         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 6, 2007

                   STATE OF TENNESSEE v. JARVIS HODGES

                  Direct Appeal from the Circuit Court for Madison County
                         Nos. 06-75, 06-199  Donald H. Allen, Judge



                      No. W2006-01234-CCA-R3-CD - Filed May 4, 2007


The defendant, Jarvis Hodges, pled guilty to twelve offenses: six counts of aggravated burglary,
Class C felonies; one count of burglary and two counts of theft over $1000, Class D felonies; and
two counts of theft under $500, Class A misdemeanors; and possession of a weapon, a Class C
misdemeanor. He was sentenced as a Range I, standard offender to an effective sentence of seven
years in the Department of Correction. He appeals his sentence, arguing that the trial court erred by
ordering consecutive sentencing and that he should have received an alternative sentence. Following
our review, we affirm the sentence imposed by the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, for the appellant, Jarvis Hodges.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

        The factual background set out by the State at the defendant’s submission hearing showed
that he committed the six aggravated burglaries and accompanying offenses over a four-day period.
The first occurred on January 2, 2006, when the defendant, along with codefendant Cordarius Link,
“unlawfully enter[ed] the habitation of Bill Whitman without effective consent with intent to
commit theft of property.” On January 5, 2006, he did the same at the homes of Marie Williams,
Elizabeth Stockdale, and Douglas Dinwiddie. He stole cash, credit cards, and jewelry valued at more
than $1000 from Williams’ home and also burglarized “an outbuilding belonging to” her. He stole
less than $500 worth of clothes from Dinwiddie. The next day, the defendant burglarized the home
of Larry Nash, taking firearms valued at more than $1000, and the home of Derek Jones, from whom
he stole clothing and miscellaneous items worth more than $500. On this final day, the defendant
“did unlawfully carry with intent to go armed a weapon[,] that being a pistol.”

       The State also explained that the defendant was found in possession of some of the stolen
property and had admitted his involvement in the burglaries:

               More specifically, Your Honor, each one of these victims did report their
       homes burglarized and the thefts on the day they occurred. The last burglary being
       on January the 6th. A witness saw a vehicle leaving the scene and gave a description
       to law enforcement. The vehicle was subsequently stopped with the defendant being
       one of the occupants. Some of the property of the last burglary of Derek Jones was
       in the vehicle. Subsequent to that arrest, law enforcement investigators on the first
       burglaries and thefts of [case number] 06-75 did request an interview with the
       defendant and Cordarius Link, both of which gave admissions to participating in
       these burglaries and taking the property of these various individuals. A consent to
       search was obtained from Cordarius Link and that property was recovered at his place
       of residence. All that occurring here in Jackson, Madison County.

        At the subsequent sentencing hearing, the eighteen-year-old defendant testified that he had
pled guilty because he “felt it was the right thing for [him] to do.” He acknowledged that he had
“dropped out” of school in the tenth grade but said that he planned to find “a good job and get back
in GED classes” upon his release from prison. He told investigators where they could find the stolen
property, and they were able to recover “those items.” He said that he was willing to pay restitution
if there was damage to any of the items. He also acknowledged that, as a juvenile, he had been
charged with disorderly conduct and “a couple of unruly runaway offenses” but said that was his only
prior criminal history.

        The defendant admitted that he had a drug problem and had been using marijuana and
powder cocaine since he was fifteen years old. He used those drugs “four days out of a week” and
committed the burglaries partially because of his habit, intending to spend the proceeds on drugs.
On cross-examination, he acknowledged that as a part of his juvenile court proceedings he had been
ordered to seek drug counseling, but he did not complete the treatment. He admitted he could not
control his addiction on his own but said that with help, he was “pretty sure” he could.

        In Case No. 06-75, the trial court sentenced the defendant as a Range I, standard offender to
concurrent terms of three years for each of the four aggravated burglaries committed on January 2
and January 5, 2006 (Counts 1, 2, 5, and 6); two years for the burglary conviction (Count 3); two
years for the theft over $1000 committed on January 5, 2006 (Count 4); eleven months and twenty-
nine days for the theft under $500 conviction (Count 7); four years for the aggravated burglary
committed on January 6, 2006 (Count 8); and three years for the theft over $1000 committed on
January 6, 2006 (Count 9).


