           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                       JANUARY SESSION, 1999


                                                             FILED
STATE OF TENNESSEE,        )                                      March 12, 1999
                           )    No. 02C01-9809-CC-00259
      Appellant            )                                 Cecil Crowson, Jr.
                           )    CHESTER COUNTY               Appellate C ourt Clerk
vs.                        )
                           )    Hon. WHIT LAFON, Judge
LUTHER WAYNE WHITE,        )
                           )    (State Appeal - Sentencing)
      Appellee             )



For the Appellee:               For the Appellant:

Angela R. Scott                 John Knox Walkup
Bishop, Scott & Bishop          Attorney General and Reporter
P. O. Box 408
Henderson, TN 38340             Peter Coughlan
                                Assistant Attorney General
                                Criminal Justice Division
                                425 Fifth Avenue North
                                2d Floor, Cordell Hull Building
                                Nashville, TN 37243-0493


                                James G. (Jerry) Woodall
                                District Attorney General

                                Shaun Brown
                                Asst. District Attorney General
                                P. O. Box 2825
                                Jackson, TN 38302




OPINION FILED:

REVERSED



David G. Hayes
Judge
                                                  OPINION



         The State appeals the sentencing decision of the Circuit Court of Chester

County following the appellee’s guilty pleas to two violations of the Motor Vehicle

Habitual Offenders Act and one count of misdemeanor possession of marijuana.

The appellee, Luther Wayne White, received a sentence of two years as a range

one standard offender for each habitual offender conviction and eleven months and

twenty-nine days for the marijuana conviction. The trial court ordered the appellee

to serve six months of each sentence followed by supervised probation. The State

appeals contending the trial court erred by (1) sentencing the appellant to the

incorrect sentencing range; (2) granting partial probation; and (3) ordering

concurrent sentences. 1



         After review, we find the State’s contentions to be meritorious. The

judgments of the trial court are reversed and the appellee’s sentences are modified

as ordered below.



                                              BACKGROUND



         On June 13, 1996, the appellee was arrested for violation of the Motor

Vehicle Habitual Offenders Act. On September 29, 1997, he was again cited for

violation of the MVHO Act and for misdemeanor drug possession. The appellee

pled guilty to all three offenses on March 4, 1998. Prior to the sentencing hearing,

the State filed notice to seek enhanced punishment as a range II offender and also

moved for consecutive sentences.



         This court’s review of the length, range, or manner of service of a sentence is


         1
          In this appeal, the State does not challenge the trial court’s application or weight of
mitigating factors o r the length of the se ntence s: these issues a re not raise d in the Sta te’s brief.
See Tenn . Code A nn. § 40- 35-402 (b)(1-5) (1 997).

                                                     2
de novo with a presumption that the determination made by the trial court is correct.

Tenn. Code Ann. § 40-35-401(d) (1997). See also State v. Bingham, 910 S.W.2d

448 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). This presumption is

only applicable if the record demonstrates that the trial court properly considered

relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The record does not reflect that the trial court considered the relevant principles of

sentencing; accordingly, the presumption is not afforded.



       Upon our de novo review, we are required to consider the evidence heard at

trial and at sentencing, the presentence report, the argument of counsel, the nature

and characteristics of the offense, any mitigating and enhancement factors, the

defendant’s statements, and the defendant’s potential for rehabilitation. Tenn. Code

Ann. § 40-35-102, -103(5), -210(b) (1997). The burden is on the appellant to show

that the sentence imposed was improper. Ashby, 823 S.W.2d at 169; State v.

Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing Commission

Comments, Tenn. Code Ann. § 40-35-401(d).



    The record establishes the appellee’s extensive list of criminal convictions from

1987 to the present. Evidence presented at the sentencing hearing indicates

approximately sixteen prior convictions including the following: (1) 1987, felony

conviction for possession with intent to sell marijuana, sentenced to two years; (2)

1987, misdemeanor possession of cocaine; (3) 1989, conspiracy to sell interstate

stolen motor vehicles, see 18 U.S.C. § 371, sentence of three years; (4) 1989, six

counts interstate transporting of stolen vehicles, see 18 U.S.C. § 2312, sentence of

two years; (5) 1994, violation of Motor Vehicle Habitual Offender Act, a class E

felony, sentence of three years as a range II multiple offender; (6) 1994, DUI, first

offense; (7) 1994, reckless endangerment; and (8) and other traffic related offenses.

