         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                        Assigned on Briefs at Jackson June 3, 2008

                  STATE OF TENNESSEE v. TIMMY LEE HILL

                      Appeal from the Circuit Court for Marshall County
                             No. 16359    Robert Crigler, Judge



                  No. M2007-02205-CCA-R3-CD - Filed November 13, 2008


The defendant, Timmy Lee Hill, was convicted by a jury in the Circuit Court for Marshall County
of three counts of aggravated kidnapping, a Class B felony; two counts of aggravated assault, a Class
C felony; one count of escape, a Class E felony; and one count of evading arrest, a Class A
misdemeanor. The three counts of aggravated kidnapping were merged. The defendant was
sentenced as follows: one nineteen-year sentence for aggravated kidnapping, with a concurrent
eleven-month-twenty-nine-day sentence for evading arrest; one consecutive ten-year sentence for
aggravated assault on the same victim as the aggravated kidnapping, with a concurrent eleven-
month-twenty-nine-day sentence for assault on a second victim; and one consecutive six-year
sentence for escape, for an effective sentence of thirty-five years. The defendant appeals, claiming
the trial court erred in imposing a consecutive sentence for the aggravated assault. We affirm the
judgments of the trial court, except we remand the case for entry of a corrected judgment for the
aggravated assault to reflect a ten-year sentence.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part,
                                    Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Timmy Lee Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Charles Frank Crawford, Jr., District Attorney General, and Ann L. Filer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The proof at trial showed that on February 16, 2005, the defendant, an inmate at the Marshall
County Jail, accosted a correctional officer with a spike and bound her hands and ankles. After
injuring her in a struggle and forcing her to open several successive gates, the defendant assaulted
another correctional officer and escaped. He was captured a few hours later after he attempted to
flee from an officer.

        At the initial sentencing hearing, the defendant received a nineteen-year sentence for
aggravated kidnapping, with a fifteen-year sentence for aggravated assault and an eleven-month-
twenty-nine-day sentence for evading arrest to run concurrently to the nineteen-year sentence. The
defendant also received a second fifteen-year sentence for aggravated assault and a six-year sentence
for escape, each to run consecutively to the nineteen-year sentence, for an effective sentence of forty
years to run consecutively to a prior eighteen-year sentence.

        On appeal, this court affirmed in part, but modified one conviction and remanded the case
to the trial court to: (1) resentence the defendant on count five, as the evidence showed only an
assault instead of aggravated assault; (2) correct the judgment for count four to reflect that the
defendant was a persistent, not career, offender; (3) enter a single judgment of conviction for
aggravated kidnapping to reflect the merger of counts one, two, and three; (4) correct the judgment
for count six to indicate a sentence of six years instead of fifteen; and (5) reconsider consecutive
sentencing for the remaining aggravated assault conviction. See State v. Timmy Lee Hill, No.
M2005-02437-CCA-R3-CD, Marshall County, slip op. at 13 (Tenn. Crim. App. June 20, 2007).

         During the second sentencing hearing, the parties presented no additional evidence, but the
trial court stated that it had heard their proof at the first sentencing hearing. At this second hearing,
the trial court corrected the judgments remanded by this court. The defense argued that as the trial
court had imposed less than the maximum sentence for aggravated kidnapping, it should impose less
than the maximum sentence in the persistent offender range for the aggravated assault on the first
victim. The defense also urged the court to continue its scheme of ordering consecutive sentences
based on the number of victims, but it reminded the court that one of the sentences was now a
misdemeanor sentence. The trial court repeated its findings from the first hearing that the defendant
had an extensive criminal history and that the defender was a “dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation about committing a crime where the risk
to human life was high.” T.C.A. § 40-35-115(b)(2), (4) (2006).

        At the first sentencing hearing, the trial court considered the trial evidence, evidence of the
defendant’s prior convictions, and the testimony of Beth Ladner, who prepared the presentence
report. The trial court found that no mitigation factors from Tennessee Code Annotated section 40-
35-113 (2003) applied.

       The trial court found that nine enhancement factors from Tennessee Code Annotated section
40-35-114 (2003)1 applied:


        1
          W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated section 40-35-114.
See 2005 Tenn. Pub. Acts page nos. 789-92. The defendant waived ex post facto objections to being sentenced under
this new act. However, the trial court continued to use the numbering of the pre-Blakely act when stating applicable
enhancement factors. We reprint the Code sections as numbered by the trial court at the first sentencing hearing.

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               (2)     The defendant has a previous history of criminal convictions
                       or criminal behavior in addition to those necessary to
                       establish the appropriate range;
               (3)     The defendant was a leader in the commission of an offense
                       involving two (2) or more criminal actors;
               (7)     The personal injuries inflicted upon or the amount of damage
                       to property sustained by or taken from the victim was
                       particularly great;
               (9)     The defendant has a previous history of unwillingness to
                       comply with the conditions of a sentence involving release
                       into the community;
               (10)    The defendant possessed or employed a firearm, explosive
                       device or other deadly weapon during the commission of an
                       offense;
               (11)    The defendant had no hesitation about committing a crime
                       when the risk to human life was high;
               (15)    The felony was committed on escape status or while
                       incarcerated for a felony conviction;
               (17)    The crime was committed under circumstances under which
                       the potential for bodily injury to a victim was great; and
               (21)    The defendant was adjudicated to have committed a
                       delinquent act or acts as a juvenile that would constitute a
                       felony if committed by an adult.