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       In Case No. 06-199, the trial court sentenced the defendant as a Range I, standard offender
to concurrent terms of four years for the aggravated burglary conviction (Count 1), eleven months
and twenty-nine days for the theft under $500 conviction (Count 2), and thirty days for the
possession of a weapon conviction (Count 3). The trial court ordered that the four-year sentence for
aggravated burglary be served consecutively to the three-year aggravated burglary sentences in Case
No. 06-75, for a total effective sentence of seven years.

                                            ANALYSIS

       On appeal, the defendant argues that “the trial court erred in imposing consecutive
sentencing, when concurrent sentencing was more appropriate.”

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record “with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2006). This presumption 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). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000).

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001) (citing Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn.
1986)). The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006), Sentencing Commission
Cmts.; Ashby, 823 S.W.2d at 169.

        In the present case, the record affirmatively shows that the trial court considered the
principles of sentencing and all relevant facts and circumstances. We therefore conclude that the
presumption of correctness applies.

       The trial court’s order of consecutive sentencing was based on its finding that the defendant
had an extensive record of criminal activity:




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               With respect to concurrent or consecutive sentences under [Tennessee Code
       Annotated section] 40-35-115, the Court is looking at the fact that he now stands
       convicted of 12 different criminal offenses, six different victims or six different
       aggravated burglaries have been committed along with two thefts of property over
       $1,000. I mean, he stands convicted of eight felony convictions by my count and also
       three misdemeanor convictions. So, the Court finds under Subsection B(2), the Court
       finds by a preponderance of the evidence that this defendant is an offender whose
       record of criminal activity is extensive. Again, I’m not talking about prior criminal
       record because he really doesn’t have any prior criminal record, but, you know, I’m
       looking at someone who has been convicted of 12 offenses all within a period of
       about four days. Of course, obviously aggravated burglary is a serious problem in
       this judicial district. We have victims whose lives are totally destroyed as a result of
       burglaries being committed in their residence.

        One of the circumstances in which a trial court may order consecutive sentencing is when
it finds by a preponderance of the evidence that the defendant “is an offender whose record of
criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2) (2006). The defendant argues
that the “trial court’s use of the ‘extensive criminal activity’ factor was misplaced here, and all of
the [defendant’s] sentences should be run concurrently, for a total effective sentence of four (4)
years.” He asserts that he “had no prior record of adult criminal activity” and that consecutive
sentencing cannot properly be based on the fact that the offenses were committed in a short period
of time.

        The defendant cites no authority in support of his view that a defendant committing a number
of crimes within a four-day period, as occurred here, cannot be considered one whose record of
criminal activity is extensive. If the defendant’s argument were correct, it would mean that a
defendant with no prior criminal record could commit a number of crimes in a period of a few days
and, yet, not be eligible for consecutive sentences. We conclude that this statute was intended by
the legislature to be applied to a situation such as this and not to result in a multiple offender being
sentenced as one with only a single offense. See State v. Bobby Blair, No. M2002-02376-CCA-R3-
CD, 2003 WL 22888924, at *3 (Tenn. Crim. App. Dec. 5, 2003), perm. to appeal denied (Tenn. May
17, 2004) (“[T]his court has held that [Tenn. Code Ann. § 40-35]-115(b)(2) applies to both the
extensive nature of the defendant’s present convictions and the defendant’s history of criminal
activity.”) (citing State v. Palmer, 10 S.W.3d 638, 648-49 (Tenn. Crim. App. 1999)).

        The evidence supports the trial court’s finding that the defendant has a record of extensive
criminal activity. Although he has no prior convictions, he committed six aggravated burglaries over
a period of four days and admitted using illegal drugs on a regular basis for three years. The
defendant’s argument is without merit.

