        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JANUARY SESSION, 1998          March 5, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9704-CC-00138
                            )
      Appellee,             )
                            )
                            )    RUTHERFORD COU NTY
VS.                         )
                            )    HON. J.S. DANIEL
ZACHERY L. BARNES,          )    JUDGE
                            )
      Appe llant.           )    (Sentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF RUTHERFORD CO UNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

WILLIAM A. OSBORNE               JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
201 West Main Street
Murfreesboro, TN 37130           GEORGIA BLYTHE FELNER
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 WILLIAM C. WH ITESELL
                                 District Attorney General
                                 3rd Floor, Judicial Building
                                 Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

         The Defendant, Zachery Leroy B arnes, a ppeals as of right p ursuan t to

Rule 3, Tennessee Rules of Appellate Procedure. Pursuant to a negotiated plea

agreement with the State, he p leaded guilty to six cou nts of burglary 1 as a

Multiple, Range II offender and agreed to sentences of six years for each offense.

After a hea ring, the trial court ordered that some of the sentences be served

consecu tively, resulting in an effective sentence of eighteen years in the

Department of Correction. In this appeal, the Defenda nt argues that the trial court

erred by imposing consecutive sentences. We affirm the judgment of the trial

court.



         The Defenda nt was indicted o n several coun ts of burglary and the ft which

occurred in the Murfreesbo ro area of Rutherford County between July 6, 1996,

and July 15 , 1996 . On Ju ly 6th, the Defe ndan t burgla rized h is former employer.

During the commission of a burglary on July 13, 1996, an officer with the

Murfreesbo ro Police Dep artment attem pted to arrest the Defendant. After the

officer put a handcuff on one of the Defendant’s wrists, the Defendant managed

to escap e. The Defendant committed four more burglaries before he was picked

up by police.        Detective Lieutenant Jim Gage investigated the cases and

developed the Defendant as a suspect. The Defendant accompanied him to the

Murfreesboro Police Department where he made a full confession to all of the

burglaries. This inclu ded infor mation about the bu rglary of Nesbitt House, of




1
    Tenn. Code Ann. § 39-14-402.

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which the police were not yet aware.            The Defendant was indicted for the

following offenses:




                               Indicted Offenses
 Indictment      Date/         Coun t I         Coun t II    Coun t III   Coun t IV
                Location
   37778        7/14/96       Burglary            Theft
                Nesb itt                         < $500
                House
   37779        7/14/96       Burglary            Theft
                Lebeau                           < $500
                 Apts.
   37780        7/14/96       Burglary
                 Allen
                House
   37781         7/13/96      Burglary            Theft       Assa ult    Evading
                 Pittard                         < $500                    Arrest
                 School
   37782        7/15/96       Burglary
               Nott. Apts.
   37783         7/6/96       Burglary            Theft      Vandalism
                Mi-Tech                          < $500




      On October 14, 1996, the Defendant pleaded guilty to six counts of

burglary and agreed to six year sentences for each, the midrange of the sentence

length for burglary, a Class D felony, as a Rang e II, 35% , multiple o ffender. See

Tenn. Code Ann. §§ 40-35-101; 39-14-402(c).                 The other counts in the

indictme nts were dismissed.      The plea agreement provided that the ne wly

imposed senten ces wo uld run co nsecu tively to a prior, unse rved sen tence, w ith

the trial court to determine whether the new sentences would be served



                                          -3-
conse cutively or concurrently.      A sentencing hearing was conducted on

November 22, 1996.



      The Defendant testified that the burglaries were motivated by his crack

cocaine addiction and that he was not thinking straight when he committed the

offenses. He chose to burglarize businesses to avoid hurting anyone. The

Defendant gave a voluntary confession because it was the right thing to do. He

requested help with h is drug proble m, bu t adm itted tha t he ha d not p reviou sly

sought any treatment on his own. While in the Rutherford County Jail, the

Defendant achieved trusty status but lost it because of improper behavior with a

fema le trusty. He also admitted that he has had a number of prior convictions.




      The pres entence rep ort indicates that the Defendant was 31 years old at

the time of sentencing, single, and the father of three children. He graduated

from Riverd ale High School in Murfreesboro. He had been employed by Hodge

Manufacturing Company from 1987 to 1994. He committed other offen ses in

1994 and was incarcerated, then was employed by Mi-Tech Steel after he was

released. He wo rked the re from Jan uary, 1996, until his arrest for the current

offens es in July, 1996. The Defendant has had numerous convictions, most of

which occurred in 1994.       These include three burglaries, one aggrava ted

burglary, two burglaries of automobiles, three the fts valued under $500, and one

conviction for forgery. The Defendant was on probation when he committed the

current o ffenses.




