         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 2, 2008

              STATE OF TENNESSEE v. MERL WAYNE MEDLEY

                  Direct Appeal from the Circuit Court for Obion County
             No. C07-176, C07-177, CC-07-CR233 William B. Acree, Jr., Judge


                  No. W2008-00831-CCA-R3-CD - Filed November 30, 2009


In Cause C07-176, the Defendant-Appellant, Merl Wayne Medley, was convicted by an Obion
County jury of two counts of attempted first degree murder, Class A felonies, and two counts of
aggravated assault, Class C felonies. In the same cause, Medley was also found guilty through a
bench trial of one count of retaliation for past action, a Class E felony, and one count of violation
of an order of protection, a Class A misdemeanor. In Cause C07-177, Medley was convicted by a
jury of one count of aggravated assault, a Class C felony, and one count of simple assault, a Class
A misdemeanor. In Cause CC-07-CR-233, Medley was convicted by a jury of one count of
solicitation to commit first degree murder, a Class B felony. In Cause C07-176, one of the
convictions for attempted first degree murder and both of the convictions for aggravated assault were
merged into the remaining conviction for attempted first degree murder, for which Medley received
a twenty-five-year sentence at 30%. He also received a sentence of two years at 30% for the
retaliation for past action conviction and a sentence of eleven months and twenty-nine days for the
violation of an order of protection conviction, which were to be served concurrently with the
attempted first degree murder conviction. In Cause C07-177, the assault conviction was merged into
the aggravated assault conviction, for which Medley received a six-year sentence at 30%. In Cause
CC-07-CR-233, Medley received a twelve-year sentence at 30% for the solicitation to commit first
degree murder conviction. The trial court ordered that the twenty-five-year sentence for the
attempted first degree murder conviction, the twelve-year sentence for the solicitation to commit first
degree murder conviction, and the six-year sentence for the aggravated assault conviction be served
consecutively for an effective sentence of forty-three years. In this appeal, Medley challenges the
trial court’s (1) refusal to suppress his statement, (2) joinder of the offense of solicitation to commit
first degree murder to the offenses of attempted first degree murder and aggravated assault; and (3)
imposition of consecutive sentences. Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and J.C. MCLIN , JJ., joined.

Joseph P. Atnip, District Public Defender (on appeal), Dresden, Tennessee, and James Powell (at
trial), Union City, Tennessee, for the Defendant-Appellant, Merl Wayne Medley.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

        Prior to trial, Medley filed a motion to suppress his September 10, 2007 statement to law
enforcement, which the trial court denied. Also prior to trial, the State filed a motion to join Cause
CC-07-CR-233 to Causes C07-176 and C07-177 pursuant to Tennessee Rules of Criminal Procedure
8 and 13, which the trial court granted. On February 1, 2008, the trial court sentenced Medley to
twenty-five years for the attempted first degree murder, twelve years for the solicitation to commit
first degree murder, and six years for the aggravated assault. Medley filed a motion for a new trial
on February 27, 2008. The trial court denied this motion by written order on June 6, 2008, and
Medley filed a timely notice of appeal.

                                  FACTUAL BACKGROUND

        On April 17, 2007, Medley called his wife and the victim in this case, Angela Medley, at
work to inform her that he had picked up their daughter from daycare and that he wanted her to
gather her belongings because he was forcing her to move out of their home. The victim
immediately called the daycare to see if Medley had already picked up their daughter. She was told
that her daughter was still there, and the victim drove to the daycare to pick her up. As she was on
her way, Medley called the victim a second time and told her to “get to the daycare” and remove
Sheila Jackson’s name from the list of individuals who were authorized to pick up their daughter
from daycare.

        The victim then called Sheila Jackson and requested that she contact the Obion County
Sheriff’s Department and tell them to drive over to her home. The victim told Jackson that she felt
like she needed protection from Medley because he had already told her that “he was going to throw
[her] out if he didn’t kill [her] before [she] got [her] things packed.”

        When the victim arrived at the daycare, Medley became enraged and demanded that she
remove her two adult daughters and her parents from the list of people authorized to pick up their
daughter. Medley then accused her of having an affair with a Mexican immigrant, which the victim
adamantly denied. Medley told the victim to get in her car and go home. Medley put their daughter
in his vehicle for the ride home.

         The victim followed Medley home. During that time, the victim called Jackson again to
ensure that deputies would be at their home when they arrived. Upon their arrival at home, Medley
came over to the victim’s car, opened her door, and then broke her cell phone in half, saying, “Now
call for help[.]” Medley threw the broken cell phone at her, which hit her on the arm. He then pulled
a gun out from behind his back and began screaming at the victim. Medley pointed the gun at the
victim’s forehead and chest before firing a shot over her head and next to her foot. He told the
victim to go pack her belongings. Medley continued to hold the gun as he followed her into the



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house and shoved her into the refrigerator. Then he hit the victim in the head with his hand. Medley
told her that he was going to kill her if she tried to get someone to help her.

        Medley then told the victim to sit at a picnic table outside and watch their daughter play. He
put the gun on the seat of the picnic table between him and the victim. He told the victim to call
Jackson and tell her to never call her again. The victim called Jackson on Medley’s cell phone and
relayed this message. Medley said a few things to Jackson before firing a shot near the phone.

        Jackson observed Medley shoot his gun near the phone during their conversation as she
pulled into Medley’s driveway. Simultaneously, Sergeant Greg Hamilton of the Obion County
Sheriff’s Department drove into the Medley’s driveway. The victim pleaded with Medley not to hurt
her or their daughter when she saw the officer. Medley said, “There’s your help,” and walked to the
back of their home.

        Because the victim believed that Medley was going to shoot her before Sergeant Hamilton
made it up the driveway, she ran to a shed in the back yard. Then she ran to Sergeant Hamilton as
he was getting out of his vehicle. Medley brought his daughter to the other officers and starting
talking with them.

         Medley told Sergeant Hamilton that a gun had not been involved in the incident and claimed
that all of his guns were locked in a gun safe because of his young daughter. Deputy Josh Johnson,
another officer on the scene, found Medley’s loaded gun, a nine millimeter semi-automatic, in a
cardboard box on the kitchen table. Once the gun was discovered, Medley suddenly “changed his
story” and claimed that he had gotten the gun out earlier that day and had forgotten to return it to the
gun safe. Deputy Johnson also found a spent shell casing near the victim’s car that appeared to have
landed there after the victim parked her car that day.

       The victim completed a petition for an order or protection while some of the officers talked
to Medley. The officers arrested Medley after talking to him for thirty minutes. The victim
subsequently attended several court appearances, and a court issued the final order of protection to
her on April 26, 2007.

