        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                September 13, 2011 Session

             STATE OF TENNESSEE v. ROGER WEEMS HARPER

                   Appeal from the Circuit Court for Montgomery County
                          No. 40801454 Michael R. Jones, Judge



                   No. M2010-01626-CCA-R3-CD - Filed August 29, 2012


Appellant, Roger Harper, was convicted by a Montgomery County jury of evading arrest.
The trial court sentenced Appellant as a Range I, standard offender to three years and six
months. The trial court set the sentence to run consecutively to a five-year diversion sentence
imposed under Tennessee Code Annotated section 40-35-313 that Appellant was serving
from another case. On appeal, Appellant argues that the trial court erred because: (1) the jury
failed to specify that it found the aggravating factors required to find Appellant guilty of a
Class D felony and furthermore, the trial court sentenced Appellant as if the conviction was
a Class D felony; (2) Appellant’s sentence is excessive due to the presence of mitigating
factors that the trial court failed to find; and (3) the trial court erred in imposing consecutive
sentencing. We have reviewed the record on appeal and conclude that the trial court
committed no error. However, the judgment form must be corrected to reflect that Appellant
was convicted of the Class D felony. Therefore, we affirm Appellant’s conviction and
sentence but remand for the trial court to enter a corrected judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed and
                                    Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and N ORMA M CG EE O GLE, JJ., joined.

Carrie W. Gasaway and John E. Herbison, Clarksville, Tennessee, for the appellant, Roger
Weems Harper.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; John W. Carney, District Attorney General, and Helen Young, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION
                                    Factual Background

      On the evening of August 31, 2008, Sandra Hall was working as a delivery person for
Domino’s Pizza. Around 9:00 p.m., Ms. Hall arrived at the Regency Square Apartments in
Clarksville to deliver two pizzas and an order of chicken wings. The delivery was to be
made in Building G of the apartment complex. As she proceeded up the stairs in Building
G, Ms. Hall encountered a man who pointed a gun at her and robbed her of the food and
money she was carrying.

       Ms. Hall ran back to her vehicle and called 911 from her cell phone. As she spoke to
the police dispatcher, she remained in her vehicle and continued to observe the entrance to
Building G. While watching the entrance, Ms. Hall saw a man whom she believed to be her
assailant. Ms. Hall observed him enter a small white car and leave the apartment complex.

        Clarksville Police Department Officers Jesse James and Gregory Rosencrants were
at the apartment complex responding to another call. When they received information that
there had been an armed robbery, they immediately attempted to make contact with Ms. Hall.
When they found her, Officer James approached her on foot. Officer Rosencrants went to
his patrol car to drive it to the area where Officer James was speaking with Ms. Hall. As Ms.
Hall spoke to Officer James, she noticed that the small white car had returned. She pointed
the car out to him.

        Officer James immediately signaled to Officer Rosencrants, who was approaching in
his patrol car, that the suspect was believed to be in the small white car. Officer Rosencrants
caught up to the suspect vehicle and activated his emergency lights. The suspect vehicle sped
away, and Officer Rosencrants gave chase. The pursuit reached speeds of eighty to ninety
miles per hour. As the suspect vehicle attempted to negotiate a turn at a very high speed, the
driver lost control and crashed. The driver then exited the vehicle and ran on foot. Officer
Rosencrants caught the suspect and later identified him as Appellant, Roger Harper. Officers
brought Ms. Hall to the scene of the crash, and she identified Appellant as the man who had
robbed her.

        In November of 2008, Appellant was indicted by the Montgomery County Grand Jury
for one count of aggravated robbery; one count of evading arrest; one count of driving on a
suspended, cancelled, or revoked license; one count of unlawful possession of a firearm; and
one count of tampering with evidence. The driving on a suspended, cancelled, or revoked
license charge was later dismissed. Following a jury trial, Appellant was convicted of the
sole count of evading arrest. The jury acquitted Appellant of all of the other charges. The
trial court sentenced Appellant as a Range I, standard offender to three years and six months.

                                              -2-
The court set the sentence to run consecutively to a five-year sentence that Appellant was
serving from another case.

                                          ANALYSIS
                                          Jury Verdict

        On appeal, Appellant attacks his conviction for evading arrest. At trial, the jury’s
verdict form did not specifically state that the jury found that Appellant created a risk of
death or bodily injury. The trial court subsequently entered a judgment finding Appellant
guilty of a Class E felony. Appellant avers that the trial court erred when it determined that
Appellant had been convicted of a Class D felony. The State argues that the jury’s verdict
resulted in a conviction of Class D evading arrest, when viewed in the context of the charged
offense, arguments made by the attorneys, and the jury instruction.

       Appellant was convicted of evading arrest in violation of Tennessee Code Annotated
section 39-16-603, which states in pertinent part:

          It is unlawful for any person, while operating a motor vehicle on any
          street, road, alley or highway in this state, to intentionally flee or attempt
          to elude any law enforcement officer, after having received any signal
          from the law enforcement officer to bring the vehicle to a stop.

