         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    August 15, 2000 Session

              STATE OF TENNESSEE v. SHANNON HAGEWOOD

                  Direct Appeal from the Circuit Court for Dickson County
                  No. CR-4705A & CR-4705B        Allen W. Wallace, Judge



                   No. M2000-00972-CCA-R3-CD - Filed February 16, 2001


On November 16, 1999, Shannon Hagewood, the defendant and appellant, pled guilty to three counts
of aggravated burglary in a Dickson County Criminal Court. Following a sentencing hearing, the
trial court sentenced the defendant as a multiple, Range II offender to six years for the first count,
six years for the second count, and eight years for the third count. The court also ordered the
defendant to serve the eight-year sentence consecutively to the two six-year sentences, which were
to be served concurrently to each other. On appeal, the defendant claims (1) that he did not receive
notice, as required by statute, that he would be sentenced as a multiple offender, (2) that the trial
court’s imposition of an eight-year sentence was erroneous; and (3) that the trial court’s imposition
of consecutive sentences was erroneous. After a thorough review of the record, we find that,
although the trial court did not place its findings in the record, this court’s de novo review supports
the sentence imposed. Accordingly, we affirm the judgment of the trial court.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JERRY SMITH, J., delivered the opinion of the court, in which JOE G. RILEY, J., and L. TERRY
LAFFERTY, Sr. J., joined.

John B. Nisbet, III, Cookeville, Tennessee, William B. Lockert, III, Ashland City, Tennessee, and
Chris Young, Assistant Public Defender, for the Appellant, Shannon Hagewood.

Paul G. Summers, Attorney General and Reporter, David H. Finley, Assistant Attorney General, Dan
Alsobrooks, District Attorney General and Suzanne Lockert, Assistant District Attorney, for the
Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       The defendant and a codefendant pled guilty to three counts of aggravated burglary arising
from the burglary of three homes. The defendant assisted authorities in trying to locate the property,
and he even wore a wire and visited the person to whom he had sold the goods. However, most of
the property was never recovered. At a sentencing hearing, the proof showed that one victim lost
approximately $1350.00, and another lost approximately $7480.00. The record does not reflect how
much property the third victim lost. The presentence report indicated that the defendant had
previously been convicted of auto burglary, aggravated burglary, and several lesser crimes. The
defendant testified that the burglaries in the instant case were a result of his cocaine habit. He
admitted that, by committing the burglaries in this case, he had violated probation for a previous
burglary charge. The defendant’s wife testified that the defendant did not have a drug habit when
they got married, and that the defendant had only worked sporadically since 1997. Finally, the
defendant’s grandmother testified about the defendant’s family life, including the defendant’s four
children.
         The state moved the court to consider the following aggravating factors in imposing sentence:
(1) that the defendant had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); (2) that the
offense involved more than one victim, Id. § 40-35-114(3); (3) that the personal injuries inflicted
upon or the amount of damage to property sustained by or taken from the victim was particularly
great; Id. § 40-35-114(6); (4) that the defendant had a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community; Id. § 40-35-114(8); and (5)
that the felony was committed while on probation. Id. § 40-35-114(13)(C). The defendant
conceded that the last two enhancement factors applied. However, the defendant also requested that
the court consider the following mitigating factors: (1) that the defendant’s criminal conduct neither
caused nor threatened serious bodily injury, Id. § 40-35-113(1); (2) that the defendant assisted the
authorities in uncovering offenses committed by other persons or in detecting or apprehending other
persons who had committed the offenses, Id. § 40-35-113(9); and (3) that the defendant assisted the
authorities in locating or recovering any property or person involved in the crime. Id. § 40-35-
113(10).
         Following the hearing, the court held as follows:
                 I have considered all the enhancement factors that have been filed and the
         mitigating factors that have been filed. I have considered the sentencing ranges under
         40-35-112. I have considered the mitigating factors under 40-35-113. I have
         considered all the enhancement factors under 40-35-114.
                 What appears to me in this case is both of these men – let me talk about them
         one at a time. Mr. Hagewood, a twenty-four year old, has had quite a criminal
         background. He has had theft-type charges before, including burglary of an
         automobile and aggravated burglary. His criminal record starts back when he was
         twenty-two years old. It bumps him up into a Range II.
                 I feel in this case from watching both [the defendants] testify here today that
         Mr. Hagewood was more of a leader in this bunch than [his codefendant]. . . .
                 Society has got to be protected from people like this. These homeowners
         back here, they got to be protected. I get emotional talking about stealing from
         somebody that worked for it.




