         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 20, 2005

              STATE OF TENNESSEE v. LYLE T. VAN ULZEN and
                          BILLY J. COFFELT

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 99-A-552 J. Randall Wyatt, Jr., Judge




                    No. M2004-02462-CCA-R3-CD - Filed October 31, 2005



The Defendants, Lyle T. Van Ulzen and Billy J. Coffelt, were each convicted of one count of felony
escape, two counts of aggravated assault, and three counts of especially aggravated kidnapping and
were each sentenced to an effective sentence of ninety years in prison. Coffelt now appeals,
contending that: (1) the trial court erred in sentencing the Defendant when it found that no mitigating
factors applied; and (2) the trial court erred when it ordered that his sentences run consecutively.
Van Ulzen also appeals, contending that the sentence imposed was not justly deserved in relation
to the seriousness of the offense and is greater than that deserved under the circumstances. Finding
no error, we affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Cindy Burnes, Nashville, Tennessee, for the Appellant, Lyle T. Van Ulzen; and Mike J. Urquhart,
Nashville, Tennessee, for the Appellant, Billy J. Coffelt.

Paul G. Summers, Attorney General and Reporter; Rachael E. Willis, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Jim Sledge, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION
                                       I. Procedural History

       In 2000, both Defendants were convicted of one count of felony escape, two counts of
aggravated assault, and three counts of especially aggravated kidnapping for their actions while
escaping a maximum security institution. For each of the three especially aggravated kidnapping
convictions, the trial court sentenced both Defendants as repeat violent offenders to life
imprisonment without the possibility of parole. The Defendants appealed their convictions and
sentences to this Court, and this Court affirmed the convictions, but we reversed the trial court’s
finding that the Defendants were repeat violent offenders subject to mandatory life sentences. State
v. Lyle T. Van Ulzen and Billy J. Coffelt, No. M2002-01214-CCA-R3-CD, 2003 WL 22116628, at
*1 (Tenn. Crim. App., at Nashville, May 13, 2003), perm. app. denied (Tenn. Feb. 2, 2004). The
case was remanded to the trial court for resentencing on the especially aggravated kidnapping
convictions only. State v. Van Ulzen and Coffelt, 2003 WL 22116628, at *1.

                                             II. Facts

       In our opinion on the Defendants’ first appeal, the following facts were noted by this Court:

               The State’s proof established that three correctional officers were working at
       Unit I of the Riverbend Maximum Security Institution during the early morning hours
       of December 27, 1998. Unit I consisted of four “pods” that contained prison cells;
       each cell housed a single inmate. A central “pod” was used as the common area.
       Also in the unit were a security office, a visitor’s gallery, a control room, and a
       laundry room. Corporal Barry Asberry was in charge of the unit; he was being
       assisted by Officers Amorelle Williams and Lona Beshears. The Defendants were
       two of the inmates under their care and supervision.

               At about three a.m., the Defendants were released from their cells to perform
       some work. For about an hour and a half, they worked together in the visitor’s
       gallery waxing the floor. During this time, Officer Williams oversaw their activities.
       Corporal Asberry was in the security office, and Officer Beshears was upstairs in the
       control room. The control room contained the remote electronic devices which
       opened doors in the unit.

               At about 4:30 a.m., the Defendants ceased working on the floor and began to
       work in the kitchen, preparing breakfasts for those inmates who celebrated Ramadan.
       At about five o’clock, both Defendants appeared at the security office. At this time,
       both Corporal Asberry and Officer Williams were in the office. Defendant Van Ulzen
       accosted Corporal Asberry with a homemade knife known as a “shank.” Defendant
       Coffelt grabbed Officer Williams, pinning her arms behind her back. Officer
       Williams testified that Van Ulzen held the shank to Corporal Asberry’s neck and
       threatened her with it. The Defendants told the officers that, if they cooperated, they
       would not be harmed. The Defendants took the officers’ radios and keys; Coffelt
       armed himself with a “stun gun” taken from a drawer. The Defendants removed their
       leg irons, and then handcuffed Officer Williams’ hands behind her back. The
       Defendants also fastened one of the sets of leg irons around Corporal Asberry’s
       hands.



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               The Defendants marched the officers to the laundry room, a short distance
       away. They then had Corporal Asberry radio to Officer Beshears, giving him the code
       to open the two consecutive doors to the control room. Van Ulzen put on Officer
       Williams’ uniform jacket and covered his head with the hood. Van Ulzen then went
       upstairs to the control room and opened the first of two doors, which Beshears had
       unlocked in response to the radio call. Beshears glanced at the security camera and
       saw the jacket that Van Ulzen was wearing. Thinking that another officer was
       waiting to be let in the second door, Beshears opened it. Van Ulzen entered the
       control room and brandished the shank at Beshears. Van Ulzen told Beshears that
       he would not be hurt if he cooperated.

