          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                      OCTOBER SESSION, 1996




STATE OF TENNESSEE,        )
                           )    No. 02C01-9510-CC-00303
      Appellee             )
                           )    MADISON COUNTY
vs.                        )
                           )    Hon. FRANKLIN MURCHISON, Judge
VINCENT GERRARD            )
OVERTON,                   )
                           )    (Aggravated Burglary, Theft of
      Appellant            )    Property; Vandalism, Possession of
                                Drug Paraphernalia



For the Appellant:              For the Appellee:

JOHN E. HERBISON                CHARLES W. BURSON
2016 Eighth Avenue South        Attorney General and Reporter
Nashville, TN 37204
                                CYRIL V. FRASER
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                JAMES G. (JERRY) WOODALL
                                District Attorney General

                                DON ALLEN
                                Asst. District Attorney General
                                P. O. Box 2825
                                Jackson, TN 38302




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                  OPINION

         On May 1, 1995, the appellant, Vincent Gerrard Overton, pled guilty in the

Circuit Court of Madison County to one count of aggravated burglary, a class C

felony, one count of theft of property, a class E felony, one count of vandalism, a

count A misdemeanor, and one count of possession of drug paraphernalia, a

class A misdemeanor. The trial court sentenced the appellant as a standard,

range I offender to six years incarceration for the aggravated burglary conviction,

two years incarceration for the theft conviction, and eleven months and twenty-

nine days incarceration for each misdemeanor conviction. The trial court

ordered concurrent service of the appellant’s sentences, imposing an effective

sentence of six years. The appellant contends that his sentence is excessive.



                                       1. Factual Background

         On June 13, 1995, the trial court conducted a sentencing hearing. At the

hearing, the State presented the testimony of Vernon Stubblefield, the

appellant’s probation officer. Stubblefield testified that the appellant had been

placed on probation pursuant to a prior conviction for aggravated burglary. 1 The

appellant’s probationary status was revoked, and he was sent to the Tennessee

Department of Correction “boot camp” program. Following his release from boot

camp, the appellant was placed on intensive probation. The appellant was on

intensive probation at the time of the instant offenses. Moreover, Stubblefield

stated that, while on intensive probation, the appellant had tested positive for

cocaine and, on numerous occasions, had violated his curfew. Finally,

Stubblefield testified that, although he had referred the appellant to a drug

rehabilitation program, the appellant failed to attend the program.2




         1
        The pre-sentence report reflects that the appellant was convicted of burglary in 1993 and
placed on intensive probation for five years.

         2
         The pre-s ente nce repo rt sim ilarly ind icate s tha t the a ppe llant h as no t coo pera ted w ith his
probation officers’ efforts to enroll him in a rehabilitation program.

                                                        2
       The appellant submitted a written statement to the trial court on his own

behalf. In his statement, the appellant described his efforts to abstain from drug

abuse and the obstacles that he had encountered. The appellant also testified

at the sentencing hearing. He testified that he was thirty years old. He

graduated from high school and, subsequently, served in the Marine Corps for

six years until he was honorably discharged. Since his discharge from the

military, the appellant has been employed primarily as a laborer. He testified that

he began abusing drugs in 1991 or 1992. However, he denied stealing in order

to support his addiction. Rather, he explained that he stole “out of hostility and

resentment.” He asserted that he failed to attend the rehabilitation program to

which he had been referred by Mr. Stubblefield, because he was unable to afford

the treatment.3



       On cross-examination, the appellant admitted that he had been convicted

in the past of burglary, theft of property, and aggravated criminal trespass. He

admitted that, while on probation for the prior burglary conviction, he had on

numerous occasions tested positive for cocaine and marijuana.



       In sentencing the appellant to the maximum sentences available for his

offenses, the trial court noted the appellant’s prior history of criminal conduct or

criminal convictions. Tenn. Code Ann. § 40-35-114 (1993 supp.).4 The court

also noted that the appellant committed the instant offenses while on probation.



