         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON               FILED
                       FEBRUARY 1999 SESSION          March 19, 1999

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 02C01-9806-CC-00172
      Appellee,                  )
                                 )    TIPTON COUNTY
VS.                              )
                                 )    HON. JOSEPH H. WALKER,
WALTER LEE GAINES, JR.,          )    JUDGE
                                 )
      Appellant.                 )    (Sentencing)



FOR THE APPELLANT:                    FOR THE APPELLEE:

J. THOMAS CALDWELL                    JOHN KNOX WALKUP
114 Jefferson Street                  Attorney General and Reporter
Ripley, TN 38063
                                      GEORGIA BLYTHE FELNER
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      ELIZABETH T. RICE
                                      District Attorney General

                                      JAMES W. FREELAND, JR.
                                      Assistant District Attorney General
                                      302 E. Market Street
                                      Somerville, TN 38068




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY,
JUDGE
                                      OPINION

       A Tipton County jury convicted defendant, Walter Lee Gaines, Jr., of reckless

homicide, possession of a prohibited weapon, and filing a false report. The trial

court sentenced him as a Range I standard offender to serve 3½ years for reckless

homicide, a Class D felony; 1½ years for possession of a prohibited weapon, a

Class E felony; and 11 months and 29 days at 75% for filing a false report, a Class

A misdemeanor. The court ordered the weapon and false report sentences to run

concurrently, but consecutively to the reckless homicide sentence, for an effective

sentence of five years. The sole issue in this appeal as of right is the propriety of

these sentences. Upon our de novo review, we AFFIRM the length of sentences

imposed and the denial of probation; but MODIFY the sentences so as to run them

concurrently rather than consecutively.



                                       FACTS

       On February 20, 1997, defendant and his friend, the victim, were playing with

a sawed-off shotgun at the home of defendant’s fiancée. At some point, defendant

pulled the trigger and the gun went off, killing the victim.

       Defendant denied shooting the victim and claimed that Willie Holland

murdered his friend. He adhered to this story for several hours and gave the

Covington Police two statements to that effect. Holland was then interrogated, and

the police confirmed Holland was not present at the time of the killing. After

Investigator Ricky Chandler’s suggestion that defendant submit to a gunshot

residue test in order to eliminate him as a suspect, defendant gave a third statement

admitting his culpability in the victim’s death.

       The state charged defendant with second degree murder, possession of a

prohibited weapon, and filing a false report. Defendant admitted in his testimony

the possession of the weapon and filing a false report. The jury found him guilty of

those offenses, as well as the lesser offense of reckless homicide.

       At sentencing, defendant submitted five factors in mitigation which were

considered by the trial court: (1) defendant is gainfully employed and has been



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during his adult life; (2) defendant is the sole provider for his wife and three small

children; (3) defendant has no significant record of criminal conduct; (4) defendant

expressed genuine remorse for his actions; and (5) defendant committed the

offense under such unusual circumstances that it is unlikely that a sustained intent

to violate the law motivated his conduct. See Tenn. Code Ann. § 40-35-113(11),

(13).

        The trial court found one enhancement factor applicable to all charges:

defendant was on probation at the time of the offense. Tenn. Code Ann. § 40-35-

114(13). In relation to the reckless homicide charge, the court found two additional

enhancement factors:      the defendant employed a deadly weapon during the

commission of the offense; and the offense was committed under circumstances

where the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-

114(9),(16). In relation to the misdemeanor false report charge, the trial court

considered that defendant’s false implication of Willie Holland as the killer could

have carried dire repercussions.

        The trial judge found the enhancement factors clearly outweighed the

mitigating factors and chose to enhance the sentence for each conviction. The

court sentenced defendant as a Range I standard offender to 3½ years for reckless

homicide and 1½ years for possession of a prohibited weapon. For filing a false

report, defendant received 11 months and 29 days at 75%. Although the weapon

offense and false report offense were run concurrently, they ran consecutively to the

reckless homicide for an effective sentence of five years.



                                   SENTENCING

        Defendant challenges the sentences imposed in this case. He asserts the

trial court erred in its application of the enhancement and mitigating factors; its

application of consecutive sentencing; and its denial of probation.

