         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    June 20, 2000 Session

               STATE OF TENNESSEE v. JEFFREY ENGLISH
             Appeal as of Right from the Criminal Court for Williamson County
                       No. II-1298-401-A    Timothy L. Easter, Judge



                  No. M1999-02495-CCA-R3-CD - Filed November 22, 2000

On December 14, 1998, a Williamson County Grand Jury returned presentments charging Jeffrey
English, the defendant and appellant, with three counts of aggravated robbery and one count of
aggravated assault. The defendant pled guilty to three counts of aggravated assault. At a subsequent
sentencing hearing, the defendant also pled true to violating the probation he was on at the time of
the instant offenses. Following the hearing, the trial court sentenced the defendant to sixteen years
for each count of aggravated robbery. His probation was revoked and he was sentenced to serve
eight years for the prior aggravated robbery. The court ordered the defendant to serve all four
sentences consecutively. On appeal, the defendant argues that his sentence is excessive. After a
thorough review of the record, we affirm the judgment of the trial court.



  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court of Williamson
                                   County is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and JOHN
EVERETT WILLIAMS, J., joined.

Gene Honea, Assistant Public Defender, Franklin, Tennessee, attorney for the appellant, Rhonda
Jennings.

Paul G. Summers, Attorney General and Reporter, Lucian D. Geise, Assistant Attorney General, and
Ron Davis, District Attorney General, Jeff Burks, Assistant District Attorney, attorneys for the
appellee, State of Tennessee.

                                            OPINION

                                  Factual Background
       The defendant pled guilty to robbing three convenience stores at gunpoint with an


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accomplice. At a subsequent sentencing hearing, the state introduced a presentence report and a
victim impact statement as exhibits. At the sentencing hearing the defendant told the court that he
and a codefendant had robbed the three stores and stolen a total of approximately five-thousand
dollars. When questioned about the presentence report, the defendant admitted that he had prior
convictions for aggravated robbery, burglary, simple assault and possession of cocaine. He also
admitted that he was on probation for a prior aggravated robbery when he committed the robberies
for which he was being sentenced. The defendant testified that the aggravated robberies in the
instant cases were a result of two factors: the drug habit he had acquired when he was twelve years
old and his desire to impress his codefendant. The defendant told the court that he was sorry for
what he had done, and that he took responsibility for his actions.
        The defendant further testified that he was born in Chicago but moved to Middle Tennessee
when he was eighteen to escape Chicago’s gang culture. Since coming to Tennessee, the defendant
had a variety of jobs, the longest of which was at a McDonald’s restaurant. The defendant worked
at McDonald’s sporadically over a two-year period; the total time he spent working there was
approximately one year. Although he changed jobs frequently, the defendant testified that he had
worked continuously since coming to Tennessee.
        Sharon Smithson, the only other witness at the sentencing hearing, testified for the defense.
Ms. Smithson had been the defendant’s supervisor at McDonald’s. She testified that the defendant
worked intermittently, but that he was a hard worker and she would hire him again if she could.
        Following the testimony, the trial court found the defendant to be a Range II, multiple
offender. The court ordered the defendant to serve three sixteen-year sentences consecutively to each
other and to an eight-year term on the previously suspended aggravated robbery sentence. The total
effective sentence was fifty-six years.

                                            Sentencing
       The defendant claims that his sentence is excessive. Specifically, he claims that the trial
court misapplied enhancement factors, failed to consider certain mitigating evidence, inappropriately
ordered consecutive sentences, and ignored general sentencing principles.

                                         Standard of Review
         When an appellant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determination of the trial court was correct.
Tenn. Code Ann. § 40-35-401(d). However, this presumption of correctness is "conditioned upon
the affirmative showing that the trial court in the record considered the sentencing principles and all
relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If appellate
review reflects that the trial court properly considered all relevant factors and its findings of fact are
adequately supported by the record, this Court must affirm the sentence even if we would prefer a
different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a
review, this Court must consider the evidence, the presentence report, the sentencing principles, the
arguments of counsel, the nature and character of the offense, mitigating and enhancement factors,
any statements made by the defendant, and the potential for rehabilitation or treatment. State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of showing
the impropriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App.


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1993).
                                       Trial Court’s Findings
        Following the testimony, the court found the defendant to be a Range II, multiple offender.
The court then found that the following enhancement factors applied: (1) that the defendant had a
previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); (2) that the defendant had a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community, id. § 40-35-114(8); and (3) that the felonies were committed while the defendant was
on probation from a prior felony conviction. Id. § 40-35-114(13)(C). The court found only one
mitigating factor, that the defendant assisted the authorities in the apprehension of his codefendant.
Id. § 40-35-113(9). Thus, the court sentenced the defendant to sixteen years for each count.
        The trial court also found that the defendant (1) was a professional criminal who had
knowingly devoted his life to criminal acts as a major source of livelihood, id. § 40-35-115(b)(1);
(2) was an offender whose record of criminal activity was extensive, id. § 40-35-115(b)(2); (3) was
a dangerous offender, id. § 40-35-115(b)(4); and (4) was on probation when he committed the
offenses for which he was being sentenced. Id. § 40-35-115(b)(6). Accordingly, the court ordered
the defendant to serve all three sentences consecutively to each other and to the eight-year sentence
for violating probation. The total effective sentence was fifty-six years.

