        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 7, 2014

                  STATE OF TENNESSEE v. STANLEY BLUE

                  Appeal from the Criminal Court for Shelby County
                     No. 04-02312 James C. Beasley, Jr., Judge




                 No. W2013-00437-CCA-R3-CD - Filed April 14, 2014


The defendant, Stanley Blue, appeals from his resentencing to an effective term of forty-six
years as a Range III, persistent offender for his convictions for facilitation of first degree
murder, attempted second degree murder, and reckless endangerment. On appeal, the
defendant contends that his sentence is excessive, and the State agrees. Based upon our
review of the record, we conclude that the trial court erred in sentencing the defendant to
forty years for attempted second degree murder and in classifying the defendant as a Range
III, persistent offender for his reckless endangerment conviction. Accordingly, the trial
court’s judgments are affirmed in part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Reversed in Part, and Remanded

A LAN E. G LENN, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS, J R. and
R OGER A. P AGE, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Stanley Blue.

Robert E. Cooper, Jr., Attorney General & Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Reginald Henderson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       The defendant’s convictions arose from a shooting that occurred at Brown’s Barbecue
restaurant in Memphis, Tennessee, on March 11, 2003. During the shooting, Mareco
Robinson was killed and Jessie Lewis was wounded. In our opinion in the defendant’s initial
appeal, we summarized the evidence presented at trial as follows:

       Toya Sanders testified that she and Robinson were childhood friends. She
       recalled that she saw Robinson at a club, the Hard Luck Café, on the night of
       March 11, 2003, and that everyone there was “[h]aving a good time.” She
       admitted that she had smoked some marijuana that night but said that she did
       not drink. She stated that the defendant, whom she had known since childhood
       as “Puff,” was also at the club that night. She saw the defendant and another
       male, whom she later learned through the course of the investigation was
       Eddie Partee, leaving the club in a Cadillac. After leaving the club at
       approximately 3:00 a.m., Sanders and her friends decided to go to Brown’s
       Barbecue to get something to eat. When they arrived at Brown’s Barbecue, the
       defendant and Partee were already at the restaurant. Soon after she and her
       friends arrived, Robinson arrived at the restaurant.

               Sanders testified that the defendant went out to his car while Partee
       waited in line for his order. She recalled that Robinson and Partee exchanged
       words about Robinson’s order while waiting in line. Robinson went outside
       to his car and Partee followed him but went to the defendant’s vehicle where
       Sanders witnessed Partee and the defendant talking. When Robinson returned
       to the restaurant, Partee and the defendant followed him. While the defendant
       went to the bathroom, Partee pulled a gun and shot Robinson in the back of the
       head. As soon as Partee shot Robinson, the defendant came out of the
       bathroom shooting “a little old bitty gun.” Everyone fled the restaurant for
       safety. Sanders saw Partee and the defendant leave the restaurant, get into the
       Cadillac and flee the scene.

               Sanders testified that as everyone was leaving the restaurant, Jessie
       Lewis was walking in. She said that Partee and the defendant shot Lewis as
       he was entering the restaurant. She stated that as the men returned, she “was
       trying to get everybody out” because she could tell that something was about
       to happen when the men went outside to the parking lot. Sanders testified that
       she never saw Robinson threaten or display a weapon to either the defendant
       or Partee, but she also admitted that she could not see whether Robinson
       retrieved anything from his car while he was outside listening to music with
       his hood up.

              Jessie Lewis testified that he spoke with Robinson at Brown’s Barbecue

                                             -2-
on the night of March 11, 2003. He recalled Robinson telling him that
“something was wrong with [Partee].” Before Robinson could explain to
Lewis what he meant, Partee entered the restaurant and shot him. Lewis had
turned his back to Robinson but upon hearing the shot, he turned around and
saw Partee standing over Robinson holding the gun. Lewis stated that the
defendant walked from the bathroom and fired two more shots toward
Robinson as he lay on the ground. Lewis recalled that everyone except him
had left the restaurant with the firing of the first shot. He said that he was
standing at the door “so shocked, [he] couldn’t go nowhere [sic]” when the
defendant came from the bathroom. The defendant and Partee walked to the
front door and saw Lewis. The defendant then “bumped Partee in the back,”
and Partee “looked at [Lewis] and kicked the door open and shot [him].”
Lewis was shot in the groin with the bullet exiting through his hip. He saw the
defendant and Partee leave in the Cadillac with Partee driving. Lewis later
identified the defendant as one of the individuals involved in the shooting.
Lewis also stated that he did not see Robinson with a gun.