        This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge



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considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       Defendant argues that the trial court failed to apply all appropriate mitigating

factors. However, the trial court specifically recognized the applicability of the

mitigating factors submitted by defendant.

       We note that the trial court improperly applied the enhancement factor for a

felony committed while on probation. See Tenn. Code Ann. § 40-35-114(13). At

the time of these offenses, defendant was on misdemeanor probation. In order for

that statutory enhancement factor to apply, release status must be from a prior

felony conviction. Id. We further note that the court improperly applied to the

reckless homicide conviction the enhancement factor for a crime committed when

there is great potential for bodily injury. See Tenn. Code Ann. § 40-35-114(16);

State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995)(holding this

enhancement factor may not be applied to vehicular homicide by recklessness).



                              A. Length of Sentence

       Due to the misapplication of enhancement factors, we review the sentences

de novo without a presumption of correctness. The record actually supports the

application of two enhancement factors to the reckless homicide conviction:

defendant’s previous conviction for vandalism and the employment of a sawed-off

shotgun in the commission of the offense. See Tenn. Code Ann. § 40-35-

114(1),(9). The record also supports the application of three enhancement factors

to the conviction for possession of a prohibited weapon: defendant’s vandalism

conviction; a lack of hesitation about possessing a sawed-off shotgun where the risk

to human life was high; and circumstances surrounding the possession of the gun

that day obviously carried a great potential for bodily injury to a victim. See Tenn.

Code Ann. § 40-35-114(1),(10),(16).

       Although this Court assigns little weight to the first enhancement factor, we


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find that its combination with the other factors causes the enhancement factors to

outweigh the mitigating factors in each instance. Thus, we conclude under our de

novo review that 3½ years is an appropriate sentence for the reckless homicide;

and 1½ years is appropriate for possession of the sawed-off shotgun.

       With regard to the sentence for filing a false report, we note the Tennessee

Supreme Court’s decision in State v. Troutman, 979 S.W.2d 271 (Tenn.

1998)(emphasizing the flexibility and discretion vested in the trial court for purposes

of misdemeanor sentencing). The record amply supports the trial judge’s findings

in support of enhancement. The misdemeanor was committed while defendant was

on probation for another misdemeanor, and the report carried potentially dire

repercussions in that defendant falsely accused an innocent man of murder. The

trial court did not abuse its discretion in finding 11 months and 29 days at 75% to

be an appropriate sentence under these circumstances.



                           B. Consecutive Sentencing

       The trial court cited Tenn. Code Ann. § 40-35-115(6) as the basis for

applying consecutive sentencing to defendant’s convictions. A court may order

sentences to run consecutively if the court finds by a preponderance of the

evidence that “the defendant is sentenced for an offense committed while on

probation.” Tenn. Code Ann. § 40-35-115(b)(6). However, the court must also

determine whether the consecutive sentences: (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

       In this instance, the trial court recognized a proper statutory basis for the

implementation of consecutive sentencing in Tenn. Code Ann. § 40-35-115(b)(6).

However, the court failed to recite any of the factors required by Wilkerson, and our

de novo review fails to reveal the presence of the second Wilkerson factor.

Therefore, consecutive sentencing is improper.




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                              C. Denial of Probation

       Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations contained in Tenn. Code Ann. § 40-35-

103(1):

       (A) [c]onfinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

       (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.

Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

       The trial court made specific findings at sentencing that confinement is

necessary to avoid depreciating the seriousness of the offenses, and measures less

restrictive had recently been applied unsuccessfully to the defendant. We conclude

the trial court did not err in denying probation.



                                   CONCLUSION

       Based upon the foregoing, we AFFIRM the length of sentences imposed by

the trial court and its denial of probation. However, we MODIFY the sentences such

that they all run concurrently rather than consecutively. The case is remanded to

the trial court for entry of modified judgments.




                                                    ____________________________
                                                     JOE G. RILEY, JUDGE




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CONCUR:



____________________________
JOHN H. PEAY, JUDGE



____________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




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