         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 9, 2008

           STATE OF TENNESSEE v. TRYPHENA NICOLE JONES

                  Direct Appeal from the Circuit Court for Madison County
                           No. 07-514    Donald H. Allen, Judge



                 No. W2008-00186-CCA-R3-CD - Filed September 12, 2008


The defendant, Tryphena Nicole Jones, pled guilty to possession of cocaine and failure to appear,
both Class A misdemeanors, and was sentenced to consecutive terms of eleven months, twenty-nine
days at seventy-five percent release eligibility. On appeal, she argues that the trial court erred in
imposing consecutive sentencing. Following our review, we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE
R. MCMULLEN , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, for the appellant, Tryphena Nicole Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Shaun A. Brown and Brian M. Gilliam,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS

       At the guilty plea hearing, the State presented the facts underlying the defendant’s offenses:

       [W]ith regards to possession of cocaine, On March 23rd, 2007, investigators and
       deputies with the Madison County Sheriff’s Department went to the Airways Motel
       here in Jackson, Madison County, and there they arrested Kimberly Jackson and
       Curtis Reese in Room 122. Mr. Reese had a small child with him in the room and
       he asked if the deputies would take the child to one of his relatives who was staying
       in Room 222 and that was the defendant, Tryphena Jones. As the deputies arrived,
       Ms. Jones opened the door. Officers could smell burned marijuana inside the room
       and they asked for consent to search. T[he] defendant gave consent for the deputies
       to enter the room. Upon entering the room, the defendant did tell the officers that she
       had just finished smoking marijuana prior to the officers[’] arrival and they did find
       a partially smoked blunt of marijuana in plain view. They also found in a plastic bag
       some crack cocaine. That was also in plain view. Those things were photographed
       and taken into evidence. The marijuana was not weighed at the lab and she was not
       indicted for that. The cocaine . . . weighed at 1.4 grams. This happened here in
       Madison County.

               With regard to [the failure to appear count of the indictment], this case was
       set to be heard in Madison County General Sessions Court on April 5th of 2007 and
       the defendant, Tryphena Jones, failed to appear in Madison County General Sessions
       Court on that day, April the 5th. That too occurred here in Madison County,
       Tennessee.

         At the December 20, 2007, sentencing hearing, the thirty-four-year-old defendant testified
that she had been using crack cocaine since she was twelve years old but had never sought any
treatment for her addiction. She said that she had been taking medications for a mental health illness
since the age of sixteen. She acknowledged that drugs had been “a big problem” in her life but said
she wanted to receive treatment for her addiction. The defendant also acknowledged that she had
prior convictions for robbery, possession of marijuana, prostitution, assault, vandalism under $500,
failure to appear, driving on a suspended license, and theft of property under $500.

        Finding that the defendant had an extensive criminal history and was on probation at the time
she committed the offenses, the trial court sentenced her to eleven months, twenty-nine days for each
offense, to be served consecutively at seventy-five percent release eligibility. The court also ordered
that the defendant’s sentences be served consecutively to a prior eleven-month-twenty-nine-day
sentence from Jackson City Court.

                                            ANALYSIS

       The defendant argues that the trial court erred in ordering that she serve her sentences
consecutively, saying that a concurrent sentence “would have still been severe and would have
avoided depreciating the seriousness of her offenses.”

        Appellate review of misdemeanor sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), -402(d) (2006).
This presumption of correctness is conditioned upon the affirmative showing that the trial court
considered the relevant facts, circumstances, and sentencing principles. State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The burden is on the appealing party to show that the sentence is improper.
See Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Cmts.

       In ordering consecutive sentences, the trial court made the following findings:

       [A]t a very young age, [the defendant] was convicted of a very serious offense that
       being robbery out of Shelby County, Tennessee and received a three year sentence

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and apparently served that sentence there in Shelby County. After being released,
apparently did well for a while. According to [the presentence report], it doesn’t
appear she had any substantial arrests or any convictions for several years, but then
it looks like in 2001, . . . a drug addiction kind of took a hold of her again. She was
convicted of some drug offenses in Shelby County General Sessions Court back in
March of 2001 involving possession of marijuana. Also in April of 2001 for
prostitution. . . . It looks like in July of 2001, was arrested for aggravated assault and
vandalism. It looks like she pled guilty to misdemeanors on those. It looks like she
was put on probation for a year. Also another failure to appear in 2001 out of Shelby
County General Sessions Court.

        It looks like at least during that time period that she was living and getting in
trouble in Shelby County. For whatever reason, she tells me it is related to a drug
addiction. Here in the last year, and really this is kind of substantial in the Court’s
opinion, since December of 2006, December the 4th, she has been arrested on traffic
offenses here in Madison County and been convicted of driving on suspended
license, received 11 months and 29 day sentence beginning December the 4th of
2006 and was granted probation. It looks like just 18 days later, she [was] arrested
for theft of property under $500 here in Jackson. She was convicted in Jackson City
Court on December the 26th . . . and received 11 months and 29 day suspended
sentence and was put on probation again. When these offenses occurred that she is
being sentenced for[,] back [on] March 23rd of ‘07, that’s the drug charge[] and then
the failure to appear in April of ‘07, obviously she was already on probation for two
separate 11 months and 29 day sentences out of Jackson City Court.

       Since she’s been out on bond, she’s received more arrests. May 12th of 2007
was arrested for driving on suspended license and was later convicted June 25th,
2007. That’s out of Shelby County. Somehow or another, she made her way back
to Shelby County in May and got into trouble there. She came back to Jackson it
looks like September the 10th of 2007 and she was arrested here in Jackson,
Tennessee and convicted out of Jackson City Court on September the 20th of ‘07,
convicted of a simple assault, theft of property under $500 and also vandalism under
$500.

        She has a pretty extensive criminal history. Especially just within the last
year, she has been given probation on at least two different occasions and while on
probation, she’s violated it. She has violated it by this case here she’s being
sentenced for today. She has violated it by being arrested for . . . driving on
suspended license in May. She violated it by receiving new convictions for assault,
theft and vandalism in September of ‘07. . . . [S]he’s been arrested at least three or
four times while on probation.

        ....



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               These two sentences I’m going to run consecutive to each other, so she’s
       going to have approximately a two year sentence for these charges here today. Also,
       I am running these sentences consecutive to the 11 months and 29 day sentence out
       of 2007M-2111, that’s the Jackson City Court case which apparently she’s still under
       some type of supervision. These sentences today are consecutive plus consecutive
       to those sentences out of Jackson City Court.

        As a general rule, consecutive sentences are imposed at the discretion of the trial court upon
its consideration of one or more of the following statutory criteria:

       (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 as 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) (2006). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing.

        The record supports the trial court’s imposition of consecutive sentencing based on the
defendant’s extensive criminal record. At the sentencing hearing, the defendant admitted to having
eight prior convictions, and her presentence report reveals that she has fourteen prior convictions for
various offenses and that she was on probation at the time she committed the offenses which are the
basis of her appeal. Accordingly, we affirm the trial court’s imposition of consecutive sentencing.


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                                       CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgments of the trial court are
affirmed.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




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