        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 9, 2012

             STATE OF TENNESSEE v. BOBBY DUANE PARKER

           Direct Appeal from the Criminal Court for Williamson County
                    No. II-CR125348    Walter C. Kurtz, Judge


               No. M2012-00748-CCA-R3-CD - Filed February 6, 2013


The appellant, Bobby Duane Parker, pled guilty in the Williamson County Circuit Court to
four counts of theft, two counts of unlawful possession of a weapon, one count of resisting
arrest, and one count of evading arrest. The trial court imposed a total effective sentence of
twenty-seven years. On appeal, the appellant challenges the imposition of consecutive
sentencing. Upon review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Vanessa Pettigrew Bryan (on appeal) and Robert W. Jones (at trial and on appeal), Franklin,
Tennessee, for the appellant, Bobby Duane Parker.

Robert E. Cooper, Jr., Attorney General and Reporter, Brent C. Cherry, Senior Counsel; Kim
R. Helper, District Attorney General; and Mary K. White, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       On November 28, 2011, the appellant, a career offender, pled guilty to eight counts
of a nine-count indictment. Specifically, the appellant pled guilty to one count of theft of
property valued over $10,000 but less than $60,000, a Class C felony; three counts of theft
of property valued less than $500, a Class A misdemeanor; two counts of unlawful
possession of a weapon, a Class E felony; one count of resisting arrest, a Class B
misdemeanor; and one count of evading arrest, a Class A misdemeanor. The plea agreement
provided that the trial court would determine the length and manner of service of the
sentences. The appellant stipulated that there was a factual basis for his pleas.

        At the sentencing hearing on March 5, 2012, the State submitted judgments of
convictions which reflected that on January 27, 2012, the appellant was convicted in
Rutherford County of three counts of aggravated robbery and one count of attempted
aggravated burglary and received an effective sentence of forty-two years. Also in
Rutherford County, on June 20, 2012, the appellant was found guilty of violating the
probationary sentences he was serving for convictions of possession of a Schedule II drug
and aggravated robbery, and he was ordered to serve his original sixteen-year-sentence in
confinement. The Rutherford County Circuit Court ordered the appellant to serve the forty-
two-year sentence consecutively to the sixteen-year sentence for a total effective sentence of
fifty-eight years. In the instant case, the State recommended that the sentences imposed be
served concurrently with the forty-two-year sentence but consecutively to the sixteen-year
sentence.

        Rutherford County Sheriff’s Detective Jim Tramel testified at the sentencing hearing
that in October 2010, he responded to the scene of a home invasion in Smyrna. The three
victims, Joanna, Tommy, and John McClendon, told Detective Tramel that when they came
home, the perpetrator came down the stairs and pointed a gun at them. The perpetrator took
money, electronics, a camera, and custom-made golf clubs, one of which had a “beaver head
cover.” The perpetrator left the residence in the victims’ 2005 white Volvo. Police chased
the perpetrator but were unable to apprehend him.

        The next morning, Detective Tramel was informed that the victims’ car had been
located behind the Tractor Supply Company in Triune. Police processed the vehicle, but no
golf clubs were found. Thereafter, Detective Tramel contacted the Williamson County
Sheriff’s Department and learned that a 2010 white Ford Explorer was stolen approximately
one mile from the Tractor Supply Company. Detective Tramel believed the two crimes were
linked.

        In order to locate the golf clubs, Detective Tramel contacted pawn stores and local
Play It Again Sports stores and asked to be informed if anyone brought in golf clubs
matching the description of the stolen items. Approximately three days later, the manager
of the Play It Again Sports store at Cool Springs Galleria called Detective Tramel and said
that the appellant was trying to sell the stolen golf clubs. Detective Tramel contacted the
Franklin Police Department to request assistance in apprehending the appellant.

       Detective Tramel said that after the appellant was caught trying to sell the golf clubs,

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he compiled a photograph line-up and showed it to one of the victims, who positively
identified the appellant as the perpetrator. Detective Tramel noted that he recorded an
interview with the appellant, he played the interview for the victims, and the victims
identified the appellant’s distinctive voice from the interview.

