         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     July 24, 2002 Session

               STATE OF TENNESSEE v. JAMES ALLEN BAILEY

                    Direct Appeal from the Circuit Court for Cocke County
                         Nos. 8394-8399     Ben W. Hooper, II, Judge



                                  No. E2001-02443-CCA-R3-CD
                                        August 28, 2002

The defendant pled guilty to six counts of arson, Class C felonies, and one count of setting fire to
personal property, a Class E felony. The trial court ordered an effective sentence of fifteen years
incarceration followed by five years of probation. On appeal, the defendant argues: (1) the trial court
erred in conducting an independent investigation into pyromania; (2) the length of his individual
sentences is excessive; (3) the trial court erred in imposing consecutive sentencing; and (4) the trial
court improperly denied alternative sentencing. We modify the defendant’s sentences to an effective
term of ten years in the Department of Correction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part;
                         Reversed in Part; Sentences Modified

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH, J., joined. DAVID H.
WELLES, J., filed a dissenting opinion.

Edward C. Miller, District Public Defender (at hearing); and Susanne Bales, Assistant District Public
Defendant (on appeal), for the appellant, James Allen Bailey.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Ronald C. Newcomb, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

       The defendant admitted setting a series of fires near his home in Parrottsville, Tennessee.
He burned uninhabited mobile homes, a garage, and a truck, which property belonged to various
neighbors and family friends. The defendant testified at sentencing he set the fires because he was
“aggravated” with his elderly grandfather. He stated he knew the buildings were unoccupied. He
indicated he felt better “for a little while” after setting a fire, but would later regret his actions. He
said that after he set each fire, he would leave the scene and return after the fire department arrived.

        At sentencing, two victims testified the fires had made them fearful, and they did not wish
for the defendant to be released on probation. Doris Ball, the defendant’s aunt, testified the
defendant received SSI payments due to his mental limitations. Ball also stated the defendant
required repeated instructions to perform tasks.

       The trial court applied enhancement factors seven (offense involved a victim and was
committed to gratify the defendant’s desire for pleasure or excitement) and ten (the defendant had
no hesitation about committing a crime when the risk to human life was high). Tenn. Code Ann. §
40-35-114(7), (10). It also found mitigating factor eight (defendant was suffering from a mental or
physical condition that significantly reduced his culpability) could also apply. Tenn. Code Ann. §
40-35-113(8). In regard to alternative sentencing, the trial court stated the following:

        One of the factors to be considered in probation is whether or not he might
        reasonably be expected to be successfully rehabilitated, and as I stated this morning,
        I have done quite a bit of research on people that may be classified as pyromaniacs.
        ....

        There is virtually no cure, no treatment, and that is somewhat sad when you have just
        admitted that he probably suffers from a mental condition. Some mental conditions
        can be treated but apparently success has been very limited in this area.


        The trial court also found alternative sentencing to be inappropriate because of the need to
protect the public from the defendant’s possible future conduct and to avoid depreciating the
seriousness of the offenses. The trial court then sentenced the defendant to five years for each arson
conviction and one year for the conviction for setting fire to personal property.

       Although it is not entirely clear, it appears the trial court in determining consecutive
sentencing concluded that, despite the lack of psychiatric proof, the defendant was a “dangerous
mentally abnormal person.” See Tenn. Code Ann. § 40-35-115(b)(3). It also found the defendant
was a dangerous person who had little or no regard for human life; the public needed to be protected;
and the defendant’s record showed extensive criminal activity. See Tenn. Code Ann. § 40-35-
115(b)(2), (4). It ordered four of the five-year sentences to be served consecutively with the
remaining sentences to be served concurrently for an effective 20-year sentence. However, it ordered
the defendant to spend the first fifteen years in incarceration with the remaining five years on
probation.

       We conclude the trial court made three errors in sentencing the defendant: (1) it considered
its own independent research on pyromania; (2) it improperly applied an enhancement factor; and



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(3) it improperly applied two consecutive sentencing factors. We, therefore, review the sentences
de novo without a presumption of correctness.


                      I. TRIAL COURT’S INDEPENDENT RESEARCH

      The defendant first argues the trial court erred in conducting independent research of
pyromania. We must agree.

        A court must restrain itself to consider only those facts presented to it by the parties; it may
not make an independent investigation off the record and base its holding on the resulting
information. State v. Hart, 911 S.W.2d 371, 376 (Tenn. Crim. App. 1995); Jessie C. Minor v. State
of Tennessee, No. M2001-00545-CCA-R10-PC, 2001 Tenn. Crim. App. LEXIS 932, at *34-35
(Tenn. Crim. App. Dec. 5, 2001, at Nashville). In this case, the trial court stated it conducted
research on pyromania. Based on this research, the trial court essentially concluded the defendant
was a pyromaniac whose condition was untreatable. Further, it is apparent from the record that the
trial court relied heavily on its research in sentencing the defendant. We also note the trial court’s
statements regarding pyromania did not contain the kind of information subject to judicial notice.
See Tenn. R. Evid. 201(b).

