        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 23, 2013

              STATE OF TENNESSEE v. KYLE RONALD FENCL

            Direct Appeal from the Criminal Court for Davidson County
                      No. 2011-A-8    Steve R. Dozier, Judge


                 No. M2012-01265-CCA-R3-CD - Filed August 5, 2013


The appellant, Kyle Ronald Fencl, pled guilty in the Davidson County Criminal Court to one
count of theft of property valued less than $500, one count of robbery, seven counts of
aggravated robbery, and one count of aggravated assault. The trial court imposed an
effective sentence of thirty years in the Tennessee Department of Correction. On appeal, the
appellant challenges the trial court’s imposition of consecutive sentencing.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Charles Walker, Nashville, Tennessee, for the appellant, Kyle Ronald Fencl.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                 I. Factual Background

       At the guilty plea hearing, the State recited the following facts in support of the
appellant’s guilty pleas:

              [T]he State’s proof in count one would have shown that on April
              15th , 2010 at approximately 11:20 in the morning, the [appellant]
              who was later identified quite sometime after the offense
occurred, entered the One Stop Wireless Solution business
located at 207 South Gallatin Pike in Davidson County. He
looked at some cell phones, grabbed one of the phones, ran out
of the store and entered a black Toyota Corolla with a tag 582
YJN. That incident was captured on video surveillance. The ID
unit was called to the scene, lifted prints and one of the prints
did show the [appellant] Kyle Fencl was the person who had
been in the store and touched the evidence that was examined
for latent prints.

       On June 25th , 2010, Detective Haney of the police
department prepared a photo lineup that contained the
[appellant’s] photograph. That lineup was shown to Ms.
Christine Todd, the business owner. She made an identification
on – she made a tentative identification saying it was either
person number three or four, but stated that she was leaning
towards person number three who is Kyle Fencl.

       In count two, the State’s proof would be that on August
8, 2010 at approximately 3:00 in the afternoon Vanderbilt
graduate [s]tudent Jeremy Catrell reported that he had been
robbed and assaulted by two black males when they met him
after being contacted about purchasing an iPhone 4 that he had
posted on Craig’s List. The victim reported that he had posted
an ad[] on Craig’s List on August 8th , 2010, offering to sell the
iPhone for $650. That following day he was sent a text message
from 593-3903. The person who sent the text stat[ed that] they
[were] interested in purchasing the phone.

       A meeting was arranged on Vanderbilt Drive near Light
Hall and the Medical Research Building. And at 2:36 that day
the victim received a text from the defendants stating that they
were close to Vanderbilt. At 2:47 the victim arrived at the
meeting location. Two black males in a light blue or silver
Saturn were waiting on him. He spoke briefly with the driver
and the driver indicated that the passenger was interested in the
phone. He walked around to [the] passenger side and began
demonstrating the phone to the people in the car. He stated that
the passenger then asked to see[] the phone, he handed it to him
and leaned in the vehicle to continue showing the passenger how

                               -2-
to use the phone. Approximately 40 seconds later the driver of
the car began to speed away while Mr. Catrell was still leaning
into the vehicle.

        The victim tried to grab the phone, but was struck in the
face three to four times by the passenger’s fist before he let go
and disengaged from the car. The car had driven several yards
by that time and Mr. Catrell was injured in the hip area since his
upper body was still in the vehicle when it was moving. There
are photographs of his injuries.

       He was able to describe the suspects as two black males
approximately 20 to 30 years old. The driver had what you call
a plug-style earring in his ear, short facial hair stretching from
sideburns down the jaw line. He stated that the passenger was
heavier and darker skinned than the driver. There was video
footage of the incident from a distance. It corroborated what
Mr. Catrell stated in terms of the meeting taking place and the
car driving away.

        Just before the Saturn arrived at the scene, there was a
white Ford Mustang that dropped off what was later learn[ed] to
be this [appellant] who then got into the Saturn just prior to the
incident taking place. Some months later when Kyle Fencl was
developed as a suspect in this case, he was interviewed and did
admit his role in this robbery.

