        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 17, 2013

                 STATE OF TENNESSEE v. ANTWAIN GREEN

                 Appeal from the Criminal Court for Davidson County
                   No. 2010-C-1750    J. Randall Wyatt, Jr., Judge


                No. M2013-00167-CCA-R3-CD Filed October 28, 2013


Antwain Green (“the Defendant”) was convicted by a jury of reckless homicide. Following
a sentencing hearing, the trial court sentenced the Defendant to seven years as a Range II
offender, to be served consecutively to a previously imposed forty-five year sentence. On
appeal, the Defendant argues that the trial court erred in ordering consecutive sentencing.
Upon our thorough review of the record and applicable law, we affirm the judgment of the
trial court.

                    Tenn. R. App. P. 3 Appeal as of Right; Judgment
                             of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and A LAN E. G LENN, J., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Antwain Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson III, District Attorney General; and Ben Ford, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                           Factual and Procedural Background

       A Davidson County Grand Jury indicted the Defendant in July 2010 on one count of
second degree murder for the shooting of Jazma Jackson in April 2009. The Defendant was
tried before a jury in October 2012 and was found guilty of the lesser-included offense of
reckless homicide, a Class D Felony.
        At the sentencing hearing, the State submitted a presentence report indicating that,
in addition to a number of misdemeanor convictions, the Defendant had prior felony
convictions for evading arrest, sale of a counterfeit controlled substance, robbery, possession
of a Schedule II controlled substance with intent to sell, and possession of a weapon by a
convicted felon. The presentence report, admitted into evidence without objection, also
showed that the Defendant was arrested for two counts of attempted second degree murder
and one count of aggravated assault in August 2009. The Defendant was convicted on those
charges in October 2010 and received a sentence of forty-five years. Therefore, when he was
convicted for the instant offense, he already was serving a previously imposed sentence of
forty-five years. However, the conduct underlying these October 2010 convictions occurred
after the conduct in the instant case. Because of this, the trial court and defense counsel
discussed these convictions at the sentencing hearing and agreed that they could not be used
for the purpose of calculating the Defendant’s sentencing range. Accordingly, the parties
agreed that the Defendant should be sentenced as a Range II offender. The Range II sentence
for a Class D felony is four to eight years. See Tenn. Code Ann. § 40-35-112(b) (2006).

       At the sentencing hearing, defense counsel argued: “He is serving a 45 year sentence
on the other trial. In view of that and in view of these circumstances [of the offense], your
Honor, I would ask for the minimum sentence to run concurrent with what he already has.”

       At the end of the sentencing hearing, the trial court took the matter under advisement
and subsequently issued a sentencing order. In its sentencing order, the court considered the
Defendant’s criminal history:

       [I]n addition to those necessary to establish the appropriate range . . . [t]he
       court finds that the Defendant has the following prior convictions: four (4)
       convictions for Evading Arrest, three (3) convictions for Leaving the Scene of
       an Accident, (3) convictions for Resisting Arrest, ten (10) convictions for
       Criminal Trespass, one (1) conviction for Identity Theft, and one (1)
       conviction for Protective Order Violation.

In determining whether to impose consecutive sentencing, the trial court concluded: “As
previously addressed, the Court finds that Defendant’s record is extensive, as the Defendant
has numerous convictions for various criminal offenses.” Furthermore, in considering the
Defendant’s record, the trial court also found that “the Defendant was granted release into
the community for a previous conviction and committed the offense in this case while on
probation.”




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       Based on these conclusions, the trial court sentenced the Defendant to seven years as
a Range II offender and ordered that the sentence run consecutively to the forty-five-year
sentence the Defendant already was serving for his October 2010 convictions.

       The Defendant appealed, asserting that the trial court erred in imposing consecutive
sentencing.1 The Defendant argues that, because the criminal conduct underlying his October
2010 aggravated assault and attempted murder convictions occurred after the conduct in the
instant case, the trial court erred in “utilization of such a case in determining whether to
impose consecutive sentences.” He also argues that “much of [the Defendant’s] history
consisted of misdemeanor convictions” that “should not qualify in making a consecutive
sentence determination.” The State disagrees.

                                                Analysis

       Prior to imposing sentence, a trial court is required to consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in [Tennessee Code Annotated sections ] 40-35-
       113 and 40-35-114;

       (6) Any statement the defendant wishes to make in the defendant's own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006).

        The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C)(2006). “The sentence imposed should be the least severe measure necessary to


       1
           The Defendant does not challenge the seven-year sentence imposed by the trial court.

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achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),
(5) (2006).

        When a defendant has additional sentences not yet fully served as a result of
convictions in Tennessee, the trial court may order that the sentence being imposed run
consecutively to those additional sentences. Tenn. R. Crim. P. 32(c)(2)(A)(i). The trial court
may order sentences to run consecutively if it finds by a preponderance of the evidence that:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life 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 . . . ;

       (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 . . . ;

       (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) (2006). The satisfaction of a single one of these categories
is sufficient to warrant the imposition of consecutive sentences. See State v. Adams, 973
S.W.3d 224, 231 (Tenn. Crim. App. 1997) (“Extensive criminal history alone will support
consecutive sentencing.”) (citing State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App.
1994)).

