         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 26, 2008

                 STATE OF TENNESSEE v. RANDALL A. MYERS

                   Direct Appeal from the Circuit Court for Blount County
                        No. C-15714     Jon Kerry Blackwood, Judge



                    No. E2007-01810-CCA-R3-CD - Filed January 5, 2009


The defendant, Randall A. Myers, appeals the sentence imposed by the Blount County Circuit Court
following his open guilty plea to two counts of filing a false report, Class D felonies, and one count
of theft of property under $500, a Class A misdemeanor. After hearing the evidence presented at the
sentencing hearing, the trial court imposed consecutive sentences of four years, three years, and
eleven months and twenty-nine days. The court further ordered the sentences to be served in
confinement. On appeal, the defendant asserts that: (1) the two felony sentences are excessive; (2)
the court erred in denying an alternative sentence; and (3) the trial court erred in imposing
consecutive sentences. Following review of the record, we affirm the sentences as imposed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and J.C. MCLIN , JJ., joined.

Charles A. Carpenter (on appeal) and William Gribble (at trial), Maryville, Tennessee, for the
appellant, Randall A. Myers.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; William H. Cox, III, District Attorney General Pro Tempore; and Neal Pinkston, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        The underlying facts of the defendant’s three cases, as recited at the guilty plea hearing, are
as follows:

       [I]n 15714, a false report from December of 2004, allegations that [the defendant]
       reported to the Blount County Sheriff’s Department and it was later turned over to
       the TBI of an alleged murder for hire of some inmate. And that proved - - by
       monitoring of reports and phone conversations, proved to be false.

       [In] 15715, false report, the State would submit that there was a phone call from [the
       defendant] made 2005 while out on the bond for the other false report, he gave this
       report of a false incident here in Blount County. That, too, proved out to be false.

       And in 15716, theft [under] five hundred, the State alleges that [the defendant]
       offered to sell an individual golf clubs in the amount of $230. The check was written
       and [cashed]; however, the clubs were never provided.

        Based upon these allegations, the defendant was indicted by a Blount County grand jury for
two counts of Class C filing a false report and one count of theft of property less than $500. He
subsequently entered a best interest plea agreement. Pursuant to the agreement, the defendant pled
guilty to two Class D felony filing a false report charges and to the theft of property. Moreover, the
agreement specified that the defendant was to be sentenced as a Range I, standard offender, although
he qualified as a Range II offender. However, the agreement provided that the length of the
sentences and the manner of their service were to be determined by the trial court.

        At the subsequent sentencing hearing, the board of probation and parole officer who prepared
the presentence report testified and introduced the report into evidence. According to the officer,
he had difficulty completing the report because the defendant failed to contact the officer despite
having been informed to do so. The officer was eventually able to interview the defendant following
his subsequent arrest. The presentence report indicated that the defendant had a length history of
criminal convictions, beginning in 1987, and that the defendant had previously been revoked from
probation twice and parole once.

       After hearing the evidence presented, the trial court imposed sentences of four years for one
count of filing a false report, three years for the second count, and eleven months and twenty-nine
days for the theft of property. The court further ordered that the sentences were to be served
consecutively and in confinement. The defendant now appeals the sentences.

                                              Analysis

        On appeal, the defendant raises three challenges to the sentences imposed. First, he contends
that the two sentences for filing a false report are excessive in length. Second, he argues that the
court erred in denying an alternative sentence. Finally, he asserts that it was error to impose
consecutive sentences.

       Initially, we note that the two felony offenses for which the defendant was convicted occurred
on December 20, 2004, and May 25, 2005, although he was not sentenced until July 2007. The
misdemeanor theft offense, which the defendant does not challenge in this appeal, was committed
on June 17, 2005. Effective June 7, 2005, our sentencing act was amended in response to Blakely


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v. Washington. See T.C.A. § 40-35-210(c) (Supp. 2005); cf. T.C.A. § 40-35-210(c) (2003). In the
“Compiler’s Notes” section to this amendment, it states:

       Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal
       offenses on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall
       be governed by prior law, which shall apply in all respects. However, for defendants
       who are sentenced after June 7, 2005, for offenses committed on or after July 1,
       1982, the defendant may elect to be sentenced under the provisions of the act by
       executing a waiver of such defendant’s ex post facto protections. Upon executing
       such a waiver, all provisions of the act shall apply to the defendant.