        In count three, the State’s proof would be that on August
  st
31 , 2010, approximately 7:30 p.m., officers were dispatched to
the Taco Bell parking lot at 326 Harding Place on a robbery call.
The officer arrived on the scene and spoke with the victim. The
victim stated that he met with several individuals in a gray
colored car at that location due to a phone being advertised for
sale on Craig’s List. When the victim spoke with one of the
subjects, who is later identified as this [appellant], Kyle Fencl,
this [appellant] got out of the car an[d] approached the victim.

       The [appellant] grabbed the victim[,] pointed a pistol at
him and demanded money. The [appellant] struck the victim in
the head with the pistol at that time. He then took $450 from the

                               -3-
victim. The [appellant] reentered the vehicle and fled the scene
with the other individual[s] that [were] in the car.

       When the case got to a point where suspects were
developed, Kyle Fencl and his twin brother Kory Fencl were
both suspects in the case. A photographic lineup was presented
to the victim in this case with Kyle Fencl photographed and it
was shown to the victim and positively identified Kyle Fencl as
the person with the gun in that case.

        In counts four and five, the State’s proof would be that on
September 10th , 2010 Ammen Abdulah (phonetic) and his
brother Ammed Abdulah (phonetic) made arrang[e]ments to
meet with somebody at 891 Old Hickory Boulevard. The
meeting was due to the fact that they had received a response to
their Craig’s List ad[] for selling [an] iPhone. Once the brothers
arrived at the location, a black male approached them and asked
about the iPhone that they had for sale. As that person was
looking at the iPhone, two other males came up and pulled
handguns on Ammen Abdulah and Ammed Abdulah. The
defendant[s] ran. They robbed the victims[,] taking a wallet that
contained money, a debit card and a driver’s license in addition
to the iPhone that was for sale.

        Once the case progressed in terms of the investigation the
detectives learned that there were multiple robberies related to
Craig’s List posting[s] for iPhones at that time Kory Fencl an[d]
Kyle Fencl were revealed as suspects. And eventually Kyle
Fencl was interviewed and admitted to his role in this particular
case. And Antonio Lewis, who is a co-defendant, ple[d] guilty
in these counts a couple of weeks ago. He had also admitted his
presence there. Kory Fencl has also admitted his involvement
in that incident.

       In count six, [the] State’s proof would have shown that
on September 27th , 2010, [at] approximate[ly] 3:00 in the
afternoon a Mr. Richard Willis came to North Precinct to file a
report. Detective talked to the victim about what had occurred.
He stated that – the victim stated that on September 10 th , 2010
he had a Macbook computer for sale on Craig’s List. The victim

                                -4-
stated that he met with two individuals at 12th and Pine Streets
in Davidson County. While the victim was talking with one of
the subjects, another walked up and robbed the victim at gun
point. The victim reported $120 in cash was taken. His wallet
containing credit and debit cards, a Droid cell phone and a
Macbook computer.

        The victim had been talking to someone about the
incident, learned that there was an article about these Craig’s
List robberies and based on that, he recognized the person in the
article as one who had been involved in the robbery of him. He
reported the incident to police and when Kyle Fencl was
interviewed about these robberies, he admitted his role in them.

       In count[s] seven and eight, the State’s proof would have
shown that Brandon Baskin received a text message from 766-
0149 regarding an iPad he had advertised for sale on Craig’s
List on September 15th , 2010. The victims Brandon Baskin and
Emily Budovoughn had set up a meeting with the person that
was interested in the iPad. They went to the Olive Garden
location with the purpose of selling the iPad. Mr. Baskin got out
of his car with the iPad, which the [appellant] Kyle Fencl and
his co-defendant Kory Fencl took prior to any conversation
about the iPad. There was a handgun produced at that point in
time and a demand for money and cell phone[s] also.

       The [appellant], Kyle Fencl, then went into the victim’s
vehicle and took a second iPad from the female victim along
with her cell phone. Ms. Budovoughn commented that the
[appellant] at that point in time made a comment about her good
looks as he took the iPad from her.

