        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 20, 2015

                  STATE OF TENNESSEE v. DONALD BIGGS

                Appeal from the Criminal Court for Knox County
No. 102471, 102551, 102552, 102553, 102554, 102792  Steven Wayne Sword, Judge




              No. E2014-01650-CCA-R3-CD – Filed September 30, 2015
                        _____________________________

THOMAS T. WOODALL, P.J., dissenting.

       I would affirm the judgment of the trial court in this case, and therefore I
respectfully dissent from the majority opinion. I want to make it clear that I do not
dissent for the reason the sentence imposed by the trial court is the most appropriate
sentence for the Defendant. In fact, had I been the trial judge, I would have been
persuaded by the logic set forth in Judge Thomas‟ opinion to sentence the Defendant to
an effective sentence of 22 years.

       However, I was not the trial judge in this case. I am obligated by supreme court
case authority to affirm this court judgment which imposes consecutive sentences. I must
do so even when I would have reached an entirely different result for valid, logical, and
legally sound reasons.

       Our supreme court has held that as to consecutive sentencing, the presumption of
reasonableness applies to give “deference to the trial court’s exercise of its discretionary
authority to impose consecutive sentences if it has provided reasons on the record
establishing at least one of the seven grounds listed in Tennessee Code Annotated section
40-35-115(b)”. Id. (emphasis added)

      The majority opinion in this case does not conclude that the trial court failed to
address on the record the principles and purposes of Tennessee‟s Sentencing Act. In
Pollard our supreme court stated,

        The underlying principle, of course, is that the trial court must be
        afforded broad discretion in its sentencing decisions and the
        presumption of reasonableness will apply unless the trial court fails to
        address on the record the principles and purposes of our Sentencing Act.

Id. (emphasis added).

        My review of the record reveals that the trial court made detailed findings, with
analysis, of the principles and purposes of the Sentencing Act as to the Defendant‟s
sentencing. It is my interpretation of the supreme court‟s holding in Pollard that as long
as a trial court complies with this stated standard, and the trial court does not impose an
illegal or otherwise unauthorized sentence, then it cannot be concluded by an appellate
court in Tennessee that the trial court has abused its discretion solely because the
appellate court would reach a different result. (“We hold that, when a trial court places
findings on the record to support its sentencing decision, the applicable standard of
appellate review for a challenge to the imposition of consecutive sentences is abuse of
discretion with a presumption of reasonableness.” Pollard at 853).

       Does this standard of review effectively eliminate any meaningful appellate
review of a trial court‟s sentencing decision? In my opinion it likely does. Does it undo
the worthy goal of the Tennessee Criminal Sentencing Reform Act of 1982 to create “a
comprehensive sentencing scheme designed to establish „fair and consistent treatment of
all defendants by eliminating unjustified disparity in sentences‟”? Id. at 856. In my
opinion it has taken a monumental step in doing so.

       An abuse of discretion occurs when a trial court applies an incorrect legal standard
or reaches a conclusion that is illogical or unreasonable. State v. Lewis, 235 S.W. 3d
136, 141 (Tenn. 2007). “Abuse is found when the trial court has gone outside the
framework of legal standards or statutory limitations or when it fails to properly consider
the factors on that issue given by the higher courts to guide the discretionary
determination.” Id. (quoting Martha S. Davis, Standards of Review: Judicial Review of
Discretionary Decision Making, 2 J. App. Prac. & Process 47, 58 (2000). I fail to see
how the trial court‟s sentencing decision in this case meets the definition of an “abuse of
discretion.”

       I think it is noteworthy that the appellate court in this case does not dispute the
findings of fact made by the trial court as to the circumstances in this case. The
difference is due solely to an application of the law to those facts. Despite the fact that
three of the four judges who have heard this case conclude that a sentence of 22 years is
appropriate, in my opinion the limits on appellate review mandate that the sentence of 44
years must be affirmed. My esteemed colleagues disagree with my analysis. In this case,
I am not hesitant to say that I hope their analysis is ultimately adopted. However, I am
compelled, reluctantly, to conclude that under the standard of review we must follow and
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with the extraordinarily broad discretion given to the trial courts in sentencing, that this
sentence structure must be affirmed.


                                   ___________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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