                                                 -2-
               So in Mr. Hagewood’s case, count I, I’m going to sentence him to six years
       in the Department of Corrections. That will be consecutive to [a previous sentence
       for unrelated charges].
               In count III, I’m going to sentence him to six years in the Department of
       Corrections. That will be concurrent with count I.
               Count V, I’m going to sentence him to eight years in the department of
       corrections because a whole lot more property was involved and I’m going to run that
       consecutive.
               I’ve run a six-year sentence concurrent because he did help them out in
       finding some of it.
       ...
       That gives him fourteen years consecutive to [his previous sentence for unrelated
       charges].



                                       Range of Punishment

       First, the defendant complains that the state failed to give adequate notice that it intended to
seek enhanced punishment by sentencing him as a Range II, multiple offender. Tennessee Code
Annotated section 40-35-202(a) provides, in relevant part,

       If the district attorney general believes that a defendant should be sentenced as a
       multiple, persistent or career offender, the district attorney general shall file a
       statement thereof with the court and defense counsel not less than ten (10) days
       before trial or acceptance of a guilty plea; provided, that notice may be waived by
       the defendant in writing with the consent of the district attorney general and the court
       accepting the plea.

Tenn. Code Ann. § 40-35-202(a). In this case, the record contains a “Notice to Seek Enhanced
Punishment” and an “Amended Notice to Seek Enhanced Punishment.” Although both of these refer
to section 40-35-202, neither contains any statement notifying the defendant that he may be subject
to sentencing as a multiple offender. The only evidence in the record that establishes that the
defendant is a Range II offender is found in the following colloquy at the sentencing hearing:

       MR. YOUNG (Hagewood’s attorney): . . . You do have some discretion there in
       running the sentences over here concurrently and I’d ask you to do that. The range
       of punishment starting at six years and working your way up. The way I read the
       statute is you consider enhancement factors and give them their relative weight as
       you see fit and you go up the scale within the--

       THE COURT: Is [the defendant] a Range II?



                                                 -3-
       MR. YOUNG: Yes, sir.

         Although section 40-35-202 does not provide a remedy for a violation of the rule, we have
previously recognized that “[t]he only remedy available to an accused is a reasonable continuance.”
 State v. Gilmore, 823 S.W.2d 566, 571 (Tenn. Crim. App. 1991); see also Tenn. R. Crim. P. 12.3(a).
Indeed, the Tennessee Supreme Court has held that “[i]n the absence of a motion for continuance,
in our opinion, any objection to the delayed notice by the State ordinarily should be deemed to have
been waived.” State v. Stephenson, 752 S.W.2d 80, 81 (Tenn. 1988). In this case, not only did the
defendant fail to move for a continuance, he actually suggested the appropriate range to the court.
We are not inclined to grant relief “to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App.
36(a).
          Furthermore, the defendant has not shown how the state’s failure to provide notice
prejudiced him. Indeed, the record indicates that the defendant should have been sentenced as a
Range II offender. Tennessee Code Annotated section 40-35-106 provides that a defendant may be
considered a multiple offender if he has previously received at least two prior convictions within the
same, a higher or the next two lower felony classes. Tenn. Code Ann. § 40-35-106. In this case,
the defendant pled guilty to three counts of aggravated burglary, all Class C felonies, and the record
reflects that, at the time of sentencing, he had been convicted of aggravated burglary, a Class C
felony and auto burglary, a Class D felony. “The fact that the appellant was sentenced within the
proper range, based upon his prior convictions, does not establish prejudice.” Gilmore, 823 S.W.2d
at 571.
         This issue is without merit

                                        Length of Sentence
        Next, the appellant challenges the length of his sentence. When an appellant challenges the
length, range, or manner of service of a sentence, this Court conducts a de novo review with a
presumption that the determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).
However, this presumption of correctness is "conditioned upon the affirmative showing that the trial
court in the record considered the sentencing principles and all relevant facts and circumstances."
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to demonstrate
such consideration, review of the sentence is purely de novo. Id. In this case, the trial judge did not
clearly state which, if any, enhancement and/or mitigating factors applied before imposing the
sentence. The trial court also failed to base its imposition of consecutive sentences on adequate
grounds. Given the state of this record, we are compelled to find that the trial court's sentencing
decision is not entitled to the presumption that it is correct. See Tenn. Code Ann. § 40-35-210(f).
Our review will therefore be de novo upon the record. State v. Grissom, 956 S.W.2d 514, 518
(Tenn. Crim. App.1997).
        In conducting our review, this court must consider the evidence, the presentence report, the
sentencing principles, the arguments of counsel, the nature and character of the offense, mitigating
and enhancement factors, any statements made by the defendant, and the potential for rehabilitation
or treatment. Tenn. Code Ann. § 40-35-210(b); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim.


