        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned On Briefs February 1, 2011

                  STATE OF TENNESSEE v. CRAIG ABSTON

                    Appeal from the Criminal Court for Shelby County
                         No. 02-04759 W. Mark Ward, Judge



                  No. W2010-01231-CCA-R3-CD - Filed August 10, 2011


Appellant, Craig Abston, was indicted by the Shelby County Grand Jury for one count of
second degree murder and two counts of attempted second degree murder. He was convicted
as charged and sentenced to twenty years for second degree murder, and twelve years and
eight years for each attempted second degree murder conviction. The trial court ordered the
twenty-year sentence and twelve-year sentence to run concurrently to each other but
consecutively to the eight-year sentence for an effective sentence of twenty-eight years. On
appeal, this Court reduced the twelve-year sentence to eight years, and remanded to the trial
court for a new sentencing hearing regarding the consecutive sentences. State v. Craig
Abston, No. W2007-00019-CCA-R3-CD, 2009 WL 2030432, at *4 (Tenn. Crim. App., at
Jackson, July 10, 2009), perm. app. denied, (Tenn. Dec. 14, 2009). On remand, the trial
court ordered the one eight-year sentence to be served concurrently with the twenty-year
sentence and the other eight-year sentence to be served consecutively to the twenty-year
sentence. Therefore, Appellant’s effective sentence is twenty-eight years. On appeal,
Appellant argues that the trial court erred in imposing consecutive sentences. After a
thorough review of the record, we conclude that the record supports the trial court’s
imposition of consecutive sentences. Therefore, we affirm the judgments of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.

William Massey, Memphis, Tennessee, for the appellant, Craig Abston.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                     Factual Background

        Appellant was the passenger in a blue sedan that was involved in an accident with a
red Crown Victoria driven by the victim. Craig Abston, 2009 WL 2030432, at *1. The
drivers got out of their vehicles. Appellant also got out of the backseat from the driver’s side
of the vehicle in which he was riding. Id. The victim and Appellant became involved in a
verbal altercation. Id. After Appellant and the driver of the blue vehicle returned to the car,
the blue car drove up next to the victim. A witness stated that he saw gunshots being fired
from the backseat of the blue sedan. Id. The victim died as the result of a gunshot wound.
Id. at *2. The Shelby County Grand Jury indicted Appellant for one count of second degree
murder and two counts of attempted second degree murder.

        Following a jury trial, Appellant was convicted of second degree murder and two
counts of attempted second degree murder. Id. at *1. The trial court sentenced Appellant
to twenty years for the second degree murder conviction; twelve years for the first attempted
second degree murder conviction; and eight years for the second attempted second degree
murder conviction. Id. The trial court ordered the twenty-year and twelve-year sentences
to run concurrently with each other, but consecutively to the eight-year sentence resulting in
an effective sentence of twenty-eight years. Id.

       Appellant appealed his convictions and his sentence to this Court. See id. On appeal,
we affirmed his convictions. However, based upon the Supreme Court’s decision in Blakely




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v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),1 this Court reduced Appellant’s twelve-
year sentence for attempted second degree murder to eight years. Craig Abston, 2009 WL
2030432, at *6. In addition, this Court reversed the judgments only with regard to the
imposition of consecutive sentences. Id. at *1. We determined that “the trial court failed to
state its reasoning for imposing consecutive sentencing.” Id. at *4. Therefore, we remanded
the case to the trial court for a new sentencing hearing to address the issue of consecutive
sentencing. Id.

       On remand the trial court held a new sentencing hearing. At the conclusion of the
hearing, the trial court ordered the two eight-year sentences to be served concurrently with
each other and the twenty-year sentence to be served consecutively to the eight-year
sentences for an effective sentence of twenty-eight years. Appellant filed a timely notice of
appeal.

                                              ANALYSIS

        On appeal, Appellant argues that the trial court erred in ordering the twenty-year
sentence to be served consecutively to the eight-year sentences. The State argues that the
trial court did not err in ordering the consecutive sentences.

       “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). “However, the presumption of correctness which accompanies the trial court’s
action 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.


        1
         In Blakely, the Supreme Court determined that the “statutory maximum” sentence is “the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” 542 U.S. at 303, 124 S. Ct. at 2537. In other words:


        [T]he relevant “statutory maximum” is not the maximum sentence a judge may impose after
        finding additional facts, but the maximum he may impose without any additional findings.
        When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has
        not found all the facts “which the law makes essential to the punishment,” and the judge
        exceeds his proper authority.


Id. On direct appeal in the case at hand, we concluded that the record did not support the enhancement of
Appellant’s sentence based upon his prior convictions because he had no criminal record. Craig Abston,
2009 WL 2030432, at *6.

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Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). We are to also recognize that the defendant bears
“the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that:


       (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; . . . .


T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

        This section also permits the trial court to impose consecutive sentences if the court
finds, among other criteria, that “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.” T.C.A. § 40-35-115(b)(4). However, before ordering
the defendant to serve consecutive sentences on the basis that he is a dangerous offender, the
trial court must find that the resulting sentence is reasonably related to the severity of the
crimes, necessary to protect the public against further criminal conduct, and in accord with

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the general sentencing principles. See State v. Imfeld, 70 S.W.3d 698, 708-09 (Tenn. 2002);
State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995).

       On remand, the trial court made the following findings:


              The question that’s before this court is whether the defendant is a
       dangerous offender whose behavior indicates little or no regard for human life
       and no hesitation about committing the crime in which the risk to human life
       is high. Under this particular criteria consecutive sentences are imposed on
       dangerous offenders to protect society against offenders who commit
       aggravated crimes that pose a high risk to human life.

              ....

