        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 April 27, 2010 Session

                 STATE OF TENNESSEE v. MITCHELL EADS

                Appeal from the Criminal Court for Claiborne County
                       No. 12019    E. Shayne Sexton, Judge


                No. E2009-01574-CCA-R3-CD - Filed October 5, 2010


The Defendant, Mitchell Darnell Eads, was sentenced as a persistent offender to fourteen
years’ confinement for possession of contraband in a penal facility, a Class C felony, and to
six years’ confinement for felony escape, a Class E felony, to be served concurrently to each
other and consecutively to the Defendant’s sentences for six prior convictions. On appeal,
the Defendant contends that the trial court erred by ordering his sentences to be served
consecutively to his prior sentences. We affirm the judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J.C. M CL IN , JJ., joined.

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Mitchell Eads.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; William Paul Phillips, District Attorney General; and Jared Ralph Effler,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

This is an appeal of a resentencing. On direct appeal, this court affirmed the Defendant’s
convictions but remanded for resentencing, stating:

              Upon remand, the trial court shall determine which sentence or
              sentences the defendant was serving at the time of his escape
              and order the escape sentence to be served consecutively to
              those sentences. The trial court shall also clearly place on the
              record its rationale for ordering the other sentences to be served
              either concurrently or consecutively.

State v. Mitchell Eads, No. E2006-02793-CCA-R3-CD, Claiborne County, slip op. at 13
(Tenn. Crim. App. July 21, 2008), app. denied (Tenn. Dec. 8, 2008).

       At the resentencing hearing, LeAnne Korth testified that she worked for the State
Board of Probation and Parole and that she supervised the Defendant in 2001 while he was
on parole. She said the Defendant violated his parole by committing burglaries and thefts
in September 2001. She said that his parole was revoked and that he was ordered to serve
his sentence. She said that on February 25, 2002, the day the Defendant escaped, he was
being held in the Claiborne County jail for the parole violation and for the subsequent
charges resulting from the burglaries and thefts.

       The Defendant testified that he was arrested on September 18, 2001, while on parole
and that his parole was revoked as a result of the arrest. He agreed that the burglary and theft
offenses of that arrest comprised case number 11,969. He said that he was incarcerated in
the Claiborne County jail on February 25, 2002.

      On cross-examination, the Defendant agreed that he had been indicted for the offenses
comprising case number 11,969 before escaping on February 25, 2002. He agreed that he
was being held in the Claiborne County jail and awaiting trial on those offenses when he
escaped.

       The trial court’s sentencing order, in part, stated:

              (1)     The [six-year] sentence imposed in Count 3 [for felony
                      escape] shall be served consecutive to the sentences in
                      cases 11022, 11023, 11067, 11969, 12015 and 12016
                      pursuant to TCA § 39-16-605(c). The defendant was
                      incarcerated on all of the above charges or sentences at
                      the time of this offense.

              (2)     The [fourteen-year] sentence imposed in Count 1 [for
                      possession of contraband in a penal facilty] shall be
                      served consecutive to the sentences in cases 11022,
                      11023, 11067, 11969, 12015 and 12016, pursuant to
                      TCA § 40-35-115(b)(2). The record supports the finding
                      that the defendant is an offender whose record of
                      criminal activity is extensive.

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              (3)    The sentenced imposed in Count 1 shall be served
                     concurrently to the sentence imposed in Count 3. This
                     modification of the original sentence reflects the
                     reconsideration by this Court of the facts, circumstances
                     and arguments previously submitted.           The record
                     establishes that these offenses were committed
                     simultaneously and therefore concurrent sentencing is
                     appropriate.

       The Defendant contends that the trial court erred by ordering his sentences for felony
escape and possession of contraband in a penal facility to be served consecutively to his
sentences arising from case number 11,969. The State contends that the sentences were
properly imposed pursuant to Tennessee Code Annotated sections 39-16-605(c) and 40-35-
115(b)(2) (2003). We agree with the State.

       We note that the Defendant’s offenses occurred in 2002. The record does not contain
any evidence that the Defendant signed a waiver to be sentenced under the amended
sentencing statute. Therefore, our review is based upon the pre-2005 version of the
Sentencing Reform Act.

        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) and -402(d) (2003). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. 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).

        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).


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        Also, in conducting a de novo review, we must consider (1) any evidence 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 his own behalf, and (7) the potential for rehabilitation or treatment.
T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168.


       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 an “offender whose record of
criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). Additionally, when a defendant
is charged with escape, “[a]ny sentence received . . . shall be ordered to be served
consecutively to the sentence being served or sentence received for the charge for which the
person was being held at the time of the escape.” T.C.A. § 39-16-605(c); see also Tenn. R.
Crim. P. 32 (stating that when a defendant has multiple sentences and “the law requires
consecutive sentences, the sentence shall be consecutive whether the judgment explicitly so
orders or not”).


        This court held in the Defendant’s previous appeal that the Defendant’s six-year
felony escape sentence was required by statute to be served consecutively to the sentences
the Defendant was serving at the time he escaped. See Mitchell Eads, slip op. at 13. This
court also instructed the trial court to place on the record its rationale for ordering the other
sentences to be served either concurrently or consecutively. Id. The Defendant argues that
the trial court failed to follow this mandate. We disagree. The trial court ordered the
Defendant’s felony escape sentence to be served consecutively to all sentences being served
at the time of his escape. The trial court also ordered the felony escape conviction to be
served consecutively to the sentences resulting from the charges for which the Defendant was
being held at the time of his escape and explained that it did so pursuant to Tennessee Code
Annotated section 39-16-605(c). The trial court’s order complied with this court’s
instructions.


        The Defendant has not shown that the sentences imposed by the trial court were
improper. The record shows that the Defendant was arrested for committing burglaries and
thefts on September 18, 2001, and that the offenses of that arrest comprised case number
11,969. The Defendant was indicted and being held for those offenses, as well as for his
resulting parole violation, at the time of his escape. Because the Defendant was charged with
the offenses comprising case number 11,969 at the time of his escape, the sentence for felony



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escape was properly ordered to be served consecutively to his sentences in case number
11,969. See T.C.A. § 39-16-605(c).


        The trial court ordered the Defendant’s fourteen-year sentence for possession of
contraband in a penal facility to be served consecutively to his sentences in case number
11,969 due to the Defendant’s extensive record of criminal activity. See T.C.A. § 40-35-
115(b)(2). The record shows that the Defendant has multiple felony convictions, including
thefts, burglaries, vandalism, and felony escape. The record amply supports the trial court’s
finding that the criterion provided in Tennessee Code Annotated section 40-35-115(b)(2) was
applicable in the Defendant’s case and that consecutive sentencing was proper.




       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.


                                               ____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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