       Detective Tramel stated he felt that the appellant was “a menace, and I do feel that
with the violent acts that he’s partaken in, it’s just a matter of time before somebody winds
up getting shot and killed and he eliminates any witnesses that could potentially testify
against him.” Detective Tramel noted that one of the victims shot at the appellant as he fled
the scene.

       Detective Tramel said that a couple of days prior to the Rutherford County robbery
and automobile theft, Warren Tiller and Allen Stanford each reported that a firearm had been
stolen from them. Both men resided near the location of the home invasion. The firearms
were ultimately found in the 2010 Ford Explorer. Detective Tramel stated that the appellant
had resided in that area and that he was “preying on his neighbors.”

        Franklin Police Officer Todd Stamper testified that at the time of the offenses, he was
the Alpha Shift Patrol Sergeant. In October 2010, he received a call advising that someone
at the Play It Again Sports store in Cool Springs, who was later identified as the appellant,
was trying to sell unique golf clubs that were possibly related to a home invasion. Officers
tried to apprehend the appellant, and he fled through the back of the store. The officers gave
chase but eventually lost sight of the appellant.

        Officer Stamper and other officers searched for the appellant for approximately an
hour and a half. During the search, Officer Stamper went into a Subway restaurant. The
appellant had locked himself in the women’s restroom. When officers opened the door, the
appellant crawled into the ceiling to try to escape, but the ceiling collapsed. When Officer
Stamper and another officer apprehended the appellant, he initially resisted and then became
still and unresponsive.

        Officer Stamper said that the stolen white Ford Explorer was found in front of Play
It Again Sports. Officer Stamper later learned that two firearms were found in the Explorer,
at least one of which was loaded. Officer Stamper opined that “knowing [the appellant’s]
history, knowing what we had to go through to apprehend him . . . and what he did in
Rutherford County, I do believe that if he’s not kept contained he’s going to end up hurting
somebody badly.”

       The parties agreed that the twenty-nine-year-old appellant was a career offender and
that he was on probation at the time the instant offenses were committed. The trial court

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sentenced the appellant to fifteen years for the conviction of theft of property valued over
$10,000 but less than $60,000; to eleven months and twenty-nine days for each of his three
convictions of theft of property valued less than $500 and for his conviction of evading
arrest; to six years for each of his two convictions of unlawful possession of a weapon; and
to six months for his conviction of resisting arrest.

       In determining whether the appellant’s sentences should be served concurrently or
consecutively, the court found that the appellant was a professional criminal who had
knowingly devoted his life to criminal acts as a major source of livelihood, that the appellant
had an extensive criminal history, that the appellant was a dangerous offender, and that the
appellant was being sentenced for an offense committed while he was on probation. See
Tenn. Code Ann. § 40-35-115(b)(1), (2), (4), and (6). The court stated that the appellant had
been given opportunities to rehabilitate, including punitive measures, treatment, and
probation, but the appellant continued to offend. The court observed that the appellant had
an “extraordinarily lengthy and serious criminal record” and that many of his offenses were
committed while he was on probation or parole. Therefore, the court determined that
confinement was necessary to protect the public from being further victimized by the
appellant.

        The court ordered that the five misdemeanor sentences be served concurrently with
each other and with one of the six-year felony sentences for unlawful possession of a weapon
and that the three felony sentences be served consecutively to each other for a total effective
sentence of twenty-seven years. Additionally, the court ordered that the twenty-seven-year
sentence be served consecutively to the forty-two-year Rutherford County sentence and to
the sixteen-year Rutherford County sentence.

      On appeal, the appellant argues that the trial court erred by ordering that the
Williamson County sentences be served consecutively to his Rutherford County sentences.

                                        II. Analysis

        Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). Our supreme court has further explicitly stated that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Christine Caudle,

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__ S.W.3d __, No. M2010-01172-SC-R11-CD, 2012 WL 5907374, at *5 (Tenn. at Nashville,
Nov. 27, 2012). In conducting its review, this court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                     (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.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). We note that
“a trial court’s weighing of various mitigating and enhancement factors [is] left to the trial
court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free
to select any sentence within the applicable range so long as the length of the sentence is
‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 343.
“[A]ppellate courts are therefore left with a narrower set of circumstances in which they
might find that a trial court has abused its discretion in setting the length of a defendant’s
sentence.” Id. at 345-46. “[They are] 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.