T.C.A. § 39-16-603(b)(1). A violation of this statute is a Class E felony “unless the flight
or attempt to elude creates a risk of death or injury to innocent bystanders or other third
parties,” in which case it is a Class D felony. T.C.A. § 39-16-603(b)(3).

       The indictment charged that Appellant “did flee or attempt to elude Clarksville police
officers after having received a signal to stop from said officers and did thereby create a risk
of death or injury to innocent bystanders or other third parties” (emphasis added). By
including the element of the creation of a risk of death or injury, the indictment charged
Appellant with the Class D felony variant of evading arrest.

       At trial, the trial court instructed the jury as follows:

          Count Two: Evading Arrest
          Any person who commits the offense of attempting to elude a law
          enforcement officer while operating a motor vehicle is guilty of a crime.




                                               -3-
          For you to find the defendant guilty of this offense, the state must have
          proven beyond a reasonable doubt the existence of the following
          essential elements:
          (1) that the defendant was operating a motor vehicle on a street, road,
          alley or highway in this state; and
          (2) that while the defendant was operating such vehicle, the defendant
          received a signal from a law enforcement officer to bring the vehicle to
          a stop; and
          (3) that after receiving such signal, the defendant fled from the law
          enforcement officer; and
          (4) that the defendant acted intentionally; and
          (5) that the defendant’s flight created a risk of death or injury to innocent
          bystanders or other third parties.

The jury was not instructed, nor did Appellant request that they be instructed, on the lesser
included Class E felony offense of evading arrest. When the jury announced the verdict, the
foreman stated:

          We, the jury, find Roger W. Harper, guilty of evading arrest after
          receiving a signal to stop.

The trial court subsequently entered a judgment finding Appellant guilty of the Class E
felony variant of evading arrest.

       Understandably, there was some confusion at the sentencing hearing regarding the
class of Appellant’s conviction. The trial judge looked back over the record and determined
that due to the inclusion of the “risk of death or injury” element in the indictment and jury
instructions, Appellant had been convicted of a Class D felony. On appeal, Appellant argues
that because the verdict form did not specifically state that the jury found the aggravating
circumstances required to raise the evading arrest conviction from a Class E felony to a Class
D felony, the trial court erred in finding that Appellant was convicted of a Class D felony.
This contention must fail.

        As stated above, the trial court specifically instructed the jury as to the Class D felony
form of evading arrest by including the element of “risk of death or injury” in the jury charge.
There was no instruction on a lesser included offense. “[W]here the trial court’s instructions
clearly and definitely set forth the elements upon which liability must be based, the failure
to recite each element in the verdict form will not render the verdict invalid.” Goodale v.
Landenberg, 243 S.W.3d 575, 584 (Tenn. Ct. App. 2007). Therefore, we conclude that the
jury found Appellant guilty of the Class D felony version of evading arrest.

                                               -4-
      The judgment form indicates that Appellant was convicted of a Class E felony.
Although we affirm the trial court’s judgment with respect to the finding that Appellant was
convicted of a Class D felony, we must remand the case for entry of a corrected judgment.


                                     Excessive Sentence

        On appeal, Appellant argues that the trial court erred in sentencing Appellant because
the trial court did not find mitigating factors that Appellant contends the record evinces. The
State disagrees.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). We are to also recognize that Appellant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

      When imposing the sentence within the appropriate sentencing range for the
defendant:

       [T]he court shall consider, but is not bound by, the following advisory sentencing
       guidelines:




                                              -5-
          (1) The minimum sentence within the range of punishment is the
          sentence that should be imposed, because the general assembly set the
          minimum length of sentence for each felony class to reflect the relative
          seriousness of each criminal offense in the felony classifications; and

          (2) The sentence length within the range should be adjusted, as
          appropriate, by the presence or absence of mitigating and enhancement
          factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c). However, the weight given by the trial court to the mitigating and
enhancement factors are left to the trial court’s discretion and are not a basis for reversal by
an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An appellate court
is . . . bound by a trial court’s decision as to the length of the sentence imposed so long as it
is imposed in a manner consistent with the purposes and principles set out in sections -102
and -103 of the Sentencing Act.” Id. at 346.

       “The amended statute no longer imposes a presumptive sentence.” Carter, 254
S.W.3d at 343. As a result of the amendments to the Sentencing Act, our appellate review
of the weighing of the enhancement and mitigating factors was deleted when the factors
became advisory, as opposed to binding, upon the trial court’s sentencing decision. Id. at
344. Under current sentencing law, the trial court is nonetheless required to “consider” an
advisory sentencing guideline that is relevant to the sentencing determination, including the
application of enhancing and mitigating factors. Id. The trial court’s weighing of various
mitigating and enhancement factors is now left to the trial court’s sound discretion. Id.