       3
           The a ppellant als o testified tha t the progr am c ounse lor “develo ped an attitude.”

       4
        The pre-s ente nce repo rt refle cts th e follo wing crim inal his tory:
       (1)     on January 8, 1990, the appellant was convicted in the Jackson
               City Court o f public intox ication and disorder ly conduc t;
       (2)     on June 18, 1991, the appellant was convicted in the Jackson
               City Court of breach of peace;
       (3)     on October 18, 1991, the appellant was convicted in the Jackson
               City Court of public intoxication;
       (4)     on December 14, 1993, the appellant was convicted in the
               Madison County Circuit Court of one count of burglary and one
               count of theft occurring on September 24, 1992, two counts of
               aggravated criminal trespass occurring on December 29, 1992,
               and one count of theft occurring on December 20, 1992.

                                                      3
Tenn. Code Ann. § 40-35-114 (13)(C). The court entered no findings concerning

any applicable mitigating factors.



                                     2. Analysis

         Review, by this court, of the length of a sentence is de novo with a

presumption that the determination made by the trial court is correct. Tenn.

Code Ann. § 40-35-401(d) (1990). This presumption only applies, however, if

the record demonstrates that the trial court properly considered sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). If the trial court applies inappropriate factors or

otherwise fails to comply with the 1989 Sentencing Act, the presumption of

correctness falls. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.

1992).



         In any event, the appellant bears the burden of establishing that the

sentences imposed by the trial court are erroneous. State v. Lee, No. 03C01-

9308-CR-00275 (Tenn. Crim. App. at Knoxville, April 4, 1995). In determining

whether the appellant has met this burden, this court must consider the factors

listed in Tenn. Code Ann. § 40-35-210(b)(1990) and the sentencing principles

described in Tenn. Code Ann. § 40-35-102 (1990) and § 40-35-103 (1990).



         Moreover, with respect to the length of a sentence, Tenn. Code Ann. § 40-

35-210 provides that the minimum sentence within the appropriate range is the

presumptive sentence. If there are enhancing and mitigating factors, the court

must start at the minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within the

range as appropriate for the mitigating factors. Id. If there are no mitigating

factors, the court may set the sentence above the minimum in that range, but still

within the range. Id. See also State v. Dies, 829 S.W.2d 706, 710 (Tenn. Crim.


                                           4
App. 1991). "[T]here is no particular value assigned by the 1989 Sentencing Act

to the various factors and the 'weight afforded mitigating or enhancement factors

derives from balancing relative degrees of culpability within the totality of the

circumstances of the case involved.'" State v. Marshall, 870 S.W.2d 532, 541

(Tenn. Crim. App. 1993)(citation omitted).



       With respect to the trial court’s failure to make any findings concerning

mitigating factors, the presence or absence of mitigating factors must be noted

on the record. Dies, 829 S.W.2d at 710; Tenn. Code Ann. § 40-35-210,

Comments. "Because of the importance of enhancing and mitigating factors

under the sentencing guidelines, even the absence of these factors must be

recorded if none are found ... These findings by the trial judge must be recorded

in order to allow an adequate review on appeal." State v. Chrisman, 885 S.W.2d

834, 839 (Tenn. Crim. App. 1994). Nevertheless, this court will apply the

presumption of correctness even in the absence of an explicit listing of the

rejected mitigating factors so long as the record and the findings are reasonably

clear as to their absence. State v. Parks, No. 02C01-9401-CC-00010 (Tenn.

Crim. App. at Jackson, April 5, 1995). As subsequently discussed, we conclude

that the record adequately supports the absence of any significant mitigating

factors.



