            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE              FILED
                                MAY 1998 SESSION
                                                            August 25, 1998

                                                        Cecil W. Crowson
STATE OF TENNESSEE,              *                     Appellate Court Clerk
                                      C.C.A. # 01C01-9707-CC-00283

      Appellee,                  *    BEDFORD COUNTY

VS.                              *    Hon. Charles Lee, Judge

JACK LAYNE BENSON,               *    (First Degree Murder and

      Appellant.                 *    Especially Aggravated Robbery)




For Appellant:                        For Appellee:

Gregory D. Smith, Attorney            John Knox Walkup
One Public Square, Ste. 321           Attorney General and Reporter
Clarksville, TN 37040
                                      Deborah A. Tullis
Michael D. Randles                    Assistant Attorney General
Asst. Public Defender                 Cordell Hull Building, Second Floor
218 North Main                        425 Fifth Avenue North
Shelbyville, TN 37160                 Nashville, TN 37243

Donna Hargrove                        W. Michael McCown
Asst. Public Defender                 District Attorney General
Seventeenth Judicial District         215 E. College
105 South Main Street                 Fayetteville, TN 37334
P.O. Box 1119
Fayetteville, TN 37334                Robert G. Crigler
                                      Asst. District Attorney General
                                      Bedford County Courthouse
                                      One Public Square, Suite 100
                                      Shelbyville, TN 37160



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Jack Layne Benson, was convicted of first degree

murder in the perpetration of a robbery and especially aggravated robbery. Tenn.

Code Ann. § 39-13-202 and Tenn. Code Ann. § 39-13-403. The jury imposed a life

sentence for first degree murder. Tenn. Code Ann. § 39-13-204. The trial court

imposed a Range I, consecutive sentence of twenty-four years for especially

aggravated robbery.



              The single issue presented for review is whether the trial court erred by

ordering a consecutive sentence. We affirm the judgment of the trial court.



              The facts are not in significant dispute. On January 10, 1996, the

defendant and the victim, Jody Butts, visited in the home of Mitchell Sturdevant. At

approximately 11:25 P.M., the victim announced that he intended to leave and the

defendant asked for a ride. The two men left the Sturdevant residence together

and, only a few minutes later, the body of the victim was found lying in the street in

front of the defendant's residence.



              At 11:38 P.M., Officer Don Barber of the Shelby County Police

Department was responding to a radio dispatch when he discovered the body in the

street. Medical testimony established that the victim died as a result of three stab

wounds. Either of two of the stab wounds, one to the heart and one the lung, would

have been fatal.



              Between 11:30 and 11:40 P.M., Donna Addison noticed dark spots on

the front of the defendant's jacket and saw the defendant drop some money which

appeared to be stained with blood. He also informed her that he could not give her


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a ride to the store because he was driving someone else's vehicle. Ms. Addison

described the vehicle that the defendant was driving as a cream and red colored

Chevrolet Blazer with tinted windows, a description that matched that of the vehicle

the victim was driving at the time he left the Sturdevant residence.



              Less than thirty minutes later, Calvin Harris observed the defendant

driving the Blazer, a car he had never seen the defendant drive at anytime before.

When Harris asked where the defendant had acquired the Blazer, the defendant

simply laughed. The defendant agreed to drive Harris to a motel, where police

made the arrest. The vehicle in the defendant's possession was identified as that

owned by the victim. The glove compartment and the center console had been

ransacked and part of the console had been broken. Police found blood on the

driver's side door of the vehicle. Several items belonging to the victim, including

items of identification, were found scattered in the rear of the Chevrolet Blazer.

Police found the defendant in possession of the key to the Blazer. A piece of the

broken console and $11.00 in bills and coins, splattered with human blood, were

found in his right front pocket.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review 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); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.


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              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for a Class A felony conviction at the time

of these offenses, the presumptive sentence is the midpoint within the range if there

are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If

there are enhancement factors but no mitigating factors, the trial court may set the

sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence

involving both enhancement and mitigating factors requires an assignment of

relative weight for the enhancement factors as a means of increasing the sentence.

Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range

by any weight assigned to the mitigating factors present. Id.



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

              [C]onsecutive sentences should not be routinely imposed
              ... and ... the aggregate maximum of consecutive terms

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                  must be reasonably related to the severity of the
                  offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                  (1) The defendant is a professional criminal who has
                  knowingly devoted himself to criminal acts as a major
                  source of livelihood;

                  (2) The defendant is an offender whose record of
                  criminal activity is extensive;

                  (3) The defendant is a dangerous mentally abnormal
                  person so declared by a competent psychiatrist who
                  concludes as a result of an investigation prior to
                  sentencing that the defendant's criminal conduct has
                  been characterized by a pattern of repetitive or
                  compulsive behavior with heedless indifference to
                  consequences;

                  (4) 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
                  to human life is high;

                  (5) The defendant is convicted of two (2) or more
                  statutory offenses involving sexual abuse of a minor with
                  consideration of the aggravating circumstances arising
                  from the relationship between the defendant and victim
                  or victims, the time span of defendant's undetected
                  sexual activity, the nature and scope of the sexual acts
                  and the extent of the residual, physical and mental
                  damage to the victim or victims;

                  (6) The defendant is sentenced for an offense
                  committed while on probation; or

                  (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



   1
    The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.

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              In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



              In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court

reaffirmed those principles and ruled that consecutive sentences cannot be required

for any of the classifications "unless the terms reasonably relate to the severity of

the offenses committed and are necessary in order to protect the public from further

serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision,

which modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.

Crim. App. 1991), governing the sentencing of dangerous offenders, described

sentencing as "a human process that neither can nor should be reduced to a set of

fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).



              As a Range I offender, the defendant was eligible for a fifteen to

twenty-five year sentence for especially aggravated robbery, a Class A felony.

Tenn. Code Ann. § 39-13-403(b); Tenn. Code Ann. § 40-35-112(a)(1). The trial

court found no mitigating factors and two enhancement factors. The trial judge

calculated the sentence by beginning at mid-range, because there are no mitigating

factors, and added four years due to the enhancement factors. See Tenn. Code

Ann. § 40-35-210(c); Tenn. Code Ann. § 40-35-114. The length of the sentence is

not in dispute.



              The defendant argues that "consecutive sentencing is unjust under the

                                           6
facts...." Yet he concedes that he was on probation for another offense at the time

of these offenses, and thus Tenn. Code Ann. § 40-35-115(b)(6) applies.



              The record demonstrates that the defendant was convicted in Ohio in

1988 of aggravated burglary. In 1990, he was convicted for receiving stolen

property, drug abuse, and carrying a concealed weapon. In 1992, he was convicted

for drug abuse and carrying a concealed weapon. In 1993, he was convicted for

drug abuse and possession of drug paraphernalia.



              Now thirty-three years of age, the defendant is single and is the father

of a daughter who is in the custody of her mother. At the time of sentencing, he

provided no support. The defendant has a sporadic work record, no military history,

and no income or other resources. On September 26, 1995, the defendant was

convicted of simple possession of a Schedule VI controlled substance and

sentenced to eleven months and twenty-nine days. He was on probational release

for that offense at the time of this offense.



              When one or more statutory criteria is present, the imposition of

consecutive sentences is within the discretion of the trial court. State v. Taylor, 739

S.W.2d at 228. Even though the defendant was on probation for a misdemeanor

offense, the plain language of the statute authorizes a consecutive sentence.

Wendell King, Jr., v. State, No. 01C01-9310-CR-00366 (Tenn. Crim. App., at

Nashville, Aug. 4, app. denied, (Tenn., Oct. 31, 1994). In our view, the aggregate

length of the sentences was warranted.




                                            7
          Accordingly, the judgment is affirmed.



                                     ________________________________
                                     Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Jerry L. Smith, Judge




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