                                                                                       05/20/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                        Assigned on Briefs February 26, 2019

       STATE OF TENNESSEE v. ANTHONY HUMBERTO CUEVAS

               Appeal from the Criminal Court for Hamilton County
                     No. 295059 Barry A. Steelman, Judge


                            No. E2018-01002-CCA-R3-CD


The defendant, Anthony Humberto Cuevas, appeals the Hamilton County Criminal
Court’s decision imposing consecutive sentences for his guilty-pleaded convictions of
aggravated burglary and theft of property valued at $60,000 or more but less than
$250,000. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.

Blake F. Murchison, Chattanooga, Tennessee, for the appellant, Anthony Humberto
Cuevas.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Jason Demastus, and
Andrew Coyle, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

              The Hamilton County Grand Jury charged the defendant, Anthony
Humberto Cuevas, with aggravated burglary and theft of property valued at more than
$60,000 but less than $250,000. Pursuant to a plea agreement, the defendant pleaded
guilty as charged, and the State agreed for the defendant to be sentenced as a Range I
offender. Otherwise, the sentence was to be determined by the trial court.

              At the plea submission hearing, the State summarized the facts giving rise
to the charges:

             [O]n or about March the 30th of 2015, officers with the
              Lookout Mountain Police Department were called regarding a
              theft from the 1100 block of East Brown Road in Lookout
              Mountain, Hamilton County, Tennessee.

                     The theft itself involved an aggravated burglary of a
              residence at that location belonging to Mr. and Mrs. Lowry
              Kline. Ultimately, from that location, their . . . Audi SUV
              was taken. . . . [A]lso there were other items taken from the
              home, including $200 cash, the victim’s car keys, a wallet,
              some other items from just inside the home.

              ....

                     Sometime later, . . . officers from the Sumner County
              Sheriff’s Department were involved in a chase regarding that
              same Audi SUV. . . .

                     Ultimately, officers found the vehicle wrecked off in
              the woods . . . . They also found multiple items from the
              burglary, including the victims’ identification still inside the
              vehicle. . . .

                     [The defendant] fled the scene when the officers
              arrived, gave chase . . . multiple times. Ultimately, [the
              defendant] called in and reported that he had actually been
              involved and identified himself as being the one who had
              taken the [Audi].

                     There was also another witness on scene that was able
              to identify [the defendant] in a lineup as the driver of the
              [Audi] and being responsible for being in possession of it
              during the chase and eventual crashing [of] the vehicle.

              At the sentencing hearing, the State asked that the trial court impose fully-
incarcerative sentences but did not request consecutive alignment. A pre-sentence
investigation report was exhibited to the hearing.

              At the hearing, Mr. Lowry Kline, one of the victims, testified that on the
night of the offenses, he “had some extensive remodeling and construction going on” at
his house, and, as a result, “it was possible to gain entry to the house without going
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through the doors.” Also because of the construction, the Klines parked their vehicles on
the street rather than in the garage. Mr. Kline testified that he awoke to find his wife’s
Audi Q7 and purse missing. He was later notified that the stolen vehicle along with some
personal effects had been found in Sumner County, but it “was really damaged beyond
repair.” Mr. Kline testified that, following the burglary, he and his wife were concerned
about repeated burglaries because their home remained unsecured due to the ongoing
construction. On cross-examination, Mr. Kline testified that there was no forcible entry
into his home during the burglary and that he and his wife were at home at the time of the
offense.

               Tennessee Department of Correction courtroom liaison Christina Barnes
testified that the defendant had previously been granted determinate release on a prior
sentence, but he violated the terms of his release by failing to report to the probation
office. Based on that violation, Ms. Barnes filed a probation violation report on April 20,
2015. Later, Ms. Barnes filed an addendum to the report to include that the defendant
“had obtained new charges and convictions.” On cross-examination, Ms. Barnes testified
that the defendant admitted to the probation violations and had been ordered to execute
his sentences on those violations. On redirect examination, Ms. Barnes explained that the
defendant was not arrested on the probation violation warrant until September 2017. She
also stated that the defendant was ordered to serve his two-year sentences on the prior
convictions on January 8, 2018.