        On May 24, 2007, Medley attacked the victim when she went outside her home to lock her
truck. When she went outside, the victim saw Medley standing on the other side of her truck behind
a tree. Medley approached the victim and told her, “You’ve cost me too much, bitch, and you’re
going to die.” Medley demanded that the victim drop all of the charges against him, and the victim
said that she would. Medley told her that it was “too late,” and the victim saw the knife in Medley’s
hand. Medley pulled the victim’s shirt over her head from behind, grabbed her arm, and cut her on
her face, chest, shoulder, down one breast, twice on her left hand, and on her arm to her left shoulder.
The victim could not remember whether Medley stopped cutting her or she was able to get away
from him. She ran to the back door of her home, locked and chained the door, locked herself and
her daughter in the bedroom, and called 9-1-1. While she was on the line with 9-1-1, she called
Sheila Jackson on another phone screaming for help. The victim told Jackson that Medley had cut
her. The victim was bleeding heavily from gaping wounds. Deputy Kenny Craig, one of the first
officers to arrive at the victim’s house, stated that he saw blood on the back door of the house, the
deck, and all over the house. Inside he found the victim, who had wrapped herself in a blanket.

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Deputy Craig said that when emergency personnel pulled off the blanket, the victim’s wounds were
so deep that he believed that the victim would die.

       Once the victim was in the care of medical personnel, Deputy Craig went to Medley’s
residence. He said Medley had cuts on his hands, which Medley claimed were from moving an air
conditioner. Medley also claimed that he had not left his residence that night except to go to
Walmart with his girlfriend, Billie Sullivan. Sullivan initially corroborated Medley’s story about
his whereabouts that night. However, she later informed the sheriff’s department that Medley had
driven her to the victim’s home and asked her to drive his car down the road and return a few
minutes later so that he could slash the victim’s tires the night the victim was injured.

        The officers that searched Medley’s residence found a soaking wet black T-shirt and some
jeans with apparent blood stains containing Medley’s wallet and keys. The officers also found a
pocketknife and sharpening stone in Medley’s car. Forensics tests of the stains on the jeans showed
that they were from the blood of the victim.

        Between July and September 2007, Medley began discussing his criminal case with Antonio
Goss, a fellow inmate at the Union City Jail. Medley asked Goss what would happen in his case if
the victim failed to appear in court. Goss told Medley that if the victim did not show up that Medley
would have an excellent chance of “getting off.” Medley “made it perfectly clear that he wanted to
have [the victim] killed[,]” but Goss told him that he should leave things alone. Goss stated that he
thought Medley talked to him about having his wife killed because he thought that Goss could help
him since Goss had been an member of the Gangster Disciples in Memphis before his imprisonment.
Goss immediately contacted Agent Jeff Jackson with the Tennessee Bureau of Investigation because
he thought that Medley was trying to implicate him. After talking with Agent Jackson, Goss agreed
to wear a wire and taped two different conversations with Medley. During the first conversation,
Medley talked to Goss about having an acquaintance of Goss’s kill his wife in exchange for $2000.
During the second conversation, Medley and Goss talked about how the hired killer would recognize
the victim and how the killer would get paid. Medley wrote an IOU note to Goss that stated, “I,
Merl, owe Antonio Goss.” Medley admitted to Agent Jackson that he wrote the IOU note but
claimed that he owed Goss money for some games that he had given him.

        I. Suppression of Defendant’s Statement. Medley contends that his September 10, 2007
statement regarding the uncharged offense of solicitation to commit murder should have been
suppressed as violating the Fifth and Sixth Amendments, especially in light of the trial court’s
decision to join the solicitation to commit murder offense with the attempted murder and aggravated
assault offenses. He asserts that his statement should have been suppressed because he explicitly
invoked his Fifth Amendment right to counsel under Miranda, because he was represented by
counsel on other charges at the time he made the statement, and because law enforcement initiated
contact with him in jail. In response, the State argues that the trial court properly refused to suppress
Medley’s statement on Fifth Amendment and Sixth Amendment grounds. Specifically, the State
contends that the trial court properly refused to suppress the statement on Fifth Amendment grounds
because it “accredited Agent Jackson’s testimony that he had issued a verbal Miranda warning to the
defendant prior to the statement.” The State also argues that the trial court properly refused to
suppress the statement on Sixth Amendment grounds “because the United States Supreme Court has
held that the right to counsel is offense specific and applies only when a defendant has been charged

                                                  -4-
with the offense.” As noted by the State in its brief, Medley’s motion to suppress did not specify
the statement he wished to suppress; instead, the motion identified it only as “a statement given by
the Defendant to TBI Agent Jeff Jackson, as well as Obion County Sheriff Deputy Angie Taylor, in
which the Defendant was questioned about an attempt to solicit the murder of the Defendant’s wife.”
Furthermore, neither Medley nor the State identified the specific statement at issue at the suppression
hearing.

        At the suppression hearing on November 16, 2007, Special Agent Jeff Jackson and
Investigator Angie Taylor testified for the State. Medley, the Defendant-Appellant, testified for the
defense. During opening arguments, defense counsel acknowledged that he had not found a case
directly on point but relied on State v. Ernest Jay Walker, 1993 WL 44195, at *7 (Tenn. Crim. App.,
at Knoxville, Feb. 22, 1993), which states that once a defendant invokes his right to counsel under
the Fifth Amendment during an interrogation, the prophylactic rule of Edwards is triggered, and the
police must refrain from further interrogation until counsel for the defendant is present. In response,
the State asserted that it relied on McNeil v. Wisconsin, 501 U.S. 171, 177-79, 111 S. Ct. 2204,
2208-09 (1991), which held that when a defendant invokes the offense-specific Sixth Amendment
right to counsel during a proceeding as to a charged offense, it is not also considered an invocation
of the defendant’s non-offense-specific Fifth Amendment right to counsel under Miranda and
Edwards as to other uncharged offenses. The State also said it relied on Texas v. Cobb, 532 U.S.
162, 172-73, 121 S. Ct. 1335, 1343-44 (2001), which held that the Sixth Amendment right to counsel
on charged offenses does not prevent law enforcement from interrogating a defendant regarding
other uncharged offenses.

       Special Agent Jeff Jackson with the Tennessee Bureau of Investigation (TBI) testified that
he questioned Medley on September 10, 2007. He said that he did not record the interview because
it was not the policy of the TBI to tape-record interviews. Instead, Agent Jackson said that he
summarized Medley’s statement in his report. He stated that on September 10, 2007, he verbally
advised Medley of his Miranda rights and handed Medley a written waiver of his Miranda rights.
Agent Jackson said that Medley did not sign the written waiver:

                When I was reading his rights to him, I had Investigator Taylor, who’s with
       the Obion County Sheriff’s Department, come into the room to witness this with me,
       so I would have someone else’s viewpoint there. As I finished reading the form to
       him – as you’ve mentioned, the cases are closely related. I asked him not to discuss
       the case that he was represented by counsel on, and told him that I’m not – I made
       it clear to him, at least three separate times, that I’m not here to talk to [him] about
       that case, and don’t bring anything up about that. I told him that I was there to talk
       to him about a recording, and he cut me off and started talking about it.

Agent Jackson said that Medley suddenly interjected, “I know exactly what this is about. This is
about Antonio Goss wearing a wire and having a conversation with me in the jail.” Agent Jackson
responded, “Yes, sir, that is what I want to talk to you about.” He said that Medley immediately
began talking about the conversation he had with Goss in jail. Agent Jackson “didn’t cut him off”
because he “wanted to hear what [Medley] had to say.” He acknowledged that he did not tell Medley
to wait and sign the written waiver before he started talking. He also admitted that it would have

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been advantageous for Medley to have signed the written waiver before giving his statement.
However, he said, “I can tell you that I Mirandized [sic] him, and I had a witness that can verify that
I Mirandized [sic] him, and once an individual starts talking about a case this serious, I try not to cut
them off. I try to gain as much evidence as possible.” Agent Jackson said that he did not mention
the name of Medley’s defense attorney until he arrived at the Obion County Sheriff’s Department.
He also stated that Medley did not mention the name of his attorney during the interview.

