             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                 AT KNOXVILLE                          August 27, 1999

                                                                      Cecil Crowson, Jr.
                                MAY 1999 SESSION                      Appellate C ourt
                                                                          Clerk




STATE OF TENNESSEE,                  )
                                     )    C.C.A. No. 03C01-9803-CR-00100
      Appellee,                      )
                                     )    Hamilton County
v.                                   )
                                     )    Honorable Stephen M. Bevil, Judge
TRACY LEBRON VICK,                   )
                                     )    (Sentencing)
      Appellant.                     )




FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHNNY L. WOODRUFF                        PAUL G. SUMMERS
Fields & Bible, P.C.                      Attorney General & Reporter
701 Market Street, Suite 1300
Chattanooga, TN 37402                     MARVIN S. BLAIR, JR.
                                          Assistant Attorney General
                                          425 Fifth Avenue North
                                          Nashville, TN 37243

                                          WILLIAM H. COX, III
                                          District Attorney General

                                          MARK HOOTON
                                          Assistant District Attorney General
                                          600 Market Street, Suite 310
                                          Chattanooga, TN 37402




OPINION FILED: _______________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                     OPINION

      The defendant, Tracy Lebron Vick, pleaded guilty to second degree murder on

December 4, 1997. Following a sentencing hearing on February 6, 1998, the trial court

sentenced the defendant to forty years in prison as a multiple offender. The trial court

overruled the defendant’s motion to correct or reduce his sentence on March 9, 1998. The

defendant timely appealed, listing two assignments of error:

             I. Did the honorable Trial Court err in imposing the
                maximum sentence for the offense upon the
                Appellant/defendant?

             II. Did the honorable Trial Court err in ordering that the
                 sentence run consecutively with the
                 Appellant/defendant’s prior sentence?


Finding no error in the decision below, we affirm.



                                FACTS OF THE CASE


      The defendant and two armed accomplices went to the home of the victim, Ms.

Melva Moore, on September 20, 1996, to rob Moore’s boyfriend. The defendant went to

the back door of Moore’s home carrying a loaded .357 revolver with the hammer cocked.

When the defendant opened the door, he met Moore on her way outside. The defendant

pushed the door open with the gun and shot Moore in the chest. Moore staggered to the

living room of the house where she was found dead. The defendant claimed he did not

intend to shoot Moore, but Moore slammed the door on his arm and the gun went off.

When he heard the shot, the defendant ran. He was arrested six days later and charged

with first degree murder. The defendant pleaded guilty to second degree murder and was

sentenced to forty years in prison as a multiple offender. This appeal followed.



                                 DISCUSSION OF LAW


             I. Did the honorable Trial Court err in imposing the
                maximum sentence for the offense upon the
                Appellant/defendant?


      When the trial court finds enhancement and mitigating factors for a Class A felony,

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this Court has held under Tenn. Code Ann. § 40-35-210(e), as it existed at the time of the

crime, the presumptive sentence should begin at the midpoint of the range.1 The trial court

is then to enhance the sentence within the range as appropriate for the enhancement

factors and then reduce the sentence within the range as appropriate for the mitigating

factors. Tenn. Code Ann. § 40-35-210(e) (1995); State v. Chance, 952 S.W.2d 848, 851

(Tenn. Crim. App. 1997). No particular weight for each factor is prescribed by the statute,

as the weight given to each factor is left to the discretion of the trial court as long as its

findings are supported by the record. State v. Donnie Ray Carter, No. 02C01-9706-CC-

00208, 1998 WL 47875, at *3 (Tenn. Crim. App., Jackson, Feb. 9, 1998), perm. app.

denied (Tenn. 1999) (citing State v. Moss, 727 S.W.2d 229 (Tenn. 1986); State v.

Santiago, 914 S.W.2d 116 (Tenn. Crim. App. 1995)).



