        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 19, 2011

               STATE OF TENNESSEE v. MICHAEL D. HAWK

              Direct Appeal from the Circuit Court for Lincoln County
                     No. S1000006 & 7    Robert Crigler, Judge




                  No. M2010-00977-CCA-R3-CD -Filed June 9, 2011


On February 16, 2010, the defendant, Michael D. Hawk, entered an open plea in case
numbers S1000006 and S1000007 to three counts of burglary, Class D felonies; six counts
of theft over $1,000, Class D felonies; eight counts of theft under $500, Class A
misdemeanors; two counts of criminal trespass, Class C misdemeanors; and one count of
vandalism under $500, a Class A misdemeanor. The trial court imposed a total effective
sentence of six years, to be served in the Tennessee Department of Correction as a Range I,
standard offender. On appeal, the defendant argues that his sentence is excessive and
disputes the denial of alternative sentencing. Following our review, we affirm the judgments
of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
R. M CM ULLEN, JJ., joined.

Donna Orr Hargrove, District Public Defender, and William J. Harold, Assistant Public
Defender, Lewisburg, Tennessee, for the appellant, Michael D. Hawk.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Charles Frank Crawford, District Attorney General; and Hollyn Eubanks and Ann
L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                       Background
       In January 2010, a Lincoln County grand jury indicted the defendant, Michael D.
Hawk, in two cases. In case number S1000006, the grand jury indicted the defendant for
three counts of burglary, Class D felonies (counts one, four, and seven); six counts of theft
over $1,000, Class D felonies (counts five, six, and eight through eleven); eight counts of
theft under $500, Class A misdemeanors (counts two, three, and twelve through seventeen);
and one count of criminal trespass, a Class C misdemeanor. In case number S1000007, the
grand jury indicted the defendant for one count of criminal trespass, a Class C misdemeanor,
and one count of vandalism under $500, a Class A misdemeanor.

       At the defendant’s plea acceptance hearing, the state presented the following factual
basis for the defendant’s guilty pleas:

             The State’s proof would be that sometime between September 30th and
       October 1st, 2009[,] [the defendant] entered the Lincoln County High School
       where he took an amount of cash less than $500.

              Entry and taking were without permission.

              Then on October 3, 2009[,] he went back in the high school where he
       took a 50 inch Sanyo [television] and its cart, the value of that being over
       $1000; both the entry and taking [were] without permission.

              Then on October 4th, 2009[,] he again entered the school. He took a
       laptop [computer], a desktop [computer], a DVD/VCR player, another laptop
       [computer], [a pair of] shoes, a Guitar Hero game[,] and a digital picture
       frame.

              The value of the laptop - - the Dell and the DVD player being more
       than $1,000; the value of the Dell laptop being more than $1,000; the shoes,
       the Guitar Hero game and digital picture [frame] individually being less than
       $500 each.

              The entry and the taking were done without permission.

              And on October 17, 2009[,] he entered the school without permission.

             On the second case, the one ending in 7, the State’s proof would be that
       on October 17, 2009, [the defendant] entered the St. Paul African Methodist
       Episcopal Church, the house that they had, broke a window to get in, thus the
       vandalism under $500. He did not have permission to be in that house.

The defendant entered guilty pleas on all counts.




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       The trial court held a sentencing hearing on April 6, 2010. The state presented the
defendant’s presentence report, the defendant’s indictments in S1000006 and S1000007, his
prior misdemeanor convictions in Lincoln County, and his payment histories for cases in
Lincoln County General Sessions Court.

       An assistant principal of Lincoln County High School testified regarding the items and
the cash that the defendant took from the school.

        The defendant testified that if the trial court granted probation, he would live with his
grandmother and either work for his family’s masonry business or return to a former job in
landscaping. He said that he had no prior felony convictions. He testified that he would
follow the terms of probation and would make restitution payments. The defendant asked
the trial court to order restitution and impose a split sentence with probation.

       On cross-examination, the defendant agreed that he owed “a fair bit of money to the
court clerk’s office on past cases.”

