         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                            JUNE 1998 SESSION
                                                     October 6, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9709-CC-00421
      Appellee,                     )
                                    )    WILLIAMSON COUNTY
VS.                                 )
                                    )    HON. DONALD P. HARRIS,
JEFFREY C. STIDDUM,                 )    JUDGE
                                    )
      Appellant.                    )     (Attempted Aggravated Burglary,
                                    )      7 Counts Aggravated Burglary,
                                    )      Theft Over $1,000, 4 Counts
                                    )      Theft Over $500, Theft Under
                                     )      $500)


FOR THE APPELLANT:                       FOR THE APPELLEE:

C. DIANE CROSIER                         JOHN KNOX WALKUP
Assistant Public Defender                Attorney General and Reporter
407 C. Main street
P.O. Box 68                              LISA A. NAYLOR
Franklin, TN 37065-0068                  Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         JOSEPH D. BAUGH, JR.
                                         District Attorney General

                                         LEE DRYER
                                         Assistant District Attorney General
                                         P.O. Box 937
                                         Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



LEE MOORE,
SPECIAL JUDGE
                                    OPINION



      The appellant, Jeffrey C. Stiddum, was indicted by the Williamson County

grand jury on February 10, 1997, as follows:

      1.     One count of attempted aggravated burglary in Case No. I-297-73.
      2.     One count of aggravated burglary and two counts of theft of property
             with a value of more than $500.00 in Case No. I-297-74.
      3.     One Count of aggravated burglary and two counts of theft of property
             with a value of more than $500.00 in Case No. I-297-75.
      4.     One count of aggravated burglary and two counts of theft of property
             with a value of more than $500.00 in Case No. I-297-76.
      5.     One count of aggravated burglary in Case No. I-297-77.
      6.     One count of aggravated burglary and two counts of theft under
             $500.00 in Case No. I-297-78.
      7.     One count of aggravated burglary and two counts of theft of property
             with a value of more than $500.00 in Case No. I-297-79.
      8.     One count of aggravated burglary and two counts of theft of property
             with a value of more than $1,000.00 in Case No. I-297-80.



      The state filed a notice of intent to seek enhanced punishment. On July 14,

1997, the appellant entered a plea of guilty as a Range II Multiple Offender to

charges as follows:

      1.     Attempted Aggravated Burglary in Case No. I-297-73.
      2.     Aggravated burglary and theft of property with a value of more     than
             $500.00 in Case No. I-297-74.
      3.     Aggravated burglary and theft of property with a value of more     than
             $500.00 in Case No. I-297-75.
      4.     Aggravated burglary and theft of property with a value of more     than
             $500.00 in Case No. I-297-76.
      5.     Aggravated burglary in Case No. I-297-77.
      6.     Aggravated burglary and theft of property with a value of less     than
             $500.00 in Case No. I-297-78.
      7.     Aggravated burglary and theft of property with a value of more     than
             $500.00 in Case No. I-297-79.
      8.     Aggravated burglary and theft of property with a value of more     than
             $1,000.00 in Case No. I-297-80.



      A sentencing hearing was held on July 28, 1997. The trial court sentenced

appellant as a Range II Multiple Offender as follows:

      1.     Six (6) years for attempted aggravated burglary in Case No. I-297-73.
      2.     Eight (8) years for aggravated burglary and three (3) years for theft of
             property with a value of more than $500.00 in Case No. I-297-74.
      3.     Eight (8) years for aggravated burglary and three (3) years for theft of
             property with a value of more than $500.00 in Case No. I-297-75.
      4.     Eight (8) years for aggravated burglary and three (3) years for theft of
             property with a value of more than $500.00 in Case No. I-297-76.
      5.     Eight (8) years for aggravated burglary in Case No. I-297-77.

                                         2
       6.      Eight (8) years for aggravated burglary and eleven (11) months and
               twenty-nine (29) days for theft of property with a value of less than
               $500.00 in Case No. I-297-78.
       7.      Eight (8) years for aggravated burglary and three (3) years for theft of
               property with a value of more than $500.00 in Case No. I-297-79.
       8.      Eight (8) years for aggravated burglary and six (6) years for theft of
               property with a value of more than $1,000.00 in Case No. I-297-80.



       The trial court ordered the six (6) year sentence for Count One in Case No.

I-297-73 to run consecutively to the effective eight (8) year sentence imposed in

Case No. I-297-74, and consecutively to the sentence imposed in Case No. I-894-

227, for an effective fourteen (14) year sentence on all these offenses. The

remaining sentences were to run concurrently to each other and with the appellant's

other sentences from Rutherford and Sumner Counties. The appellant filed a notice

of appeal on September 16, 1997.



       The appellant contends that the trial court erred in that the sentence imposed

was excessive. For the reasons stated hereinafter, the judgment of the trial court

is affirmed.



                     SENTENCING - 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. § 40-25-401(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 the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).



       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. §40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-


                                           3
210, to consider the following factors in sentencing:

       (1) the evidence, if any, received at the trial and the 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 involved; (5) evidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) any statement the
       defendant wishes to make in his own behalf about sentencing.


