         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          June 2000 Session

                 STATE OF TENNESSEE v. JAMES A. SHIVELY

               Direct Appeal from the Circuit Court for Williamson County
      No. I-1098-341, I-1098-364, I-1098-365-366  Henry Denmark Bell, Trial Judge



                    No. M1999-01072-CCA-R3-CD - Filed August 4, 2000


Having pled guilty to various counts of aggravated burglary, robbery, auto theft, and theft, the
defendant appeals from his sentences. He argues that the trial court improperly imposed consecutive
sentences and that his effective twelve-year sentence is therefore excessive. After a de novo review,
we affirm the sentences as imposed.

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

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH, JJ., joined.

Eugene Honea, Assistant Public Defender, Franklin, Tennessee, for the appellant, James A. Shively.

Paul G. Summers, Attorney General & Reporter, Jennifer L. Bledsoe, Assistant Attorney General,
Ronald L. Davis, District Attorney General, Jeffrey Preston Burks, Assistant District Attorney, for
the appellee, State of Tennessee.


                                            OPINION

                                           Introduction

        The defendant, James A. Shively, appeals sentences he received after he pled guilty in
Williamson County. He pled guilty to four Class C felonies [three counts of aggravated burglary and
one count of robbery], one Class E felony [one count of auto burglary] and one Class A misdemeanor
[one count of theft under $500]. For each of the Class C felonies, the defendant was sentenced to
the statutory minimum, three years incarceration. For the Class E felony, he was sentenced to one
year of incarceration, and finally, for the Class A misdemeanor, he was sentenced to six months.
The last two sentences were imposed concurrently to his sentences for the Class C felonies: the four
three-year Class C felony conviction sentences were ordered to be served consecutively to each
other, and that consecutive sentencing is the reason for this appeal. The defendant asserts that the
effective twelve-year sentence is “excessive.” After a careful review, we affirm the sentences as
imposed.

                                                          Facts

        We outline only those facts relevant to the defendant’s sole issue concerning consecutive
sentencing and not those relating to the actual offenses. First, the defendant pled guilty to six counts,
as outlined above. After the trial court entered his plea, it conducted a sentencing hearing. At that
hearing, the victim testified on behalf of the state. The defendant, his grandmother, and his
grandfather testified for the defendant. Besides actual testimony, the state introduced a pre-sentence
report and a victim-impact statement and also played a video-recording of the victim’s trial
testimony. After hearing this testimony and evidence, the trial court sentenced the defendant to an
effective twelve-year sentence.

                                                         Analysis

        The defendant’s sole argument on this appeal is that his sentence is excessive. In particular,
he asks this Court to review the trial court’s determination that the four Class C felony sentences be
served consecutively. We have reviewed the trial court’s sentencing and find no error that would
require any reversal or modification.

         The trial court, after rather lengthy discussion, ruled as follows:

         . . . [t]he sentence should be an effective sentence of twelve years, which would be
         by taking the four C felonies, the three aggravated burglaries and the one robbery,
         and sentencing him to four years each on those, give him the minimum sentence on
         the rest of them and let the four three-year sentences run consecutively to each other
         and to any other time he may have somewhere else. . . .

         Normally, after sentencing, if the defendant chooses to appeal that sentence, we presume that
the trial court’s rulings are correct. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). However, when, as in this case, a trial court deviates from proper sentencing procedure, we
abandon that presumption and instead review the sentencing de novo. See State v. Jones, 883
S.W.2d 597, 600 (Tenn. 1994); State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997); State v. Shelton,
854 S.W.2d 116, 123 (Tenn. Crim. App. 1997). Here the trial court failed to place upon the record
its findings concerning aggravating and mitigating factors. Therefore, our review is de novo.

        That said, any error in this sentence concerning enhancing and mitigating factors does not
affect any right of the defendant. Such error did not prejudice the defendant who received on each
felony conviction the statutory minimum.1 Therefore, in light of the scope of this appeal and the
harmless nature of the trial court’s sentencing error, we will not now review the submitted mitigators


         1
          We no te that the state does not app eal the trial court’s sentencing d eterminations. If that were the case, then
we would review each factor de novo.

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and enhancers, but instead, move on to a de novo review of the trial court’s decision to order
consecutive sentencing.

      In Tennessee, a court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:

       (1) [t]he defendant is a professional criminal who has knowingly devoted such
           defendant’s life to criminal acts as a major source of livelihood;
       (2) [t]he defendant is an offender whose record of criminal activity is extensive.;
       (3) [t]he 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) [t]he 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) [t]he 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) [t]he defendant is sentenced for an offense committed while on probation; or
       (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b); see also State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App.
1995). Furthermore, the Court is required to determine, in the case of “dangerous offenders,”
whether the consecutive sentences (1) are reasonably related to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are
congruent with general principles of sentencing. See State v. Lane, 3 S.W.3d 456 (Tenn. 1999).

        At this stage, we do not defer to the trial court’s sentencing but rather review de novo and
note that the defendant has admitted that he committed the instant offenses while on probation for
other offenses. This fact is sufficient to warrant the imposition of consecutive sentencing. See Tenn.
Code Ann. § 40-35-115(b)(6); State v. Stacy Allen Bullard, No. E1999-00796-CCA-R3-CD (Tenn.
Crim. App. filed March 15, 2000, at Knoxville). Also, we note that a twelve-year sentence for six
criminal offenses, of which five are felonies, is not properly labeled “excessive.” Therefore, we,
affirming the trial court, order that the four Class C felonies be served consecutive to each other.

                                            Conclusion

       For these reasons, the sentences as imposed by the trial court are affirmed in all respects.


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      ___________________________________
      JOHN EVERETT WILLIAMS, JUDGE




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