       When Detective Dozier identified the phone number
involved in this incident as being a phone number used by Kory
Fencl, that was in part the reason that these Craig’s List
robberies came to involve suspects of Kory Fencl and Kyle
Fencl. Ms. Budovoughn was shown a photographic lineup. She
was able to identify the co-defendant Kory Fencl as one of the
people involved in this case.



                               -5-
                     During interviews both Kory Fencl and Kyle Fencl
              admitted their involvement in this incident.

                      In counts nine and ten, that State’s proof would have
              shown that on September 14th , 2010 James Calhoun had posted
              an ad[] for his laptop being for sale on Craig’s List. He received
              a text message from a male who was interested in purchasing it.
              They agreed to meet at the victim’s residence located at 4461
              Katy Road.

                      When the individuals arrived at the location, Mr. – James
              Calhoun and his little brother Matthew Calhoun walked to the
              end of the driveway to meet the individuals. The victim
              observe[d] a[] gray four-door Saturn occupied by four male
              blacks at that time. When the vehicle stopped, the rear driver’s
              side door opened and a passenger got out of the car. That
              person brandished a handgun and demanded the laptop and any
              other property that the victim possessed. At that time he didn’t
              immediately respond, and the person later identified as Kyle
              Fencl, then pointed the weapon in the direction of the little
              brother who was standing by the side of the road. The victim
              gave his [laptop] and wallet to Kyle Fencl and Mr. Fencl then
              ran back to the Saturn and the car fled the scene. In this
              incident, a photographic lineup that contained Kyle Fencl[’s]
              photograph was shown to Mr. Calhoun and there was a positive
              identification made.

                      When police initially began solving the Craig’s List
              cases, they first interviewed Kory Fencl who was in custody at
              the Rutherford County Jail. Kory Fencl admitted to his role in
              all of these robberies. It was a short time after that that they
              interviewed this [appellant], Kyle Fencl, and he eventually also
              admitted his part in all of these robberies. It is in part based on
              Mr. Fencl’s cooperation and his admission in all of these that the
              State has agreed to cap his exposure as recommended in the plea
              agreement.

        The appellant pled guilty to all of the charged offenses. The plea agreement provided
that the sentences for count one (theft), count two (robbery), and count three (aggravated
robbery) were to be served concurrently with each other, that the sentences for counts four

                                              -6-
through six (aggravated assault) were to be served concurrently with each other, and that the
sentences for counts seven through ten (aggravated robbery and aggravated assault) were to
be served concurrently with each other. The plea agreement did not establish the length of
the sentence for each conviction but did provide that the trial court would determine whether
the groups of sentences would be served consecutively to each other.

       At the sentencing hearing, the appellant testified that each of the crimes occurred in
a nearly identical fashion and that the crimes were his idea. He said that he committed the
crimes with his brother, Kory Fencl, or Antonio Lewis. For each incident, he arranged to
meet a victim who had advertised on Craig’s List. The appellant acknowledged that he
threatened the victims with a gun to obtain the advertised devices and/or money. The
appellant said he “probably” had bullets at his house, but he never loaded the gun because
he “didn’t want nobody to get hurt.” He committed the crimes to obtain money for cocaine.

       The appellant said that only one victim was injured during the crimes, specifically
during the crime that occurred at Vanderbilt, and that no weapon was involved in that crime.
The appellant said that the victim “tried to grab the merchandise back and I hit him.” The
appellant stated that he was eighteen years old when he was arrested. After his arrest, the
appellant admitted his involvement in the offenses.

       The appellant acknowledged that he had three juvenile adjudications for aggravated
robbery. He explained that he was in middle school when the aggravated robberies occurred.
He said that he, a friend, the friend’s brother, and the friend’s sister were outside, playing
with fake guns. The friend’s mother came outside and called police because she did not
know the guns were fake. The friend’s mother alleged that the appellant stole popsicles from
the other children. As a result of the adjudications, the appellant was sent to “Woodland
Hills” where he stayed almost a year. Afterward, he lived with his mother and enrolled in
East Literature High School. The appellant was expelled from high school after being
“suspended several times [for] certain behaviors.”