       In addition, the appellee has a previous history of unwillingness to comply

with the conditions of probation. The record reflects that his federal probation was


                                         3
violated in July of 1993. The appellee’s May 1994 conviction for violation as an

habitual motor vehicle offender resulted in a three year community correction

sentence. While in this program, the appellee was arrested for the first instant

offense on June 13, 1996. Moreover, while on bond for that offense, the appellee

was arrested for the second and third present offenses on September 29, 1997.



       The presentence report reflects that the appellee is thirty-one years old,

divorced, and has attained his GED. The appellee was declared an habitual motor

vehicle offender in 1987. Since then, the appellee has not had a driver’s license;

however, at the time of the present offenses, he was eligible to receive them. The

appellee presently resides with his parents and has been employed as a mechanic

for over a year.



       Upon conclusion of the hearing, the trial court imposed a sentence of two

years in each felony count and eleven months and twenty-nine days for the

misdemeanor with all but six months suspended. The appellee was also granted

eligibility for work release during the six months of incarceration. After completion of

his jail sentence, the appellee was granted probation for the balance of the

sentence. The three offenses were ordered to be served concurrently.



       The guidelines of Tenn. Code Ann. § 40-35-106(a)(1) (1997) define a multiple

offender as a defendant who has received “[a] minimum of two (2) but not more than

four (4) prior felony convictions within the conviction class, a higher class, or within

the next two (2) lower felony classes . . .” Tenn. Code Ann. § 40-35-106(b)(2)

permits the sentencing court to consider all offenses including those occurring prior

to November 1, 1989. In compliance with Tenn. Code Ann. § 40-35-106(b)(4), we

note that the seven prior federal felony convictions involving stolen vehicles in

interstate commerce constitute but a single course of conduct for classification




                                          4
purposes as a multiple offender. 2 Nonetheless, considering his federal convictions

as one felony in addition to the two state felony convictions, the appellee qualifies as

a range II, multiple offender.



        Next, we address whether the sentences should run concurrently or

consecutively. The State contends under the provisions of Tenn. Code Ann. § 40-

35-115(b)(2) (1997), i.e., the appellee’s extensive criminal history, that the

convictions should be ordered to run consecutively. Specifically, the State points

out the appellee’s numerous convictions in thirty-one years of life, his denial of drug

usage with previous drug convictions, and his inability to conform to the

requirements of his bail or probationary periods justify consecutive sentencing in

order to protect the public. The appellee argues that consecutive sentencing would

not be reasonably related to the severity of the offenses involved.



        Although the provisions of Tenn. Code Ann. § 40-35-115(b)(2) are applicable

in determining consecutive sentencing, subsection (d) defers to those mandatory

guidelines provided in Tenn. R. Crim. P. 32. The sentences imposed in each count

of driving while an habitual motor vehicle offender must be run consecutively

because the appellee was released on bail following his first present offense and

subsequently pled guilty to both offenses. See Tenn. R. Crim. P. 32(c)(3)(C); see,

e.g., State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1996).



        Finally, we address the issue of whether the trial court improperly granted

probation. Initially, we note the appellee is not entitled to the presumption for an

alternative sentencing option, because he is a range II, multiple offender. See



        2
          The record con tains a judgment from the United States District Court for the We stern
District of Tennessee. Although the appellee was convicted of seven different felony counts, the
record fails to demonstrate whether these convictions constitute a single or separate occurrences
outside a twenty-four hour period. Therefore, we must presume the seven counts constitute a
single co urse of c onduc t in the abse nce of e vidence to the con trary.

                                                5
Tenn. Code Ann. § 40-35-102(6). Moreover, because the appellee “has a long

history of criminal conduct” and “measures less restrictive than confinement” have

proven unsuccessful, confinement is necessary. Tenn. Code Ann. § 40-35-

103(1)(A) and (C). Accordingly, we find the trial court erred in granting probation.



       In summary, the appellee is sentenced to the Tennessee Department of

Correction as a range II multiple offender upon each conviction for violation of the

MVHO Act. The sentences are ordered to run consecutive for an effective sentence

of four years. A sentence of eleven months and twenty-nine days is imposed for the

appellee’s conviction for misdemeanor possession of marijuana. This sentence is to

run concurrently with the appellee’s aggregate four year sentence. The judgments

of the trial court are vacated and this cause is remanded for entry of judgments

consistent with this opinion.




                                  ____________________________________
                                  DAVID G. HAYES, Judge


CONCUR:



__________________________________
JOE G. RILEY, Judge


__________________________________
JOHN EVERETT WILLIAMS, Judge




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