       To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that “the trial court appl[ied] inappropriate mitigating
and/or enhancement factors or otherwise fail[ed] to follow the Sentencing Act, the
presumption of correctness fails” and our review is de novo. Carter, 254 S.W.3d at 345.

       After a review of the transcript from the sentencing hearing, it is clear that the trial
court considered the nature and characteristics of the criminal conduct involved, Appellant’s
history and background, the mitigating and enhancement factors, and the principles of
sentencing. Therefore, there is a presumption that the trial court’s determination is correct.
The trial court applied one mitigating factor, that Appellant had a child and potential for
employment, under Tennessee Code Annotated section 40-35-113(13). The trial court

                                               -6-
attributed “some weight” to this factor. The trial court also applied two enhancement factors:
that Appellant had “prior criminal convictions in addition to those necessary to establish the
appropriate range,” and that Appellant “was on some form of judicially ordered release.”
T.C.A. § 40-35-114(1), (13). After application of the mitigating and enhancement factors,
the trial court sentenced Appellant to three years and six months.

       Appellant argues that the trial court should have applied additional mitigating factors
when sentencing him. Appellant states that the trial court should have also used the
following assertions as mitigating factors: that “[Appellant]’s prior offenses were committed
at age eighteen [which] suggests that [Appellant], because of youth, lacked substantial
judgment in committing the offense,” that Appellant acknowledged paternity of his infant
daughter and had arranged for employment, and that “[Appellant]’s desire to support his
child and to live with extended family would tend to show [Appellant]’s amenability to
rehabilitation.”

       The record reflects that the trial court considered and dismissed each statutory
mitigating factor other than the one that it applied. The trial court obviously did not find that,
as Appellant suggests, Appellant lacked substantial judgment in committing the offense due
to his youth. See T.C.A. § 40-35-113(6). Furthermore, as stated above, the trial court
specifically considered that Appellant had a child and potential for employment. Appellant
essentially argues that the trial court should have attributed more weight to this factor.
However, the weight given to mitigating and enhancement factors is not a basis upon which
a defendant may appeal to this Court. See Carter, 254 S.W.3d at 345.

       Therefore, this issue is without merit.

                                    Consecutive Sentencing

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, 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;



                                               -7-
          (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.

T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

        The trial court considered the factors enumerated in Tennessee Code Annotated
section 40-35-115(b) and concluded that Appellant’s sentence should run consecutively to
the sentence he was already serving because he was on post-trial diversion when he
committed the crime for which the trial court was sentencing him. The record reflects that
in its analysis, the trial court specifically considered the factors in the sentencing statute and
concluded that Appellant’s criminal history is extensive, but “[the history] is not one this
Court would generally consider for consecutive sentencing.” The trial court went on to say
that Appellant’s criminal history is “just not long enough in [the court’s] mind to make it
consecutive.”

        While the trial court did not find Appellant’s criminal history alone to be extensive
enough to warrant consecutive sentencing, the court applied Tennessee Code Annotated
section 40-35-115(b)(6) and imposed consecutive sentencing. Under Tennessee Code
Annotated section 40-35-115(b)(6), the trial court may order sentences to run consecutively
if the court finds by a preponderance of the evidence that “the defendant is sentenced for an



                                               -8-
offense committed while on probation.” At the sentencing hearing, when referring to this
provision, the trial court stated:

          Splitting hairs there, post-trial diversion–released into the community.
          At that point when he committed this crime, to me that is as serious as
          being on a probation, so I am going to find that [subsection] six applies.

The trial court ended the analysis here and ordered consecutive sentencing.

       The trial court held that Appellant’s post-trial diversion was “just as serious” as
probation and used that fact to support the imposition of consecutive sentences. We
conclude that the trial court’s conclusion that post-trial diversion is the equivalent of
probation for purposes of imposing consecutive sentences is correct.

       This Court has previously held that post-trial diversion is the same as probation. In
State v. Norris, 47 S.W.3d 457 (Tenn. Crim. App. 2000), in reference to the post-trial
diversion statute, this Court stated the following:


       In actuality, the statute is a “probation” statute. Id. It is captioned as such and
       is inserted in the Code “immediately after the provisions dealing with other
       forms of probation.” State v. Talmadge G. Wilbanks, No. 02C01-9601-CR-
       00003, slip. op. at 5-6, 1996 WL 668119 (Tenn. Crim. App., Jackson, Nov. 19,
       1996), perm. app. denied (Tenn. 1997). Section 40-35-313 prescribes
       probation during the deferral period.


Norris, 47 S.W.3d at 462.

       Therefore, we conclude that the trial court properly relied upon Appellant’s post-trial
diversion status for the imposition of consecutive sentencing under Tennessee Code
Annotated section 40-35-115(b)(6).

       Therefore, this issue is without merit.




                                               -9-
                                     CONCLUSION

       For the foregoing reasons, Appellant’s conviction and sentence are affirmed. The case
is remanded for the correction of the judgment.




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




                                            -10-
