         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 16, 2002

                     STATE OF TENNESSEE v. JOHN GEORGE

                       Appeal from the Circuit Court for Dickson County
                            No. CR5063C      Allen Wallace, Judge



                     No. M2001-00978-CCA-R3-CD - Filed March 7, 2002


This case arises out of a series of armed robberies of gas stations in several counties along Interstate
40. The Defendant, John George, and two codefendants were arrested in Humphreys County,
Tennessee. The Defendant gave a statement to police after his arrest confessing his role in robberies
in both Humphreys and Dickson counties. Subsequently, the Defendant pled guilty to a charge of
aggravated robbery in Humphreys County and was sentenced to nine years in the Department of
Correction. In the case before us, the Defendant also entered a guilty plea to aggravated robbery and
felony theft arising out of a robbery in Dickson County. After a sentencing hearing, the Defendant
was sentenced to nine years for the aggravated robbery and four years for the felony theft to be
served concurrently. However, the trial court ordered the sentence to be served consecutively to the
Defendant’s sentence for aggravated robbery in Humphreys County. The Defendant now appeals
the sentence imposed by the trial court. The Defendant contends that the trial court (1) improperly
imposed a sentence above the minimum and (2) improperly ordered that the sentence for aggravated
robbery to be served consecutively to the Humphreys County sentence. We affirm the judgment of
the trial court setting the length of the sentences for aggravated robbery and theft. We remand for
further proceedings on the consecutive sentence issue.


  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;
                               Reversed in Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

William B. “Jake” Lockert, III and Chris L. Young, Ashland City, Tennessee, for the appellant, John
George.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney
General; Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

        At the sentencing hearing, Tim Eads, Chief Deputy for the Dickson County Sheriff’s
Department, testified that he was called to the Humphreys County Sheriff’s Department to interview
three robbery suspects. Chief Deputy Eads was in the midst of investigating an armed robbery of
a gas station in Dickson County that occurred two weeks earlier. Upon arrival, Chief Deputy Eads
interviewed the Defendant who admitted to robbing the Dickson County gas station as well as
several others. The Defendant stated that he and codefendant Christopher Smith would enter the gas
stations after codefendant Timothy Moore, who was waiting in the car, would indicate that no cars
were approaching. Mr. Smith would threaten the clerk with a pistol and the Defendant would take
the money out of the cash register. The Defendant stated that this procedure was followed at the
Dickson gas station, and Mr. Smith also demanded the keys to the clerk’s truck. The Defendant and
Mr. Smith then drove away in the truck. Chief Deputy Eads testified that the Defendant was very
cooperative and stated that he participated in the robberies to support his drug addiction.

        The Defendant’s mother, Mary Jane George, also testified at the sentencing hearing. Ms.
George explained that she and the Defendant moved around frequently when the Defendant was a
child, and he was rarely in the same school from year to year. Ms. George further testified that the
Defendant’s father left when the Defendant was three years old, and that she did not know his
whereabouts. According to Ms. George, the Defendant quit school at the age of fifteen. Ms. George
stated that she was unaware that the Defendant was using drugs.


                               ENHANCEMENT OF SENTENCE

        The Defendant first contends that the trial court improperly sentenced him by enhancing his
sentence one year above the minimum sentence. When an accused challenges the length, range, or
manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d). This presumption 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).




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        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        The presentence report reflects that at the time of sentencing the Defendant was nineteen
years old and had a ninth grade education. The Defendant had an extensive drug habit using
approximately one pound of marijuana and eight vials of cocaine a week. In addition, the Defendant
also reported using “acid” once a month, “speed” two or three times a week, and opium five times
a week. The Defendant has two convictions for aggravated robbery arising out of similar robberies
in Humphreys County.

        The Defendant pled guilty to aggravated robbery, a Class B felony with a sentence range of
eight to twelve years. See Tenn. Code Ann. §§ 39-13-402, 40-35-112 (a)(2). In sentencing for Class
B felonies, the trial court begins at the minimum sentence and then applies any applicable
enhancement factors to increase the sentence. See Tenn. Code Ann. § 40-35-210 (e). Next, the trial
court applies mitigating factors to reduce the sentence. Id. In the present case the trial court found
the existence of two enhancement factors: (1) the defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range;
and (2) the defendant was a leader in the commission of an offense involving two or more criminal
actors. See Tenn. Code Ann. § 40-35-114 (1), (2). The trial judge stated that he would give little
if any weight to the second enhancement factor.

