         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    May 14, 2002 Session

           STATE OF TENNESSEE v. DANIEL JAMES COSGROVE

                      Appeal from the Circuit Court for Bedford County
                         No. 14878     William Charles Lee, Judge



                  No. M2001-02127-CCA-R3-CD - Filed November 15, 2002


The defendant, Daniel James Cosgrove, pled guilty in the Bedford County Circuit Court to nineteen
felonies and thirty-one misdemeanors. The trial court sentenced him to an effective sentence of
twenty-one years and eleven months, twenty-nine days in confinement to be served consecutively
to another sentence for which his probation was revoked. The defendant appeals, claiming that the
trial court failed to apply and weigh mitigating factors properly and improperly ordered consecutive
sentencing. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Merrilyn Feirman, Nashville, Tennessee (on appeal); Donna Leigh Hargrove, District Public
Defender; and Andrew Jackson Dearing, III, Assistant District Public Defender (at trial), for the
appellant, Daniel James Cosgrove.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; William Michael McCowan, District Attorney General; and Michael David Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to a series of offenses that the defendant committed from January to March
2001. At the guilty plea hearing, the state presented the following factual account of the crimes: In
count 1, the defendant was charged with theft of property valued less than $500 after he was found
in possession of property that had been taken from a victim’s home. In counts 2 and 3, the defendant
burglarized a business and took property that was valued at more than $10,000. During a pat down
of the defendant, he was found to have ten Dilaudid tablets and a syringe on his person, giving rise
to charges of possession of a Schedule II controlled substance and drug paraphernalia in counts 4 and
5. In counts 6 and 7, the defendant was charged with forging and passing a personal check that
belonged to Debra Caldwell and forging and cashing a man’s payroll check. In count 8, the
defendant was at a car wash and took a man’s wallet that contained over $600, resulting in a charge
of theft over $500. In counts 9, 10, and 11, the defendant, who pretended to be a police officer,
drove up to two Hispanic men, pointed a gun at them, and robbed one of them. For that conduct, he
was charged with the aggravated robbery of one man, the aggravated assault of the second man, and
impersonation of a police officer. In counts 12 and 13, the defendant broke into a man’s house at
two different times in one day and took more than 500 videotapes and a VCR, which resulted in
charges for theft of property valued over $1,000 but less than $10,000 and theft of property valued
less than $500. Counts 14 through 18 resulted from the defendant’s leading the police on a high
speed chase in Bedford County. During the chase, the defendant’s wife and two young children were
in the car with him, and he was charged with three counts of felony reckless endangerment, one
count of evading arrest, and one count of failing to yield to an emergency vehicle. In counts 19
through 24, the defendant forged and cashed checks that were drawn on the account of Richard and
Sally Casteel. Finally, the defendant was charged with 26 counts of passing worthless checks on his
personal checking account when the account was closed or contained insufficient funds.

        At the sentencing hearing, the then twenty-three-year-old defendant testified that he was
married and had a four-year-old daughter and a three-year-old son. He said he became addicted to
Dilaudid and committed the crimes in question in order to buy Dilaudid pills. He said that he did
not intend to hurt or scare anyone but that Dilaudid had taken control of his life and that he would
lie, cheat, or steal to get it. He said that he was injecting Dilaudid eight to ten times per day and that
every couple of days, he needed three hundred dollars to buy the drug. He said that his addiction had
cost him his family, car, and home.

        The defendant testified that in 1998, he donated a kidney to his father and that before
becoming addicted to Dilaudid, he worked in restaurants, a framing business, landscaping, and a
sawmill. He said that he did not need to spend the rest of his life in prison but that he needed
rehabilitation. He said that since he had been in jail, he had not taken any drugs and felt better. He
said that he needed someone to teach him how to say no and that he thought in-patient treatment
would help him. He said he was sorry for scaring his victims.

        On cross-examination, the defendant acknowledged having prior convictions for
misdemeanor theft and aggravated burglary. He also acknowledged that he was on probation for the
aggravated burglary conviction when he committed the crimes in question. He said that during the
time he was committing the current crimes, he was arrested and released on bond twice. He said that
each time he was released on bond, he committed more crimes. He said he used all the money he
could get from his crimes to buy drugs.

        Barry Cosgrove, the defendant’s father, testified that since the defendant had been in jail, the
defendant had changed. He said that the defendant needed to go through more changes but that he
believed the defendant when the defendant said he was willing to get treatment for his addiction and
turn his life around. He said that he lived in Wisconsin and that he was willing to help his son. He
said that he wanted the trial court to consider the defendant’s age and addiction in sentencing the


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defendant. On cross-examination, Mr. Cosgrove acknowledged that the defendant did a good job
of hiding the addiction from his family.