       Kevia Taylor testified that she was with her cousin, Toya Sanders, at
Brown’s Barbecue on March 11, 2003. Her testimony was consistent with
Sanders’ testimony regarding the events leading up to the shooting. She
witnessed Partee go to a vehicle, retrieve a pistol and load it before returning
to the restaurant. She recalled that the defendant looked at Partee as they
returned to the restaurant and she took that as a signal between the two men.
Taylor stated that she “knew something was fixing to go down” so she started
to leave the restaurant. As she was leaving, she heard the gunshots. She ran
behind a building and did not see the defendant or Partee leave. Afterwards,
she saw that Lewis had been shot as well as Robinson. Taylor later identified
the defendant from a photographic lineup. Taylor admitted that she saw
Robinson open the hood of his car and go to his trunk, but she could not see
whether he got anything from the trunk before returning to the restaurant.

        Memphis Police Department Officer Kimberly Houston testified that
she responded to the scene of the shooting at Brown’s Barbecue on March 11,
2003. When she arrived, she observed a black male on the floor suffering
from a gunshot wound to the head and another black male sitting on a bench
who had been shot in the leg. The man with the wound to the head was alive
and conscious. She recalled that he was mumbling as if attempting to say
something but that she could not understand him. She tried to calm him and
tell him to stop talking; as she heard the ambulance approach, she looked to
discover that he was no longer breathing. When the paramedics arrived, the

                                      -3-
man with the wound to his leg was treated and taken to the hospital by
ambulance. Officer Houston stayed at the scene until the deceased victim was
removed. Officer Houston also testified that she secured witnesses at the
scene until more officers arrived to get information and statements from them.

       Memphis Police Department Lieutenant Daniel Parris testified that he
was assigned to the crime scene unit at the time of the offenses. He related
that his general duties consisted of documenting the facts and physical
evidence of a crime scene through photographs, sketches, and recovered
evidence. Lieutenant Parris sketched the crime scene at Brown’s Barbecue.
He documented eight items at the scene, including blood, a spent bullet, bullet
holes and strikes, and two forty caliber shell casings.

        Kcbena Cash of the Memphis Police Department testified that the
defendant was developed as a suspect in the shootings within a week of the
incident. After a warrant was issued for the defendant’s arrest, Officer Cash
began to look for the defendant. After Officer Cash talked to several family
members and acquaintances of the defendant, the defendant telephoned Officer
Cash himself. She explained to the defendant that there was a warrant issued
for him and asked him to come in voluntarily. She recalled that the defendant
did not agree to turn himself in. As she continued her efforts to locate the
defendant, she spoke with the defendant daily on the telephone. She recalled
that he always contacted her on private numbers. She testified that each time
they talked “[t]he gist of the conversation was to turn himself in.” Eventually,
Officer Cash received a phone call or “tip” that led her to a possible location
of the defendant. Upon arrival at the residence, the defendant was gone but a
forty caliber handgun was discovered and taken into property at the Memphis
Police Department. Eventually, Officer Cash received another tip regarding
the defendant’s whereabouts at a different residence and he was apprehended
there while trying to escape from a window. Additionally, another handgun
and forty caliber ammunition were found at the residence.                   On
cross-examination, Officer Cash admitted that the defendant was not found at
the first residence searched and that no one knew who left the forty caliber
handgun at the residence.

        Sergeant William D. Merritt of the Memphis Police Department
testified that he acted as the case coordinator on the defendant’s case. As part
of his duties as the case coordinator, he sent items to the Tennessee Bureau of
Investigation (TBI) for testing. Sergeant Merritt sent a Keltec forty caliber
handgun, two forty caliber shell casings, one bullet projectile, and a Ruger nine

                                       -4-
millimeter semi-automatic to the TBI for analysis. Sergeant Merritt testified
that the Ruger was recovered near a dumpster outside the restaurant. He
further stated that his investigation revealed that Mario Broadnax had taken the
Ruger from the victim and placed it near the dumpster.

