         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 11, 2001

                  STATE OF TENNESSEE v. TERRANCE BURKE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-07795    Joseph B. Dailey, Judge



                     No. W2000-02614-CCA-R3-CD - Filed April 26, 2002


The Defendant was convicted of intentionally evading arrest in an automobile, a Class E felony. The
trial court sentenced the Defendant as a career offender to six years incarceration. The Defendant
now appeals, arguing that the trial court erred by classifying him as a career offender. Concluding
that the evidence was insufficient to support the trial court’s determination that the Defendant is a
career offender, we reverse the judgment of the trial court and remand for re-sentencing.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE, JJ., joined.

James M. Gulley, Memphis, Tennessee, for the Appellant, Terrance Burke.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; William L. Gibbons, District Attorney General; Amy P. Weirich, Assistant District
Attorney General; Jennifer Smith Nichols, Assistant District Attorney General; and Daniel S. Byer,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

        Officers Lowell Duke and Dorothy Hyman testified that at approximately 10:00 p.m. on
January 19, 1998, they observed the Defendant, Terrance Burke, run a red light in Memphis. The
officers testified that they turned on their lights and sirens and pursued the Defendant. Duke testified
that the Defendant was speeding in excess of 100 miles an hour and that he was driving erratically.
Finally, the Defendant’s car appeared to have mechanical problems and stopped. Officers Duke and
Hyman arrested the Defendant.

      A Shelby County jury convicted the Defendant of intentionally evading arrest in an
automobile. The trial court found that the Defendant had six prior felony convictions and sentenced
him as a career offender to six years incarceration with a Release Eligibility Date percentage of 60%.
See Tenn. Code Ann. § 40-35-108. However, the Defendant contends that two of the six convictions
used to classify him as a career offender were committed within twenty-four hours of each other and
therefore should have been considered one conviction for the purpose of determining prior
convictions. See id. § 40-35-108(b)(4). With five prior felony convictions, the Defendant would
properly be sentenced as a Range III persistent offender, subject to a sentencing range of four to six
years and a Release Eligibility Date percentage of 45%. See id. § 40-35-107.

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Id. § 40-35-401(d). This presumption, however,
“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 show such consideration, the review of the
sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In this
case, the Defendant challenges the range of his sentence. Because the trial court considered the
relevant facts and circumstances pertaining to the range of the Defendant’s sentence, our review is
de novo with a presumption of correctness.

        In sentencing a defendant, the trial court must first determine the appropriate offender status
based upon a defendant’s prior criminal record. See Tenn. Code Ann. § 40-35-104 to -109. The
court then determines the appropriate range to establish the minimum and maximum sentence
available. See id. If a defendant is convicted of a Class D or E felony and has at least six prior
felony convictions of any classification, then the defendant should be classified as a “career
offender.” Id. § 40-35-108(a)(3). Tennessee Code Annotated § 40-35-108(b)(4), otherwise referred
to as the twenty-four hour merger rule, provides as follows:
        Convictions for multiple felonies committed as part of a single course of conduct
        within twenty-four (24) hours constitute one (1) conviction for the purpose of
        determining prior convictions; however, acts resulting in bodily injury or threatened
        bodily injury to the victim or victims shall not be construed to be a single course of
        conduct . . . .

       In this case, the State produced evidence of six prior felony convictions. Two convictions,
one for escape and one for criminal attempt theft of property over $1,000, occurred on April 18,
1995. According to the record, the Defendant escaped from police while being escorted from the
robbery squad office to the jail. While fleeing, the Defendant approached a woman on the street and
attempted to take her purse.

        The trial court relied on the affidavits contained in the arrest warrants to reach its conclusions
about the facts and circumstances of the prior convictions. The following affidavit was read into the
record by the trial court with no objection by the defense:
                This morning at approximately 9:35 a.m., Sergeant T. W. Bracey [] was
        escorting the defendant, Terrance T. Burke, from the Robbery Squad Office back to

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        jail when the defendant managed to free his hands out of the handcuffs and run out
        of the doors of the [Criminal Justice Center] complex on the north side of the
        building.
                At this time Defendant Terrance Burke continued to run westbound on Poplar
        and to the south side of the CJC where he attempted to rob a female Oriental of her
        purse.
                At this point a foot chase ensued by Sergeants Bracey and Maxwell whereby
        the defendant was apprehended and brought back to the Shelby County jail to be
        locked up.

