judgment of the trial court ordering the Defendant’s sentences to run consecutively
is reversed, and this matter is remanded for resentencing on the issue of consecutive sentences.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.

Eric Thomas, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        Initially, we note that this case began with a rather unusual procedural twist. James C. Paris
of the Shelby County Sheriff’s Office was investigating whether the Defendant committed four bank
robberies and a post-office robbery. The Defendant agreed to make statements concerning all five
robberies in exchange for the State agreeing to prosecute them as simple robberies and agreeing to
drop several other charges. The Defendant gave the statements, and the State subsequently charged
the Defendant with three counts of robbery and two counts of aggravated robbery. The Defendant
filed a motion to enforce a verbal plea agreement, and an evidentiary hearing was held. Upon hearing
the Defendant’s testimony, the State voluntarily reduced the two aggravated robbery charges to
robbery. However, the Defendant also claimed during the hearing that the plea bargain included a
provision as to the amount of time he would serve on the five counts. At the conclusion of the
hearing, the trial court expressly found the Defendant’s testimony on this point to be not credible and
found that the agreement made no provision as to the length of the Defendant’s sentences.
        The Defendant went to trial on the first of the charges and was convicted of that robbery; he
was subsequently sentenced to eight years and one day. The Defendant later went to trial on another
of the robbery charges; mid-trial, he changed his plea and pled guilty to all four remaining robbery
charges. The trial court subsequently sentenced the Defendant as a Range II, multiple offender to the
minimum of six years1 on each of the four additional robbery convictions.2 The trial court further
found the Defendant to be a dangerous offender and ordered the four sentences to run consecutively
to each other and to the prior sentence of eight years and a day, for an effective sentence of thirty-two
years and a day. The Defendant now appeals.

         In his pro se pleadings, the Defendant raises numerous issues, several of which do not relate
to his sentence. Specifically, the Defendant complains that the original charge of aggravated robbery
does not support his guilty plea to the lesser charge of robbery; that the trial court lacked jurisdiction
over the robbery committed at a United States Post Office; and that the trial court erred with respect
to its findings on the Defendant’s motion to enforce his alleged plea agreement. All of these claims
are without merit. Robbery is a lesser included offense of aggravated robbery. See generally State
v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). The State of Tennessee generally has jurisdiction over
crimes committed on federal property such as a United States Post Office located within the State of
Tennessee. See Tenn. Code Ann. § 4-1-107. The trial court’s findings of fact on the Defendant’s
motion to enforce a verbal plea agreement are supported by the record, and we find no error with
respect thereto. Furthermore, the Defendant’s contentions regarding the trial court’s findings on his
motion were waived upon his plea of guilty to the charges encompassed by the alleged agreement.
The Defendant is therefore entitled to no relief on these issues.

        The Defendant also contends that he was “fraudulently induced” to plead guilty by the trial
court’s findings on his alleged plea agreement and the trial court’s subsequent admission into
evidence of the statements the Defendant made in conjunction with his plea agreement. However,
prior to entering his guilty pleas, the Defendant knew that the trial court had specifically found that
there was no agreement as to the length of his sentences. Thus, there was no “fraud” practiced upon
the Defendant. Moreover, the Defendant waived his right to complain about the trial court’s
admission of evidence when he pleaded guilty to the charges for which he was being tried. This issue
is without merit.

        The Defendant also raises several issues with respect to his sentences. He contends that the
prior convictions on which his Range II status is based are “facially void”; that the trial court erred


         1
          Robbery is a Class C felo ny. See Tenn. Code Ann. § 39-13-401(b). The minimum sentence for a Range II,
multiple offend er for a Class C felony is six years. See id. § 40-35-112(b)(3).

         2
          The trial court found as enhancement factors that the Defendant has a previous history of criminal convictions
or behavior in addition to th ose necess ary to establis h his sentencing range and that he has a previous history of
unwillingness to c omply with the conditio ns of a sentenc e involving re lease in the co mmunity. See Tenn. Code Ann.
§ 40-35-1 14(1), (8 ). In mitigation, the tria l court found that the Defendant had accepted responsibility for his crimes
and pled guilty. See id. § 40-35-113(13). The trial court gave little emphasis, however, to any of these factors in its
sentencing decision.