                                          Length of Sentence
         The defendant first contests the length of his sixteen-year sentences. The defendant pled
guilty to three counts of aggravated robbery, a Class B felony. Tenn. Code Ann. § 39-13-402(b).
 The sentencing range for a Range II offender convicted of a Class B felony is between twelve and
twenty years. Id. § 40-35-112(b)(2). The sentence to be imposed by the trial court for a Class B
felony is presumptively the minimum in the range if neither enhancement nor mitigating factors are
present. Id. § 40-35-210(c). Procedurally, the trial court is to increase the sentence within the range
based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for
any mitigating factors. Id. § 40-35-210(e). The weight to be afforded an existing factor is left to the
trial court's discretion so long as it complies with the purposes and principles of the 1989 Sentencing
Act and its findings are adequately supported by the record. Id. § 40-35-210, Sentencing
Commission Comments; State v. Palmer, 10 S.W.3d 638, 646 (Tenn. Crim. App. 1999). In this case,
the defendant’s sentence was sixteen years, the midpoint in the range.
         The defendant concedes that enhancement factors (1), a previous criminal history, and
(13)(C), probationary status at the time of the commission of the present offense, apply. Tenn. Code
Ann. § 40-35-114(1), (13)(C). He claims, however, that the court improperly relied on the
defendant’s probation status at the time he committed the instant offenses, rather than on a previous
unwillingness to comply with conditions of a sentence involving release into the community, in
applying factor (8). Id. § 40-35-114(8)(Emphasis added).1 While it is true that a “previous
unwillingness” may not be found based solely on evidence that a defendant committed the instant
offense while on probation, State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995), we have


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           The trial co urt held that enh ancemen t factor (8) wa s “supporte d by the fact that [th e defenda nt] was, in
fact, on pro bation at the tim e when he c ommitted these robb eries.”

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previously held “that a defendant being sentenced for a series of offenses committed over time while
on probation could be viewed, for sentencing for the most recent offenses, as having a proven
previous history of unwillingness to abide by community release conditions by virtue of the earlier
offenses for which sentencing is to occur.” Id. In this case, the defendant committed all three
robberies while on probation in Williamson County. Thus, the defendant’s probationary status at
the time he committed the robberies standing alone, could only be used to enhance the sentences for
the last two robberies.
         However, we find that the trial court also properly applied enhancement factor (8) as to the
first robbery, because the record indicates that the defendant had previously violated probation in
Giles County before violating his Williamson County probation. Accordingly, we find that the
application of enhancement factor (8) was appropriate in all three sentences. See State v. Anderson,
985 S.W.2d 9, 20 (Tenn. Crim. App. 1997)(citing State v. Hayes, 899 S.W.2d at 186 as standing for
the proposition that enhancement based on factors (8) and (13) does not unfairly enhance the
defendant's sentence twice for the same conduct).
         The defendant also complains that the trial court should have considered several mitigating
factors. He first claims that the trial court should have applied mitigating factor (12), that the
defendant acted under duress or under the domination of another person. Tenn. Code Ann. § 40-35-
113(12). As support for this factor, the defendant refers to his own testimony that his codefendant
influenced his participation in the crimes. The defendant also claims that the trial court should have
considered the defendant’s guilty plea and his unfortunate background as mitigating factors under
the “catch-all” provision of the statute. Tenn. Code Ann. § 40-35-113(13).
         We conclude that the trial court properly declined to apply these factors in mitigation. First,
there was no evidence that the defendant was under anyone’s domination when he committed the
robberies. The testimony at the sentencing hearing indicated that the defendant voluntarily
participated in the crimes; indeed, the defendant stated that he took responsibility for his decision
to rob the stores. Furthermore, a guilty plea does not automatically entitle a defendant to mitigation.
The trial court is in a much better position than this Court to determine whether, given all of the
circumstances, a decision to plead guilty instead of proceed to trial should be considered mitigating.
Finally, although the defendant had a history of drug use, was raised in a single parent home and was
involved in gangs, we find that the trial court properly exercised its discretion when it declined to
find the defendant’s background mitigating. In short, we find the trial court’s sentences of sixteen
years for each aggravated burglary appropriate.
This issue is without merit.

                                       Consecutive Sentences
        Next, the defendant challenges the trial court's imposition of consecutive sentences.
Specifically, he argues that the trial court erroneously determined that he was a professional criminal,
that he was a dangerous offender and that he had an extensive criminal history which would warrant
consecutive sentences. See Tenn. Code Ann. § 40-35-115(b)(1), (2), (4).
        Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115. A trial court may
order sentences to run consecutively if it finds that one or more of the statutory criteria exists by a
preponderance of the evidence. Tenn. Code Ann. § 40-35-115(b); State v. Black, 924 S.W.2d 912,
917 (Tenn. Crim. App. 1995). Under Tenn. Code Ann. § 40-35-115(b)(6), a trial court may impose


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consecutive sentences after determining that the defendant committed the offenses while on
probation for another offense. It is undisputed that the defendant committed the present offenses
while he was on probation. Thus, because the trial court need only find one of the statutory criteria
to exist to justify consecutive sentencing, the trial court's imposition of consecutive sentences was
clearly proper in this case.2 This issue is without merit.
        Accordingly, the judgment of the trial court is AFFIRMED.



                                                              __________________________________
                                                              JERRY L. SMITH, JUDGE




        2
           Because consecutive sentencing was proper under the statute, this Court need not determine whether the
trial court erred in finding that the defendant was a professional criminal, had an extensive record of criminal
activity, or was a dangerous offender. Tenn. Code Ann. §§ 40-35-11 5(b)(1), (2), (4).




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