        The state introduced into evidence the defendant’s presentence report, which shows that the
defendant dropped out of high school in the eleventh grade. According to the report, the defendant
did not obtain his GED but attended a technical college. The defendant reported being in good
physical and mental health and acknowledged smoking marijuana for several years before he became
addicted to Dilaudid. The report shows that the defendant has never gotten treatment for his
addiction. The report also reveals that the defendant was convicted of theft of property valued less
than $500 in 1997 and aggravated burglary in 1998 and that he was on probation for the aggravated
burglary when he committed the current offenses.

         The trial court sentenced the defendant as a Range I, standard offender to the following:



  Count                   Offense                          Offense                 Sentence
                                                        Classification
    1        Theft of property valued less than   Class A misdemeanor       11 months, 29 days at
             $500                                                           75%
    2        Burglary                             Class D felony            3 years


    3        Theft of property valued more        Class C felony            5 years
             than $10,000 but less than
             $60,000
    4        Possession of a Schedule II drug     Class C felony            5 years
             with intent to resell
    5        Possession of drug paraphernalia     Class A misdemeanor       11 months, 29 days at
                                                                            75%
  6&7        Forgery less than $500               Class E felony            2 years for each count
    8        Theft of property valued more        Class C felony            2 years
             than $500 but less than $1,000
    9        Aggravated robbery                   Class B felony            10 years
    10       Aggravated assault                    Class C felony           5 years, 3 months
    11       Criminal impersonation                Class B misdemeanor      6 months at 75%
    12       Theft of property valued more         Class D felony           3 years
             than $1,000 but less than $10,000

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    13      Theft of property valued less than    Class A misdemeanor       11 months, 29 days at
            $500                                                            75%
 14 - 16    Felony reckless endangerment          Class E felony            2 years for each count
    17      Evading arrest                        Class D felony            4 years
    18      Failing to yield to an emergency      Class C misdemeanor       30 days at 75%
            vehicle
  19- 24    Forgery                               Class E felony            2 years for each count
 25 - 50    Passing a worthless check less        Class A misdemeanor       11 months, 29 days at
            than $500                                                       75% for each count


        The trial court ordered that the defendant’s misdemeanor sentences (counts 1, 5, 11, 13, 18,
and 25 through 50) run concurrently for an effective sentence of eleven months, twenty-nine days.
The defendant’s forgery sentences (counts 6 , 7, and 19 through 24) and sentence for theft of property
valued more than $500 but less than $1,000 (count 8) were to run concurrently for an effective
sentence of two years. The defendant’s sentences for aggravated robbery (count 9); aggravated
assault (count 10); burglary (count 2); theft of property valued more than $10,000 but less than
$60,000 (count 3); and theft of property valued more than $1,000 but less than $10,000 (count 12),
were to run concurrently for an effective sentence of ten years. His sentences for reckless
endangerment (counts 14 through 16) and evading arrest (count 17) were to run concurrently for an
effective sentence of four years. All of these effective sentences were to run consecutively to each
other and to the defendant’s five-year sentence for possession of a Schedule II controlled substance
with intent to resell (count 4) for a total of twenty-one years and eleven months, twenty-nine days
in confinement. Finally, the trial court revoked the defendant’s probation that he had been serving
for his prior aggravated burglary conviction and ordered that he serve all of his new sentences
consecutively to that four-year sentence. The defendant appeals, claiming that the trial court failed
to apply and weigh mitigating factors properly and erred by ordering consecutive sentencing.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence 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


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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.
               T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

        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
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

        The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B, C, D, or E felony unless there are enhancement factors present. Tenn. Code Ann. §
40-35-210(c). Procedurally, the trial court is to increase the sentence within the range based upon
the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating
factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weight to be afforded an existing factor is left
to the trial court’s discretion so long as it complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record. Tenn. Code Ann. §
40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d
at 169. We note that the law provides no presumptive minimum for misdemeanor sentencing. See,
e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in misdemeanor
sentencing, the trial court must consider the purposes and principles of the Criminal Sentencing
Reform Act of 1989. Tenn. Code Ann. § 40-35-302(d).

