           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                         January 9, 2013 Session


                  STATE OF TENNESSEE v. MARTIN BOYCE

                    Appeal from the Criminal Court for Shelby County
                      No. 09-05387 Carolyn Wade Blackett, Judge



                   No. W2012-00887-CCA-R3-CD - Filed August 6, 2013


D. K ELLY T HOMAS, J R., J., concurring in part and dissenting in part.

      I respectfully disagree with the majority’s decision affirming the trial court’s
imposition of consecutive sentences. With respect to the Defendant’s remaining issues, I
concur with the majority’s decision.

        The standard of review on the issue of consecutive sentencing is unclear under our
state’s current jurisprudence. Our supreme court recently clarified that appellate courts
review “sentences imposed by the trial court within the appropriate statutory range . . . under
an abuse of discretion standard with a presumption of reasonableness.” State v. Bise, 380
S.W.3d 682, 709 (Tenn. 2012). This standard also “applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). But our supreme court has not issued a definitive ruling
on the standard of review to be applied regarding consecutive sentencing. In response, some
panels of this court are applying an abuse of discretion standard, while others are continuing
to apply a de novo standard of review until instructed otherwise by our supreme court. See
generally State v. Eric Demond McCathern, No. M2011-01612-CCA-R3-CD, 2012 WL
5949096, at *4-5 (Tenn. Crim. App. Nov. 16, 2012) (majority applying abuse of discretion
standard of review and concurring opinion advocating de novo standard of review), perm.
app. denied, (Tenn. Feb. 25, 2013).

        However, regardless of which standard of review is applied, a trial court may only
impose consecutive sentences after it has found by a preponderance of the evidence that one
of the statutory factors listed in Tennessee Code Annotated section 40-35-115(b) applies to
the case. The record of the sentencing hearing is to include “specific findings of fact upon
which application of the sentencing principles was based.” Tenn. Code Ann. § 40-35-209(c);
see also Tenn. R. Crim. P. 32(c)(1) (stating that the order imposing consecutive sentences
“shall specify the reasons for [the] decision”). Here, the trial court imposed consecutive
sentences without stating which of the section 40-35-115(b) factors justified such a sentence
or making any findings of fact. Furthermore, on the trial court’s form sentencing order for
each conviction, the section addressing consecutive sentencing was left blank. Because “the
trial court is in a superior position to impose an appropriate sentence and articulate the
reasons for doing so,” in situations like this one where no reasons were given in the record
to justify the trial court’s sentencing decision, “the more appropriate course of action . . . may
be to remand to the trial court.” Bise, 380 S.W.3d at 705 n.41. As such, I would remand the
case back to the trial court for a new sentencing hearing solely to address whether
consecutive sentences are warranted.




                                                    D. KELLY THOMAS, JR., JUDGE