       Agent Jackson said that Medley’s statement regarding the solicitation to commit murder
charge would be offered by the State at trial. He said that Medley never told him that he was
represented by counsel and never said he wanted to talk to his attorney before making his statement.
Agent Jackson stated that he did not tell Medley that his attorney was coming to the sheriff’s
department to talk to him that day.

          The trial court asked Agent Jackson what Medley said to him during the interview. Agent
Jackson explained that they discussed whether Medley wrote an IOU note to Antonio Goss, another
inmate, that was related to the solicitation to commit murder charge. Agent Jackson told the trial
court that he summarized Medley’s statement in his report. The trial court asked to see Agent
Jackson’s summary of Medley’s statement and reviewed it briefly during the hearing. The statement
was not read into evidence and was not admitted as an exhibit at the suppression hearing. However,
at trial, Agent Jeff Jackson testified that Medley admitted to writing the IOU note to Antonio Goss
but claimed that he owed Goss money for some games that Goss had given him. We conclude based
on the record before us that the statement Medley sought to suppress was his discussion with Agent
Jackson admitting to writing the IOU note.

        Angie Taylor, an investigator with the Obion County Sheriff’s Department, testified that she
was present on September 10, 2007, when Agent Jackson questioned Medley. She stated that she
came into the interview room immediately after Medley. Investigator Taylor stated she witnessed
Agent Jackson read Medley his Miranda rights and ask him to sign the written waiver. She stated
that Medley did not sign the written waiver but was not sure why he did not sign it. She said that
after Special Agent Jackson read Medley his Miranda rights, “Mr. Medley then spoke up and said,
‘I know why you’re here.’” Investigator Taylor stated that during the interview, Medley never stated
that he was represented by an attorney and never asked to speak with his attorney. She added,
“Special Agent Jackson did advise [Medley] that he knew that he had counsel on a previous charge
that he was incarcerated for and asked him not to speak about that particular case.”

        Merl Medley, the Defendant-Appellant, testified that Special Agent Jackson questioned him
in Investigator Taylor’s presence on September 10, 2007. Medley explained what happened in the
interview room:

                [Special Agent Jackson] said that he knew that I was represented by [defense
        counsel] on another case, and that – like he said, he didn’t want to discuss that case,
        but he wanted to – he had that piece of paper that he wanted me to sign. And I said
        I didn’t want to sign anything or say anything [until] my attorney got there.




                                                  -6-
Medley said that Agent Jackson told him that his defense attorney would be there that day to talk to
him. Regarding the waiver, Medley stated:

              [Agent Jackson] slid the paper across, said he needed me to sign. He said,
       “[These are] your rights. Do you understand them?” He said, “I want you to read
       them.” And as I was looking down and reading it, I was moving my lips, and he said,
       “I know you’ve read it, because I [saw] your lips move.”

Medley told Agent Jackson that he “wasn’t going to sign anything [ until he] talked to [his
attorney].” He added, “I never did sign the paper. [Agent Jackson] said, ‘I suppose you know what
this is about?’ And I said, ‘Yes, it’s about [Antonio Goss] wearing that wire in the jail cell that
day.’” Agent Jackson responded, “You’re absolutely correct, [Goss] wore a wire.” Then
Investigator Taylor informed Agent Jackson that Medley’s attorney had arrived, and Agent Jackson
told defense counsel to come into the interview room, which brought the interview to an end.

       The Court then asked the following question of Medley during his testimony:

              What all was said between you and . . . Special Agent Jackson after you told
       him you didn’t want to talk to him until [your] attorney got there? Did he ask you
       anything else or say anything to you, did you say anything to him, or just sit there;
       what happened?

Medley responded, “[Agent Jackson] just wanted to know what . . . was said [between Antonio Goss
and me] and what was done, if I said anything like this or I said anything like that, or if I paid
anybody this or I paid anybody for that.” Medley confirmed that he did talk to Agent Jackson
regarding his interaction with Antonio Goss.

       At the conclusion of the hearing, the court ruled:

               I’m going to reserve judgment on the Sixth Amendment issue. I want to read
       Texas v. Cobb. And also, I want to hear the motion to join, and . . . the disposition
       of that motion might have some bearing on it.

                As far as the Fifth Amendment issue, the Court finds as a matter of fact that
       . . . Special Agent Jackson . . . gave the written waiver to Mr. Medley, and before Mr.
       Medley could sign it, Mr. Medley began talking, and the Court finds – accepts
       Officer Jackson’s testimony that Mr. Medley did not tell him that he didn’t want to
       talk until his attorney got there. In short, I accept Officer Jackson’s version of the
       facts in that regard.

               Mr. Medley has been held in jail for a long period of time. He’s charged with
       a very serious crime. And if Mr. Medley had said – if he in fact had said, “I don’t
       want to talk to you until my attorney gets here,” – I think he’s been seasoned enough
       to know that he could have done that and didn’t have to talk. It’s just a matter of
       common sense, and it seems to me to be more likely that Officer Jackson’s version

                                                -7-
       is true, that Mr. Medley just started talking and he listened to what he said. So, in
       short, or in summary, the Court finds there is no Fifth Amendment violation.

            I will reserve judgment and issue a decision in a day or two about the Sixth
       Amendment issue.

The trial court’s November 19, 2007 written order denying Medley’s motion to suppress held that
Medley’s Sixth Amendment rights were not violated in light of Texas v. Cobb, 532 U.S. 162, 121
S. Ct. 1335 (2001).

        The courts of this state have concluded that “a trial court’s determination at a suppression
hearing is presumptively correct on appeal.” State v. Saylor, 117 S.W.3d 239, 244 (Tenn. 2003)
(citing State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)). However, if the record on appeal
preponderates against the trial court’s determination, then the presumption of correctness may be
overcome. Harbison, 704 S.W.2d at 318 (citing Mitchell v. State, 458 S.W.2d 630, 632 (Tenn. Crim.
App. 1970)). This standard was explained in State v. Odom:

                Questions of credibility of the witnesses, the weight and value of the
       evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
       judge as the trier of fact. The party prevailing in the trial court is entitled to the
       strongest legitimate view of the evidence adduced at the suppression hearing as well
       as all reasonable and legitimate inferences that may be drawn from that evidence. So
       long as the greater weight of the evidence supports the trial court’s findings, those
       findings shall be upheld.

928 S.W.2d 18, 23 (Tenn. 1996).

        This court’s analysis regarding Medley’s September 10, 2007 statement regarding the IOU
note must begin with the United States Constitution and the Tennessee Constitution. The Fifth
Amendment to the United States Constitution, applicable to the states through the Fourteenth
Amendment, states that “[n]o person . . . shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. Similarly, the Tennessee Constitution states “that in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself.”
Tenn. Const. art. I, § 9. “Encompassed within both of these constitutional provisions is the right to
counsel, which is applicable whenever a suspect requests that counsel be present during police-
initiated custodial interrogation.” Saylor, 117 S.W.3d at 244.