         At the first sentencing hearing, the trial court found that consecutive sentencing was
appropriate because the defendant had an extensive criminal history and was a dangerous offender.
The court noted that the defendant had twelve misdemeanor convictions, in addition to the prior
felony convictions and the convictions underlying this case. The court also stated that many of the
defendant’s misdemeanor crimes were crimes of violence, that the defendant had a prior aggravated
assault conviction, and that his merged conviction for aggravated kidnapping demonstrated the
defendant’s disregard for human life. The court ordered the aggravated kidnapping and the first
aggravated assault to run concurrently because both involved the same victim. The second
aggravated assault sentence involving an attack on a second officer was ordered to run consecutively
to the sentences involving the first officer. In the second sentencing hearing, the court retreated from
this scheme and imposed a ten-year sentence for aggravated assault to run consecutively to the
nineteen-year sentence for aggravated kidnapping.

        The defendant contends on appeal that the trial court erroneously imposed a ten-year
consecutive sentence for aggravated assault on the same victim as the aggravated kidnapping, when
it should have ordered the sentence to run concurrently to the nineteen-year sentence for aggravated
kidnapping. The defendant claims the trial court failed to determine the prerequisites for imposing
consecutive sentences on dangerous offenders relative to making the specific findings that (1) the
terms of the sentence reasonably relate to the severity of the offenses and (2) consecutive sentences


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are necessary to protect the public from the defendant’s further serious criminal conduct. See State
v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). The defendant claims the imposition of a consecutive,
maximum ten-year sentence for aggravated assault violates Lane. At the sentencing hearing, the
defendant urged the trial court to follow its own sentencing scheme imposing consecutive sentences
based on each of the three victims, two officers and society in general. As the aggravated assault
conviction and the aggravated kidnapping conviction involve the same victim, the defendant asserts
that these sentences should run concurrently.

        The State responds that the trial court correctly resentenced the defendant. The State asserts
that the defendant has cited no legal authority for his claim that the number of victims determines
the number of consecutive sentences to be imposed. The State argues that consecutive sentencing
is appropriate because the trial court found that the defendant was a dangerous offender whose
behavior indicated little or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high and that the defendant was an offender whose record of criminal
activity is extensive. T.C.A. § 40-35-115(b)(2), (4).

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d) (2006). This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately supported in
the record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a
different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
As the Sentencing Commission Comments to Tennessee Code Annotated section 40-35-401(d) note,
the burden is now on the defendant to show that the sentence is improper.

        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. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

               the trial court must place on the record its reasons for arriving at the
               final sentencing decision, identify the mitigating and enhancement
               factors found, state the specific facts supporting each enhancement
               factor found, and articulate how the mitigating and enhancement
               factors have been evaluated and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e) (2006).

        Also, in conducting a de novo review, we must consider (1) the evidence, if any, received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on



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his or her own behalf, and (7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102,
-103, -210 (2006); see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which
states in pertinent part that the court may order sentences to run consecutively if it finds by a
preponderance of the evidence 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). For dangerous offenders, “consecutive sentences
cannot be imposed unless the terms reasonably relate to the severity of the offenses committed and
are necessary in order to protect the public from further serious criminal conduct by the defendant.”
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see Lane, 3 S.W.3d 456, 461 (Tenn. 1999).


        The record shows that the trial court applied the statutory sentencing principles in imposing
the defendant’s sentences. The trial court found that nine enhancement factors and no mitigating
factors applied. Referring to its earlier findings and explanations of applicable enhancement factors,
the court found that the defendant had an extensive criminal history and that the defendant was “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.”

         Although the court did not make the findings required by Wilkerson after it found that the
defendant was a dangerous offender, the imposition of the ten-year consecutive sentence was proper
because the court found the defendant had an extensive criminal history pursuant to section 40-35-
115(b)(2). At the sentencing, the State urged the court to incarcerate the forty-six-year-old defendant
for as long as possible because the defendant had not held employment, had not led a productive life,
but had instead been committing crimes since his childhood. The defendant committed the present
offenses while he was incarcerated for a felony offense and escaped. The trial court properly found
that the defendant’s criminal history was extensive, justifying consecutive sentencing. Only one
factor is needed for a judge to act within his or her discretion to impose consecutive sentencing.
Sent. Comm’n Cmts., T.C.A. § 40-35-115. Moreover, there is no authority to support the
defendant’s claim that multiple offenses against the same victim should result in concurrent
sentences. The defendant has not met his burden to prove the consecutive sentence was improper.

        Finally, we note that although the transcript of the resentencing hearing reflects that the
defendant was sentenced to ten years’ confinement as a persistent offender for the aggravated assault,
the judgment after the resentencing imposes a four-year sentence. Where the hearing transcript and
the judgment conflict, the hearing transcript controls. See State v. Davis, 706 S.W.2d 96, 97 (Tenn.
Crim. App. 1985). The judgment for the aggravated assault should be corrected to reflect a ten-year
sentence.




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      Based upon the foregoing and the record as a whole, we affirm the judgments in part and
remand the case for entry of a corrected judgment for the aggravated assault.


                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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