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by failing to use certified copies of his prior convictions in determining him to be a Range II offender;
and that the trial court erred by ordering his sentences to be served consecutively. With respect to the
Defendant’s contentions regarding his Range II status, these issues have been waived because the
Defendant is raising these complaints about his prior convictions for the first time in this appeal.3
Issues raised for the first time on appeal are generally waived. See State v. Alvarado, 961 S.W.2d
136, 153 (Tenn. Crim. App. 1996). A party who participates in or invites error is not entitled to relief.
Tenn. R. App. P. 36(a). Accordingly, we decline to address these contentions. We will, however,
address the Defendant’s contentions regarding his consecutive sentencing.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence 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).

        When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App.
1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the factors
and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       A trial court may order sentences for multiple convictions to run consecutively if it finds by
a preponderance of the evidence that, inter alia,
               (1) [t]he defendant is a professional criminal who has knowingly
               devoted [himself] to criminal acts as a major source of livelihood;
               (2) [t]he defendant is an offender whose record of criminal activity is
               extensive; [or]
               ...


         3
          W e also note that during the hearing on the Defendant’s motion to enforce a verbal plea agreement, the
Defenda nt’s attorney described the Defendant’s Range II status as a fact about which there was no dispute. Indeed, the
Defenda nt himself testified that h is plea agree ment was “five c ounts simple robbery, ra nge two.”

                                                          -3-
                   (4) [t]he 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[.]

Tenn. Code Ann. § 40-35-115(b). In order to impose consecutive sentences on the basis that the
defendant is a dangerous offender, the trial court must make two additional findings: that an extended
sentence is necessary to protect the public against further criminal conduct by the defendant, and that
the consecutive sentences reasonably relate to the severity of the offenses committed. See State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        In this case, the trial court first found that “the offenses, themselves, did not involve any injury
to anyone and did not, apparently, actually involve a weapon.” Rather, the court found, the robberies
involved “threats of violence of one form or another conveyed during the course of the robberies.”
The court then found the Defendant to be a dangerous offender based on “his record and the number
of cases, the types of cases, the types of messages conveyed, [and] the fear stated by the victims.”4
The trial court did not make the additional findings required under Wilkerson.

        We find ourselves constrained to disagree with the trial court that the Defendant qualifies
under our sentencing law as a “dangerous offender.” The four robberies to which the Defendant pled
guilty involved neither injuries nor weapons. While the Defendant apparently threatened the victims
with violence, he did not cause any injuries and was not armed. The evidence does not, therefore,
support a finding that the Defendant behaved in a manner which indicates little or no regard for
human life; nor does it support a finding that he had no hesitation about committing these crimes in
such a way that the risk to human life was high. Accordingly, we must find that the trial court erred
in ordering that the Defendant serve his sentences consecutively on the basis that he is a “dangerous
offender.”

       Given the Defendant’s prior criminal record, however, he may qualify for consecutive
sentencing as a professional criminal or as an offender whose record of criminal activity is extensive.


         4
           The trial court also stated in support of its decision to impose consecutive sentencing that, “If somebody
commits one robbery -- one bank robbery that hadn’t been caught yet, if he’s to commit four more and get concurrent
time for everything, then there’s no deterrent, whatsoever, for not going out and committing as many as he can before
he finally gets caught. If he’s going to get concurrent time for it all ultimately, anyway, then there is absolutely no
incentive for him to curb his conduct and comply with the law. He might as well commit as many as he can get away
with until he finally gets caught because they’re all going to be served concurrently, anyway, so they’re all free after that
first one would be the logic of it. And so I think you virtually have to be sentenced to consecutive sentencing in order
for there to be any sense at all to our sentencing scheme -- sentencing structure -- in a situation of this sort.” While we
are sympathetic to the trial court’s reasoning, our Legislature did not provide for consecutive sentencing on this basis.




                                                             -4-
Accordingly, we remand this matter to the trial court for further findings as to the Defendant’s
eligibility for consecutive sentencing. If, on remand, the trial court finds an alternative ground for
consecutive sentences which is supported by a preponderance of the evidence, then consecutive
sentences may still be appropriate, so long as the actual length of the sentence is “justly deserved in
relation to the seriousness of the offense[s]” and is “no greater than that deserved for the offense[s]
committed.” Tenn. Code Ann. §§ 40-35-102(1), -103(2); see also State v. Lane, 3 S.W.3d 456, 460
(Tenn. 1999).

        For the reasons set forth herein, we vacate that portion of the trial court’s judgment ordering
the Defendant’s sentences to be served consecutively, and we remand this matter for resentencing
solely on the issue of consecutive sentencing.



                                               ___________________________________
                                               DAVID H. WELLES, JUDGE




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