        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                      Assigned on Briefs at Jackson May 1, 2012

           STATE OF TENNESSEE v. CHRISTOPHER WHEELER

                Appeal from the Criminal Court for Marshall County
               Nos. 2011-CR-29, 2011-CR-47     Robert Crigler, Judge


              No. M2011-01657-CCA-R3-CD - Filed September 27, 2012


The Defendant, Christopher Wheeler, entered open guilty pleas to twenty counts of sexual
exploitation of a minor and one count of aggravated statutory rape. After a sentencing
hearing, the trial court ordered the Defendant to serve sixteen years in the Department of
Correction. On appeal, the Defendant contends that the trial court’s sentence is excessive
and contrary to law and that concurrent sentencing on all counts would have been
appropriate. Following our review, we conclude that the trial court did consider the purposes
and principles of the sentencing act, that the evidence in the record does not preponderate
against the trial court’s findings, and that the trial court did not abuse its discretion in
determining the length of the Defendant’s sentence. Thus, the judgments of the trial court are
affirmed.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
Christopher Wheeler.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       On February 23, 2011, the Defendant was indicted for twenty counts of sexual
exploitation of a minor, a Class D felony. Months later, on April 20, 2011, the Defendant
was also indicted for aggravated statutory rape, a Class D felony. Pursuant to an agreement
with the State, the Defendant pled guilty to all twenty counts of sexual exploitation of a
minor and one count of statutory rape, with sentencing reserved for the trial court’s
determination.

        Charles Brannon, an employee with the probation and parole department who
prepared the Defendant’s presentence report, testified that investigators went to the
Defendant’s residence after receiving a phone call from a woman in Missouri who informed
them that an unidentified man had been exchanging inappropriate pictures with her fourteen-
year-old sister.1 Apparently, after receiving this phone call, the officers launched an
investigation into the allegations. As a result of their investigation, they tracked the phone
to a location in Lewisburg and executed a search warrant on the Defendant’s home. The
Defendant told investigators that he had met this fourteen-year-old girl online and that, at
some point, he had received a text message from the girl’s sister telling him to “stop
communicating with her.” Mr. Brannon testified that, according to the Defendant, he met
the girl in a chat room, and she told him that she was fourteen years old. The Defendant then
asked the girl to send “a clean picture of herself. . . . later he asked for other photos. . . . Some
were nude and did show her face.” The Defendant then told Mr. Brannon that he did stop
“[t]exting” the fourteen-year-old “for a few minutes and then started back.”

       Mr. Brannon testified that the Defendant gave a statement to another officer
explaining that “he requested pictures of young teens on . . . [a website called] MocoSpace.”
As a result of his request, the Defendant received more than ten pictures of juvenile females
with and without clothing. The Defendant also stated that he had “received a picture of an
infant with a penis inside of the infant.” The Defendant explained to the officers that he
received more pictures over a two- or three-day span, and he also exchanged pictures with
people online.

        Once incarcerated, the Defendant spoke with investigators again about requesting
pictures of young teens online, but he also discussed the fourteen-year-old who is the victim
in the aggravated statutory rape indictment, H.M.2 Mr. Brannon testified that the Defendant
said he met H.M. “last year [and that they] started talking about her family and things.” The

1
 This fourteen-year-old is neither the victim in the aggravated statutory rape indictment, who is also fourteen
years old, nor in the twenty-count sexual exploitation of a minor indictments. According to the record, the
Defendant was never charged with his offenses against this victim because he deleted the text and photo
messages exchanged between them when the officers allowed him to go into his bedroom alone to retrieve
his cellular phone during their execution of the search warrant.
2
    To protect the identity of minor victims, this court will refer to them by their initials.

                                                         -2-
Defendant “asked her about having sex” approximately three months after they met. Mr.
Brannon explained that, according to the Defendant, one day “when [H.M.’s] parents weren’t
home, [the Defendant] said she texted him to come over, and they started making out[;] and
he admitted to having sex with [H.M.]” Mr. Brannon also received a statement from H.M.
She told investigators that the Defendant just “drop[ped] by one day” and that she was
“foolish enough to let him in the house. They are sitting on the couch, watching T.V. And
then he asks her to have sex and she agrees to it.” Mr. Brannon testified that the Defendant
told him “that he was angry at himself for the offense, as well as feeling foolish for the
offense.” He said that he should not have had sex with H.M. but that “sh[-]t happens.”

