         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 11, 2004

              STATE OF TENNESSEE v. JEFFERY BRIAN PARKS

                   Direct Appeal from the Circuit Court for Lincoln County
                             No. S0300042    Charles Lee, Judge



                    No. M2003-02002-CCA-R3-CD - Filed August 30, 2004


JOHN EVERETT WILLIAMS, J., dissenting in part.

I believe the sentencing in the instant case is controlled by State v. Marshall, 888 S.W.2d 786 (Tenn.
Crim. App. 1994), and Rule 4(H)(2) of the Rules of the Supreme Court require it be followed. To
the extent that the majority opinion holds this trial judge fashioned an improper sentence, I disagree.
The two holdings in Marshall which apply to the instant cases are as follows:

       1) When confronted with multiple convictions by defendant under facts and
       circumstances that could justify greatly enhanced sentence for each offense and such
       offense is considered separately, but which could also justify or call for imposition
       of consecutive sentences, trial court has authority to consider whether effective, total
       sentence will meet principles and purposes of Sentencing Reform Act when assessing
       what weight applies to those factors that affect both length of each sentence for
       involved offenses and consecutive sentencing decision.

       2) Trial court properly applied 1989 Sentencing Reform Act in concluding that
       sentence of five years was appropriate for first burglary, that seven years was
       appropriate for second burglary, and that sentences should be served consecutively;
       trial court found that eight-year sentence would be justified for each count, that
       concurrent eight-year sentences were insufficient, and that consecutive eight-year
       sentences were too much.

        The holdings in Marshall were directed to the same trial judge as the instant case. This
defendant had multiple convictions under facts and circumstances that justify enhanced sentencing
and justify consecutive sentencing. I conclude that the effective total sentence of six years meets the
principles and purposes of the Sentencing Reform Act. This defendant was found to be a Range I,
standard offender; therefore his range of punishment was for the six Class C felonies, three to six
years, and for the two Class E felonies, one to two years. The trial judge was within his authority
to impose harsher punishments than the minimum on each offense.1 It appears that consecutive
sentencing was proper pursuant to Tennessee Code Annotated section 40-35-115(5). The State asks,
upon de novo review, that we sentence the defendant to consecutive sentences. The majority opinion
would require us to conduct a de novo review. I conclude, pursuant to Marshall, that the trial court
is entitled to a presumption of correctness.

        As earlier mentioned in this opinion, the range of punishment available to this defendant is
from three to forty years. If the minimum sentences were imposed and all run consecutively, this
defendant would receive twenty years. I am also guided by our Supreme Court’s holdings in State
v. Taylor, 739 S.W.2d 227 (Tenn. 1987), holding that “consecutive sentences should not routinely
be imposed in sexual abuse cases or any other cases: aggregate maximum of consecutive terms must
be reasonably related to severity of offenses involved.” The general principles of sentencing require
that the length of sentence be “justly deserved in relation to the seriousness of the offenses” and “be
no greater than that deserved for the offense committed.” State v. Imfeld, 70 S.W.3d 698, 708
(Tenn. 2002). This defendant received a six-year sentence which is above the minimum sentences
of three years but less than twenty years. I cannot second guess this trial judge in concluding that
six years is not reasonably related to the severity of these offenses. I conclude the trial court did not
abuse its discretion in sentencing. Even though my review of this record supports the six-year
sentence imposed or one substantially higher, if my review reflects that the trial court followed the
statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper
weight to the factors and principles set out under the sentencing law, and the trial court’s findings
of fact are adequately supported by the record, then I may not modify the sentence even if I would
have preferred a different result. See State v. Hopper, 29 S.W.3d 1, 5 (Tenn. 2000).

       I join in the majority opinion in all other respects and agree the process outlined by the
majority allows for better appellate review. However, I simply feel State v. Marshall is controlling.




                                                             ____________________________________
                                                               JOHN EVERETT WILLIAMS, JUDGE




        1
          The trial court could have sentenced this defendant between three and twenty years without any Blakely v.
W ashington issues involved . 542 U.S. ___, 124 S. Ct. 2531 (2004).

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