               In this case I do find aggravating circumstances particularly the
       defendant who was a member of the Crips was riding in the car with fellow
       gang members. And the defendant took a nine millimeter handgun and fired
       at least six shots, maybe more, but at least six shots into another car containing
       three people. Many other people were in the area and placed in danger as the
       incident occurred near or just after a high school football game. The shooting
       was not justified or necessary and the defendant showed absolute indifference
       to whether his multiple shots injured innocent spectators. Of course, again,
       this is his inconsistent statements. At one point he said he stuck the gun out
       the window and just started firing blindly. At another point he said he stuck
       the gun up in the air and started firing blindly. But, again, he’s given
       inconsistent statements there.

             In this case, but for the grace of God, he could have faced multiple
       murder charges. Clearly, in firing his weapon at least six times, the defendant
       showed no hesitation about committing a crime with the high risk to human
       life.

              So, I think he falls within that category. Of course, there are other
       things that I have to consider by law. I must also consider whether the
       aggregate term of the sentence imposed reasonably relates to the severity of the
       offenses. And I must determine whether consecutive sentencing is necessary
       to protect the public from further serious criminal conduct by the defendant.
       And under this category I look at the defendant’s amenability to rehabilitation.
       And I might say this, that the defendant in no sentencing hearing has taken the

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       stand or made any statement reflecting any significant remorse over this
       matter. He did say at trial that he had been a member of the Crips for two
       years. And I think these are negative – indicate negative information with
       regard to rehabilitation.

               Also, I have to consider the sentencing purposes. The foremost purpose
       of a sentence is to promote justice. Every defendant shall be punished by the
       imposition of a sentence justly deserved in relation to the seriousness of the
       offense. Punishment is imposed in part to prevent crime and promote respect
       for the law by both providing an effective general deterrent to crime and also
       encouraging effective rehabilitation. Also, the sentencing considerations
       provide that the sentence imposed should be no greater than that deserved for
       the offenses. The sentence should be the least severe measure necessary to
       achieve the purposes for which the sentence [is] imposed.

               And, again, I always must consider the potential or lack of potential for
       rehabilitation of the defendant. And I look at all these factors . . . . I think this
       is a case that clearly could call out for complete consecutive sentencing. I do
       think it’s an aggravated case. I think the defendant falls within the category
       of a dangerous offender. . . . But, we’re told to sometimes consider the youth
       of the defendant as it might relate to his eventual and potential rehabilitation.
       . . . And that’s why I’m not going to make it completely consecutive . . . .


         The trial court made all the appropriate findings concerning the general sentencing
principles to support the imposition of consecutive sentences on the basis of Appellant being
a dangerous offender. The trial court also set out its reasoning for concluding that Appellant
was a dangerous offender. On appeal, Appellant argues that the trial court erred because the
factors upon which the trial court relied “were inherent in the crime and were unfairly used
. . . .” Appellant sets out the following five factors as those used by the trial court and his
accompanying argument:


       (1) the Appellant was [a] gang member riding in a car with other gang
       members; (2) the Appellant used a handgun to fire at least six shots into a car
       containing three people; (3) other people were in the area and were placed in
       danger; (4) the shooting was not justified; and (5) the Appellant showed
       indifference as whether his shots may injure innocent spectators. The second
       and fourth aggravators listed by the sentencing court are inherent in the crime,
       and as such are improper bases for sentence enhancement. Similarly, the third

                                                -6-
       and fifth aggravators are virtually identical in meaning; others aside from the
       named victims were put in harm’s way. Therefore, because the Appellant was
       a gang member in the company of other gang members and members of the
       community other than the victims were put in harm’s way, the sentencing court
       enhanced the Appellant’s total effective sentence from 15 years to 28 years.
       Based on two aggravators, the Appellant’s effective sentence was nearly
       doubled.


       Initially, we point out that Appellant’s argument that his effective sentence was nearly
doubled from fifteen years to twenty-eight years is misplaced in the case at hand. Appellant
bases this argument on the fact that the absolute minimum effective sentence for his
convictions would be fifteen years without the application of enhancing factors and the
imposition of concurrent sentences. The case at hand does not concern a challenge to the
enhancing factors used by the trial court to enhance the length of Appellant’s sentences. On
remand, this Court ordered the trial court to reduce the length of one sentence and to revisit
the imposition of consecutive sentences. Therefore, on appeal, the only issue that can be
addressed is the trial court’s imposition of consecutive sentences which increased the
effective sentence from twenty years to twenty-eight years.

       As stated above, Appellant argues that the second and fourth aggravators, the
Appellant used a handgun to fire six shots into a car containing three people and the shooting
was not justified are inherent in the crime. Appellant was convicted of second degree murder
pursuant to Tennessee Code Annotated section 39-13-210 which states, “Second degree
murder is: (1) A knowing killing of another . . . .” T.C.A. § 39-13-210 (1997). Appellant
was also convicted of attempted second degree murder. Neither offense includes the use of
a handgun as an element. Therefore, these factors are not inherent in the offense.

        Appellant also argues that factors three and five, (3) other people were in the area and
were placed in danger, (5) the Appellant showed indifference as whether his shots may injure
innocent spectators, are identical in meaning. However, we disagree with Appellant. Factor
(3) is that Appellant’s actions placed other individuals in danger, and factor (5) is that the
Appellant had no hesitation about whether he placed other individuals in danger. We
conclude that these statements have very different meanings.

      The trial court has followed the sentencing guidelines and set out its findings as to
why it concluded that Appellant is a dangerous offender to support the imposition of
consecutive sentencing. We conclude that the record supports the trial court’s findings.

       Therefore, this issue is without merit.

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                              CONCLUSION

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




                                   ___________________________________
                                   JERRY L. SMITH, JUDGE




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