        Mr. Brannon testified that during their interview, the Defendant said that “he was
hearing voices at night.” However, the Defendant said that he was not hearing voices during
the interview. The Defendant also told Mr. Brannon that “the only illegal substance he uses
is marijuana[;] . . . he claimed that marijuana relaxes him[,] and he has no plans of quitting.”
Mr. Brannon also testified that the Defendant “has been unable to maintain employment for
more than a few months at a time.”

        Mr. Brannon further testified that H.M.’s grandmother sent him a letter about the
changes that her granddaughter has gone through since the incident with the Defendant. This
letter was admitted into evidence.

        The lead investigator on the Defendant’s case, James Johnson, testified that he was
contacted by patrol officers regarding pictures they had found on the Defendant’s cellular
phone. The Defendant allowed the officers to search his phone and admitted that had deleted
the pictures of the fourteen-year-old Missouri girl before retrieving the phone for the officers.
The Defendant and his girlfriend agreed to come to the police station to give statements. At
the station, the Defendant admitted that he had met a fourteen-year-old girl online and that
he had asked her for nude pictures of herself and had received those pictures. The Defendant
also admitted that he was exchanging pictures of underage girls with people online and that
he had received pictures of little girls and infants; the Defendant was then incarcerated.

        Investigator Johnson presented three letters written by the Defendant while
incarcerated, two written to his girlfriend and one written to a former cell mate, Donald King.
In the first letter, the Defendant stated that he “need[ed] to get out of wanting little girls and
stuff like that.” In the second letter, the Defendant asked his girlfriend to “[f]ind out from
[H.M.] what she all saying and let me know some way with them wanting to know who we’re
talking about [sic].” The last letter stated, “[l]ast weekend Cheyenne told me that the
fourteen-year-old may be pregnant. I am really hoping she ain’t by me, though.” Inv.
Johnson testified that he later spoke with Mr. King, who was also incarcerated, and that Mr.
King told him that the Defendant “was in the back, bragging about having sex with [H.M.],

                                               -3-
a fourteen-year-old girl here in Lewisburg.” Inv. Johnson explained that this was how they
found out about H.M. and why the Defendant was not indicted for aggravated statutory rape
until months after the twenty-count sexual exploitation of a minor indictment.

       Questioning by the court revealed that each of the twenty counts of sexual exploitation
of a minor involved a different child and that there may have actually been more than twenty
pictures total. Inv. Johnson told the court that he believed that there were a few pictures
depicting more than one child. He also informed the court that the pictures did not involve
children fourteen years old and older but were of preteens and infants. On re-cross-
examination, Inv. Johnson denied that all the children pictured were at least elementary
school through middle school aged and stated that he believed some children were under
school age.

        A jail corrections officer, Danny Kerbo, and the jail administrator, Sabrina Patterson,
testified regarding the Defendant’s behavior in jail since his incarceration on the instant
charges. Both testified that the Defendant had been unruly and had a difficult time following
instructions. Ms. Patterson also testified that the Defendant had been on “lockdown”
numerous times since his incarceration and that he was currently on lockdown for “not
following the rules.”

       Before the close of proof, the Defendant gave the following allocution: “I feel guilty
[for] what I done. I regret it. Should never have happened.”

       In issuing its findings, the trial court stated the offenses for the record and the
purposes and principles of the sentencing act that it was required to consider. First, the trial
court acknowledged, as a mitigating factor, that the Defendant pled guilty to the offenses,
sparing the State the expense of a trial and the aggravated statutory rape victim from having
to come and testify - “with a little more weight as to the aggravated statutory rape charge.”
The trial court then found that three enhancement factors applied: (1) the Defendant’s
criminal history, including uncharged criminal conduct; (4) the victim was particularly
vulnerable because of age, on which the court placed great weight; and (8) the Defendant had
previously violated the terms of his probation. See Tenn. Code Ann. § 40-35-114 (1), (4),
(8). Regarding factor (1), the trial court noted that the Defendant’s criminal history report
reflected a felony forgery conviction, multiple misdemeanor assault convictions, and a
shoplifting conviction. The trial court also noted that the Defendant had an “extremely
disturbing” juvenile record from Michigan that it was somewhat constrained from
considering because the courts had ultimately dismissed those charges, but the trial court
noted that the social history from those cases was “very disturbing.” The trial court also
noted that the Defendant was on probation for an assault conviction out of Bedford County
when all twenty-one of the instant offenses were committed and explained that this factor

                                              -4-
went to determining both the length and consecutive nature of the Defendant’s sentence.