T.C.A. § 40-35-210, Compiler’s Notes. In the instant case, the record is devoid of any waiver of the
defendant’s ex post facto protections. Thus, the 2005 amendments to the statute do not apply to the
defendant’s felony convictions. Therefore, we review the trial court’s imposition of the sentences
in this case pursuant to the former act, as modified by State v. Gomez, 239 S.W.3d 733, 740 (Tenn.
2007) (“Gomez II”).

        On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. T.C.A. § 40-35-401 (2003), Sentencing Comm’n Cmts.
When a defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review of the record with a presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). The presumption
of correctness 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. Pettus, 986
S.W.2d 540, 543-44 (Tenn. 1999). However, if the record shows that the trial court failed to
consider the sentencing principles and all relevant facts and circumstances, then review of the
challenged sentence is purely de novo without the presumption of correctness. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). When conducting a de novo review of a sentence, we must consider:
(1) any evidence received at the trial and/or sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancement factors; (6) any statements made
by the defendant on his or her own behalf; and (7) the potential for rehabilitation or treatment.
T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

I. Sentence Length

        The defendant asserts that the respective four-year and three-year sentences imposed for his
two convictions for filing a false report are excessive “because the trial court imposed a sentence of
confinement that was only two (2) years less than the maximum possible sentence” and because the
court “did not apparently consider whether the sentence [it] imposed was the least severe measure
necessary to achieve the purposes for which the sentence was imposed.”




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        Under the law as it existed prior to the 2005 amendments, unless enhancement factors were
present, the presumptive sentence to be imposed for a Class D felony was the minimum sentence
within the applicable range. T.C.A. § 40-35-210(c). As the defendant was sentenced as a Range I
offender, the appropriate range was two to four years. See T.C.A. § 40-35-112(a)(4) (2003).
Tennessee’s pre-2005 sentencing act provided that the trial court was to increase the sentence within
the range based on the existence of enhancement factors and reduce the sentence as appropriate for
any mitigating factors. T.C.A. § 40-35-210(d), (e). Our supreme court has held that, upon the
finding of even one enhancement factor, “the statute afforded to the judge discretion to choose an
appropriate sentence anywhere within the statutory range.” State v. Gomez, 163 S.W.3d 632, 659
(Tenn. 2005) (“Gomez I”). Moreover, the law is well established that the weight assigned to an
enhancement factor “is left to the discretion of the trial court so long as the trial court complies with
the purposes and principles of the sentencing act and its findings are supported by the record.” State
v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001) (citations omitted).

         Thus, based upon the applicable law, we must reject the defendant’s contentions with regard
to the length of the sentence. The record of the proceedings below indicates that the trial court
considered all relevant purposes and principles of the sentencing act. It was not error for the trial
court to impose a sentence “only two years less than the maximum possible sentence” based upon
its discretion.

        However, the Tennessee Supreme Court recently held that the trial court’s enhancement of
a defendant’s sentence based on factors that had not been found by a jury beyond a reasonable doubt
violated a defendant’s Sixth Amendment right to a jury trial as interpreted by the Supreme Court in
Gomez II, 239 S.W.3d at 740 (citing Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 860
(2007)); see also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)) (“‘ Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’”). Blakely was also clear that
a defendant’s sentence could also be enhanced based upon facts “admitted by the defendant.”
Blakely, 542 U.S. at 304, 124 S. Ct. at 2537.

        In determining the appropriate sentence length in this case, the trial court found as follows:

                The Court finds that the Defendant has a prior history of criminal convictions
        and criminal behavior in addition to those necessary to establish the appropriate
        range and that the Defendant has an unwillingness to comply with a sentence
        involving release in the community. These enhancements outweigh the mitigating
        factor that his conduct neither caused nor threatened serious bodily injury.

Thus, the record establishes that the trial court imposed two enhancement factors, as well as one
mitigating factor. See T.C.A. § 40-35-114(1), (8), -113(1) (2003). On appeal, the defendant does
not challenge the application of these factors. However, review of the record reveals that the trial
court erred in applying the enhancement factor for the defendant’s previous unwillingness to comply