        The trial court also considered the Defendant’s age and the fact that he aided authorities in
mitigation of his sentence. However, the trial court stated that the criminal activity of the Defendant
outweighed the mitigating factors present. Specifically, the trial court found “that this was such a
crime spree, I think raises it some above the minimum.” We agree with the trial court that the
Defendant’s history of criminal activity including several armed robberies in at least three counties
as well as the Defendant’s significant drug use warrant the trial court’s minimal enhancement of the
sentence.

                                 CONSECUTIVE SENTENCING

        The Defendant also challenges the trial court’s order that his sentence run consecutively to
his sentence for aggravated robbery in Humphreys County. Tennessee Code Annotated section 40-
35-115 provides that the trial court may impose consecutive sentences upon a defendant convicted
of multiple criminal offenses if it finds that a preponderance of the evidence establishes that the
defendant falls into one of seven categories. However, the defendant complains that the trial court
failed to make a finding that any factor existed that could justify consecutive sentencing. See Tenn.
Code Ann. § 40-35-115(b). We agree that the record is devoid of any statement by the trial court
regarding the criteria for considering consecutive sentences as set forth in section 40-35-115. In


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response, the state contends that the record fully justifies consecutive sentences because of the
Defendant’s extensive record of criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2).

        The trial court stated that “I am going to run them consecutive because of the previous crimes
they committed.” The State argues that the trial court is relying on Tennessee Code Annotated
section 40-35-115(b) (2) in imposing consecutive sentences based upon the Defendant’s extensive
criminal history. We cannot agree with the State that the trial court’s findings were sufficient to
provide justification under section 40-35-115 to impose consecutive sentences. It appears from the
statements made by the trial judge that he ordered the sentences to be served consecutively to the
previous sentence because to do otherwise would be to allow the Defendant to commit the additional
crimes for “free.” The trial judge also noted that ordering the sentences to be served concurrently
would be “telling people, if you do one (1), you might as well go ahead and do a whole bunch of
them, because you’re going to get the same sentence anyway.”

         Our sentencing laws require the trial judge to make factual findings prior to sentencing. “The
record of the sentencing hearing . . . shall include specific findings of fact upon which application
of the sentencing principles was based.” Tenn. Code Ann. § 40-35-209. The trial judge in this case
failed to make the factual findings required for imposition of consecutive sentences. See Tenn. Code
Ann. § 40-35-115(b).

        We emphasize that the Defendant may be eligible for consecutive sentences, however, this
Court is not a fact finder. Accordingly, we must reverse the trial court’s order directing the sentences
to be served consecutively, and remand this case to the trial court so that a proper determination of
the Defendant’s eligibility for consecutive sentences can be made pursuant to section 40-35-115.

       After ordering the sentences to be served consecutively to the previous sentence, the trial
judge observed that appellate courts have reversed some trial courts “just because of what I’m
doing.” The judge also expressed his view that, “[t]he legislature may need to change it.”
Nevertheless, Tennessee Code Annotated Section 40-35-115(a) provides that when a defendant has
multiple convictions, “the court shall order sentences to run consecutively or concurrently as
provided by the criteria in this section.”

         Upon remand, the trial judge may again consider whether to impose consecutive sentences.
If he chooses to do so, however, he must make specific findings that the Defendant falls within one
of the categories set forth in Tennessee Code Annotated Section 40-35-115. We also note that if the
trial court finds that the Defendant is eligible for consecutive sentencing as a dangerous offender,
the trial court must specifically find on the record that the Defendant’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, that consecutive sentences are necessary to protect society from further aggravated
criminal conduct, and that the aggregate length of the sentences reasonably relates to the severity of
the offenses for which the Defendant was convicted. Tenn. Code Ann. § 40-35-115 (4); See State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). In any event, the sentence must be “justly
deserved in relation to the seriousness of the offense,” Tenn. Code Ann. § 40-35-102(1), and “no


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greater than that deserved for the offense committed.” Id. § 40-35-103(2). See also, State v. Lane,
3 S.W.3d 456, 460 (Tenn. 1999).




                                         CONCLUSION

         For the foregoing reasons, we conclude that the trial court’s order of consecutive sentences
must be reversed. The case is REMANDED to the trial court for a determination of the Defendant's
eligibility for consecutive sentences.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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