         First, the defendant claims that the trial court failed to apply and give proper weight to
mitigating factors. Specifically, he claims that the trial court erred by refusing to apply mitigating
factor (1), that the defendant’s criminal conduct neither caused nor threatened serious bodily injury,
to his property crimes and his aggravated robbery and aggravated assault convictions. See Tenn.
Code Ann. § 40-35-113(1). In addition, the defendant claims that the trial court erred by failing to
find that his drug addiction was a mitigating factor. See Tenn. Code Ann. § 40-35-113(13). The
state claims that the trial court properly applied and weighed mitigating factors. We believe the trial
court properly sentenced the defendant.

        At the sentencing hearing, the trial court applied enhancement factor (1), that the defendant
has a previous history of criminal convictions, to all of his convictions. See Tenn. Code Ann. § 30-


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35-114(1). In addition, the trial court applied enhancement factor (10), that the defendant had no
hesitation about committing a crime when the risk to human life was high, and factor (16), that he
committed a crime under circumstances in which the potential for bodily injury to a victim was great,
to all of his sentences except those for his aggravated robbery and aggravated assault convictions.
See Tenn. Code Ann. § 30-35-114(10), (16). Finally, the trial court applied enhancement factor (13),
that the defendant committed the felonies while on probation for a prior felony, and gave it
significant weight. See Tenn. Code Ann. § 30-35-114(13).

        The trial court stated that it did not believe mitigating factor (1) could apply to the
defendant’s property crime sentences because “where the defendant’s conduct neither caused nor
threatened serious bodily injury . . . is inherent in every property crime [or] is included as an element
of the offense.” The trial court noted, though, that if the mitigating factor applied to those crimes,
then the factor was worth very little weight. As to the defendant’s claim that his drug addiction was
a mitigating factor, the trial court strongly disagreed, finding that the defendant failed to get
treatment for his drug addiction when help was available. After weighing the applicable
enhancement and mitigating factors, the trial court sentenced the defendant to at least the midpoint
in the range of punishment for each felony conviction and the maximum punishment for each
misdemeanor.

        Initially, we note that because there is no prohibition against “double mitigation,” the trial
court erred by concluding that it would not apply mitigating factor (1) to the defendant’s property
crime sentences. State v. Stacy Allen Bullard, No. E1999-00796-CCA-R3-CD, Bradley County, slip
op. at 17 (Tenn. Crim. App. Mar. 15, 2000), app. denied (Tenn. Sept. 11, 2000). However, the trial
court stated that if it were to apply that mitigating factor, it would give the factor very little weight.
We do not believe that the trial court’s error as to mitigating factor (1) would have changed the
defendant’s property crime sentences in this case. Moreover, we do not believe mitigating factor (1)
applies to the defendant’s aggravated robbery and aggravated assault convictions, because the
defendant’s use of a gun threatened serious bodily injury to his victims. We also believe the trial
court properly refused to find that the defendant’s drug addiction was a mitigating factor. As noted
by the trial court, the defendant committed fifty crimes over an extended period of time without
seeking treatment for his drug problem. The defendant is not entitled to have his drug addiction
applied as a mitigating factor and has not shown that the lengths of his sentences are improper.

         Next, the defendant contends that the trial court erred by ordering him to serve his effective
sentences consecutively. He acknowledges that some consecutive sentencing was required because
he committed some of his felony offenses while he was on bond. See Tenn. R. Crim. P. 32(c)(3)(C)
(providing for mandatory consecutive sentencing when a defendant commits a felony while released
on bail for another offense and the defendant is convicted of both offenses). However, he claims that
he should serve the remaining sentences concurrently because an effective sentence of twenty-five
years and eleven months, twenty-nine days “in no reasonably way relates to the severity of the
offenses committed” and does not reflect the defendant’s “true nature.”




                                                   -6-
        In ordering consecutive sentencing, the trial court took into account that some of the
defendant’s sentences for felony convictions had to be served consecutively to other sentences under
Tenn. R. Crim. P. 32(c)(3)(C). However, the trial court failed to state its reasons for ordering
additional consecutive sentencing. Nevertheless, our de novo review reveals that any consecutive
sentencing was appropriate in this case because the defendant committed fifty crimes, an extensive
list, while he was on probation for his 1998 aggravated burglary conviction. See Tenn. Code Ann.
§ 40-35-115(b)(2), (6) (providing for consecutive sentencing if a defendant receives multiple
convictions and has an extensive record of criminal activity and is sentenced for an offense
committed while on probation). Thus, we conclude that the trial court properly imposed an effective
sentence of twenty-one years, eleven months, twenty-nine days and that the defendant has failed to
demonstrate that he received an excessive sentence.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                      __________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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