        In Miranda v. Arizona, the United States Supreme Court generally stated that the right to
counsel was invoked when an individual “indicates in any manner and at any stage of the process
that he wishes to consult with an attorney before speaking . . . .” 384 U.S. 436, 444-45, 86 S. Ct.
1602, 1612 (1966). However, eight years later in Davis v. United States, the United States Supreme
Court adopted a significantly narrower standard for invoking a right to counsel under the Fifth
Amendment when it held that “[i]nvocation of the Miranda right to counsel ‘requires, at a minimum,
some statement that can reasonably be construed to be an expression of a desire for the assistance


                                                 -8-
of an attorney.’” 512 U.S. 452, 458-59, 114 S. Ct. 2350, 2355 (1994) (quoting McNeil, 501 U.S.
at 178, 111 S. Ct. at 2209).

        Whenever a suspect invokes his right to counsel “during police-initiated custodial
interrogation,” law enforcement must stop questioning until the suspect’s attorney is present. Saylor,
117 S.W.3d at 244 (citing Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612; Edwards v. Arizona, 451
U.S. 477, 484-85, 101 S. Ct. 1880, 1885; State v. Stephenson, 878 S.W.2d 530, 548 (Tenn. 1994)).
An invocation of the right to counsel may be made “in any manner and at any stage of the process.”
Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612. Once the suspect invokes his right to counsel, “any
subsequent statement made by a defendant as a result of police-initiated interrogation must be
suppressed.” State v. Carrie Ann Brewster and William Justin Brewster, No. E2004-00533-CCA-
R3-CD, 2005 WL 762604, at *6 (Tenn. Crim. App., at Knoxville, Apr. 5, 2005) (citing Edwards,
451 U.S. at 487, 101 S. Ct. at 1886). Once the right to counsel attaches, only the suspect can initiate
further communication with law enforcement. Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885.

        Any waiver of Miranda rights must be “made voluntarily, knowingly and intelligently.”
Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. A court must look to the totality of the circumstances
in determining whether a defendant has validly waived his Miranda rights. State v. Middlebrooks,
840 S.W.2d 317, 326 (Tenn. 1992) (citing Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285,
1298 (1985); State v. Kelly, 603 S.W.2d 726, 728-29 (Tenn. 1980)), superseded by statute on other
grounds as stated in State v. Reid, 91 S.W.3d 247, 306 (Tenn. 2002).

         Unlike the Fifth Amendment, the Sixth Amendment ensures that “in all criminal
prosecutions, the accused that shall enjoy the right . . . to have the assistance of counsel for his
defense.” U.S. Const. amend. VI. In Tennessee, the Sixth Amendment “right to counsel attaches
when adversary judicial proceedings are initiated.” State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.
1980). “Initiation is marked by formal charge, which we construe to be an arrest warrant, or at the
time of the preliminary hearing in those rare cases where a preliminary hearing is not preceded by
an arrest warrant, or by indictment or presentment when the charge is initiated by the Grand Jury.”
Id. (internal footnote omitted).

        Recently, in Montejo v. Louisiana, the United States Supreme Court overruled Michigan v.
Jackson, 475 U.S. 625, 106 S. Ct. 1404 (1986), which prevented law enforcement from initiating an
interrogation of a defendant after the defendant had requested counsel at an arraignment or similar
hearing, and concluded that the purpose of the Jackson rule was met by the protections given by
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), Edwards v. Arizona, 451 U.S. 477, 101
S. Ct. 1880 (1981), and Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486 (1990):

       These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-
       Minnick line of cases (which is not in doubt), a defendant who does not want to
       speak to the police without counsel present need only say as much when he is first
       approached and given the Miranda warnings. At that point, not only must the
       immediate contact end, but “badgering” by later requests is prohibited. If that regime
       suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside
       his lawyer’s presence” before his arraignment, Cobb, 532 U.S., at 175, 121 S. Ct.


                                                 -9-
       1335 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to
       protect that same choice after arraignment, when Sixth Amendment rights have
       attached.

Montejo v. Louisiana, — U.S. — , 129 S. Ct. 2079, 2090 (2009).

        “Under our precedents, once the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the
criminal proceedings.” Montejo, — U.S. — , 129 S. Ct. 2079, 2085 (citing United States v. Wade,
388 U.S. 218, 227-228, 87 S. Ct. 1926, 1932-33 (1967); Powell v. Alabama, 287 U.S. 45, 57, 53 S.
Ct. 55, 59-60 (1932)). Interrogation by the State is considered a “critical” stage of the criminal
proceedings. Id. (citing Massiah v. United States, 377 U.S. 201, 204-205, 84 S. Ct. 1199, 1202-03
(1964); United States v. Henry, 447 U.S. 264, 274, 100 S. Ct. 2183, 2189 (1980)). The Court in
Montejo also emphasized a defendant’s ability to waive his Sixth Amendment right to counsel:

                Our precedents also place beyond doubt that the Sixth Amendment right to
       counsel may be waived by a defendant, so long as relinquishment of the right is
       voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4,
       108 S. Ct. 2389, 101 L. Ed.2d 261 (1988); Brewer v. Williams, 430 U.S. 387, 404,
       97 S. Ct. 1232, 51 L. Ed.2d 424 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.
       Ct. 1019, 82 L. Ed. 1461 (1938). The defendant may waive the right whether or not
       he is already represented by counsel; the decision to waive need not itself be
       counseled. Michigan v. Harvey, 494 U.S. 344, 352-353, 110 S. Ct. 1176, 108 L.
       Ed.2d 293 (1990). And when a defendant is read his Miranda rights (which include
       the right to have counsel present during interrogation) and agrees to waive those
       rights, that typically does the trick, even though the Miranda rights purportedly have
       their source in the Fifth Amendment:

               “As a general matter . . . an accused who is admonished with the
               warnings prescribed by this Court in Miranda . . . has been
               sufficiently apprised of the nature of his Sixth Amendment rights, and
               of the consequences of abandoning those rights, so that his waiver on
               this basis will be considered a knowing and intelligent one.”

       Patterson, supra, at 296, 108 S. Ct. 2389.

Montejo, — U.S. — , 129 S. Ct. at 2085.

       Sepulveda v. State reiterated the limited scope of the Sixth Amendment:

       The Sixth Amendment right . . . is offense specific. It cannot be invoked once for all
       future prosecutions, for it does not attach until a prosecution is commenced, that is,
       at or after the initiation of adversary judicial criminal proceedings–whether by way
       of formal charge, preliminary hearing, indictment, information, or arraignment.



                                               -10-
90 S.W.3d 633, 638 (Tenn. 2002) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct.
2204, 2207 (1991) (internal quotations omitted)).