        TBI Special Agent Steve Scott testified as a firearms identification
expert. After identifying the items submitted by Sergeant Merritt, Special
Agent Scott determined that the spent cartridges and bullet recovered at the
scene had been fired by the Keltec handgun. Testing of the Ruger pistol
revealed that it would eject a shell casing much like the Keltec; however, no
shell casings matching the Ruger were discovered at the scene. Special Agent
Scott stated that the forty caliber bullet recovered from the victim’s body was
fired from a revolver -- either a Smith and Wesson Special Revolver or a
Remington Magnum Revolver -- and not a semi-automatic pistol like the
Keltec or Ruger. The gun that fired the bullet recovered from the victim was
not presented to the TBI for testing.

        Dr. O’Brian Smith testified that he was the Shelby County Medical
Examiner at the time of the shooting and that he performed the autopsy on the
victim and determined that he suffered a gunshot wound to the right side of his
head behind his ear that produced brain damage before the bullet came to rest
in the front portion of the victim’s brain. Toxicology testing of the victim’s
blood revealed a .203 grams percent blood alcohol content which Dr. Smith
characterized as “moderately elevated.” Toxicology testing revealed no
presence of drugs. Dr. Smith testified that the cause of death was a gunshot
wound to the head and opined that “in most instances, this bullet . . . wound
would have a lethal outcome.”

        The State presented the prior sworn testimony of Mario Broadnax
which was read to the jury by a court reporter. Broadnax testified that he had
been at the Hard Luck Café on the night of the incident and that he had not
been drinking that night, although he did admit to smoking one or two
marijuana cigarettes earlier in the evening. He went to Brown’s Barbecue
after leaving the club and recalled seeing the victim there when he arrived. He
could tell that the victim and some other men were arguing and he saw “one
or two people” go inside the restaurant with guns. Broadnax testified that
when he heard gunshots he ran to the back of the building. When he returned
to the front of the parking lot, he discovered the surviving victim, Jessie Lewis,
lying on the ground with a gunshot wound. He ran inside to check on the other
victim, Mareco Robinson, who was still breathing. He told the employees to

                                       -5-
call the police.

         Broadnax stated that another witness indicated to him that the victim
had a weapon so he returned to the victim, removed the gun from the victim’s
belt, and hid it behind the restaurant. Other witnesses told the police that
Broadnax removed the gun so, several days later, he led the police to the
location of the gun. He explained that he removed the gun because he “felt
that if [the police] came and found a gun on [the victim], you know, that they
probably wouldn’t, you know, try to find out who did it.” Broadnax identified
the defendant as one of the people he saw at the restaurant that night. He also
stated that he removed the gun from underneath the victim’s shirt. He
admitted on cross-examination that he could not see who fired the shots
because he ran behind the building when the shooting began. After the reading
of Broadnax’s testimony, the State rested its case-in-chief.

        The defendant presented the testimony of Daryl Powell, who stated that
he was at Brown’s Barbecue on the night of the shooting. He recalled that he
was there sleeping but that he “wasn’t supposed to be” there. He said that he
was asleep in a booth when the argument between the victim and the other
men woke him up. He said that he knew the victim by his neighborhood
nickname of “C-Murder.” He saw the victim go to his car and return to the
restaurant with a black gun in his hand. He testified that everyone in the
restaurant “just went hysterical” and the shooting began. He did not know the
man who shot the victim. He reiterated that he saw a gun in the victim’s hand
when the shooting occurred. He testified that when one person shot the victim
he just dropped and then another individual began shooting as well. He saw
the two shooters leave the scene in a Cadillac. On cross-examination, Powell
was confronted with his statement to police that failed to mention the presence
of the victim’s gun. He explained that maybe the police did not write that
down and that he did not want “to be in everybody else’s business” but that he
definitely saw the victim with a gun.

       Calandra Shaw testified that she was working at Brown’s Barbecue on
the night of the shooting. She had worked at the restaurant for about fifteen
years and knew the victim, “Reco,” as a regular customer. She recalled that
Reco and another man argued at the front counter for about ten minutes. She
recalled that the other man left the restaurant and, about ten minutes later, she
heard shooting. Shaw testified that she crawled to lock the door so no one else
would come inside during the shooting. She stated that she heard a quick
series of gunshots. When the shooting ended, she stood up to see the victim

                                       -6-
       fall to the floor. She saw a man in a yellow shirt remove a gun from the
       victim’s pocket. On cross-examination, she stated that she did not see the
       victim get shot, but she did see him fall to the ground after being shot.