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with the conditions of a sentence involving release into the community based upon Gomez II. See
Gomez II, 239 S.W.3d at 740 (a trial court’s enhancement of a defendant’s sentence, on the basis of
judicially determined facts other than a defendant’s prior convictions, violated that defendant’s
constitutional rights under the Sixth Amendment to the United States Constitution); see also State
v. Phedrek T. Davis, No. M2006-00198-SC-R11-CD (Tenn., Oct. 17, 2008) (finding was error to
apply the factor for previous unwillingness to comply with the conditions of a sentence involving
release into the community because this contention was not put before the jury or admitted by the
defendant). Though the presentence report, which establishes that the defendant had previously
violated probation and parole, was entered without objection by the defendant, we cannot conclude
that is sufficient to constitute an admission for Sixth Amendment purposes. This court has
previously held that an admission sufficient to support the enhancement of a defendant’s sentence
under Blakely must rest upon a defendant’s unequivocal testimony, at trial or at the sentencing
hearing, or a factual acknowledgment in the presentence report when the presentence report is
introduced as an exhibit at the sentencing hearing without objection. State v. Anthony Riggs, No.
M2007-02322-RM-CD (Tenn. Crim. App., at Nashville, May 7, 2008).

        However, as noted, the defendant has not challenged the court’s application of the
enhancement factor. Thus, the issue is waived, and our review is limited to whether the trial court
committed plain error in sentencing the defendant. Gomez II, 239 S.W.3d at 737. Rule 52(b) of the
Tennessee Rules of Criminal Procedure provides that “[w]hen necessary to do substantial justice,
an appellate court may consider an error that has affected the substantial rights of an accused at any
time, even though the error was not raised in the motion for new trial or assigned as error on appeal.”
In order to constitute “plain error,” the error must satisfy the following factors:

        (a) the record must clearly establish what occurred in the trial court; (b) a clear and
        unequivocal rule of law must have been breached; (c) a substantial right of the
        accused must have been adversely affected; (d) the accused did not waive the issue
        for tactical reasons; and (e) consideration of the error is ‘necessary to do substantial
        justice.’

State v. Smith, 24 S.W.3d 274, 282 (quoting State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim.
App. 1994). “[A]ll five factors must be established by the record before [a reviewing court] will
recognize the existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Id. at 283.
It is the defendant who bears the burden of persuasion to demonstrate plain error. Gomez II, 239
S.W.3d at 737.

        In this case, review of the record clearly establishes the existence of four of the required
factors in this case, as the record establishes what occurred at the sentencing hearing, a clear and
unequivocal rule of law was breached with the application of an enhancement factor other than prior
criminal history or admitted behavior, a substantial right of the defendant was affected because he
was denied his Sixth Amendment right to a jury trial, and the record fails to reflect waiver for tactical
reasons. See id. at 740-42. With regard to the fifth factor, in Gomez II, our supreme court concluded


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that plain error of a Blakely infraction was necessary to do substantial justice. Id. at 742. To make
that decision in this case, pursuant to Gomez II, we must look at what sentence we might impose on
the basis of the defendant’s prior criminal behavior alone to decide if substantial justice requires
plain error review in this case. In short, we look at the relative impact on sentence enhancement for
prior criminal behavior versus the other inappropriately applied enhancement factor.

        We find no error in application of enhancement factor (1) based upon the defendant’s prior
criminal history of nine theft convictions, nine deception business practices convictions, one
conviction for possession of marijuana, and one conviction for harassment. Despite the fact that the
court erred in its application of the second enhancement factor, we are unable to conclude that the
defendant is entitled to relief. Given the defendant’s extensive criminal history, when weighed
against the single mitigator applied by the trial court, we conclude that the enhancement factor for
prior criminal history was entitled to great weight and warrants the sentences imposed.

II. Alternative Sentencing

        Next, the defendant contends that the trial court erred in ordering his sentences be served in
the Department of Correction. Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration, and an especially mitigated or standard offender
convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary. T.C.A. § 40-35-102(6) (2003).
Because the defendant was convicted of Class D felonies, the presumption applies. Evidence to the
contrary may be establishing by showing that: (1) confinement is needed to protect society by
restraining a defendant who has a long history of criminal conduct; (2) confinement is needed to
avoid depreciating the seriousness of the offense or that confinement is particularly suited to provide
an effective deterrence to people likely to commit similar offenses; or (3) measures less restrictive
than confinement have frequently or recently been applied unsuccessfully to the defendant. Ashby,
823 S.W.2d at 169 (citing T.C.A. § 40-35-103(1)(A)-(C)). The court may also consider the
mitigating and enhancement factors set forth in Tennessee Code Annotated section 40-35-113 and
-114 as they are relevant to the section 40-35-103 considerations. T.C.A. 40-35-210(b)(5); State
v. Boston, 938 S.W.2d 435, 538 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. T.C.A. § 40-35-103(5) (2003); Boston, 938 S.W.2d at 438.