         Here, Medley argues that the trial court should have suppressed his statement regarding the
IOU note because he explicitly invoked his Fifth Amendment right to counsel during his interview
with Agent Jackson. He also claims that he had previously invoked his right to counsel under both
the Fifth and Sixth Amendments at the point when he hired private counsel on the related case
involving the attempted murder charges. We conclude that the record does not preponderate against
the trial court’s refusal to suppress Medley’s statement. Here, the trial court made a finding of fact
that it accredited Agent Jackson’s testimony, which showed that Medley waived his Miranda rights
under the Fifth Amendment. The trial court also ruled that Medley’s Sixth Amendment right to
counsel was not violated in light of Texas v. Cobb, 532 U.S. at 172-73, 121 S. Ct. at 1343-44, which
held that the Sixth Amendment right to counsel on charged offenses does not prevent law
enforcement from interrogating a defendant regarding other uncharged offenses. Regarding
Medley’s claim that invoked his right to counsel under the Fifth and Sixth Amendments when he
hired private counsel on the attempted murder charges, we note the United States Supreme Court’s
ruling in McNeil:

       To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the
       Miranda-Edwards interest. One might be quite willing to speak to the police without
       counsel present concerning many matters, but not the matter under prosecution. It
       can be said, perhaps, that it is likely that one who has asked for counsel’s assistance
       in defending against a prosecution would want counsel present for all custodial
       interrogation, even interrogation unrelated to the charge. That is not necessarily true,
       since suspects often believe that they can avoid the laying of charges by
       demonstrating an assurance of innocence through frank and unassisted answers to
       questions. But even if it were true, the likelihood that a suspect would wish counsel
       to be present is not the test for applicability of Edwards. The rule of that case applies
       only when the suspect “ha[s] expressed ” his wish for the particular sort of lawyerly
       assistance that is the subject of Miranda. Edwards, supra, 451 U.S., at 484, 101 S.
       Ct., at 1884 (emphasis added). It requires, at a minimum, some statement that can
       reasonably be construed to be an expression of a desire for the assistance of an
       attorney in dealing with custodial interrogation by the police. Requesting the
       assistance of an attorney at a bail hearing does not bear that construction. “[T]o find
       that [the defendant] invoked his Fifth Amendment right to counsel on the present
       charges merely by requesting the appointment of counsel at his arraignment on the
       unrelated charge is to disregard the ordinary meaning of that request.” State v.
       Stewart, 113 Wash.2d 462, 471, 780 P.2d 844, 849 (1989), cert. denied, 494 U.S.
       1020, 110 S. Ct. 1327, 108 L. Ed.2d 502 (1990).

McNeil, 501 U.S. at 178-79, 111 S. Ct. at 2209. Medley’s invocation of his Sixth Amendment right
to counsel, at the point when he hired private counsel to represent him on the attempted murder
charges, was not also an invocation of his Fifth Amendment right to counsel under Miranda and
Edwards as to other uncharged offenses. See McNeil, 501 U.S. at 177-79, 111 S. Ct. at 2208-09;



                                                 -11-
see also Cobb, 532 U.S. at 172-73, 121 S. Ct. at 1343-44. Accordingly, Medley is not entitled to
relief on this issue.

         II. Joinder of Offenses. Medley contends that the trial court erred in joining the offenses
in this case in light of its refusal to suppress his statement regarding the IOU note. Medley claims
that his statement should not have been admissible on Fifth and Sixth Amendment grounds in the
attempted murder case, if this case had been tried alone, because he was represented by counsel on
related charges and because law enforcement approached him rather than Medley approaching law
enforcement. He contends that since the statement should not have been admissible in the attempted
murder case, then by implication, the statement should not have been admissible when the attempted
murder case was joined to the other cases. In response, the State contends that the trial court did not
err in joining the offenses because it “properly determined that the evidence of the defendant’s three
separate offenses would be admissible in separate trials because the evidence was relevant to whether
the defendant intended to harm Ms. Medley.”

        The hearing on the State’s motion to join offenses occurred on November 16, 2007. The
State argued that the offenses should be joined because:

                [T]he evidence of the crime on the solicitation is going to be admissible at the
        trial on the attempted murder. . . . [W]e think that it will come in . . . for the
        following reasons: He is charged with attempted first degree murder, which means
        that he had to have the intent and the premeditation to kill Angela Medley on the date
        for which he is charged.”

The State argued that their case would likely be attacked on the basis that Medley did not intend to
kill his wife. For this reason, the State asserted that there was “no better proof than the fact that later
he tried to hire somebody to kill her, that there was an intent to kill, and then it would be admissible
on that basis, whether it’s joined for trial or not.” In response, the defense stated:

                 [W]e believe in order to try these offenses together, that the second charge [of
        solicitation to commit murder] . . . would be so unfairly prejudicial to Mr. Medley’s
        first case, that it should not be joined to that. If Your Honor could put yourself in the
        place of a juror sitting up there, and you’re hearing the evidence about Mr. Medley’s
        possible talk to an inmate about possibly killing his wife, and whether that’s true or
        not, that would make it seem more likely that the first charge would be true. We
        believe it would unfairly prejudice the jury . . . . .

After hearing arguments from both parties, the trial court ruled:

        I want to refer in part to State v. Denton, reported in 149 S.W.3d, Page 1, beginning
        on Page 1. I’m quoting from that case in part. The primary inquiry into whether a
        severance should have been granted under Rule 14 is whether the evidence of one
        crime would be admissible in a trial of the other, if the two counts of the indictment
        have been severed.




                                                   -12-
              And the same test is applied for whether or not to join two separate
       indictments. Tennessee Rule[] of Evidence 404(b) prohibit[s] the admission of other
       crimes, wrongs or acts of the defendant when admitted only to show the defendant’s
       propensity to commit the crime charged. However, Rule 404(b) does not bar the
       admission of acts alleged to be a part of a common scheme or plan when relevant to
       a material issue at trial.

                Before a trial court may deny a severance request it must hold a hearing on
       the motion and conclude from the evidence and argument presented at the hearing
       that, first, the multiple offenses constitute part of a common scheme or plan; (2)
       evidence of each offense is relevant to some material issue in the trial of the other
       offenses; and (3) the probative value of the evidence of the other offenses is not
       outweighed by the prejudicial effect that admission of the evidence would have on
       the defendant.

               A common scheme or plan for severance purposes is the same as a common
       scheme or plan for evidentiary purposes. Three types of common scheme or plan
       evidence are recognized in Tennessee. First, the offenses that reveal distinctive
       design or are so similar as to constitute signature crimes – that obviously does not
       apply here – (2) offenses that are part of the larger, continuing plan of conspiracy –
       I think it does in this case – and (3) offenses that are all part of the same criminal
       transaction.

               The Court finds in this case that the evidence of both crimes would be
       admissible in the trial of the others. It appears to the Court that its offer shows the
       intent of the second offense, [the solicitation to commit murder] offense shows the
       intent of Mr. Medley. It also – the Court finds it’s part of a larger continuing plan
       or conspiracy. I realize there is some prejudicial effect in the case, but I do not think
       that the prejudicial effect [outweighs] by the admission of this evidence on the
       probative issues in this case.

               In short, the Court finds that a joinder is proper in this case and will so allow.

