        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2013

      STATE OF TENNESSEE v. TIMOTHY WASHINGTON LYONS

                Appeal from the Criminal Court for Davidson County
                    No. 2007-C-1951     Monte Watkins, Judge


              No. M2012-01572-CCA-R3-CD - Filed February 20, 2014


The defendant, Timothy Washington Lyons, appeals his resentencing to consecutive terms
of fourteen years and six years for his convictions for attempted second degree murder and
reckless aggravated assault. On appeal, the defendant argues that the trial court failed to
make appropriate findings in support of its sentencing determinations. Based upon our
review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Timothy Washington
Lyons.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

        In 2009, the defendant was convicted of attempted second degree murder and reckless
aggravated assault and received an effective sentence of twenty-two years. On direct appeal,
this court affirmed the defendant’s convictions but remanded for resentencing because the
trial court mistakenly sentenced the defendant for Class C felony aggravated assault rather
than Class D felony aggravated assault, applied improper enhancement factors, and imposed
consecutive sentencing without making the required findings of fact. State v. Timothy
Washington Lyons & Antonio Lamont Scales, No. M2009-02524-CCA-R3-CD, 2011 WL
300141, at *1 (Tenn. Crim. App. Jan. 18, 2011), perm. app. denied (Tenn. May 25, 2011).

         Our direct appeal opinion contains the following summary of the facts presented at
trial:

                 The convictions in this case relate to the shootings of Teresa Crenshaw
         and Quanita Robinson on March 31, 2007. At the joint trial, Ms. Crenshaw
         testified that on that date she was driving along Coffee Street near Eleventh
         Avenue in Nashville when she saw the defendants sitting in a gray, two-door
         car parked in an alley. She recalled that Mr. Scales was in the driver’s seat,
         Mr. Lyons was in the passenger’s seat, and two individuals were in the
         backseat. Ms. Crenshaw stated that she spoke briefly to the defendants and
         then drove a very short distance to offer a ride to Ms. Robinson, who was
         walking. Just after Ms[.] Robinson got into the vehicle, Ms. Crenshaw turned
         back to see guns being pointed at her by the occupants of the gray car. Ms.
         Crenshaw testified that both defendants had guns pointed at her.

                 When the men started to fire, Ms. Crenshaw “scrunched down in the
         vehicle and accelerated.” She stated that the men pursued her and continued
         to fire at her as she attempted to get away. A short distance later, Ms.
         Crenshaw made a left turn and the gray car made a right turn. She then
         continued to drive until she saw her aunt driving by. She flagged down the
         aunt and asked for transportation to the hospital. Ms. Crenshaw stated that a
         bullet struck her right upper arm and that another bullet grazed Ms. Robinson’s
         left upper arm.

                On the way to the hospital, Ms. Crenshaw telephoned Mr. Scales and
         asked him why he had shot at her. According to Ms. Crenshaw, Mr. Scales
         told her that “they was going to kill [her], [her] boyfriend, and everything he
         loved.”

                 Once at the hospital, Ms. Crenshaw learned that she had also suffered
         a gunshot wound to her back. She stated that doctors were forced to leave a
         bullet fragment in her arm and to leave the entire bullet in her back near her
         lung.

               Crime scene investigators with the Metropolitan Nashville Police
         Department discovered 13 cartridge casings “scattered along . . . a hundred”
         yard path from Ms. Crenshaw’s abandoned vehicle backwards toward

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       Eleventh Avenue. They found no blood inside the vehicle.

               At the conclusion of this proof, the State rested, and neither defendant
       presented any evidence. Based upon the evidence presented by the State, the
       jury convicted the defendants, who had originally been charged with attempted
       first degree murder, of the lesser included offense of attempted second degree
       murder in count one and reckless assault as charged in count two.

Id. at *1-2 (footnote omitted).

       The trial court conducted a resentencing hearing on July 13, 2012, at which it
sentenced the defendant as a Range II, multiple offender to consecutive terms of fourteen
years for the attempted second degree murder conviction and six years for the reckless
aggravated assault conviction. This appeal followed.

                                        ANALYSIS

      The defendant argues that the trial court failed to make appropriate findings in
determining the length and manner of his sentences.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence:

       (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 mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant's own behalf
       about sentencing.



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Tenn. Code Ann. § 40-35-210(b) (2010).

       The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our supreme
court clarified that the “abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in the Tennessee Code
Annotated section 40-35-115(b) apply, including 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. Id. § 40-35-115(b)(4). When the
court bases consecutive sentencing upon its classification of the defendant as a dangerous
offender, it must also find that an extended sentence was necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences
reasonably relate to the severity of the offense committed. State v. Lane, 3 S.W.3d 456, 460-
61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). As to
consecutive sentencing, our standard of review is abuse of discretion with a presumption of
reasonableness. State v. Pollard, ___ S.W.3d ___ (Tenn. 2013).

       At the conclusion of the resentencing hearing, after hearing arguments from the
parties, the trial court applied two enhancement factors: the defendant had a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish his
range, and he was on parole at the time he committed the instant offenses. See Tenn. Code
Ann. § 40-35-114(1), (13).

        The defendant’s criminal record included convictions for aggravated robbery,
possession of drug paraphernalia, and possession of marijuana. Timothy Washington Lyons,
2011 WL 300141, at *6. Furthermore, the defendant was on parole at the time he committed
the instant offenses. Id.

       In determining that the defendant’s sentences should be served consecutively, the trial

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court found:

              Now, the next question is whether they should be consecutive or
       concurrent. The Court looks to [Tennessee Code Annotated section] 40-35-
       115 for guidance. And in considering the nature of these offenses, along with
       the prior conviction, the Court believes that these defendants are dangerous
       offenders and that their behavior indicates little or no regard for human life,
       and they had no hesitation about committing a crime in which the risk to
       human life was high. Any time you take a weapon and you fire it repeatedly
       at anyone there is a definite risk of death to the intended victim, or even
       unintended victims, for that matter. So, the Court believes that that applies.

              And the Court further believes that it is necessary to protect the public
       against further criminal conduct by the defendants and that consecutive
       sentences reasonably relate to the seriousness of the offenses committed. . .
       . [T]herefore, these sentences will be consecutive, for a total . . . of twenty
       years.

        Contrary to the defendant’s assertion, the record reflects that the trial court stated its
reasons for the length of sentences imposed and made the requisite findings in support of
consecutive sentencing, that the defendant was a dangerous offender with 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 consecutive sentencing was necessary to protect the public. See Pollard, __
S.W.3d at __ (citing Wilkerson, 905 S.W.2d at 937-38). We conclude that the record
supports the trial court’s sentencing determinations.

                                       CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.

                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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