         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON               FILED
                      SEPTEMBER 1999 SESSION
                                                    October 29, 1999

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    NO. 02C01-9902-CC-00069
      Appellee,                 )
                                )    HARDEMAN COUNTY
VS.                             )
                                )    HON. JON KERRY BLACKWOOD,
MARSHALL A. SIMON,              )    JUDGE
                                )
      Appellant.                )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:

JEANNIE KAESS                        PAUL G. SUMMERS
520 Ridgeway Drive                   Attorney General and Reporter
Bolivar, TN 38008
                                     J. ROSS DYER
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     ELIZABETH T. RICE
                                     District Attorney General

                                     JAMES W. FREELAND
                                     Assistant District Attorney General
                                     302 Market Street
                                     Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                  OPINION


       Defendant, Marshall A. Simon, pled guilty to aggravated burglary and felony

evading arrest. After a sentencing hearing, the trial court sentenced the defendant

to consecutive terms of five years for aggravated burglary and two years for felony

evading arrest. In this appeal as of right, the defendant contends the trial court

erred in:

       1.    sentencing the defendant to the two-year maximum for
             felony evading arrest; and

       2.    requiring that the sentences be served consecutively.

After a careful review of the record, we AFFIRM the judgment of the trial court.



                                    I. FACTS



       Defendant participated in the burglary of a home at approximately 2:00 a.m.

on April 15, 1998. A security camera captured his actions, and an alarm alerted the

police. While en route to the scene, an officer met defendant’s vehicle coming

toward him at a high rate of speed on the wrong side of the road. Defendant’s

vehicle ran off the road, and defendant fled. Defendant was subsequently arrested.



                                II. SENTENCING



             Defendant pled guilty to aggravated burglary, a Class C felony, and

felony evading arrest, a Class E felony. The trial court sentenced the defendant as

a Range I standard offender to consecutive sentences of five years for aggravated

burglary and two years for felony evading arrest. Defendant contends his felony

evading arrest sentence is excessive, and that he did not qualify for consecutive

sentencing. We disagree.




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                              A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

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



       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d

803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.

1991). However, if such factors do exist, a trial court should start at the minimum

sentence, enhance the minimum sentence within the range for enhancement factors

and then reduce the sentence within the range for the mitigating factors. Tenn.

Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the

statute, as the weight given to each factor is left to the discretion of the trial court

as long as the trial court complies with the purposes and principles of the

sentencing act and its findings are supported by the record. State v. Moss, 727

S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.

App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see

Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.



                     B. Sentence for Felony Evading Arrest

       The trial court applied two enhancement factors. First, the trial court found

the defendant had a previous history of criminal convictions. See Tenn. Code Ann.

§ 40-35-114(1). Specifically, defendant had four prior felony convictions, two driving

on revoked license convictions and a traffic offense. Second, the trial court found

defendant had a previous history of unwillingness to comply with conditions of a

sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(8).

Specifically, defendant had previously been resentenced on a community


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corrections violation. The trial court properly applied both of these enhancement

factors. We also note that the present offenses were committed while defendant

was on community corrections for prior felonies. See Tenn. Code Ann. § 40-35-

114(13)(E).



       In mitigation, the trial found that the defendant’s conduct neither caused nor

threatened serious bodily injury, and that he admitted guilt. See Tenn. Code Ann.

§ 40-35-113(1), (13). We note, however, that defendant’s conduct in evading arrest

did indeed threaten serious bodily injury; therefore, this mitigating factor is

inapplicable.



       The weight to be given enhancement and mitigating factors is determined by

the trial court. We see no reason to disturb the trial court’s imposition of the two

year sentence for felony evading arrest.



       This issue is without merit.



                          C. Consecutive Sentencing

      Defendant contends the trial court erred in ordering these sentences to be

served consecutively. A court may order sentences to run consecutively if the court

finds by a preponderance of the evidence that:

       ...

       (2) [t]he defendant is an offender whose record of criminal activity is
       extensive; [or]

       ...

       (4) [t]he 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.


Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912 (Tenn.

Crim. App. 1995). Furthermore, the court is required to determine whether the

consecutive sentences are reasonably related to the severity of the offenses



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committed, and serve to protect the public from further criminal conduct by the

offender. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).            However,

Wilkerson only applies to the “dangerous offender” category. State v. Lane, _____

S.W.2d _____ (Tenn. 1999).



       The trial court found that the defendant had an extensive record of criminal

activity. See Tenn. Code Ann. § 40-35-115(b)(2). As stated, in addition to the

present offenses, defendant had four prior felony convictions and other

misdemeanor convictions. The trial court also found the defendant committed the

felony evading arrest by driving at a high rate of speed on the wrong side of the

road so as to endanger the lives of the officers seeking to arrest him. See Tenn.

Code Ann. § 40-35-115(b)(4). We conclude a proper statutory basis existed for the

imposition of consecutive sentencing.



       The trial court further found that it was necessary to protect the public from

future criminal conduct by the defendant. Although the trial court did not make a

specific finding that the aggregate sentence reasonably related to the severity of the

offenses, upon our de novo review we conclude that this Wilkerson factor has been

satisfied as it relates the “dangerous offender” category. Wilkerson, 905 S.W.2d at

939.



       Accordingly, we conclude the trial court did not err in imposing consecutive

sentences. This issue is without merit.



                                IV. CONCLUSION



       Based upon our review of the record, we AFFIRM the judgment of the trial

court in all respects.




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                                   ____________________________
                                   JOE G. RILEY, JUDGE




CONCUR:


____________________________
DAVID G. HAYES, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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