             Memphis Police Department Officer Danny James testified that he
       worked as a crime scene officer at the time of the shooting. He stated that he
       photographed the location of a gun found on the steps outside the restaurant.

State v. Stanley Blue, No. W2007-00292-CCA-R3-CD, 2009 WL 723845, at *1-5 (Tenn.
Crim. App. Mar. 19, 2009), perm. app. denied (Tenn. Oct. 5, 2009).

       At the conclusion of the trial, the defendant was convicted of facilitation of
premeditated first degree murder, attempted second degree murder, and reckless
endangerment. The trial court sentenced the defendant to thirty-four years, fifteen years, and
six years, respectively. The trial court also ordered that the thirty-four-year sentence be
served consecutively to the six-year sentence for a total effective sentence of forty years. The
defendant did not appeal his sentence, but this court affirmed his convictions on direct
appeal. See id.

        The defendant subsequently filed a petition for post-conviction relief in which he
asserted that he received the ineffective assistance of counsel and that his sentence was
illegal. The post-conviction court granted the petition in part and ordered a new sentencing
hearing. On appeal by the State, this court affirmed the post-conviction court’s judgment and
remanded the case for a new sentencing hearing. See Stanley Blue v. State, No. W2011-
01936-CCA-R3-PC, 2012 WL 3362270, at *1 (Tenn. Crim. App. Aug. 15, 2012).

       At the resentencing hearing, the State submitted the defendant’s presentence report
into evidence. The defendant did not present any proof.

       In sentencing the defendant, the trial court noted that the defendant was convicted in
count one of facilitation of first degree murder, a Class A felony; “in count two of criminal
attempt to commit murder in the first degree, which is a [C]lass A felony”; and in count three
of reckless endangerment with a deadly weapon, a Class E felony. The trial court found that
the defendant was a Range III, persistent offender as to all three convictions. The court
noted that the defendant had two prior aggravated robbery convictions and a prior attempted
second degree murder conviction, all Class B felonies. The defendant also had prior
convictions for evading arrest and theft of property valued at more than $500, both Class E
felonies.

       The trial court found as an enhancement factor for each conviction that the defendant

                                              -7-
had a previous history of criminal convictions in addition to those necessary to establish his
range. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002). The court noted that in addition
to the defendant’s five prior felony convictions, he had multiple misdemeanor convictions.
With regard to mitigating factors, the trial court stated that under the “catch-all” factor, it
considered the testimony of the defendant’s mental health expert at trial and the disparity
between the defendant’s sentence and co-defendant Eddie Partee’s sentence. See id. § 40-35-
113(13). The trial court noted that the defendant was tried first and that following his
conviction, the co-defendant pleaded guilty and received a lesser sentence.

        The trial court determined that the defendant’s sentencing range for a Class A felony
was forty to sixty years. He sentenced the defendant to forty years for each conviction for
facilitation of first degree murder and attempted second degree murder and ordered that the
sentences run concurrently. The trial court determined that the defendant’s sentencing range
for a Class E felony was four to six years and imposed a six-year sentence for the reckless
endangerment conviction.

        The trial court found that the defendant was an offender whose record of criminal
activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(2). The trial court also found
that the defendant was a dangerous offender whose behavior demonstrated little regard to
human life and had no hesitation about committing a crime where the risk to human life is
high. See id. at (b)(4). Based upon these findings, the trial court ordered the defendant to
serve his six-year sentence for reckless endangerment consecutively to his forty-year
sentence for his other convictions, for an effective sentence of forty-six years.