              Van Ulzen escorted Beshears downstairs to the laundry room. The
       Defendants removed the restraints from Asberry’s and Williams’ hands and then
       locked all three officers in the laundry room. The laundry room was locked from the
       outside and could not be opened from the inside.

               The officers heard a lot of noise, and then saw other inmates in the common
       area. They subsequently saw several inmates, including the Defendants, leaving the
       unit through the “sally port,” a pair of doors that led to the outside. At about 5:30
       a.m., Officer William Scott Duncan found the three officers in the laundry room.
       They were subsequently released from the laundry room by Sergeant Staples.
       The prison personnel soon discovered that six inmates had escaped. A ladder had
       been erected at the perimeter fences and pieces of mattresses had been placed over
       the razor wire topping the fences. All six inmates were captured within thirty-six
       hours of their escape.

               Defendant Van Ulzen testified at trial, emphasizing that he locked the guards
       in the laundry room in order to protect them from the inmates he subsequently
       released from their cells. He testified that he used the shank only to convince the
       guards to cooperate.

Van Ulzen and Coffelt, 2003 WL 22116628, at *1-2.

         Defendant Van Ulzen filed a motion requesting that we consider the appellate record from
the Defendants’ first appeal. We granted that motion, and we therefore consider the facts presented
to the trial court at the Defendants’ first sentencing hearing. At the sentencing hearing, Amorelle
Williams, one of the victims in the case, testified that she was scared for her and her fellow guard’s
lives, and she stated that “[e]ven though they said that they [were not] going to hurt us, you know,
there was the issue of the other inmates getting out. And I was very afraid.” No other witnesses
were called at the sentencing hearing.

       Defendant Coffelt’s presentence report revealed that he was convicted in 1983 as an habitual


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offender for assault with intent to commit first degree murder, assault with intent to commit robbery,
and he was convicted for escape in 1990. Defendant Van Ulzen’s presentence report revealed that
he was convicted in 1988 for two counts of arson and two counts of second degree murder.

        At resentencing, the trial court sentenced the Defendants to thirty years for each of the
especially aggravated kidnapping convictions, and it ordered that those sentences run consecutively,
for an effective sentence of ninety years. The trial court found that each Defendant was a Range II
offender, based on their prior convictions. The trial court imposed consecutive sentences based on
its finding that the Defendants have extensive criminal records, are dangerous offenders whose
behavior indicates little or no regard for human life, and have no hesitation about committing crimes
in which the risk to human life is high. It is from this order that both Defendants currently appeal.

                                            III. Analysis

        On appeal, Defendant Coffelt contends that: (1) the trial court erred when it found no
mitigating factors during sentencing; and (2) that the trial court abused its discretion when it ordered
his sentences to be served consecutively. Defendant Van Ulzen contends that the sentence imposed
was not justly deserved in relation to the seriousness of the offense and is greater than that deserved
under the circumstances.

                                       A. Mitigating Factors

        Defendant Coffelt contends that the trial court should have reduced his sentence based on the
applicability of the following mitigating factors: (1) the Defendant’s criminal conduct neither caused
nor threatened serious bodily injury; (2) the Defendant played a minor role in the commission of the
offense; and (3) the Defendant attempted to shield the victims from harm by third parties. Tenn.
Code Ann. §§ 40-35-113(1),(4), & (13) (2003).

        The State argues that this issue was waived by Defendant Coffelt because he did not properly
object at the sentencing hearing and failed to raise the issue in his motion for a rehearing. See Tenn.
R. App. P. 3(e) & 36(a); see also State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994).
However, even if the defendant does not file a written notice of mitigating factors prior to
sentencing, if there is evidence of such factors in the record, the issue is not waived. The Criminal
Sentencing Reform Act of 1989 supplies the court with guidelines for sentencing considerations.

       (b) To determine the specific sentence and the appropriate combination of sentencing
       alternatives that shall be imposed on the defendant, the court shall consider the
       following:
       (1) The evidence, if any, received at the trial and the sentencing hearing;
       (2) The presentence report;
       (3) The principles of sentencing and arguments as to sentencing alternatives;
       (4) The nature and characteristics of the criminal conduct involved;
       (5) Evidence and information offered by the parties on the enhancement and


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       mitigating factors in §§ 40-35-113 and 40-35-114; and
       (6) Any statement the defendant wishes to make in the defendant’s own behalf about
       sentencing.