        The trial court found that enhancement factor one - the defendant had a previous
history of criminal convictions in addition to those necessary to establish the appropriate
range; enhancement factor eight - the defendant before trial or sentencing failed to comply
with conditions of a sentence involving release in the community; and enhancement factor
thirteen - the defendant was on probation when he committed the offenses - applied to the
defendant’s sentencing.1 The court also found that mitigating factor one - the defendant’s
criminal conduct did not cause or threaten serious bodily injury - and mitigating factor
thirteen - the “catch-all” factor - applied.2 The trial court stated that it placed greater weight
on the enhancement factors than on the mitigating factors. The trial court denied alternative
sentencing because (1) the defendant committed several offenses while on probation; (2) less
restrictive measures than confinement had recently and frequently been applied
unsuccessfully; (3) the defendant had poor potential for rehabilitation, based on his lack of
work history; and (4) the defendant had a number of unpaid court costs, fines, and
restitutions left unpaid. The court determined that it could run the defendant’s sentences
consecutively under Tennessee Code Annotated section 40-35-115 because the court was
sentencing the defendant for offenses that he committed while on probation. The trial court
merged count three with count two, count six with count five, count nine with count eight,
count eleven with count ten, count thirteen with count twelve, count fifteen with count
fourteen, and count seventeen with count sixteen. Ultimately, the trial court sentenced the


       1
           See Tenn. Code Ann. § 40-35-114.
       2
          See id. § 40-35-113. The defendant argued that the fact that he pleaded guilty to the charges
should operate in mitigation.

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defendant as a Range I, standard offender, to three years for each Class D felony, to be
served in the Tennessee Department of Correction, and eleven months, twenty-nine days for
each misdemeanor, to be served in the county jail. The trial court ordered the sentences for
count one and count seven of S1000006 to run consecutively. The court ordered the
remaining sentences in both cases to run concurrently with count seven of S1000006. The
result was a total effective sentence of six years.

                                           Analysis

       On appeal, the defendant argues that his sentence is excessive and that the trial court
erred by denying alternative sentencing. Specifically, the defendant argues that the trial court
improperly weighed the enhancement and mitigating factors, that the sentence did not fit the
crime, and that alternative sentencing would have been more appropriate considering scarce
prison resources.

                                  A. Standard of Review
       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-
401(d). The Sentencing Commission Comments to this section of the statute indicate that
the defendant bears the burden of establishing that the sentence is improper. When the trial
court follows the statutory sentencing procedure and gives due consideration to the factors
and principles relevant to sentencing, this court may not disturb the sentence. See State v.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008).

                                    B. Sentence Length
        The defendant argues that his sentence is excessive. Specifically, he argues that the
trial court improperly balanced the enhancement and mitigation factors and that the sentence
was inappropriate for the crime committed. He contends that a sentence at the minimum of
the range for Class D felonies - two years - would be more appropriate.

        Pursuant to the 2005 revisions to the sentencing statutes, a trial court has broad
discretion in determining the length of a defendant’s sentence as long as the sentence
imposed is within the applicable range of punishment and the trial court follows the
sentencing act. Carter, 254 S.W.3d at 345. In order to facilitate appellate review, the trial
court must set forth on the record which enhancement and mitigation factors it considered
and the reasons for the sentence. See id. at 343. The 2005 revisions “deleted as grounds for
appeal a claim that the trial court did not weigh properly the enhancement and mitigating
factors.” Id. at 344. A defendant may appeal based on grounds that the sentence is excessive
under the sentencing considerations set out in Tennessee Code Annotated sections 40-35-103
and 40-35-210 or that the sentence is inconsistent with the purposes of the sentencing act set
forth in sections 40-35-102 and -103. Id.; Tenn. Code Ann. § 40-35-210(b)(2). This court

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is “bound by a trial court’s decision as to the length of the sentence imposed so long as it is
imposed in a manner consistent with the purposes and principles set out in sections -102 and
-103 of the Sentencing Act.” Carter, 254 S.W.3d at 346. The presumption that the trial
court’s determinations are correct fails if the record does not support the trial court’s
findings, if the trial court applied inappropriate enhancement or mitigation factors, or if the
trial court did not follow the sentencing act. Id. at 344-45.