        The appellant stated that he was taking responsibility for his actions and apologized
to the victims. He said that during his time in confinement, he had tried to “better [him]self”
for his release into the community. He had obtained a general equivalency diploma (GED),
attended narcotics anonymous (NA) and alcoholics anonymous (AA) meetings, and enrolled
in an anger management program. The appellant wanted to go to college to earn a degree in
“electronical (sic) engineering.”

       On cross-examination, the appellant said that he had the idea to commit the instant
robberies because the person from whom he got drugs wanted “[t]hat type of merchandise.”
The appellant traded some of the items he stole for powder cocaine and sold the remainder

                                              -7-
of the items. At the time of the robberies, he was using cocaine every other day. The
appellant acknowledged that he had a 9 millimeter gun in his possession during every crime
except the one at Vanderbilt, that his brother always stayed in the car, and that, when Antonio
Lewis was involved, Lewis also had a weapon. The appellant said that he obtained the gun
from a friend.

       The appellant said that he was released from Woodland Hills on August 9, 2007. The
following spring, he was adjudicated delinquent for theft of property valued over $1,000 and
“evading arrest by motor vehicle.” The appellant said that he was driving a stolen car and
was stopped by police. He explained that he had not stolen the car but that he knew it was
stolen. Thereafter, the appellant was sent to the Natchez Trace Youth Academy, where he
stayed from April 2008 to June 2009. When he was released, he began attending Beech High
School. He slept in class and was given “psychotropic medicine.”

        The appellant acknowledged that when he spoke to police, he initially denied knowing
Lewis and denied any knowledge of the robberies. He conceded that the police told him
“that they already knew [he] did it before [he was] completely forthright and gave them the
information that [he] had about those robberies.”

       The appellant said that he had worked for Dunkin’ Donuts for four months in 2009
and that he had never had any other job.

       The appellant’s mother, Anita Carla Burnett Fencl, testified that the appellant and his
co-defendant, Kory Fencl,1 were twins. Ms. Fencl said that after the appellant was
adjudicated delinquent in 2006 for aggravated robbery, he was sent to Woodland Hills for
almost two years. Afterward, the appellant returned to live with Ms. Fencl. He had difficulty
adapting to “mainstream” school. The principal repeatedly caught the appellant smoking
cigarettes. Ms. Fencl contacted the Department of Children’s Services (DCS) for help, and
she initiated “unruly petitions.” Ms. Fencl took the appellant to Centerstone, and the staff
recommended that the appellant be given medication. The appellant refused to take the
medication. Thereafter, the court placed the appellant in Natchez Trace, where he stayed for
almost two years. The appellant was released from Natchez Trace shortly before the instant
offenses. The appellant’s medication caused him to sleep in classes, and he was belligerent
when he was awakened. Ultimately, he was expelled from school.

       Ms. Fencl said that the appellant “had low self-esteem so he always f[ound] some
friends . . . that w[ere] doing something they didn’t have [any] business doing.” She said the
appellant “became defiant” and got a job at Dunkin’ Donuts to make his own money but

       1
           This individual’s name is also spelled “Cory Fencl” in the record.

                                                     -8-
became frustrated when he was not allowed to work many hours. Subsequently, he started
associating with “those kind of people again.” The appellant began staying with a friend’s
grandmother because Ms. Fencl did not want him living with her if he could not abide by her
rules.

       The parties agreed that the appellant was a Range I, standard offender. The trial court
applied enhancement factor (2), that the appellant was a leader in the commission of an
offense involving two or more criminal actors, to counts two through ten. Tenn. Code Ann.
§ 40-35-114(2). The trial court applied enhancement factor (16), that the appellant was
adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a
felony if committed by an adult, to all of the offenses. Tenn. Code Ann. § 40-35-114(16).
In mitigation, the court found that the appellant “cooperated with the investigation and gave
some information about his codefendant.” Tenn. Code Ann. § 40-35-113(13). The trial court
sentenced the appellant to eleven months and twenty-nine days for the misdemeanor theft
conviction, to four years for each conviction of robbery and aggravated assault, and to ten
years for each aggravated robbery conviction.