                                        ANALYSIS

        The defendant contends that the trial court erred in sentencing him to forty years for
attempted second degree murder, in finding that he qualified as a Range III persistent
offender with regard to his reckless endangerment conviction, and in imposing consecutive
sentences. The offenses in this case occurred on March 11, 2003. Effective June 7, 2005,
certain provisions of the 1989 Sentencing Act were amended to reflect an advisory, non-
mandatory sentencing scheme. See, e.g., Tenn. Code Ann. §§ 40-35-114, -210 (2003 &
Supp. 2005). The amended provisions apply to sentencing for criminal offenses committed
on or after June 7, 2005. Offenses committed prior to June 7, 2005, are governed by prior
law. A defendant who is sentenced after June 7, 2005, for offenses committed on or after
July 1, 1982, may elect to be sentenced under the amended provisions of the Act by executing
a waiver of ex post facto protections. See Tenn. Pub. Acts, ch. 353, § 18; Tenn. Code Ann.
§ 40-30-210 (2003 & Supp. 2005).

       The defendant in the present case committed the offenses prior to the effective date

                                              -8-
of the amendments. While the defendant could have elected to be sentenced pursuant to
these amended provisions, he did not execute an ex post facto waiver. Therefore, the
amended 2005 provisions are not applicable to the defendant’s case.

        When a defendant challenges the length and manner of service of a sentence, this
court conducts a de novo review on the record “with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-
401(d).1 We condition this presumption 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). We do not apply the presumption to the
legal conclusions reached by the trial court in sentencing the defendant or to the
determinations made by the trial court predicated upon uncontroverted facts. See State v.
Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994).

        In conducting a de novo review of a sentence, we must consider (a) any evidence
received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles
of sentencing; (d) the arguments of counsel about sentencing alternatives; (e) the nature and
characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statistical
information provided by the Administrative Office of the Courts as to Tennessee sentencing
practices for similar offenses; (h) any statements made by the defendant on his own behalf;
and (i) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-103; 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; Ashby, 823 S.W.2d 169.

                     A. Sentence for Attempted Second Degree Murder

       The defendant asserts that the trial court erred in imposing a forty-year sentence for
the conviction for attempted second degree murder because the sentence is outside the
applicable range. The State concedes that the trial court erred, and we agree.

        Attempted second degree murder is a Class B felony. See Tenn. Code Ann. §§ 39-12-


        1
          This standard of review should be applied in this case because the defendant did not elect to be
sentenced in accordance with the law in effect after the 2005 amendments to the Sentencing Act. In State
v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012), the Tennessee Supreme Court modified the appellate standard
of review of sentencing issues from “de novo with a presumption of correctness” to “abuse of discretion with
a presumption of reasonableness.”

                                                    -9-
107(a), 39-13-210(c). The trial court found that the defendant was a Range III, persistent
offender with regard to the attempted second degree murder conviction, a finding that the
defendant does not challenge. As a result, the defendant’s applicable sentencing range for
attempted second degree murder was “not less than twenty (20) nor more than thirty (30)
years.” Tenn. Code Ann. § 40-35-112(c)(2). Because the trial court imposed a sentence for
the offense that was outside the applicable range, we reverse the trial court’s judgment and
remand the case to the trial court for resentencing on the attempted second degree murder
conviction.

       B. Status as Range III, Persistent Offender for Reckless Endangerment

        The defendant contends that the trial court erred in sentencing him as a Range III,
persistent offender for the reckless endangerment conviction. The State concedes that the
trial court erred in this regard, and we agree.

       A persistent offender includes a defendant who has received “[a]ny combination of
five (5) or more prior felony convictions within the conviction class or higher[.]” Tenn.
Code Ann. § 40-35-107(a)(1). The trial court found that the defendant has five prior felony
convictions within the conviction class or higher. The court based its finding upon the
defendant’s prior convictions for attempted second degree murder, two counts of aggravated
robbery, Class E felony evading arrest, and theft over $500. The defendant asserts that he
committed the offenses of evading arrest and theft over $500 within the same twenty-four-
hour period and that as a result, the convictions constitute one conviction.

       Tennessee Code Annotated section 40-35-107(b)(4) (1997) provides:

       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[.]2

The presentence report reflects that the Class E felony offenses of evading arrest and theft

       2
           In 2005, section 40-35-107(b)(4) was amended and now provides:

           Except for convictions for which the statutory elements include serious bodily injury,
       bodily injury, threatened serious bodily injury or threatened bodily injury to the victim or
       victims or convictions for the offense of aggravated burglary under § 39-14-403, convictions
       for multiple felonies committed within the same twenty-four-hour period constitute one (1)
       conviction for the purpose of determining prior convictions.