         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:

       (1) [t]he defendant is a professional criminal who has knowingly devoted such
       defendant’s life to criminal acts as a major source of livelihood;

       (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;

       (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;

       (5) [t]he 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) [t]he defendant is sentenced for an offense committed while on probation;
       or

       (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



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        In this case, the trial court found three enhancement factors and two mitigation
factors. The court determined that it could run the defendant’s sentences consecutively under
Tennessee Code Annotated section 40-35-115 because the court was sentencing the
defendant for offenses that he committed while on probation. The defendant argues that the
trial court failed to properly balance the factors. However, the balancing of enhancement and
mitigating factors is not a grounds for appeal. Carter, 254 S.W.3d at 344. The trial court
heard evidence regarding enhancement and mitigation factors and placed its findings on the
record. The record does not preponderate against the trial court’s findings. Additionally, the
record supports imposition of consecutive sentences because the defendant committed the
offenses in these cases while on probation for a misdemeanor conviction.3 He has failed to
show that the trial court did not follow statutory sentencing procedures or guidelines.
Therefore, we affirm the length of the defendant’s sentences.

                                      C. Confinement
       The defendant argues that confinement is inappropriate in his case. Specifically, he
argues that the trial court erred by denying alternative sentencing and that the trial court
should have considered the scarcity of prison resources in his sentencing.

       Tennessee Code Annotated section 40-35-102(6) provides that especially mitigated
and standard offenders convicted of Class C, D, and E felonies are favorable candidates for
alternative sentencing. A defendant is eligible for probation if the sentence imposed is ten
years or less. Id. at 40-35-303(a). In this case, the trial court determined that the defendant
was a Range I, standard offender and sentenced him to three years for each Class D felony,
running two three-year sentences consecutively. The defendant, therefore, was eligible for
probation.

      The sentencing act provides several factors for trial courts to consider when
determining whether to suspend a defendant’s sentence. Tennessee Code Annotated section
40-35-102(5) provides that

       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals
       of society, and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration[.]



       3
         In Lincoln County General Sessions case number S0801518, the defendant pleaded guilty to theft
under $500, and, on July 13, 2009, the court sentenced him to eleven months, twenty-nine days, all
suspended except for ninety days, which were deferred upon compliance with the terms of probation. The
defendant committed the offenses in the present cases during this probation period.

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Additionally, section 40-35-103 provides that courts should consider the following when
imposing sentences involving confinement:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant; . . . .

Tenn. Code Ann. § 40-35-103. The defendant bears the burden of demonstrating that he is
suitable for probation. Id. § 40-35-303(b).

       In our review of the record, we conclude that the defendant has not overcome the
presumption of correctness afforded the trial court’s determinations. The record does not
preponderate against the trial court’s determinations that (1) the defendant committed several
offenses while on probation; (2) less restrictive measures than confinement had recently and
frequently been applied unsuccessfully; (3) the defendant had poor potential for
rehabilitation, based on his lack of work history; and (4) the defendant had a number of
unpaid court costs, fines, and restitutions left unpaid. Therefore, we affirm the trial court’s
denial of probation.

        The defendant relies on State v. Ashby, 823 S.W.2d 166 (Tenn. 1991), for the assertion
that the trial court should have considered scarce prison resources when setting the
defendant’s sentence. In that case, the supreme court, referring to the Tennessee Code
Annotated section 40-35-102(5), stated that “[t]he 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 traditional concepts of punishment, would be incarcerated.”
Ashby, 823 S.W.2d at 168. In response to prison overcrowding, the legislature created a
presumption in favor of alternative sentencing for especially mitigated and standard
offenders and enacted the Community Corrections Act of 1985. Ashby, 823 S.W.2d at
168-69; see also Tenn. Code Ann. § 40-35-102(5). The Tennessee sentencing statutes,
therefore, incorporate concerns about scarce prison resources by providing alternatives to
incarceration for certain defendants.

       In this case, the trial court determined that the defendant was not a good candidate for
alternative sentencing, which, as discussed above, is the legislative solution to scarce prison



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resources. As we have already affirmed the trial court’s denial of probation, the defendant’s
argument in this regard is without merit.

                                        Conclusion

       Based on the foregoing reasons, we affirm the judgments of the trial court.




                                                   ___________________________________
                                                   J.C. McLIN, JUDGE




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