        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 19, 2012

        STATE OF TENNESSEE v. TERRANCE GABRIEL CARTER

                   Appeal from the Circuit Court for Marshall County
                  No. 2011-CR-44 & 2011-CR-69 Robert Crigler, Judge



                No. M2011-02331-CCA-R3-CD - Filed September 26, 2012


Appellant, Terrance Gabriel Carter, pled guilty in Marshall County to five counts of violating
the sex offender registration act in two separate cases with the length and manner of service
of sentence to be determined by the trial court after a sentencing hearing. Appellant was
sentenced to an effective sentence of five years. Appellant appeals his sentence, arguing that
it is excessive. After a review of the record, we affirm the judgments of the trial court.

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

D ONALD P. H ARRIS, S R. J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J. , joined.

William J. Harold, Assistant Public Defender, Lewisburg, Tennessee, for the appellant,
Terrance Gabriel Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellant, State of Tennessee.

                                         OPINION

                                    Factual Background

       Appellant was indicted by the Marshall County Grand Jury in April of 2011 for two
counts of violating the sex offender registration act, a Class E felony. Appellant pled guilty
to both counts of the indictment in June of 2011, with the manner and length of service of
the sentences to be determined by the trial court after a sentencing hearing.
      At the plea hearing, the prosecutor explained the factual basis for the indictment as
follows:

       After being declared a sexual offender here in the [S]tate of Tennessee on or
       about the first day of September of 2009, through the 31st day of December of
       2010, [Appellant] did fail to report and register as a sex offender to the
       Marshall County’s office here. And also, during that same time period, [he]
       changed residences and failed to report that within the 48 hour time period. .
       ..

       In August of 2011, prior to the sentencing hearing in the first case, Appellant was
indicted by the Marshall County Grand Jury for three violations of the sexual offender
registration act, each a Class E felony. These violations occurred on July 13, 2011.
Appellant pled guilty in an open plea to the three counts of the second indictment on
September 21, 2011.

       Again, at the plea hearing, the prosecutor relayed the factual basis for the indictment.
He stated the following:

       This is a three-count indictment . . . wherein on or about the 13th day of July,
       2011, [Appellant] was visited, I believe, by a local detective and reporting
       officer and probation officer wherein they discovered in conversation with him
       that he had moved residence and had not reported the change within the 48-
       hour time period as alleged in count 1. In count 2, that the new residence was
       within 1,000 feet of a school, that being Marshall County High School. And
       [in] count 3, there was a minor child living in that residence that he was aware
       of and would also be a violation of the sex offender registry.

       At a sentencing hearing, the trial court heard testimony from Appellant’s sister,
Clarissa Carter. Ms. Carter testified that her brother had been working at a pet store for
almost two years. She admitted that her brother lived with her until he was told he had to
move because of his proximity to a school and because her son was living with them. Ms.
Carter acknowledged that Appellant was not supposed to be around children. Appellant did
not present any more witnesses.

       After reviewing the proof, the trial court sentenced Appellant to one year and nine
months as a Range I, standard offender in the first case, and to three years and three months
as a Range II, multiple offender in the second case. The trial court ordered the sentences to
be served consecutively, for a total effective sentence of five years. The trial court noted that
Appellant had a lengthy criminal history including at least one probation violation and

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several prior convictions for attempted violation of the sexual offender registry.
Additionally, the trial court noted that Appellant was on probation when the offenses in the
first case occurred and out on bond when the offenses in the second case were committed.
As a result, the trial court found that the following enhancement factors applied: (1) that
Appellant had a previous history of criminal convictions in addition to those necessary to
establish the appropriate range; (8) Appellant had previously failed to comply with the
conditions of a sentence involving release into the community; and (13) Appellant was on
bond at the time of the commission of the offense. T.C.A. § 40-35-114(1), (8), and (13).
The trial court mitigated the sentences on the basis that Appellant’s conduct did not threaten
or cause serious bodily injury. T.C.A. § 40-35-113(1). The trial court also gave Appellant
credit for a “steady work history.” The trial court determined that consecutive sentences
were necessary because Appellant was out on bond when he committed the offenses in the
second case and because his criminal history is extensive. The trial court made additional
findings that the consecutive sentencing was justly deserved based on the seriousness of the
offenses and no greater than the punishment deserved by Appellant. The trial court denied
alternative sentencing noting that Appellant had previously failed at an alternative sentence
and because confinement was necessary to protect society from Appellant, who had a long
history of criminal conduct.

       Appellant filed a timely notice of appeal.

                                           Analysis

       On appeal, Appellant challenges the sentences as excessive. As we understand his
position, he does not challenge the trial court’s finding that he was a Range II offender for
the offenses committed in Case No. 2011-CR-69 but, more specifically, insists that the trial
court inappropriately weighted the enhancement and mitigating factors, resulting in a
sentence that was excessive. The State disagrees.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “[t]he burden of showing that the sentence is improper.” Ashby, 823 S.W.2d at 169.