         Tennessee Rule of Criminal Procedure 8(b) states that “[t]wo or more offenses may be joined
in the same indictment, presentment, or information, with each offense stated in a separate count,
or consolidated pursuant to Rule 13, if: (1) the offenses constitute parts of a common scheme or
plan; or (2) they are of the same or similar character.” Tenn. R. Crim. P. 8(b). Tennessee Rule of
Criminal Procedure 13(a) states that “[t]he court may order consolidation for trial of two or more
indictments, presentments, or informations if the offenses and all defendants could have been joined
in a single indictment, presentment, or information pursuant to Rule 8.” Nevertheless, Tennessee
Rule of Criminal Procedure 14(b)(1) states that “[i]f two or more offenses are joined or consolidated
for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless the
offenses are part of a common scheme or plan and the evidence of one would be admissible in the
trial of the others.” Tenn. R. Crim. P. 14(b)(1).

      Here, the State sought to join offenses in multiple indictments upon a motion pursuant to
Tennessee Rule of Criminal Procedure 13(a). “[W]hen a defendant objects to a pre-trial

                                                 -13-
consolidation motion by the state, the trial court must consider the motion by the severance
provisions of Rule 14(b)(1), not the ‘same or similar character’ standard of Rule 8(b).” Spicer v.
State, 12 S.W.3d 438, 443 (Tenn. 2000). In other words, “the state must then demonstrate that the
offenses are parts of a common scheme or plan and that evidence of each offense is admissible in
the trial of the others.” Id. at 444.

         “[T]he ‘primary issue’ to be considered in any severance case is whether evidence of one
offense would be admissible in the trial of the other if the two offenses remained severed.” Id. at 445
(citing State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984)). Tennessee Rule of Evidence 404(b)
states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b).
However, “other crimes, wrongs or acts” are admissible under Rule 404(b) when they are alleged
to be a part of a common scheme or plan that is relevant to a material issue at trial. See Bunch v.
State, 605 S.W.2d 227, 229 (Tenn. 1980).

         “In Tennessee, there are three types of common scheme or plan evidence: (1) offenses that
reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2) offenses that are
part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal
transaction.” State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999) (citing Neil P. Cohen et al.,
Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)). As relevant in the case here, “[t]he
larger, continuing plan category encompasses groups or sequences of crimes committed in order to
achieve a common ultimate goal or purpose. State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim.
App. 1993) (citing N. Cohen, Tennessee Law of Evidence, § 404.11 (2d ed. 1990)).

       The Tennessee Supreme Court outlined the prerequisites for consolidation:

       Before consolidation is proper, the trial court must conclude from the evidence and
       arguments presented at the hearing that: (1) the multiple offenses constitute parts of
       a common scheme or plan, Tenn. R.Crim. P. 14(b)(1); (2) evidence of each offense
       is relevant to some material issue in the trial of all the other offenses, Tenn. R. Evid.
       404(b)(2); [State v. ]Moore, 6 S.W.3d [235,] 239 [(Tenn. 1999)]; and (3) the
       probative value of the evidence of other offenses is not outweighed by the prejudicial
       effect that admission of the evidence would have on the defendant, Tenn. R. Evid.
       404(b)(3).

Spicer, 12 S.W.3d at 445. The court added that “because the trial court’s decision of whether to
consolidate offenses is determined from the evidence presented at the hearing, appellate courts
should usually only look to that evidence, along with the trial court’s findings of fact and
conclusions of law, to determine whether the trial court abused its discretion by improperly joining
the offenses.” Id. The court also stated that “[a]s the comments to Rule of Criminal Procedure 8
make clear, the purpose of the severance provisions is to ensure that the defendant is insulated from
the evidence of the other offenses when that evidence is not otherwise admissible.” Id. at 446 (citing
Tenn. R. Crim. P. 8, Advisory Comm’n Comments; Burchfield, 664 S.W.2d at 288).
         A trial court’s decision “to consolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1)
[is] to be reviewed for an abuse of discretion.” Shirley, 6 S.W.3d at 247. “Therefore, a trial court’s
refusal to sever offenses will be reversed only when the ‘court applied an incorrect legal standard,


                                                 -14-
or reached a decision which is against logic or reasoning that caused an injustice to the party
complaining.’” Id. (citing State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

       In State v. Prentice, this court offered guidance in determining whether the failure to sever
offenses constituted harmful or harmless error:

               “In most severance cases, ‘the line between harmless and prejudicial error is
       in direct proportion to the degree . . . by which proof exceeds the standard required
       to convict. . . .’ ” Spicer, 12 S.W.3d at 447-48 (quoting Delk v. State, 590 S.W.2d
       435, 442 (Tenn. 1979)). Our supreme court has held that the error is harmful when,
       because the evidence of guilt was not overwhelming, the failure to sever offenses
       invited the jury to infer guilt from the propensity of the accused to commit crime.
       Shirley, 6 S.W.3d at 250-51. In Spicer, our high court concluded that, because the
       evidence of guilt was sufficient but not overwhelming, the failure to sever offenses
       required reversal. 12 S.W.3d at 447. This court, in State v. Michelle Ferguson, No.
       E1999-01302-CCA-R3-CD, 2000 WL 1100223[, at *12] (Tenn. Crim. App., at
       Knoxville, Aug. 3, 2000), held that the trial court’s failure to sever was reversible
       error because “[a]lthough the evidence . . . was legally sufficient to support all three
       of [d]efendant’s convictions, the evidence was far from overwhelming.” Cf. State
       v. Michael Anderson Peek, No. E1998-00038-CCA-R3-CD, 2000 WL 565129[, at
       *13] (Tenn. Crim. App.[, at Knoxville,] May 3, 2000) (finding that the failure to
       sever was harmless where the evidence of the defendant’s guilt was overwhelming).

113 S.W.3d 326, 332-33 (Tenn. Crim. App. 2001).

        Here, the State argues that Medley’s offenses were “part of a larger, continuing plan or
conspiracy” to murder the victim. The proof at trial established that on April 17, 2007, Medley
pointed a gun at the victim’s forehead and chest before firing a shot over her head and next to her
foot, shoved her into a refrigeration, hit her in the head with his hand, and threatened to kill the
victim more than once before law enforcement arrived. On May 24, 2007, a little more than one
month later, Medley approached the victim outside her home and told her, “You’ve cost me too
much, bitch, and you’re going to die.” Then Medley cut the victim on her face, chest, shoulder,
down one breast, twice on her left hand, and on her arm to her left shoulder. Deputy Craig testified
that the victim’s wounds were so deep that he believed that the victim would die. Officers who
searched Medley’s residence found a wet black T-shirt and some jeans with blood stains containing
Medley’s wallet and keys. Additionally, a pocketknife and a sharpening stone were found in
Medley’s car. Forensics tests showed that the stains on the jeans were the victim’s blood. Between
July and September 2007, Medley began talking to Antonio Goss, a fellow inmate, about his
criminal cases involving the victim. Medley asked Goss what would happen if the victim failed to
appear in court, and Goss told Medley that he would have an excellent chance of “getting off.” Goss
said Medley “made it perfectly clear that he wanted to have [the victim] killed[,]” but Goss told him
that he should leave things alone. Goss agreed to wear a wire for the TBI and taped two different
conversations with Medley. During these conversations, Medley talked to Goss about having an
acquaintance of Goss’s kill his wife in exchange for $2000 and how the hired killer would recognize
the victim and how the killer would get paid.