                                         -4-
       On the matter of consecutive sentencing, the trial court found that the

Defendant had an exten sive prior criminal reco rd and applied Tennessee Code

Annotated section 40-35 -115(b)(2). The trial court also found that the Defendant

was on probation when he committed the offenses and applied Tennessee Code

Annotated sectio n 40-3 5-115 (b)(6) in suppo rt of consecutive sentencing. As a

result, the trial judge ordered that the offenses which occurred on July 14, 1996,

in indictme nts 377 78, 377 79 and 37780 , to run con currently to each o ther. He

ordered that the offens e com mitted on Ju ly 13, 19 96, in in dictment 37781 run

conse cutively to the offenses in 37778, 37779 and 37780. He ordered the

offense committed on July 15, 1996, to run consecutively to the other offenses.

Finally, in recognition of the Defendant’s cooperation with the police, the trial

judge ordere d that th e offen se in ind ictme nt 377 83 sh ould run concurrently to the

other offenses. The result was an effective eighteen-year sentence.



       In this ap peal, the Defend ant argues tha t the trial court erred by imposing

consecu tive sentences. When an accused challenges the length, range, or the

manner of service of a sente nce, this court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the

trial court are correct. Tenn. Code Ann. § 40 -35-4 01(d) . This p resum ption is

"conditioned upon the affirm ative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circums tances ."

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence, this court must consider: (a)

the eviden ce, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

                                          -5-
sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



         If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not m odify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



         W e first note that the determination of the length of the sentences imposed

was made pursua nt to the ne gotiated p lea agre emen t. The Defendant contends

that the trial court erred by failing to consider a sta tutory mitigating factor, nam ely,

that he neith er cause d nor thre atened serious b odily injury. See Tenn. Code

Ann. § 40-35-113(1). He also argues that the trial judge did not consider that the

offenses were motivated by his cocaine habit. We find this argument to be

unpersuasive. The application of statutory m itigating factors is relevant when

setting the length of a sentence and the factors must be considered by the trial

court.    Tenn . Cod e Ann . § 40-3 5-210 (b)(5).     H ere, ho weve r, each spec ific

sentence had alre ady bee n agree d upon . The trial co urt was only considering

the issue of consecutive sentences. That proce dure is governed by Tennessee

Code Annotated section 40-35-115. Specifically, that provision states: “If a

defendant is convicted of more than one (1) criminal offense, the court shall order

                                           -6-
sentences to run consecutive ly or con curren tly as pro vided by the criteria in this

section.” Tenn. Code Ann. § 40-35-115(a)(emphasis added). The trial court

considered the factors in section 40-35-115(b). Nothing requires the trial judge

to specifically consider m itigating factors when considering co nsecutive

sentences, although these factors may be relevant to the decision . We do note

that, although no t required, the tria l judge did ac coun t for the D efend ant’s

cooperation with the police when o rdering one c ount to run con currently.

There fore, this issu e is withou t merit.



       The Defendant also argues that the trial cou rt inapp ropria tely considered

the fact that he evaded arrest as a reason to mandatorily impose con secutive

sentences pursuant to Rule 32(c)(3)(B) of the Tennessee Rules of Criminal

Procedure.     He argues that this provision should not apply. Although the trial

judge mentioned the fact that the De fendant evad ed arrest, nothing in the record

indicates that this provision was relied upon in imposing consecutive sentences.

Thus , this issue h as no m erit.



       The trial judge articulated on the record that he relied upon Tennessee

Code Annotated se ction 40-35-11 5 (b)(2) and (b)(6) w hen he ord ered

consecu tive senten ces. It is clear from this re cord tha t the Defe ndant is an

offender whose record of criminal activity is extensive and that the Defendant was

being sentenced for an offense com mitted while on probation. Tenn. Code Ann.

§ 40-35-115(b)(2) and (6); see State v. Tuttle , 914 S.W.2d 926, 933 (Tenn. Crim.

App. 1995). T hese fa ctors auth orize the trial court to conside r consecutive

sentences as a part of his dis cretion ary au thority. W hen a defen dant fa lls within

the statutory classifications for eligibility to be considered for consecu tive

                                             -7-
sentencing, the only remaining considerations are whether (1) the sentences are

necessa ry in order to protect the public from further misconduct by the defendant

and (2) "the term s are rea sonab ly related to th e severity of the offen ses." State

v. Wilkerson, 905 S.W .2d 933, 938 (Tenn. 199 5).



      The trial court clearly had a basis for conclud ing that conse cutive

sentences are necess ary to protect the pu blic. These offen ses were committed

while the defendant was on intensive probation, thus, he has demonstrated a lack

of amenability for rehabilitation. The fact that the Defendant chose to violate a

position of trust by burglarizing the business of his employer is of special

concern. See State v. Moore , 942 S.W .2d 570 , 574 (T enn. C rim. App . 1996).

Furthermore, the Defendant has a serious crack cocaine addiction which he has

been unsuccessfu l in getting treatment for on his own. Therefore, we cannot

conclude that the trial court erred or abused his discretion by imposing

consecutive sentences in this case.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                         -8-