        Although both convictions occurred within a twenty-four hour period, the trial court found
that the convictions should be considered separately because they fall under the “threatened bodily
injury” exception. Id. This exception applies when “more than one previous act involving bodily
injury or threatened bodily injury” occurred. State v. Horton, 880 S.W.2d 732, 736 (Tenn. Crim.
App. 1994). The trial court reasoned as follows:
                In my opinion, those acts did result in threatened bodily injury to the – to all
        three victims, actually. I think its [sic] very arguable that first of all with regard to
        the escape and the threatened bodily injury to the officers that an individual who is
        willing to free his hands from handcuffs and bolt out a door, as he’s being led back
        to the jail by robbery officers and continues to run and attempt to get away would
        pose a threat to those officers who are out there chasing him down – running down
        Poplar Avenue and having to chase him down and tackle him.
                So I think he’s clearly acted in a manner that would have threatened those two
        officers. Then he obviously threatened the lady whose purse he tried to take, but
        apparently didn’t get away with it before the officers chased him on down; threatened
        violence to her.
                We’ve all seen far too many cases that began as an attempt to take a purse and
        wound up with victims being seriously injured in these courts. And so I think that
        those two cases clearly according to 40-35-108 should be considered as separate
        convictions; of course, then would get us to the requisite six prior convictions.

        The Defendant argues that the trial court failed to properly interpret the word “acts” in the
twenty-four hour merger rule exception. Specifically, the Defendant contends that since causing or
threatening to cause bodily injury are not elements of the offenses at issue, the convictions should
necessarily not fall under the bodily injury exception. We disagree. Although Tennessee Code
Annotated § 40-35-108(b)(4) provides that “convictions” committed as part of a single course of
conduct within twenty-four hours should constitute one conviction for the purpose of determining
prior convictions, the statute plainly states that “acts” resulting in bodily injury or threatening bodily
injury should be considered separately. This Court has held that the Tennessee Code Annotated §




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40-35-106(b)(4) exception1 “relates the word ‘acts’ with the course of conduct to which the conduct
applies.” Horton, 880 S.W.2d at 735. Thus, we conclude that the circumstances of the offenses
should be considered in determining whether bodily injury or threatened bodily injury occurred.

       We respectfully disagree with the trial court’s finding that the Defendant’s prior convictions
involved “threatened bodily injury.” The only evidence in the record pertaining to this issue is the
aforementioned affidavit contained in an arrest warrant, which was read into the record by the trial
court. The description of the circumstances of the escape does not contain a factual basis to support
the conclusion that the Defendant caused or threatened bodily injury to Sgt. Bracey or to Sgt.
Maxwell during the escape, nor does the description of the attempted theft contain facts to support
the conclusion that the Defendant caused or threatened bodily injury to the victim of the attempted
theft. Although, like the trial court, we can certainly envision circumstances of an escape or an
attempted theft that would include the threat of bodily injury to a victim, such circumstances are
simply not present in the record of this case.

         A finding by a trial court that a defendant is a career offender must be beyond a reasonable
doubt. Tenn. Code Ann. § 40-35-108(c). We conclude that the sparse record in this case pertaining
to the circumstances of the Defendant’s prior convictions is not sufficient to support the trial court’s
findings that the escape conviction and the attempted theft conviction should be considered
separately under the “threatened bodily injury” exception to the twenty-four hour merger rule. See
id. § 40-35-108(b)(4). Therefore, we reverse the judgment of the trial court and remand this case
to the trial court to re-sentence the Defendant as a Range III persistent offender.



                                                           ___________________________________
                                                           ROBERT W. WEDEMEYER, JUDGE




        1
           The language of the twenty-four hour merger rule exceptions under Tennessee Code Annotated § 40-35-
106(b )(4) and Tenne ssee Cod e Anno tated § 40 -35-10 8(b)(4) a re identical.

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