                                                -15-
         In all three of these incidents, Medley’s intent was to kill the victim. Medley argues that his
statement regarding the IOU note should not have been admissible in the attempted murder case, had
it been tried alone, because he was represented by counsel on related charges and because law
enforcement approached him rather than Medley approaching law enforcement. He contends that
since the statement should not have been admissible in the attempted murder case, then by
implication, the statement should not have been admissible when the attempted murder case was
joined to the other cases. However, Medley’s argument depends upon a flawed theory – that his
representation by counsel on related charges amounted to an invocation of his right to counsel under
the Fifth Amendment, which should have precluded law enforcement from approaching him, thereby
making his subsequent statement to Agent Jackson inadmissable. We have previously concluded
that Medley’s invocation of his Sixth Amendment right to counsel, at the point that he hired private
counsel to represent him on the case related to the attempted murder charges, was not also an
invocation of his Fifth Amendment right to counsel under Miranda and Edwards as to the other
uncharged offense of solicitation to commit murder. See McNeil, 501 U.S. at 178-79, 111 S. Ct. at
2209; see also Cobb, 532 U.S. at 172-73, 121 S. Ct. at 1343-44. Furthermore, we conclude that the
trial court did not abuse its discretion in determining that the offenses were part of a common scheme
or plan and that evidence of each offense was admissible in the trial of the other offenses. See
Shirley, 6 S.W.3d at 247; Tenn. R. Crim. P. 14(b)(1). We also agree with the trial court that
Medley’s three offenses were part of a larger, continuing plan or conspiracy to kill the victim. See
Bunch, 605 S.W.2d at 229; Hallock, 875 S.W.2d at 290. Finally, we conclude that the trial court,
before joining the offenses, properly determined at the consolidation hearing that the offenses
constituted parts of a common scheme or plan, that the evidence of each offense was relevant to the
material issue in the trial of the other offenses of Medley’s intent to kill the victim, and that the
probative value of the evidence of the other offenses was not outweighed by the prejudicial effect
that admission of the evidence would have on the defendant. See Spicer, 12 S.W.3d at 445. We
conclude that the trial court properly joined the offenses in this case. However, even if the trial court
erred in joining the offenses, we conclude that such error was harmless because of the overwhelming
evidence of Medley’s guilt. See Prentice, 113 S.W.3d at 332-33. Accordingly, Medley is not
entitled to relief on this issue.

        III. Sentence. Relying on State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991), called
into doubt by State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), Medley argues that he received
an excessive sentence because the trial court erred in imposing consecutive sentences. In addition,
despite Medley’s acknowledgment of the Tennessee Supreme Court’s ruling in State v. Allen, 259
S.W.3d 671 (Tenn. 2008), he contends that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000), the jury, rather than the trial court, must find the facts required to order a
consecutive sentence. He further claims that because the United States Supreme Court granted
certiorari on this issue in the case of Oregon v. Ice, 170 P.3d 1049 (Or. 2007), cert. granted, — U.S.
— , 128 S. Ct. 1657 (U.S. Mar. 17, 2008) (No. 07-901), his case should be reconsidered or deferred
until the United States Supreme Court renders a decision in the Ice case. In response, the State
argues that the trial court did not err in imposing consecutive sentences. The State first asserts that
Medley was released on bail for the aggravated assault charge at the time when he committed the
attempted murder offense, which made consecutive sentencing regarding those offenses mandatory.
See Tenn. R. Crim. P. 32(c)(3)(C). The State also asserts that the trial court properly ordered the
solicitation to commit murder conviction consecutive to the aggravated assault and attempted murder



                                                  -16-
convictions because the trial court’s findings supported the imposition of a consecutive sentence
based on the dangerous offender category.

         On appeal, we must review issues regarding the length and manner of service of a sentence
de novo with a presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d)
(2006). Nevertheless, “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 principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). The defendant, not the State, has the burden of showing the impropriety of the
sentence. T.C.A. § 40-35-401(d) (2006), Sentencing Comm’n Comments. This means that if the
trial court followed the statutory sentencing procedure, made adequate findings of fact that are
supported by the record, and gave due consideration and proper weight to the factors and principles
that are relevant to sentencing under the 1989 Sentencing Act, this court may not disturb the sentence
even if a different result was preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In this case, our review will be de novo with a presumption of correctness because the trial
court considered the purposes and principles of the sentencing act as well as the relevant facts and
circumstances in this case.

       A trial court, when sentencing a defendant, must consider the following:

       (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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the courts as
       to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf about
       sentencing.


T.C.A. § 40-35-210(b) (2006); State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).


        If a defendant is convicted of one or more offenses, the trial court has discretion to decide
whether the sentences shall be served concurrently or consecutively. T.C.A. § 40-35-115(a) (2006).
A trial court may order multiple offenses to be served consecutively if it finds by a preponderance
of the evidence that a defendant fits into at least one of the seven categories in section 40-35-115(b).



                                                 -17-
However, the Sentencing Commission Comments of section 40-35-115(b) states that “[w]hile this
section permits consecutive sentencing, the trial judge has other available options, such as increasing
the length of their sentence within the appropriate range depending on the presence of enhancing
factors.” T.C.A. § 40-35-115(a) (2006), Sentencing Comm’n Comments. An order of consecutive
sentencing must be “justly deserved in relation to the seriousness of the offense.” T.C.A. § 40-35-
102(1) (2006). In addition, the length of a consecutive sentence must be “no greater than that
deserved for the offense committed.” T.C.A. § 40-35-103(2) (2006).

        In part, the trial court ordered consecutive sentencing based on section 40-35-115(b)(4),
“[t]he defendant is a dangerous offender whose behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which the risk to human life is high.” Regarding this
subsection, the Tennessee Supreme Court has stated:

        Proof that an offender’s behavior indicated little or no regard for human life and no
        hesitation about committing a crime in which the risk to human life was high, is
        proof that the offender is a dangerous offender, but it may not be sufficient to sustain
        consecutive sentences. Every offender convicted of two or more dangerous crimes
        is not a dangerous offender subject to consecutive sentences; consequently, the
        provisions of [s]ection 40-35-115 cannot be read in isolation from the other
        provisions of the Act. The proof must also establish that the terms imposed are
        reasonably related to the severity of the offenses committed and are necessary in
        order to protect the public from further criminal acts by the offender.

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (emphasis added) (quoting State v. Wilkerson, 905
S.W.2d 933, 938 (Tenn. 1995)). Unlike the other six subsections, the trial court must make
additional factual findings for the dangerous offender factor because it is “the most subjective and
hardest to apply.” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999)).

        Here, the trial court made the following ruling regarding consecutive sentencing in Medley’s
case:

        The State has correctly pointed out that there is a mandatory consecutive sentence in
        one of the cases. You were out on bond in Case No. 7-176. Again, the 176 was the
        aggravated assault which occurred in April. You were on bond at that time when you
        tried to kill your wife by cutting her on numerous occasions with a knife. And
        because of that, under Tennessee Rules of Criminal Procedure, 32(c)[(3)(C)], that
        must run consecutive. So, 7-176 is consecutive to 177.

                The remaining issue is whether or not the sentence [for the solicitation to
        commit murder offense] in Case No. 7-233 should run consecutive to the other
        sentences. The State has filed numerous grounds for that, which are: Number 2 –
        again, this is under T.C.A. 40-35-115(b)[(2)], the defendant is an offender whose
        record of criminal activity is extensive. That is true because of numerous criminal
        acts you committed, all of which were directed toward killing your wife.