        The defendant also argues that the “trial court erred in ordering that [he] serve his sentences
in the Tennessee Department of Corrections.” He contends that “[a]n alternative manner of service
on this sentence would have been more appropriate. [The defendant] could have been ordered to


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serve time in the local jail before being placed on probation, or [he] could have been ordered to
remain incarcerated until being accepted into a long-term drug rehabilitation facility.”

        A defendant shall be eligible for probation, subject to certain exceptions, if the sentence
imposed upon the defendant is ten years or less. Tenn. Code Ann. § 40-35-303(a) (2006). Even if
eligible, however, the defendant is not automatically entitled to probation as a matter of law. See
Tenn. Code Ann. § 40-35-303(b). The burden is on the defendant to show the denial of probation
was improper. Id.; see also State v. Summers, 159 S.W.3d 586, 599–600 (Tenn. Crim. App. 2004)
(citing Ashby, 823 S.W.2d at 169); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997)
(stating that “[a] criminal defendant seeking full probation bears the burden on appeal of showing
the sentence actually imposed is improper, and that full probation will be in both the best interest of
the defendant and the public”).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding the
offense, the defendant's criminal record, the defendant's social history and present condition, the need
for deterrence, and the best interest of the defendant and the public. State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997). Further, Tennessee Code Annotated section 40-35-103(1) states
that a sentence of confinement should be based on the following three considerations:

        (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.

Tenn. Code Ann. § 40-35-103(1) (2006).

        In the present case, the trial court denied alternative sentencing in order to avoid depreciating
the seriousness of the defendant’s offenses, to protect the public, and because of his lack of potential
for rehabilitation:

                 Now, with respect to alternative sentencing or probation, the [c]ourt has
        looked at this very carefully. I’ve got a young man here that’s 18 and a half years of
        age at the time he committed these offenses and he doesn’t have any substantial prior
        criminal record. However, it does appear from looking at his statements in the
        presentence report and based on his testimony here today that I’m dealing with a


                                                  -5-
         young man with a pretty serious drug problem. I mean, he has admitted under oath
         that he uses cocaine and marijuana about four times a week since he’s been 15. You
         know, this is somebody for three and a half years or so has been using drugs on a
         regular basis. Even when he was referred by the juvenile court for treatment, he
         didn’t follow through with it. He only went to a few meetings over a period of a
         month and then he quit going. He’s not going to get over this problem under those
         circumstances. Now, I know there’s been a request made here today for the [c]ourt
         to look at some type of long treatment program, but, you know, I’m just afraid when
         I consider the public safety, I’m just not sure that [the defendant] could make it on
         any type of probation or any type of alternative sentencing. I’m convinced that had
         he not been arrested and taken into custody on January the 6th of ‘06, he would have
         probably committed more aggravated burglaries. I feel very confident about that.

                  The [c]ourt finds that in order to avoid depreciating the seriousness of these
         12 offenses, the [c]ourt finds that confinement is necessary in this case. Also, the
         [c]ourt finds that it is necessary to protect the public from the defendant’s further
         criminal conduct. Now, I am trying to impose the least severe sentence possible. I
         feel like a three year sentence or a four year sentence is just not sufficient for what
         he has been convicted of here today. I feel like a seven year sentence is probably the
         least – the aggregate sentence of seven years is probably the least severe measure that
         the [c]ourt can take in order to protect the public from the defendant’s future criminal
         conduct. The [c]ourt finds that he is not an appropriate candidate for alternative
         sentencing and again that’s based upon the seriousness of these offenses and based
         upon the fact that he has a serious drug problem which I don’t think he’s over it yet.
         He talks like he can stop, but he can’t.

        The trial court’s determinations were based on the defendant’s poor potential for
rehabilitation, the need to protect the public, and the need to avoid depreciating the seriousness of
his offenses. See Tenn. Code Ann. § 40-35-103(1) (2006). Moreover, the record supports these
conclusions. Other than his testimony that, with help, he was “pretty sure” he could overcome his
drug addiction, the defendant did not put forth any evidence that he would stop using cocaine and
marijuana on a regular basis or stop burglarizing houses to support his habit. The defendant’s
argument is without merit.

                                           CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the sentence imposed by the trial
court.

                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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