                                                  -10-
over $500 occurred on the same date. Moreover, neither offense threatened or resulted in
bodily injury to the victim. See Tenn. Code Ann. §§ 39-14-103(a), 39-16-603(b). As a
result, the offenses should have been treated as one conviction, reducing the number of the
defendant’s prior felony convictions to four.

       Accordingly, the trial court erred in classifying the defendant as a Range III, persistent
offender regarding his reckless endangerment conviction. Rather, the defendant qualifies as
a Range II, multiple offender. See Tenn. Code Ann. § 40-35-106 (1997). The sentencing
range for a Range II, multiple offender convicted of reckless endangerment, a Class E felony,
is two to four years. See Tenn. Code Ann. § 40-35-112(b)(5). The defendant’s six-year
sentence for the reckless endangerment conviction is outside the applicable range. Therefore,
we remand the case to the trial court for a resentencing hearing on the reckless endangerment
conviction.

                                 C. Consecutive Sentencing

        The defendant contends that the trial court erred in ordering that his sentence for
reckless endangerment be served consecutively to his convictions for facilitation of first
degree murder and attempted second degree murder. The determination of whether to order
consecutive rather than concurrent sentences is a matter primarily within the discretion of the
trial court. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999). The
procedure is governed by Tennessee Code Annotated section 40-35-115, which lists the
factors that are relevant to a trial court’s sentencing decision. The court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of the
seven statutory criteria exists. Tenn. Code Ann. § 40-35-115(b). Imposition of consecutive
sentences must be “justly deserved in relation to the seriousness of the offense.” Tenn. Code
Ann. § 40-35-102(1). The length of the resulting consecutive sentence must be “no greater
than that deserved for the offense committed.” Tenn. Code Ann. § 40-35-103(2).

        In ordering partial consecutive sentences, the trial court found that the defendant “is
an offender whose record of criminal activity is extensive.” See Tenn. Code Ann. § 40-35-
115(b)(2). Consecutive sentencing based on a defendant’s extensive record of criminal
activity is appropriate “to protect society from those who ‘resort to criminal activity in
furtherance of their anti-societal lifestyle.’” State v. Dickson, 413 S.W.3d 735, 749 (Tenn.
2013) (quoting Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976)). Section 40-35-115(b)(2)
does not distinguish between felonies and misdemeanors. Id. Rather, trial courts can
consider prior misdemeanors in determining whether a defendant has an extensive record of
criminal activity. Id. The defendant in this case had five prior felony convictions and
numerous prior misdemeanor convictions. While some of the defendant’s misdemeanor
convictions were driving offenses, the convictions indicate “a consistent pattern of operating

                                              -11-
outside the confines of lawful behavior.” Id. This evidence supports the trial court’s
determination that the defendant has an extensive record of criminal activity.

       The trial court also found that the defendant was a dangerous offender whose 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. See Tenn. Code Ann. § 40-35-115(b)(4). In State v.
Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), our supreme court imposed two additional
requirements for consecutive sentencing when the “dangerous offender” category is used:
the court must find that consecutive sentences are reasonably related to the severity of the
offenses committed and are necessary to protect the public from further criminal conduct.

       The trial court found that the circumstances of the case were aggravated. The court
noted that the restaurant where the shootings occurred was crowded, that the defendant and
the co-defendant left following an altercation and returned with guns, and that the defendant
“stood guard” by a bathroom door and fired multiple shots after the co-defendant shot the
victim. The trial court found that the defendant had no hesitation about committing a crime
where the risk to human life was high. The trial court further found that the consecutive
sentences were reasonably related to the offenses for which the defendant was convicted and
were necessary to protect the public from further criminal conduct by the defendant.

        The defendant argues that the trial court failed to consider the principles of sentencing
and the sentencing disparity between him and the co-defendant. The trial court, however,
stated that it considered the principles of sentencing and the sentencing disparity in imposing
the sentence. We conclude that the trial court’s imposition of partial consecutive sentences
is supported by the record.

                                       CONCLUSION

       We reverse the defendant’s sentences for attempted second degree murder and
reckless endangerment and remand the case to the trial court for a new sentencing hearing
regarding these two convictions. We otherwise affirm the judgments of the trial court.


                                            _______________________________________
                                            ALAN E. GLENN, JUDGE




                                              -12-