                                                 -18-
               4(a), the defendant is a dangerous offender whose behavior indicates little or
       no regard for human life and no hesitation about committing a crime in which the
       risk of human life is high; . . . .

               Mr. Medley, if you’re not a dangerous offender, I’ve never seen one. I’ve
       never seen anyone make so many efforts to try to kill somebody else. And I’m
       satisfied that if you were out of jail today, that you would probably make another
       attempt.

              4(b), the circumstances surrounding the commission of the offense were
       aggravated;

               (c), confinement for an extended period of time is necessary to protect
       society;

              and (d), the accurate length of sentence, if consecutive sentence is ordered,
       reasonably relates to the seriousness of the offenses for which the defendant stands
       convicted. That’s true in part. Really, the sentence that you’re going to receive is
       not nearly long enough for what you deserve.

              In short, I’m going to run the sentence in 7-233 consecutive to the other
       sentences.

                The sentences again are, for the attempted murder, 25 years; for the
       aggravated assault in April, 6 years; and the solicitation of murder while you were
       in jail is 12 years. If my math is correct, that is an effective sentence of 43 years.

               And again, I want to urge the Parole Board, at whatever point in time they
       might consider you for parole, to look at the circumstances surrounding this sentence,
       and hopefully, you’ll never get out of jail. If I had anything to do with it, that would
       be the situation.

        Medley first argues that the trial court erred in classifying him as a dangerous offender based
on State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991). Here, the trial court ordered
consecutive sentences based on Medley’s extensive record of criminal activity under section 40-35-
115(b)(2) and his classification as a dangerous offender under section 40-35-115(b)(4). In State v.
Palmer, this court held that section 40-35-115(b)(2) allows a trial court to sentence a defendant to
consecutive sentences, even in the absence of a prior record, if the defendant’s convictions in the
case at hand “indicate criminal activity so extensive and continuing for such a period of time as to
warrant consecutive sentencing.” 10 S.W.3d 638, 648 (Tenn. Crim. App. 1999) (quoting Gray v.
State, 538 S.W.2d 391, 393 (Tenn. 1976). Upon review of the record, we conclude that the trial
court properly imposed consecutive sentences based on Medley’s extensive record of criminal
activity alone.

       We also conclude that the trial court properly classified Medley as a dangerous offender
under section 40-35-115(b)(4). Medley relies on the Woods case, which outlined four factors for

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the dangerous offender classification, in challenging the trial court’s classification of him as a
dangerous offender:

              In summary, a defendant may not be required to serve multiple sentences
       consecutively on the ground he is a dangerous offender unless the record establishes
       that:

       (a) the defendant’s behavior indicates “little or no regard for human life,” and he did
       not hesitate “about committing a crime in which the risk to human life is high,” Tenn.
       Code Ann. § 40-35-115(b)(4) (Supp. 1989);

       (b) the circumstances surrounding the commission of the offense are aggravated,
       Gray v. State, 538 S.W.2d at 393;

       (c) confinement for an extended period of time is necessary to protect society from
       the defendant’s unwillingness to “lead a productive life and [his] resort to criminal
       activity in furtherance of [his] anti-societal lifestyle,” Gray v. State, 538 S.W.2d at
       393; and

       (d) the aggregate length of the sentences, if consecutive sentencing is ordered,
       reasonably relates to the offenses of which the defendant stands convicted. State v.
       Taylor, 739 S.W.2d [227,] 230 [(Tenn. 1987)].

Woods, 814 S.W.2d at 380. We note that the decision in Woods was called into question by State
v. Wilkerson, 905 S.W.2d at 938, which held that “[t]he decision in Woods is approved only to the
extent that it applied the principles set forth in this opinion.” The court added:

               [T]he imposition of consecutive sentences on an offender found to be a
       dangerous offender requires, in addition to the application of general principles of
       sentencing, the finding that an extended sentence is necessary to protect the public
       against further criminal conduct by the defendant and that the consecutive sentences
       must reasonably relate to the severity of the offenses committed.

Id. at 939. The record shows that the trial court made the additional factual findings required of the
dangerous offender classification regarding the severity of the offense and the need to protect the
public from future acts of the defendant. The trial court stated that the imposition of consecutive
sentences “reasonably relate[d] to the seriousness of the offenses.” It also found that “confinement
for an extended period of time is necessary to protect society.” Finally, it determined that it had
“never seen anyone make so many efforts to try to kill somebody else” and that if Medley were not
incarcerated he “would probably make another attempt” to kill the victim. We conclude that the trial
court properly applied the dangerous offender classification in ordering consecutive sentencing.

        Medley additionally contends that the trial court’s imposition of consecutive sentencing
violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), especially given the United
States Supreme Court’s grant of certiorari to determine this issue in Oregon v. Ice, 170 P.3d 1049


                                                -20-
(Or. 2007), cert. granted, — U.S. — , 128 S. Ct. 1657 (U.S. Mar. 17, 2008) (No. 07-901). We note
that since the filing of the parties’ briefs in this case, the United States Supreme Court rendered a
decision in Oregon v. Ice, holding that the right to a jury trial does not include the right to a jury
determination of consecutive sentencing and that the rulings in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), do
not apply to the imposition of consecutive sentences. See Oregon v. Ice, — U.S. — , 129 S. Ct. 711,
717 (2009). Furthermore, State v. Allen, 259 S.W.3d 671 (Tenn. 2008), held that Tennessee’s
statute regarding consecutive sentencing did not violate Apprendi or Blakely:

       Apprendi and Blakely simply do not require the jury to determine the manner in
       which a defendant serves multiple sentences. That Tennessee’s statutes require (in
       most instances) trial courts to make specific factual findings before imposing
       consecutive sentences does not extend the reach of Apprendi and Blakely. The
       Defendants’ reliance on these cases is therefore misplaced.

Id. at 690. The Allen court also approved this court’s analysis in State v. Joseph Wayne Higgins
regarding this issue:

       The manner of service of the sentence imposed when a trial court decides whether
       to impose consecutive sentences–a decision it may make only after the jury has found
       the defendant guilty of multiple offenses beyond a reasonable doubt–does not usurp
       the jury’s factfinding powers or offend the defendant’s due process rights.

Id. (quoting State v. Joseph Wayne Higgins, No. E2006-01552-CCA-R3-CD, 2007 WL 2792938,
at *14 (Tenn. Crim. App., at Knoxville, Sept. 27, 2007)). Therefore, it is clear that Tennessee’s
statute regarding consecutive sentencing does not violate the United States Constitution or the
Tennessee Constitution. See Ice, — U.S. — , 129 S. Ct. at 717; Allen, 259 S.W.3d at 690.
Accordingly, Medley is not entitled to relief on this issue.

                                          CONCLUSION

         Upon review of the record, we conclude that the trial court did not err in refusing to suppress
Medley’s statement, in joining the offenses, or in imposing consecutive sentences. The judgments
of the trial court are affirmed.

                                                        ___________________________________
                                                        CAMILLE R. McMULLEN, JUDGE




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