        The state correctly argues this court’s review of the lower court’s sentencing decision is de
novo with a presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). However, for this
presumption to apply to the trial court’s actions, there must be an affirmative showing in the record
that the trial court considered proper sentencing principles and all relevant facts and circumstances.
State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the trial court does not comply with
statutory sentencing provisions, our review of the sentence is de novo with no presumption the trial
court’s determinations are correct. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

       Because of the trial court’s independent investigation and consideration of information
outside of the record, the trial court’s sentence is not entitled to a presumption of correctness.


                 II. THE LENGTH OF THE DEFENDANT’S SENTENCES

         The defendant also contends the length of his sentences for the offenses is excessive because
the trial court erred in applying enhancement factors seven and ten. See Tenn. Code Ann. § 40-35-
114(7), (10).

       As a Range I standard offender, the defendant faced three to six years for each arson
conviction and one to two years for the conviction for setting fire to personal property. See Tenn.
Code Ann. § 40-35-112(a)(3), (5). The trial court applied enhancement factors seven (offense
involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement)


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and ten (the defendant had no hesitation about committing a crime when the risk to human life was
high), and mitigating factor eight (defendant was suffering from a mental or physical condition that
significantly reduced his culpability). See Tenn. Code Ann. §§ 40-35-114(7), (10); -113(8). It
sentenced the defendant to five years for each arson conviction and the minimum one-year sentence
for setting fire to personal property.

        Based on our review of the record, we conclude enhancement factor seven applies. See Tenn.
Code Ann. § 40-35-114(7). At sentencing, the defendant’s testimony indicated he relieved his
frustrations by committing the offenses and would return to the scene to watch the fires. We
reasonably infer from the evidence that the defendant committed the offenses to gratify his desire
for pleasure or excitement and give this factor great weight.

        However, enhancement factor ten is inapplicable under the facts and circumstances of this
case. See Tenn. Code Ann. § 40-35-114(10). We must look to the specific facts and circumstances
in an arson case on a case-by-case basis in order to determine whether this factor applies. State v.
Lewis, 44 S.W.3d 501, 506 (Tenn. 2001). The proof showed the defendant targeted unoccupied
buildings. Further, there was no proof any of the firefighters who responded to the fires were
required to enter the burning structures or were otherwise placed in danger, other than that normally
associated in extinguishing a fire, as a result of the defendant’s actions. This case is distinguishable
from Lewis where firefighters actually entered and searched a “fully involved” flaming building.
Id. at 506-07. Therefore, we are unable to conclude the defendant had no hesitation about
committing a crime when the risk to human life was high. See Tenn. Code Ann. § 40-35-114(10).

        In summary, enhancement factor seven (offense committed for pleasure or excitement)
applies and is entitled to great weight. See Tenn. Code Ann. § 40-35-114(7). The trial court’s
application of mitigating factor eight (mental condition reducing culpability) is not challenged. See
Tenn. Code Ann. § 40-35-113(8). However, we give it very little weight. We conclude sentences
of five years for each arson and one year for setting fire to personal property are appropriate. We
recognize this is the same length of the sentences determined by the trial court; however, we reach
the same result in our de novo review without the presumption of correctness.1


                                   III. CONSECUTIVE SENTENCING

       The defendant maintains the trial court erred in ordering consecutive sentencing. We modify
the consecutive sentencing order of the trial court.



         1
            On appeal, the state requests that we apply enhancement factor six (the am ount o f damages to property
sustained by the victim was particularly great). See Tenn. Cod e Ann. § 40-35-114 (6). At the sentencing hearing, the
trial court did no t apply this factor. Although this court has the authority to consider an enhancement factor not found
by the trial court, we are reluctant to do so in this case based upon the limited record before us concerning the amount
of damages suffered by the victims.

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       Generally, it is within the discretion of the trial court to impose consecutive sentences if it
finds by a preponderance of the evidence that at least one of following statutory criteria apply:
                   ...

                   (2) [t]he defendant is an offender whose record of criminal activity is
                   extensive;

                   (3) [t]he defendant is a dangerous mentally abnormal person so
                   declared by a competent psychiatrist who concludes as a result of an
                   investigation prior to sentencing that the defendant's criminal conduct
                   has been characterized by a pattern of repetitive or compulsive
                   behavior with heedless indifference to consequences; [or]

                   (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).