              The defendant testified that he had been “hearing voices since 2010.” The
defendant agreed that forensic evaluations had deemed him competent to stand trial and
that an insanity defense could not be supported. The defendant described a religious
experience in which he had been “appointed . . . as a prophet to the nations.” The
defendant testified that he “went up into [Mr. Kline’s] house and got the Audi” because
“God told [him] to go to that mountain.” He stated that he “knew there would be
consequences to pay” and that it “was a bad mistake, but in [his] heart of hearts, [he]
wasn’t stealing a vehicle” because “God gave [him] the authority” to take it. The
defendant apologized for the emotional distress caused to the victims but reiterated that
he “didn’t do nothing wrong.” When asked his wishes in regard to sentencing, the
defendant responded, “I just want to take care of my family, my mom, my grandma and
my girl and start a family, and find me a Bible-preaching church, talk to the pastor, get
involved in something, and I want to pursue my calling.”

              On cross-examination, the defendant testified that he had undergone
approximately six forensic evaluations, only one of which deemed him to have a mental
disability. The defendant stated that he had never asserted a mental illness “to try to get
out of a crime” but acknowledged that at one point he was diagnosed with depression.
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The defendant testified that he had been a member of a gang in California and that, “at
one time,” he wanted to take over the gang. The defendant testified that, on the night of
the offenses in this case, he was “dropped off at the foot of the mountain,” and he walked
to the Klines’ property, where he entered through the unlocked back door. He stated that
God told him which property to go to and which door would be unlocked. He admitted
taking Mrs. Kline’s purse and the Audi and returning to his home in East Ridge. He later
drove the Audi to Nashville, where he saw a police car driving behind him and “took him
on a chase” and “ended up in Sumner County.” The defendant said he had two guns with
him, and, after getting the Audi stuck in the mud, he shot it numerous times trying to hit
the gas tank “to blow it up.” Once he got the Audi out of the mud he “headed toward the
cliff . . . to flip it,” but it “hit a tree.” Police officers arrived “a few minutes later,” and
the defendant fled.

              During redirect examination, the defendant testified that he was no longer a
gang member and that he had never claimed that he had a mental illness. Upon
questioning by the court, the defendant explained that he pleaded guilty to charges in a
Sumner County case and was sentenced to eight years of unsupervised probation. He
stated that God “was upset about what [he] did to the Audi” because he “was supposed to
return it.”

              The State requested a fully-incarcerative sentence “at the top of the range”
based on several enhancing factors, including the defendant’s lengthy criminal history,
his prior probation violations, and his committing the present offenses while on
probation. The defendant sought a sentence “at the bottom of the sentencing range” and
asked the court to “consider alternative sentencing or split confinement, arguing that the
offenses did not “cause[] nor threaten[] serious bodily injury” and that the defendant
“absolutely believed . . . that his conduct was justified.”

               In rendering its decision, the trial court gave great weight to the fact that the
defendant had a history of violating the terms of his release into the community, that he
was on probation at the time he committed the present offenses, and that he had an
extensive criminal record. The court imposed a 12-year sentence for the theft conviction
and a six-year sentence for the aggravated burglary conviction and ordered the sentences
to be served consecutively pursuant to Code section 40-30-115(b)(2). Additionally, the
trial court ordered, pursuant to Tennessee Rule of Criminal Procedure 32(c)(2)(A)(i), that
the present sentences be served consecutively to the sentence the defendant was serving
in Sumner County because the conduct giving rise to that conviction “was part of the
same criminal behavior” involving “the theft of multiple other vehicles.”

              In this untimely appeal, the defendant challenges the imposition of
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consecutive sentences, arguing that the trial court “made no findings that [the defendant’s
criminal history] makes consecutive sentencing necessary to protect the general public, or
that the aggregate sentence is reasonably related to the severity of the crime.” The State
contends that the trial court did not err.

              We first address the untimeliness of this appeal. The judgment forms in the
record indicate a date of entry of April 30, 2018, but they do not have a file-stamp date
indicating when they were filed with the court clerk. See State v. Stephens, 264 S.W.3d
719, 729 (Tenn. Crim. App. 2007) (“[T]he effective date for entry of a judgment or order
of sentence is the date of its filing with the court clerk after being signed by the judge.”)
abrogated on other grounds as stated in State v. Randall T. Beaty, No. M2014-00130-
CCA-R3-CD, slip op. at 32 (Tenn. Crim. App., Nashville, July 8, 2016).