       “Whether sentences are to be served concurrently or consecutively is a matter
addressed to the sound discretion of the trial court.” State v. Hastings, 25 S.W.3d 178, 181
(Tenn. Crim. App. 1999) (citing Adams, 973 S.W.2d at 230-331). However, “the
consecutive sentencing statute [should] be used in conjunction with, not apart from,” the


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principles of the sentencing act. State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App.
1995). Therefore, the trial court must “insure that the aggregate sentence imposed should be
the least severe measure necessary to protect the public from the defendant’s future criminal
conduct.” Id.

        The Defendant asserts that the trial court erred in considering his October 2010
convictions for the purpose of consecutive sentencing. First, nothing in the record suggests
that the trial court in fact considered the Defendant’s October 2010 convictions in imposing
consecutive sentencing. In its order imposing consecutive sentencing, the trial court clearly
considered only the Defendant’s convictions that were “necessary to establish the appropriate
range” and his additional convictions which occurred prior to the underlying conduct in the
instant case. We note that the court agreed with defense counsel at the sentencing hearing
that the Defendant’s October 2010 convictions could not be used to determine the
Defendant’s sentencing range. Therefore, it is apparent from the record that the court in fact
did not consider these October 2010 convictions in imposing consecutive sentencing.

        Second, the Defendant’s reliance on State v. Blouvett, 904 S.W.2d 111 (Tenn. 1995),
in support of this assertion is misplaced. In Blouvett, our supreme court held that prior
convictions used to determine a defendant’s sentencing range must have been committed and
adjudicated prior to the commission of the crime for which sentence is being imposed. 904
S.W.2d at 113. However, this principle is limited to a determination of an offender’s
sentencing range. In deciding whether to impose consecutive sentencing, trial courts can
consider convictions which occurred prior to the sentencing hearing, even if the underlying
criminal conduct occurred after the conduct under consideration. See State v. Kevin
McDougle, No. W2007-02344-CCA-R3-CD, 2010 WL 455004, at *8 (Tenn. Crim. App.
Feb. 10, 2010). Nothing in Tennessee Code Annotated section 40-35-115(b) limits the
definition of a Defendant’s “record of criminal activity” to those offenses committed prior
to the offense for which the Defendant is being sentenced. Therefore, even if the trial court
had considered the Defendant’s October 2010 aggravated assault and attempted second
degree murder convictions as a part of his record of criminal activity for the purpose of
determining whether to impose consecutive sentencing, the trial court would not have erred.
Accordingly, the Defendant is not entitled to relief on this basis.

      The Defendant also asserts that the trial court erred in placing “great weight” on his
criminal history when “much of that history consisted of misdemeanor convictions.”
However, this Court often has held that a criminal history consisting of primarily or solely
misdemeanor convictions can be sufficient to support consecutive sentencing. See State v.
Marquon Lanorris Green, No. W2012-0164-CCA-R3-CD, 2013 WL 2405217, at *7 (Tenn.
Crim. App. May 30, 2013) (noting several instances in which this Court has upheld a
consecutive sentence based on a trial court’s reliance solely on misdemeanor convictions).


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Here, in addition to a number of misdemeanor convictions, the record shows that the
Defendant has multiple felony convictions aside from his October 2010 convictions.
Accordingly, the Defendant’s argument is misplaced, and he is not entitled to relief on this
basis.

        The satisfaction of a single category under Tennessee Code Annotated section 40-35-
115 is sufficient to warrant the imposition of consecutive sentences. See Adams, 973 S.W.3d
at 231. The trial court concluded that the Defendant had an extensive history of criminal
conduct. We hold that the record supports the trial court’s findings. Therefore, the trial court
imposed the Defendant’s sentence in a manner consistent with the purposes, principles, and
goals of the Sentencing Act. Thus, the trial court did not abuse its discretion in imposing
consecutive sentencing. Accordingly, the Defendant is not entitled to relief on this issue.

       Moreover, out review of the record indicates another basis for imposing consecutive
sentencing in this case. Under Tennessee Rule of Criminal Procedure 32(c)(3)(A), a
consecutive sentence is mandatory when a defendant is sentenced for a felony committed
while on parole for another felony. Here, the trial court concluded that the Defendant was
on probation at the time of the instant offense. We, however, note that the presentence report
actually indicates that the Defendant was on parole, rather than probation, beginning on April
6, 2009, for a felony evading arrest sentence. The reckless homicide underlying the
sentencing decision in the instant case occurred on April 29, 2009. Therefore, consecutive
sentencing was mandatory under Tennessee Rule of Criminal Procedure 32(c)(3)(A) because
the Defendant was on parole at the time of the instant offense.

                                         Conclusion

       For the reasons set forth above, we affirm the trial court’s judgment.




                                                    ___________________ _ _ _ _ _ ____ _ _
                                                    JEFFREY S. BIVINS, JUDGE




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