Tenn. Code Ann. § 40-35-210 (2003) (emphasis added). The Sentencing Commission’s Comments
to this section are especially helpful in determining the scope of what the court shall consider:

       The provisions of subsection (b) require the court to consider all of the proof at the
       trial, the presentence report, the principles of sentencing, the nature and
       characteristics of the criminal conduct involved, evidence and information offered
       by the parties on the mitigating and enhancement factors, and any statement that the
       defendant desires to make in his own behalf about sentencing. This subsection
       permits the court the greatest latitude in considering all available information in
       imposing the appropriate sentence and sentence alternative.

Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts. The Sentencing Commission’s
Comments are clear that the trial court is required to take into account all of the evidence presented
at the trial and the sentencing hearing. Therefore, if evidence of a mitigating factor or factors is
presented at the trial or the sentencing hearing, the trial court is required to consider them in the
sentencing process. Thus, the issue is not waived, and we will review the matter on its merits.

        We begin our analysis by noting that appellate review of the length, range, or manner of
service of a sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (2003). In conducting its de
novo review, this Court considers the following factors: (1) the evidence, if any, received at the trial
and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and mitigating factors;
(6) any statement by the defendant in his own behalf; and (7) the potential for rehabilitation or
treatment. Tenn. Code. Ann. § 40-35-102, -103, -210 (2003); see also State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991). The burden is upon the appellant to demonstrate the impropriety of his
sentences. Tenn. Code. Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record
reveals that the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this Court will accord the trial court’s determinations a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d); Ashby, 823 S.W.2d at 169.

        In the case under submission, we conclude that there is ample evidence that the trial court
considered the sentencing principles and all relevant facts and circumstances. Therefore, we review
its decision de novo with a presumption of correctness. Accordingly, so long as the trial court
complied with the purposes and procedures of the 1989 Sentencing Act and its findings are
supported by the factual record, this Court may not disturb this sentence even if we would have
preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



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         The weight assigned to enhancement and mitigating factors is generally left to the trial
court’s discretion. See generally State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997).
While the trial court did not specifically address any of the mitigating factors raised by Defendant
Coffelt on appeal, the trial court did state that it found that no mitigating factors applied, indicating
that the trial court had in fact considered whether any mitigating factors did apply. Consequently,
it appears that the trial court considered mitigating factors, but it chose to give them little, if any,
weight. Again, the weight given to each factor is left to the discretion of the trial court as long as
it comports with the sentencing principles and purposes of our Code, and as long as its findings are
supported by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995). After
reviewing the trial court’s decision not to reduce Defendant Coffelt’s sentence based on the evidence
in the record, we conclude that the evidence does not preponderate against the trial court’s decision.

        Although we find that the evidence does not preponderate against the trial court’s finding that
there were no mitigating factors in this case, we note that the sentences it imposed for the Class A
felony offense of especially aggravated kidnapping–30 years on each–are below the presumptive
minimum for those offenses. See Tenn. Code Ann. § 40-35-210(d). The Code states, “Should there
be enhancement but no mitigating factors for a Class A felony, then the court shall set the sentence
at or above the midpoint of the range.” Tenn. Code Ann. § 40-35-210(d). Accordingly, as a Range
II offender, with a range of 25-40 years, the Defendants’ presumptive sentence was 32 ½ years,
assuming no enhancement or mitigating factors. Thus, while the trial court found enhancement
factors, but no mitigating factors, the Defendant in fact received the benefit of a mitigated sentence.

                          B. Defendant Coffelt’s Consecutive Sentences

         Defendant Coffelt’s next contention is that the trial court abused its discretion when it
ordered his sentences to run consecutively. Specifically, the Defendant asserts that the trial court
abused its discretion when it cited the following factors in support of this decision: (1) that the
Defendant had no hesitiation about committing a crime in which the risk to human life was high; and
(2) that the Defendant was convicted of a crime wherein the potential for bodily injury to the victims
was great.