       When an appeal challenges the length, range, or manner of service of a sentence,

this Court conducts a de novo review with a presumption that the determination of the trial

court is correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this 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.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).               In the event that the record fails to

demonstrate such consideration, review of the sentence is purely de novo. Id. If appellate

review reflects that the trial court properly considered all relevant factors and its findings

of fact are adequately supported by the record, this Court must affirm the sentence, "even

if we would have preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).



           In the case sub judice, the trial court found the existence of three enhancement

factors listed in Tenn. Code Ann. § 40-35-114 (1997):

                 (1)   The defendant has a previous history of criminal
                       convictions or criminal behavior in addition to those
                       necessary to establish the appropriate range;



       1
         The Legislature amended § 40-35-210(e) effective May 7, 1998, so that for all Class A
felonies the presumptive sentence must start at the midpoint of the range. Tenn. Code Ann. § 40-
35-210(3) (Supp. 1998).

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              (8)   The defendant has a previous history of
                    unwillingness to comply with the conditions of a
                    sentence involving release in the community; and

              (9)   The defendant possessed or employed a firearm,
                    explosive device or other deadly weapon during the
                    commission of the offense.


The court also found the defendant’s remorse for his crime and his abusive childhood

qualified as a mitigating factor under Tenn. Code Ann. § 40-35-113(13) (1997) (“Any other

factor consistent with the purposes of this chapter”).



       The record reflects the trial court began its sentencing considerations at the

midpoint of the twenty-five- to forty-year range for second degree murder. Using the three

enhancement factors, the trial court raised the sentence from the thirty-two and one-half

year midpoint to forty years. Although the trial court considered the one mitigating factor

present, the court chose not to reduce the defendant’s sentence.



       Based upon our de novo review of the sentence with a presumption of correctness,

we find the trial court’s decision to sentence the defendant to the maximum term of forty

years was well within its discretion. The defendant has an extensive criminal history, he

committed the crime in question while on probation, and he killed Moore with a firearm.

The mitigating factor in this case, the defendant’s remorse and troubled childhood, is far

outweighed by the three enhancement factors. Therefore, the trial court did not err in using

the enhancement factors to raise the defendant’s sentence to the maximum term, while

refusing to lower the sentence based upon the one mitigating factor.



       This assignment has no merit.



              II.   Did the honorable Trial Court err in ordering that the
                    se n te n ce r un consecutively with the
                    Appellant/defendant’s prior sentence?


       At the time of Moore’s shooting, the defendant was on intensive probation for an

earlier crime. Here, the defendant challenges the trial court’s decision to order the forty-



                                              4
year sentence to run consecutively to the ten-year sentence for the earlier crime.



       Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115 (1997). This

section allows consecutive sentencing, at the discretion of the trial court, if one of the

seven statutory criteria is found to exist by a preponderance of the evidence. The trial

court found § 40-35-115(b)(2) (“The defendant is an offender whose record of criminal

activity is extensive”) and § 40-35-115(b)(6) (“The defendant is sentenced for an offense

committed while on probation”) applied in this case.



       In addition to the statutory requirements of Tenn. Code Ann. § 40-35-115, the

Supreme Court has imposed three additional requirements for consecutive sentencing.

First, the trial court must find consecutive sentences are reasonably related to the severity

of the offenses committed. Second, the trial court must find consecutive sentences are

necessary to protect the public from further criminal conduct. Third, consecutive sentences

must be consistent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d

933, 937-39 (Tenn. 1995).



       The record reveals ample evidence supporting the trial court’s decision to order

consecutive sentences. The defendant has an extensive criminal history. He killed Moore

while on probation. Considering the defendant’s criminal history and the severity of his

present crime, we find the trial court’s decision to order consecutive sentencing was

proper.



       This assignment has no merit.



       For the foregoing reasons, we affirm the decision of the court below.




                                          ________________________________________
                                          ALAN E. GLENN, JUDGE




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CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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