       In any event, even assuming that the presumption of correctness is

inapplicable in the instant case, we conclude that the appellant’s sentences are

appropriate. With respect to the appellant’s military service, honorable military

service may always be considered as a mitigating factor consistent with the

purposes of the 1989 Sentencing Act. See State v. Yelloweyes, No. 01C01-

9407-CC-00256 (Tenn. Crim. App. at Nashville), perm. to appeal denied, (Tenn.

1995); Tenn. Code Ann. § 40-35-113(13). However, such service will be

considered in the context of other applicable factors, as will the mitigating factor


                                          5
that the appellant’s conduct neither caused nor threatened serious bodily injury. 5

Tenn. Code Ann. § 40-35-113(1). We disagree with the appellant’s assessment

of his potential for rehabilitation. The trial court correctly found that the

appellant’s criminal history is significant.6 The appellant has 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), as demonstrated by his persistent

use of drugs while on probation and his failure to comply with the curfew

imposed. Moreover, the appellant was on probation at the time of the instant

offenses. Tenn. Crim. App. 40-35-114(13)(C). Finally, the record does not fully

support the appellant’s claim that he accepts responsibility for his conduct. See

State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994)(a defendant’s

willingness to accept responsibility is germane to his potential for rehabilitation).



         Accordingly, we affirm the judgments of the trial court.




         5
           The appellant testified at the sentencing hearing that he and his co-defendan t were
under the influence of drugs and alcohol at the time of the instant burglary. We simply note that
the perpetrators’ intoxicated condition increased the danger of harm both to themselves and
others. Indeed, the owner of the burglarized residence returned home before the appellant and
his co-d efenda nt left the res idence.

         6
           The appellant challenges the trial court’s consideration of his Jackson City Court
convictions. He contends that if these convictions involved violations of municipal ordinances,
they cannot support a finding of “criminal convictions or criminal behavior.” The appellant cites
City of Chattanooga v. Myers, 787 S.W.2d 921, 922 (Tenn. 1990)(citation omitted), in which the
Sup rem e Co urt no ted th at, pro ced urally, c ase s invo lving th e viola tion o f city or dinan ces are c ivil in
nature. See also Clark v. M etropolitan G overnm ent of N ashville and Davids on Co unty, 827
S.W .2d 3 12, 3 15 (T enn . App . 199 1)(“[a ] pros ecu tion fo r an a ct viola ting a city ord inanc e is a c ivil
and no t a crimin al procee ding and is govern ed by rules in civil cases ”); City of Adamsville v. Cass,
No. 0 2A0 1-96 06-C V-00 141 (Te nn. A pp. D ece mb er 20 , 199 6)(“[a ] mu nicipa l ordin anc e viola tion is
civil in nature and not criminal”). However, the characterization of municipal ordinance violations
as civil for procedural purposes does not necessarily preclude a sentencing court’s consideration
of su ch vio lation s as evide nce of prio r crim inal conduct. For exa mple , in the instan t case, bo th
disorderly conduct, Tenn. Code Ann. § 39-17-305 (1991), and public intoxication, Tenn. Code
Ann. § 39-17-310 (1991), are punishable pursuant to state criminal statutes. In any event, the
remaining criminal convictions comprising the appellant’s criminal history, in conjunction with other
applicable enhancement factors, adequately support the appellant’s sentences. Moreover, the
appellant did not object to the trial court’s consideration of the city court convictions. This court
has held, “[E]vid enc e of a defe nda nt’s p rior c onvic tions cont ained in the p rese nten ce re port is
sufficient and properly used to enhance the range of punishment when the defendant does not
object to the use of such convictions, deny their existence, or attempt to rebut their existence.”
State v. Lord, No. 03C 01-931 2-CR -00391 (Tenn . Crim. A pp. at Kno xville), perm. to appeal denied,
(Tenn. 1995)(citing State v. Richardson, 875 S.W .2d 671, 677 (Tenn. Crim . App. 1993)).

                                                         6
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_______________________________________
JOHN H. PEAY, Judge



_______________________________________
PAUL G. SUMMERS, Judge




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