                                                 -4-
App. 1993). The defendant bears the burden of showing the impropriety of the sentence imposed.
State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).
        Although the defendant does not challenge the imposition of the two six-year sentences, he
challenges the eight-year sentence as being excessive. The sentencing range for a multiple, Range
II offender convicted of a Class C felony is between six and ten years. Tenn. Code Ann. § 40-35-
112(b)(3). Under the 1989 Sentencing Act, the presumptive sentence for a Class C felony is the
minimum within the applicable range if no mitigating or enhancement factors for sentencing are
present. Tenn. Code Ann. § 40-35-210(c). However, if such factors do exist, the court should start
at the minimum sentence, enhance the minimum sentence within the range for enhancement factors
and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. §
40-35-210(e). No particular weight for each factor is prescribed by the statute. State v. Santiago,
914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments.
        In our de novo review, we find that several enhancement factors apply. First, we find that
the defendant had a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range. Tenn. Code Ann. § 40-35-114(1); as the trial court
noted, the presentence report establishes numerous prior convictions of the defendant. Furthermore,
we agree with the trial court that the amount of property taken from the victim was particularly great.
Id. § 40-35-114(6); the evidence at the sentencing hearing established that the defendant stole
property worth over seven-thousand dollars from the victim, and that property was not recovered.
See State v. Tommy Franklyn Spain, Jr., No. 01-C-01-9601-CC00003, 1997 WL 34434 at *4 (Tenn.
Crim. App. at Nashville, Jan. 30, 1997). We also find that the defendant had a previous history of
unwillingness to comply with the conditions of a sentence involving release in the community.
Tenn. Code Ann. § 40-35-114(8); the defendant admitted at the sentencing hearing that he had been
unable to comply with the conditions of probation several times in the past. Finally, it is undisputed
that the defendant committed the instant offenses while he was on probation. Id. § 40-35-
114(13)(C). Applying these four enhancement factors to the defendant’s sentence, we think that the
maximum sentence within the range would be appropriate.
        Next, however, we must reduce the sentence based on any applicable mitigating factors.
Prior to the sentencing hearing, the defendant submitted three statutory mitigating factors for the
court’s consideration: that the defendant’s criminal conduct neither caused nor threatened serious
bodily injury, Tenn. Code Ann. § 40-35-113(1); that the defendant assisted the authorities in
uncovering offenses committed by other persons or in detecting or apprehending other persons who
had committed the offenses, Id. § 40-35-113(9); and that the defendant assisted the authorities in
locating or recovering any property or person involved in the crime. Id. § 40-35-113(10). We agree
with the defendant that the above mitigators apply. There is no assertion that any of the victims was
ever threatened with or suffered bodily injury. Furthermore, the testimony at the sentencing hearing
established that the defendant assisted the authorities in recovering the goods and in apprehending
the person to whom the stolen goods were sold. Having reduced the defendant’s sentence based on
the above mitigating factors, we find that the trial court’s sentence of eight years was appropriate.
        This issue is without merit.

                                      Consecutive Sentences


                                                 -5-
        Finally, the defendant challenges the trial court’s imposition of consecutive sentences. The
trial court ordered the eight-year sentence to be served consecutively to the two six-year sentences,
which were to be served concurrently to each other. Tennessee Code Annotated section 40-35-115
provides that “[t]he court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that: . . . (6) [t]he defendant is sentenced for an offense committed
while on probation. Tenn. Code Ann. § 40-35-115(b)(6). Although the court did not state its
reasons for imposing consecutive sentences, it is undisputed that the defendant committed the instant
offenses while on probation. Accordingly, we find the imposition of consecutive sentences
appropriate.1 This issue is without merit.
        The judgment of the trial court is AFFIRMED.


                                                                  ___________________________________
                                                                  JERRY SMITH, JUDGE




         1
           The defendant also argues that the court erred in failing to consider whether the se ntence (1) w as reasona bly
related to the severity of the acts; or (2) served to protect the public from further harm. State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995). The necessity of those findings, however, is limited to cases involving consecutive sentencing
of "dangerous offenders." State v. Lane, 3 S.W .3d 456 , 461 (T enn. 199 9).

                                                           -6-