       Although the Defendant did not request an alternative sentence, the trial court found
that he was not an appropriate candidate. The trial court explained that the Defendant’s
chance of reoffending was great, finding that confinement was necessary to protect society
by restraining a defendant who had a long history of criminal conduct and to avoid
depreciating the seriousness of this “atrocious, heinous, . . . offensive” act. Finally, the trial
court concluded that less restrictive measures had been frequently or recently applied,
unsuccessfully, to the Defendant; he had previously been incarcerated for short amounts of
time, had violated his probation in the past, and had violated the terms of his current
probation when he committed the instant offenses.

        The trial court noted that it was required to find that the ultimate sentence imposed
“is just[ly] deserved in relation to the seriousness of the offense and no greater than that
deserved for the offense committed.” The trial court then set the length of each individual
sentence at the maximum in the range, four years. The trial court ordered Counts 1-10 to be
served concurrently to each other and Counts 11-15 to be served concurrently to each other
but consecutively to counts 1-10. Counts 16-20 were also ordered to be served concurrently
to each other but consecutively to Counts 1-15, and the trial court ordered the Defendant to
serve the four-year sentence on the aggravated statutory rape conviction consecutively to all
other counts, for an effective sixteen-year sentence in the Department of Correction (DOC).
The court also noted that the sentences imposed would be served consecutively to any other
sentence the Defendant “might currently have.”


                                          ANALYSIS

        The Defendant challenges the length of his sentence and contends (1) that the trial
court’s sentence is excessive and contrary to law because the weight given the enhancement
factors to increase the sentences to the maximum in the range did not comply with the
purposes and principles of the sentencing act; (2) that the sentence was greater than deserved
for the offense committed because the totality of the circumstances were such as to render
the sentence excessive; (3) that “the imposition of sentences must accede to the reality that
the state does not have available sufficient prison facilities to accommodate all persons, who
according to the traditional concepts of punishment would be incarcerated”; and (4) that
concurrent sentencing on all counts would have been appropriate. The State responds that
the trial court properly sentenced the Defendant, exercising its discretion in weighing the
statutory factors in enhancement and mitigation. The State also responds that the Defendant
cannot show an abuse of discretion in the trial court’s imposition of a sixteen-year sentence
because he pled guilty to twenty-one offenses, each carrying a minimum two-year sentence.

                                               -5-
        The Defendant challenges both the length of his individual sentences and the
imposition of consecutive sentencing. On appeal, the party challenging the sentence imposed
by the trial court has the burden of establishing that the sentence is erroneous. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Comts.; see also State v. Arnett, 49 S.W.3d
250, 257 (Tenn. 2001). When a defendant challenges the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review on the record with a
presumption that the determinations made by the court from which the appeal is taken are
correct. Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon
the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999) (quoting State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997)); see also State v. Carter,
254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial court failed to
consider the sentencing principles and all relevant facts and circumstances, then review of
the challenged sentence is purely de novo without the presumption of correctness. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.

       In conducting a de novo review of a sentence, this court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts (AOC) as to Tennessee sentencing practices for similar
offenses; and (g) any statement the defendant wishes to make in the defendant’s own behalf
about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State
v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The defendant’s potential for rehabilitation or
treatment should also be considered. See Tenn. Code Ann. § 40-35-103(5).


                                    A. Length of Sentence

       The Defendant contends that considering the totality of the circumstances of his
offenses, the length of his sentence is excessive and contrary to law and that the trial court
did not properly consider the purposes and principles of sentencing when imposing his
sentence. The 2005 amendments to the Sentencing Act, which became effective June 7,
2005, no longer impose a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is free to select any sentence within the applicable range so long
       as the length of the sentence is “consistent with the purposes and principles of

                                              -6-
       [the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes and
       principles include “the imposition of a sentence justly deserved in relation to
       the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for ... rehabilitation,” [Tenn. Code Ann.] §40-35-
       103(5).

Id. (footnote omitted).