       In imposing sentences of confinement in this case, the trial court stated:

       The Court also considers that measures less restrictive have been applied to the
       Defendant unsuccessfully, his failure to appear for the probation - - or rather for the
       presentence report. His brief violation of probation periods indicate a lack of
       potential for rehabilitation.




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        The defendant’s argument supporting relief is based upon his assertion that the court failed
to find “that confinement was necessary to avoid depreciating the seriousness of the offense or to
provide a deterrent to others.” He acknowledges that the court did make specific findings with
regard to his extensive criminal history and that measures less restrictive than confinement have been
applied to the defendant. This argument is clearly misplaced. The statute sets out three ways in
which evidence to the contrary can be established. It does require that each of the three
circumstances be found to apply. A finding of one is sufficient to rebut the presumption in favor of
alternative sentencing.

        After review, we conclude that the record establishes that the trial court appropriately
considered the principles of sentencing and that the imposition of sentences of confinement was
proper. The record indicates that the defendant had numerous prior convictions and that he had
previously been granted probation and parole, which he did not successfully complete. The
presentence report indicates he was revoked from probation in 2001 and 2002, and he was revoked
from parole in 2004. As found by the trial court, this reflects poorly on the defendant’s potential for
rehabilitation. The defendant is not entitled to relief on this issue.

III. Consecutive Sentencing

         Finally, the defendant contends that the trial court erred in ordering that the sentences for the
defendant’s three convictions be served consecutively. A trial court may impose consecutive
sentencing upon a determination that one or more of the criteria set forth in Tennessee Code
Annotated section 40-35-115(b) exists. This section permits the trial court to impose consecutive
sentences if the court finds that “[t]he defendant is a professional criminal who has knowingly
devoted such defendant’s life to criminal acts as a major source of livelihood” or “[t]he defendant
is an offender whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(1), (2) (2003).
The length of the sentence, when consecutive in nature, must be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved” under the circumstances. T.C.A. §
40-35-102(1), -103(2).

        In imposing consecutive sentences, the trial court found:

        [T]he defendant has an extensive history of criminal convictions and criminal
        behavior and he has, according to the presentence report, devoted himself to no
        livelihood - - no other livelihood other than through crime. And lastly, that the
        protection of the public demands that consecutive sentences be imposed to protect
        the public from an individual whose criminal activity is extensive and appears to
        have no other livelihood other than through theft and criminality.

        The defendant contends that the trial court erred, asserting that “there is no evidence in the
record that can properly stand for the proposition that [the defendant] is ‘a professional criminal who
has knowingly devoted his life to criminal acts as a major source of livelihood.’” He asserts that the
State’s failure to present evidence that the defendant’s criminal acts had provided a major source of


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livelihood precluded the court’s reliance upon this factor. He also asserts that the court erred in
finding that the defendant had an extensive criminal history because while the defendant’s “criminal
history looks extensive at first blush, a closer look reveals that the bulk of his convictions are
misdemeanors and resulted from pleas entered in November 2000. But for those pleas, [the
defendant] would not have an extensive criminal history.”

        Review of the record gives some merit to the defendant’s contention with regard to the
finding that he was a professional criminal. We agree that the presentence report establishes that the
defendant has a very sparse employment history, working only “off and on.” However, there was
no evidence presented reflecting the amount of money that the defendant derived from criminal
offenses or that he used that income to support himself. See State v. George Hampton, No. W2004-
01248-CCA-R3-CD (Tenn. Crim. App., at Jackson, Jul. 14, 2005) (citing State v. Desirey, 909
S.W.2d 20 (Tenn. Crim. App. 1995)). Because the State failed to prove that the defendant’s criminal
acts provided a major source of livelihood, we conclude that the trial court’s consideration of this
factor was inappropriate.

         However, the record amply supports that court’s finding that the defendant has an extensive
criminal history. From 1987 to 2005, the defendant amassed five felony convictions and fifteen
misdemeanor convictions. Despite his assertion to the contrary, we agree with the trial court that
this is an extensive criminal history. That several of the crimes are misdemeanors and occurred in
a relatively short period of time is of little importance to this finding. We conclude there was no
error in the trial court’s determination that consecutive sentencing was appropriate in this case.

                                          CONCLUSION

       Based upon the foregoing, the sentences are affirmed as imposed.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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