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

Code Ann. § 40-35-210© provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 888 (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.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); See Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and the trial

court's findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d at 789.




                                          4
                       SENTENCING - CONFINEMENT



      Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations contained in Tenn. Code Ann. § 40-35-

103(1):

      (A) confinement is necessary to protect society by restraining a
           defendant who has a long history of criminal conduct;
      (B) confinement is necessary to avoid depreciating the seriousness
           of the offense or confinement is particularly suited to provide an
           effective deterrence to others likely to commit similar offenses;
           or
      (C) measures less restrictive than confinement have frequently or
          recently been applied unsuccessfully to the defendant.

See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.

Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).



                        CONSECUTIVE SENTENCING



      A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

      (1) the defendant is a professional criminal who has knowingly
          devoted himself 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;
      (5) the defendant is convicted of two (2) or more statutory offenses
          involving sexual abuse of a minor with consideration of the
          aggravating circumstances arising from the relationship between
          the defendant and victim or victims, the time span of defendant's
          undetected sexual activity, the nature and scope of the sexual
         acts and the extent of the residual, physical and mental damage
         to the victim or victims;
      (6) the defendant is sentenced for an offense committed while on
           probation; or
      (7) the defendant is sentenced for criminal contempt.

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

                                        5
consecutive sentences (1) are reasonably related to the severity of the offenses

committed; (2) serve to protect the public from further criminal conduct by the

offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).



                                       FACTS



       Prior to the sentencing hearing, the State filed an intent to seek enhanced

punishment as a Multiple Range II Offender setting out prior felony convictions for

two (2) aggravated burglaries and five (5) thefts of property over a value of

$1,000.00.



       At the time of the sentencing hearing the appellant was serving a six year

sentence from a Rutherford County conviction. He was awaiting sentencing in

Sumner and Davidson County.           He also admitted to probation violations in

Williamson and Davidson County. At the sentencing hearing the appellant testified

that the information in the presentence report was correct. He indicated also that

the memorandum prepared by the Public Defender for the sentencing hearing was

also correct. Appellant testifed as to his employment status prior to his most recent

confinement. He indicated that he had a drug problem and that he wanted to be

able to provide Christmas for his family.



       The trial court found two (2) enhancing factors. Appellant was found to have

a previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range. The trial court also found as an

enhancing factor that the subject offenses were committed while appellant was on

probation.



       The trial court found as mitigating factors that the actions of the appellant did

not threaten serious bodily injury and also that the appellant provided some



                                            6
assistance in locating some of the property. The trial court also found that the

appellant had pleaded true to a violation of his probation of a sentence from

Williamson County. These mitigating factors were not given much weight by the

trial court.



        The trial court then considered T.C.A. § 40-35-115 (b) (1) and (6). Trial

court found that the appellant was a professional criminal who had knowingly

devoted his life to criminal acts as a major source of livlihood and further that the

appellant was being sentenced for offenses committed while he was on probation.

As stated above, the appellant was given an effective fourteen (14) year sentence

with consecutive sentencing.



                                  CONCLUSION



        The trial court followed the guidelines of the Sentencing Reform Act of

1989. The court correctly found appropriate enhancing factors and mitigating

factors as set out above. The court obviously placed more weight on the enhancing

factors. The court then employed sentencing considerations of T.C.A. § 40-35-103.

The appellant was properly sentenced as a Multiple Range II Offender. Appropriate

sentence ranges were established, and the court correctly found appropriate bases

under T.C.A. §40- 35-115 (b) for establishing consecutive sentences. The sentence

imposed by the trial court was appropriate. The judgment of the trial court is

affirmed.




                                                 LEE MOORE, SPECIAL JUDGE


CONCUR:




                                         7
JOE G. RILEY, JUDGE




CURWOOD WITT, JUDGE




                      8
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE



STATE OF TENNESSEE,                        )
                                           )      C.C.A. No. 01C01-9709-CC-00421
       Appellee,                           )
                                           )      Williamson County Nos. I-297-73 -
vs.                                        )                             I-297-80
                                           )
                                           )      (Attempted Aggravated Burglary,
JEFFREY C. STIDDUM,                        )       7 Counts Aggravated Burglary,
                                            )      Theft Over $1,000, 4 Counts
       Appellant.                           )      Theft Over $500, Theft Under
                                            )       $500)
                                            )
                                           )      AFFIRMED




                                    JUDGMENT



       Came the appellant, Jeffrey C. Stiddum, by counsel, and the state, by the

Attorney General, and this case was heard on the record on appeal from the

Circuit Court of Williamson County; and upon consideration thereof, this Court is

of the opinion that there is no reversible error in the judgment of the trial court.



       It is, therefore, ordered and adjudged by this Court that the judgment of the

trial court is AFFIRMED, and the case is remanded to the Circuit Court of

Williamson County for execution of the judgment of that court and for collection of

costs accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State

of Tennessee.



                                                  Per Curiam

                                                  Lee Moore, Special Judge
                                                  Joe G. Riley, Judge
                                                  Curwood Witt, Judge
10