        The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. To facilitate appellate review, the trial court
is required to place on the record its reasons for imposing the specific sentence, including the
identification of the mitigating and enhancement factors found, the specific facts supporting
each enhancement factor found, and the method by which the mitigating and enhancement
factors have been evaluated and balanced in determining the sentence. See id. at 343; State
v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

        Contrary to the Defendant’s contentions, the record reflects that the trial court made
the requisite findings of fact and considered the purposes and principles of the sentencing act
in determining the length of the Defendant’s sentence. Therefore, our review is de novo, and
the trial court’s determinations are presumed correct, unless the Defendant can affirmatively
show that the sentence is erroneous. After thoroughly reviewing the evidence produced at
the sentencing hearing, the trial court’s findings, the presentence report, the nature of these
offenses, the Defendant’s statement to the court, statistical information provided by the AOC,
and the enhancement and mitigating factors presented by the parties, we cannot conclude that
the Defendant’s sentence is excessive.

        The trial court found that three enhancement factors, (1), (4), and (8), were applicable
to the Defendant’s case, and the record supports their application. See Tenn. Code Ann. § 40-
35-114 (1), (4), (8). The court placed great weight on factor (4) and noted that the
Defendant’s juvenile record was extremely disturbing from a social history aspect. This
court has held that application of even a single factor may be sufficient to justify an enhanced

                                              -7-
sentence. See, e.g., State v. Eric D. Charles, No. W2007-00060-CCA-R3-CD, 2008 WL
246023, at *6 (Tenn. Crim. App. Jan. 30, 2008); State v. Shawn McCobb and Marcus
Walker, No. W2006-01517-CCA-R3-CD, 2007 WL 2822921, at *4 (Tenn. Crim. App. Sept.
26, 2007). The Defendant contends that the weight the trial court afforded each factor to
enhance his sentence to the maximum in the range “did not comply with the ‘purposes and
principles’ of the act” and loosely argues that “the punishment imposed does not fit the crime
or the offender.” However, we find that this argument is without merit.

        First, we reiterate that it is within the trial court’s sound discretion to assign weight
to enhancement and mitigating factors and that the trial court properly noted its reasons on
the record. Additionally, the Defendant pled guilty to twenty counts of sexual exploitation
of a minor and one count of aggravated statutory rape, and the sentencing range for each
count was between two and four years. Because the weight to be given the various factors
is within the broad discretion afforded our trial courts, and given the apparent applicability
of the three enhancement factors, we cannot conclude that the trial court erred or abused its
discretion in setting the Defendant’s various sentences at the maximum in the range, four
years.


                             B. Partial Consecutive Sentencing

        The Defendant also appears to challenge the trial court’s imposition of partial
consecutive sentencing. Tennessee Code Annotated section 40-35-115(b) provides that a
trial court may, in its discretion, order sentences to run consecutively if it finds any one of
the following criteria by a preponderance of the evidence:

       (1) The defendant is a professional criminal who has knowingly devoted the
       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
       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;

                                               -8-
       (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.

Id. (emphasis added). These criteria are stated in the alternative; therefore, only one need
exist to support the appropriateness of consecutive sentencing. However, the imposition of
consecutive sentencing is subject to the general sentencing principles that the overall
sentence imposed “should be no greater than that deserved for the offense committed” and
that it “should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed[.]” Tenn. Code Ann. § 40-35-103(2) & (4); see State v. Joseph Nathaniel
Nance, E2010-01221-CCA-R3-CD, 2012 WL 1744500, at *21 (Tenn. Crim. App. May 16,
2012).

        The trial court’s oral findings evince that it found at least one of the aforementioned
criteria applicable: number (6). The record supports that determination. Regarding criterion
(6), the trial court noted and the record reflects that the Defendant committed all twenty-one
offenses while on probation. A finding that one of the above-listed criteria applies supports
the imposition of consecutive sentencing. Thus, the trial court properly exercised its
discretion in ordering partial consecutive sentencing in the Defendant’s case.

        Furthermore, we note that the Defendant pled guilty to twenty-one counts of sexually
related offenses against minors, each carrying a minimum two-year sentence, and he faced
a maximum potential sentence of eighty-four years. While the trial court did sentence the
Defendant to the maximum in the range on all twenty-one counts, it ordered clusters of those
counts to run concurrently to one another and consecutively to other clusters of counts, for
an effective sentence of sixteen years. In consideration of the forgoing, we cannot conclude
that the trial court abused its discretion in ordering the Defendant to serve sixteen years in
the DOC.




                                              -9-
                              CONCLUSION

Accordingly, the judgment of the trial court is affirmed.




                                            _________________________________
                                            D. KELLY THOMAS, JR., JUDGE




                                     -10-