        The trial court found the defendant was both a “dangerous mentally abnormal person”2 and
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.” See Tenn. Code Ann. § 40-35-
115(b)(3), (4). It also found the defendant’s record of criminal activity was extensive. Id. at (b)(2).
It ordered four of defendant’s five-year sentences to be served consecutively.


       First, the consecutive sentencing statute mandates that before a defendant may be found to
be “a dangerously mentally abnormal person,” a competent psychiatrist must conclude that “the
defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior
with heedless indifference to the consequences.” Tenn. Code Ann. § 40-35-115(b)(3). There was
no such psychiatric proof or documentation in this case.


       Further, as we previously discussed, there is nothing in the record to establish that the
defendant’s behavior exhibited “little or no regard for human life, and a lack of hesitation about
committing a crime in which the risk to human life is high.” See Tenn. Code Ann. § 40-35-
115(b)(4). The consecutive sentencing statute requires such evidence before the defendant can be



         2
          As stated previously, it is not entirely clear whether the trial court actually applied this factor. However, based
upon our reading of the transcript, it appears to us that it did.

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declared a “dangerous offender.” Id. Therefore, the “dangerous offender” criterion for consecutive
sentences does not apply.


        However, we conclude the proof supports the trial court’s finding that the defendant had an
extensive record of criminal activity. While the defendant’s prior criminal history is sparse, the
record shows he committed the instant seven felony offenses during separate incidents over a period
of eleven months. A court is not limited to considering a defendant’s prior criminal history in
determining whether he has an extensive record of criminal activity; it may also consider the offenses
for which he is being sentenced. See State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App.
1992); State v. Timothy Jason Solomon, E1999-00991-CCA-R3-CD, 2000 Tenn. Crim. App.
LEXIS 63, at *4 (Tenn. Crim. App. Jan. 27, 2000, at Knoxville), perm. to app. denied (Tenn. 2000).
The prior criminal record of an offender may have been good, but “the crimes for which he is being
sentenced may indicate criminal activity so extensive and continuing for such a period of time as to
warrant consecutive sentencing.” Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976); see Tenn. Code
Ann. § 40-35-115 Sentencing Commission Comments (explaining that the consecutive sentencing
statute essentially codified this Gray criterion).


        We find only one of the consecutive sentencing criteria applies under the facts and
circumstances of this case. Thus, we decide the issue of consecutive sentencing de novo without a
presumption of correctness. We conclude a total effective sentence of ten years is “justly deserved
in relation to the seriousness of the offense[s]” and “[is] no greater than that deserved for the
offense[s] committed.” See State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing Tenn. Code
Ann. §§ 40-35-102(1); -103(2)). Thus, the first two five-year arson sentences shall run consecutively
to each other; all other sentences will run concurrently with each other and the first two arson
sentences.



                              IV. ALTERNATIVE SENTENCING


       The defendant argues that since he is presumed to be a favorable candidate for alternative
sentencing, the trial court erred in not allowing him to serve all of his sentences on probation. We
disagree.


        A defendant is eligible for probation if the sentence is eight years or less, subject to some
statutory exclusions. Tenn. Code Ann. § 40-35-303(a). A defendant with a total effective sentence
in excess of eight years is eligible for probation if the individual sentences imposed for the
convictions fall within the probation eligibility requirements. State v. Goode, 956 S.W.2d 521, 527
(Tenn. Crim. App. 1997).



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        An especially mitigated or standard offender convicted of a Class C, D or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a defendant sentenced
to eight years or less and for whom incarceration is not a priority is subject to alternative sentencing.
State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a
sentence other than incarceration would result in successful rehabilitation unless rebutted by
sufficient evidence in the record. Id. at 380.


        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant's criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public. State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995).


        The trial court denied alternative sentencing, in part, because of the need to avoid
depreciating the seriousness of the offenses and to protect the public. The proof at trial established
that the defendant set fire to five separate structures and a vehicle over a period of eleven months,
and that he set fire to one structure twice. The proof further established the defendant’s actions
caused his victims emotional distress and property loss. We conclude that alternative sentencing is
inconsistent with the seriousness of these offenses and is not in the best interest of the public nor the
defendant.



                                           CONCLUSION


        After conducting a de novo review of the defendant’s sentences with no presumption of
correctness, we decline to modify the length of any of the defendant’s individual sentences as
determined by the trial court; however, we modify the judgments of the trial court so that the
defendant will serve his five-year sentences for case numbers 8394 and 8395 consecutively to each
other, and case numbers 8396, 8397, 8398, and 8399 will run concurrently with each other and with
case numbers 8394 and 8395 for an effective sentence of ten years. No term of probation will
follow.


                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




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