        We begin by noting that it is within the sound discretion of the trial court whether to impose
consecutive or concurrent sentences. See State v. Adams, 973 S.W.2d 224, 230-31(Tenn. Crim.
App. 1997). A Tennessee court may order consecutive sentences in cases where it finds any of seven
statutorily enumerated criteria to be applicable “by a preponderance of the evidence.” Tenn. Code
Ann. § 40-35-115(b). The seven criteria are:


        (1) The defendant is a professional criminal who has knowingly devoted such
        defendant's life to criminal acts as a major source of livelihood;
        (2) The defendant is an offender whose record of criminal activity is extensive;
        (3) The defendant is a dangerous mentally abnormal person so declared by a
        competent psychiatrist who concludes as a result of an investigation prior to


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       sentencing that the defendant's criminal conduct has been characterized by a pattern
       of repetitive or compulsive behavior with heedless indifference to consequences;
       (4) The 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;
       (5) The defendant is convicted of two (2) or more statutory offenses involving sexual
       abuse of a minor with consideration of the aggravating circumstances arising from
       the relationship between the defendant and victim or victims, the time span of
       defendant's undetected sexual activity, the nature and scope of the sexual acts and the
       extent of the residual, physical and mental damage to the victim or victims;
       (6) The defendant is sentenced for an offense committed while on probation; or
       (7) The defendant is sentenced for criminal contempt.

        The trial court based his imposition of consecutive sentences on the following factors: (1)
the Defendant was an offender whose record of criminal activity was extensive; and (2) the risk to
human life was high and the Defendant was convicted of a crime wherein the potential for bodily
injury to the victims was great. As previously articulated, these grounds are appropriate
considerations for imposing consecutive sentencing. See Tenn. Code Ann. § 40-35-115(b)(2) & (4).
The record indicates that Defendant Coffelt has an extensive record of criminal activity, including
assault with intent to commit first degree murder, assault with intent to commit robbery, and escape.
Accordingly, we conclude that the evidence does not preponderate against the trial court’s judgment
that consecutive sentences are warranted because Defendant Coffelt is an offender whose record of
criminal activity is extensive.

        In order to impose consecutive sentences based upon a finding that a defendant is a dangerous
offender, a court must also find that: (1) the sentences are necessary in order to protect the public
from further misconduct by the defendant and; (2) “the terms are reasonably related to the severity
of the offenses.” Wilkerson, 905 S.W.2d at 938; see also State v. Lane, 3 S.W.3d 456, 461
(Tenn.1999). In applying the dangerous offender factor, the trial court remarked, “The Court finds
that under the guidelines in Wilkerson v. State, the sentences imposed are reasonably related to the
severity of the offenses, and the sentences are necessary to protect the public from further criminal
activity by the Defendants.” After a thorough review of the record we conclude that the evidence
does not preponderate against the trial court’s findings, and thus we affirm Defendant Coffelt’s
sentence.

                       C. Defendant Van Ulzen’s Consecutive Sentences

       Defendant Van Ulzen asserts that the trial court erred in sentencing him to consecutive
sentences, contending that the total length of the sentence is not justly deserved in relation to the
seriousness of the offense and is greater than that deserved under the circumstances. See State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The State argues that, the evidence does not
preponderate against the trial court’s imposition of consecutive sentences based on its finding that
the Defendant is a dangerous offender whose behavior indicates little or no regard for human life,


                                                -7-
and no hesitation about committing crimes in which the risk to human life is high, and he is an
offender whose record of criminal activity is extensive. See Tenn. Code. Ann. § 40-35-115(b)(2)
& (4).

         Defendant Van Ulzen’s contention that the total length of his sentence is not justly deserved
in relation to the seriousness of his offense is essentially the same as Defendant Coffelt’s claim that
the trial court abused its discretion in ordering his sentences to run consecutively. As such, our
analysis remains unchanged. After reviewing the record, we conclude that the evidence does not
preponderate against the trial court’s findings that Defendant Van Ulzen’s sentence is justly deserved
in relation to the seriousness of the offense he committed. The Defendants used a deadly weapon
during an escape from a maximum security correctional facility, endangering the lives of at least
three correctional officers and facilitating the escape of four other inmates. In our view, the
imposition of consecutive sentences pursuant to Tennessee Code Annotated section 40-35-115(b)(4)
is proper.

        Further, as discussed above, consecutive sentencing is permissible upon finding any one of
the qualifying criteria, and on appeal, the Defendant does not dispute the trial court’s finding that he
has an extensive criminal history. Tenn. Code Ann. § 40-35-115(b)(2). The record reflects that the
Defendant’s criminal history consists of multiple felony convictions, warranting the trial court’s
finding that the Defendant’s criminal history is extensive. We conclude that the evidence does not
preponderate against the trial court’s finding that the sentence is appropriate in light of the
Defendant’s extensive record of criminal activity, which includes two counts of arson and two counts
of second degree murder.

                                           IV. Conclusion

      In accordance with the foregoing authorities and reasoning, we affirm the trial court’s
judgments.


                                                         _____________________________________
                                                         ROBERT W. WEDEMEYER, JUDGE




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