        In considering consecutive sentencing, the trial court applied criterion (2), that the
appellant was an offender whose record of criminal activity is extensive, and criterion (4),
that the appellant was a dangerous offender whose behavior indicates little or no regard for
human life and had no hesitation about committing a crime in which the risk to human life
is high. Tenn. Code Ann. § 40-35-115(b)(2), (4). The court ordered the sentences for counts
one, two, and three to be served concurrently (set one); counts four, five, and six to be served
concurrently (set two); and counts seven, eight, nine, and ten to be served concurrently(set
three). The court ordered the sentences in set one to be served consecutively to the sentences
in set two. In turn, the sentences in set two were ordered to be served consecutively to the
sentences in set three, for a total effective sentence of thirty years.

       On appeal, the appellant challenges the trial court’s imposition of consecutive
sentencing.

                                         II. Analysis

        In conducting its sentencing review, this court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for

                                              -9-
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Bise, 380 S.W.3d 682, 697-98 (Tenn. 2012). The burden is on the appellant to
demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.

       We note that under the 1989 Sentencing Act, appellate review of the length, range,
or manner of service of a sentence was de novo with a presumption of correctness. See Bise,
380 S.W.3d at 693; Tenn. Code Ann. § 40-35-401(d). However, in 2005, in response to
Blakely v. Washington, 542 U.S. 296 (2004), our legislature passed amendments to the
Sentencing Act to ensure that Tennessee’s sentencing scheme could withstand Sixth
Amendment scrutiny. See State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). Thereafter,
our supreme court revisited the standard of review to be applied to sentencing determinations
and held that “sentences imposed by the trial court within the appropriate statutory range are
to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Bise, 380 S.W.3d at 708. Additionally, our supreme court has held 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.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        However, since the 2005 Amendments to the Sentencing Act, our supreme court has
not ruled upon the standard of review to be utilized when reviewing a trial court’s imposition
of consecutive sentencing. See State v. Jeremy J. Edick, No. W2012-01123-CCA-R3-CD,
2013 WL 3130953, at *9 (Tenn. Crim. App. at Jackson, June 13, 2013). As such, this court
has been split regarding the proper standard of review when addressing consecutive
sentencing. See State v. Colton D. Whitelow, No. W2012-00527-CCA-R3-CD, 2013 WL
3291889, at *2 (Tenn. Crim. App. at Jackson, June 25, 2013). We conclude that regardless
of which standard is applicable, the trial court did not err by imposing consecutive
sentencing.

       Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995). Because the criteria for determining consecutive
sentencing “are stated in the alternative[,] . . . only one [criterion] need exist to support the
appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003). The trial court may impose consecutive sentencing upon finding the
existence of any one of the criteria.



                                              -10-
        As we stated earlier, the trial court imposed consecutive sentencing based upon
criterion (2), that the appellant was an offender whose record of criminal activity is
extensive, and criterion (4), that the appellant was a dangerous offender whose behavior
indicates little or no regard for human life and had no hesitation about committing a crime
in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(2), (4). Regarding
the appellant’s extensive record of criminal activity, the trial court noted that the appellant
“had committed five offenses that would qualify as a felony as a juvenile and committed
these ten offenses at the age of eighteen.” This court has previously stated that “[c]urrent
offenses may be used in determining criminal history for the purposes of consecutive
sentencing.” State v. Carolyn J. Nobles, No. M2006-00695-CCA-R3-CD, 2007 WL 677861,
at *12 (Tenn. Crim. App. at Nashville, Mar. 7, 2007) (citing State v. Cummings, 868 S.W.2d
661, 667 (Tenn. Crim. App. 1992)). We conclude that the trial court did not abuse its
discretion in imposing consecutive sentencing on this basis.

       Although the appellant challenges the trial court’s finding that the appellant was a
dangerous offender, a trial court may impose consecutive sentencing after finding any one
of the criteria. Therefore, because the trial court did not err in imposing consecutive
sentencing upon finding that the appellant had an extensive criminal history, any error in
imposing consecutive sentencing upon finding the appellant to be a dangerous offender is
harmless. See Tenn. R. App. P. 36(b).

                                      III. Conclusion

       In sum, we conclude that the trial court did not err by imposing consecutive
sentencing. Therefore, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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