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       Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995). Because the criteria for determining consecutive
sentencing “are stated in the alternative[,] . . . only one [criterion] need exist to support the
appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003).

        The court imposed consecutive sentencing after finding that the appellant was a
professional criminal who had knowingly devoted his life to criminal acts as a major source
of livelihood, that the appellant had an extensive criminal history, that the appellant was a
dangerous offender, and that the appellant was being sentenced for an offense committed
while he was on probation. See Tenn. Code Ann. § 40-35-115(b)(1),(2), (4), and (6).

        The appellant argues that the trial court erred by ordering that the sentences be served
consecutively to previously imposed sentences. Although he complains about the excessive
length of the aggregate sentence, he does not dispute the criteria the trial court found to
justify the imposition of consecutive sentencing. We note that the appellant’s presentence
report reflects that the appellant reported working as a massage clinic instructor at the
Georgia Career Institute from September 13, 2007, to March 16, 2009; as an assistant at
Yates Nissan from August 2006 to February 2007; and as a stocker at Petsmart from
February 2004 to June 13, 2008. The presentence report further reflects that since 2001,
when he was eighteen years old, he has amassed a criminal history consisting of one
conviction of possession of schedule II drugs; one conviction of aggravated robbery; thirteen
convictions of aggravated burglary; six convictions of automobile burglary; three convictions
of burglary; three convictions of attempted aggravated burglary; three convictions of the theft
of property valued between $10,000 and $60,000; two convictions of the theft of property
valued between $1,000 and $10,000; two convictions of driving under the influence; and one
conviction for driving on a revoked license. Clearly, the record supports the trial court’s
finding that the appellant has an extensive criminal history. Tenn. Code Ann. § 40-35-
115(b)(2).

       Further, at the sentencing hearing, the appellant conceded that he committed the
instant offenses while on probation, and the record supports this concession. Tenn. Code
Ann. § 40-35-115(b)(6).

       Moreover, the trial court noted that the appellant has consistently and repeatedly
victimized the public by engaging in dangerous behavior. The court stated, “[W]e’re lucky
that nobody has been seriously injured or killed along the way over his decade of criminal

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past.” The court stated that the appellant had been given numerous opportunities to
rehabilitate, but he continued to offend. The court observed that the appellant had an
“extraordinarily lengthy and serious criminal record” and that many of his offenses were
committed while he was on probation or parole. Therefore, the court determined that
confinement was necessary to protect the public from being further victimized by the
appellant. Given the appellant’s multiple commissions of aggravated robbery, aggravated
burglary, and theft, coupled with his sparse employment history, the trial court’s findings that
the appellant was a professional criminal and a dangerous offender were justified. See State
v. Allen Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *11 (Tenn.
Crim. App. at Knoxville, Nov. 1, 2002); State v. Jason Brian Hargrove, No.
M2001-01579-CCA-R3-CD, 2002 WL 1585638, at *3 (Tenn. Crim. App. at Nashville, July
18, 2002).

        The appellant’s primary complaint is that his effective sentence of fifty-eight years in
Rutherford County was sufficient to serve the interests of justice and protect the public. He
states that he is twenty-nine years old and will be eighty-seven years old before completing
his Rutherford County sentences and that ordering consecutive sentencing resulting in an
effective sentence of eighty-five years is not reasonable in relation to the offenses committed.
However, this court has previously stated “that the trial court is not required to give [a
defendant] leniency because of his age and the aggregate effect of the sentences.” State v.
Vincent Hunt, No. W2009-00165-CCA-R3-CD, 2010 WL 1407236, at *9 (Tenn. Crim. App.
at Jackson, Apr. 8, 2010). We conclude that the trial court did not err by imposing
consecutive sentencing.

                                       III. Conclusion

       In sum, we conclude that the trial court correctly found that factors justify consecutive
sentencing. Therefore, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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