               A notice of appeal must be filed “within 30 days after the date of entry of
the judgment appealed from.” Tenn. R. App. P. 4(a). This court may, however, waive
the timely filing requirement “in the interest of justice.” Id. We note that the defendant
has not requested that this court waive his untimely filing; instead, he asserts that he filed
his notice of appeal on May 30, 2017,1 rather than on June 1, 2018, as indicated by the
file-stamp date. Both the defendant and the State specify April 30, 2018, as the date of
sentencing. The State acknowledges that the defendant’s notice of appeal was filed on
June 1, 2018, yet states that it was timely filed. Because the State does not argue that the
defendant’s notice of appeal was untimely and because we cannot know the date the
judgments were filed with the court clerk, we will waive the untimely filing in the interest
of justice and review this appeal on the merits. See Tenn. R. App. P. 4(a).

              Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise, 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a]
sentence should be upheld so long as it is within the appropriate range and the record
1
        Although his brief states the year as 2017, we presume that the defendant intended to indicate
2018.

                                                   -5-
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10.

              With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court’s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).”
State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). In State v. Wilkerson, 905 S.W.2d
933 (Tenn. 1995), the supreme court imposed two additional requirements for
consecutive sentencing when the “dangerous offender” category is used: the court must
find that consecutive sentences are reasonably related to the severity of the offenses
committed and are necessary to protect the public from further criminal conduct. Id. at
937-39; see State v. Imfeld, 70 S.W.3d 698, 707-08 (Tenn. 2002).

               Here, the trial court found that the defendant had a lengthy criminal history
as evidenced by the presentence investigation report and the defendant’s own statements.
The court also found that “a[n] aggravated burglary . . . is particularly violative of
individuals’ peace of mind and privacy and property,” concluding that “the nature and
characteristics of that criminal conduct are very concerning and should be addressed
seriously.” The court further found that the defendant previously “fail[ed] to comply
with his release into the community” and that he committed the present offenses while on
probation. The court found no mitigating factors, rejecting the defendant’s argument that
his offenses did not pose a threat of serious bodily injury or that the defendant believed
he was acting under “some type of direction from the divine.” Specifically, the court
noted that the defendant admitted possessing a firearm illegally and evading law
enforcement in the stolen vehicle and that aggravated burglary “is a crime that always
creates the possibility of bodily injury.” The court gave “no credence” to the defendant’s
testimony that God directed him to commit the crimes, finding that his testimony was “a
feigned attempt to convince the court,” “an example of very poor acting,” and “a bunch
of bunk.” The court went on to find that the defendant’s behavior at the sentencing
hearing and his extensive criminal record “indicate[d] that his potential for rehabilitation
[wa]s very[,] very poor.”

               The record supports the trial court’s findings. The defendant’s presentence
investigation report shows a lengthy criminal history of at least 30 convictions spanning
most of the defendant’s adult life. The only times that the defendant had a gap of more
than a few months before accruing new convictions was during periods of incarceration.
Moreover, at the sentencing hearing, the defendant testified to engaging in other conduct
that constituted criminal behavior.
                                            -6-
              Here, the trial court based its decision to order consecutive sentencing on
the defendant’s extensive history of criminal activity. Code section 40-35-11(b)(2)
permits a trial court to impose consecutive sentences if it “finds by a preponderance of
the evidence that . . . [t]he defendant is an offender whose record of criminal activity is
extensive.” T.C.A. § 40-35-115(b)(2). The trial court’s finding of an extensive criminal
history, which is amply supported by the record, is “a sufficient basis for the imposition
of consecutive sentences.” Pollard, 432 S.W.3d at 862. Because the trial court did not
base its decision to impose consecutive sentences on the defendant’s being a dangerous
offender, the court did not err by failing to apply the Wilkerson factors. See Wilkerson,
905 S.W.2d at 937-39; see also State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App.
1997) (“Extensive criminal history alone will support consecutive sentencing.” (citation
omitted)).

             Accordingly, we find no error in the trial court’s decision to impose
consecutive sentencing, and we affirm the judgment of the trial court.

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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