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                                      Length of Sentences

        In making its sentencing determination, a trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses,
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the
sentence within the appropriate sentencing range for the defendant:

       [T]he court shall consider, but is not bound by, the following advisory
       sentencing guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c). However, the weight given by the trial court to the mitigating and
enhancement factors is left to the trial court’s discretion and is not a basis for reversal of the
sentence imposed by an appellate court. Carter, 254 S.W.3d at 345. “An appellate court 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.” Id. at 346.

        “The amended statute no longer imposes a presumptive sentence.” Carter, 254
S.W.3d at 343. As a result of the amendments to the Sentencing Act, appellate review of the
trial court’s weighing the enhancing and mitigating factors was eliminated when these factors
became advisory, as opposed to binding, upon the trial court’s sentencing decision. Id. at
344. 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

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application of enhancing and mitigating factors. Id. The trial court’s weighing of various
mitigating and enhancement factors, however, is now left to the trial court’s sound discretion.
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
enhancing factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancing 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).

        On appeal, Appellant argues that the trial court improperly “enhanced [his sentence]
to the higher end of range II.” As stated above, the trial court in this case found, as
enhancement factors, that Appellant had a previous history of criminal convictions in
addition to those necessary to establish the appropriate range; that he had previously failed
to comply with the conditions of a sentence involving release into the community; and that
Appellant was on bond at the time of the commission of the offense. These are appropriate
enhancing factors as set forth in Tennessee Code Annotated section 40-35-114, subsections
(1), (8), and (13). The trial court also found, as mitigating factors, that Appellant’s conduct
did not threaten or cause serious bodily injury (T.C.A. § 40-35-113(1)) and that he had a
“steady work history.” Both the enhancing and mitigating factors found by the trial court
were supported by the evidence which was presented. Thus, as previously stated, the weight
given these factors by the trial court is no longer reviewable by this court on an appeal from
the sentence imposed so long as the sentence is imposed in a manner consistent with the
purposes and principles set out in Tennessee Code Annotated sections 40-35-102 and 40-35-
103 of the 1989 Sentencing Act. In this case, the Appellant was convicted of two counts of
child molestation in Fulton County, Georgia, in 1988 and was sentenced to ten years on each
count. Since that time, Appellant has had four separate convictions relating to his violation
of the Tennessee sexual offender registration requirements. The cases before the trial court
were the fifth and sixth violations of those requirements by the Appellant. We are unable to
conclude that the sentences imposed by the trial court failed to comply with the purposes and
principles of the sentencing act. This issue is, therefore, without merit.

                                   Consecutive Sentences

       Appellant does not overtly argue that the trial court erred in ordering consecutive
sentences but complains in general terms about his excessive punishment. We note that the
Appellant was on bail after indictment for the offenses charged in Case No. 2011-CR-44
when the offenses charged in Case No. 2011-CR-69 were committed. Tennessee Code
Annotated section 40-20-111(b) provides:

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       In any case in which a defendant commits a felony while the defendant was
       released on bail in accordance with the [bail bonding] provisions . . . and the
       defendant is convicted of both offenses, the trial judge shall not have
       discretion as to whether the sentences shall run concurrently or cumulatively,
       but shall order that the sentences be served cumulatively.

Similarly, Rule 32(c)(3)(C), Tennessee Rules of Criminal Procedure, makes consecutive
sentencing mandatory where one is sentenced “for a felony committed while the defendant
was released on bail and the defendant is convicted of both offenses. . .” The trial court
relied, in part, on the fact Appellant was on bail for the first set of offenses when the second
set of offenses was committed in determining consecutive sentences were appropriate. The
Code section cited and the Rules of Criminal Procedure requires consecutive sentencing in
such cases.

        The trial court also considered the criteria set forth in Tennessee Code Annotated
section 40-35-115(a) in determining whether the sentences imposed should be run
consecutively or concurrently. This section permits the trial court to impose consecutive
sentences if the court finds, among other criteria, that the “defendant is an offender whose
record of criminal activity is extensive” or that the “defendant is sentenced for an offense
committed while on probation.” T.C.A. § 40-35-115(b)(2) and (6). While, in our view,
consecutive sentencing was mandatory, the trial court also based the imposition of
consecutive sentences on these criteria. We note that at the time Appellant’s presentence
report was prepared he was forty years old and had nine prior convictions in Tennessee and
two convictions for child molestation in Georgia. Among these convictions were several
violations of probation. Additionally, Appellant was on probation at the time of the
commission of the offenses. We conclude that there is sufficient proof in this record for the
court to have ordered consecutive sentences on the basis of either Tennessee Code Annotated
section 40-20-111(b) or section 40-35-115(b).

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                            ___________________________________
                                            DONALD P. HARRIS, SPECIAL JUDGE




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