           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE              FILED
                        AUGUST 1998 SESSION
                                                      October 6, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9710-CC-00478
           Appellee,            )
                                )    ROBERTSON COUNTY
VS.                             )
                                )    HON. ROBERT W. WEDEMEYER,
JASON L. WINCHESTER,            )    JUDGE
                                )
           Appellant.           )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


WILLIAM R. UNDERHILL                 JOHN KNOX WALKUP
512 Main St.                         Attorney General & Reporter
Springfield, TN 37172
                                     DEBORAH A. TULLIS
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     JOHN W. CARNEY
                                     District Attorney General

                                     DENT MORRISS
                                     Asst. District Attorney General
                                     500 South Main St.
                                     Springfield, TN 37172



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



               The defendant pled guilty to burglary, carjacking, and aggravated assault.

Ultimately, he received an effective sentence of thirteen years incarceration: ten years

for carjacking; five years for aggravated assault, to be served concurrently with the

carjacking sentence; and three years for burglary, to be served consecutively to the ten

year carjacking sentence. The defendant now appeals, arguing that the trial court

improperly imposed consecutive sentences under T.C.A. § 40-35-115. We affirm.



               In April 1996, while under the influence of alcohol, marijuana and cocaine,

the defendant burglarized a residence and stole several items of personal property, which

he took back to his house. He admits he intended to sell the property he had stolen. The

defendant was arrested and confessed to the burglary later that day.



               Three months later, again under the influence of alcohol and crack cocaine,

the defendant and a codefendant approached a vehicle with three individuals sitting

inside the vehicle and one pumping gas. The codefendant pointed a pistol at the

individual pumping gas and threatened to kill all of them if the three passengers did not

exit the vehicle. Meanwhile, the defendant held a screwdriver in a threatening manner.

Once the passengers exited the car, the defendant and codefendant drove away,

apparently on their way to Springfield so the defendant could fight another person. They

were arrested after they crashed the vehicle several miles away.           After he was

transported to the police station, the victims identified the defendant and codefendant.

During an interview with one of the police detectives, the defendant repeatedly threatened

to kill the arresting officer.




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               On July 23, 1996, the defendant was indicted for aggravated burglary and

for theft over five hundred dollars ($500). On October 28, 1996, the defendant was also

indicted for reckless endangerment, carjacking, evading arrest, and four counts of

aggravated assault. Six months later, the defendant entered an open guilty plea to

burglary, carjacking, and one count of aggravated assault.



               At the sentencing hearing, the trial court sentenced the defendant to

incarceration for three years for his burglary conviction, eleven years for his carjacking

conviction, and five years for his aggravated assault conviction. After finding, by a

preponderance of the evidence, that the defendant “has an extensive record of criminal

activity” and “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,” the trial court ordered the defendant to serve the eleven year carjacking sentence

consecutive to his five year aggravated assault sentence and his three year burglary

sentence. The defendant moved to amend his sentences. After determining that the

defendant’s sentence should be modified in order to correct any disparity between the

defendant’s sentence and his codefendant’s sentence, the trial court filed an amended

judgment and reduced the defendant’s sentence for carjacking from eleven to ten years.

The trial court further amended the defendant’s sentence to reflect that the three year

burglary sentence would run consecutive to his ten year carjacking sentence, but

concurrent with his five year aggravated assault sentence.



               The defendant now appeals, arguing that the trial court improperly ordered

consecutive sentences under T.C.A. § 40-35-115(b)(2) & (4). First, even though neither

party mentions Tennessee Rule of Criminal Procedure 32(c)(3)(C),1 we note that we fail


       1
         This rule provides for mandatory consecutive sentences where a defendant commits a felony
while on bail for another crime and is convicted of both crimes.

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to see how Rule 32(c)(3)(C) would not apply in this case to require mandatory

consecutive sentences for the defendant. The record indicates that the defendant was

arrested in April 1996 on the burglary charge, and if that is true, then the defendant would

have been released on bail at the time he committed the carjacking and aggravated

assault offenses. Despite this, however, the trial court and assistant district attorney

general agreed that T.C.A. § 40-35-114(13)(A)2 would not apply to enhance the

defendant’s sentence, a decision that we do not understand given the record before us.

Rule 32(c)(3)(C) was never discussed on the record. We cannot remedy this apparent

discrepancy on appeal, but we note that if, in fact, the defendant had been released on

bail for the burglary offense at the time he committed the carjacking and aggravated

assault offenses, Rule 32(c)(3)(C) would require mandatory consecutive sentencing.



                  We can dispose of this case without resolving this problem in the record,

however. The trial court may, in its discretion, impose sentences to run concurrently or

consecutively.        T.C.A. § 40-20-111(a).              The Legislature has provided for various

instances when consecutive sentences may be appropriate, including when the trial court

finds, by a preponderance of the evidence, that the defendant “is an offender whose

record of criminal activity is extensive” or “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.” T.C.A. § 40-35-115(b)(2), (4). Either of these

findings, or any of the other findings enumerated in § 40-35-115(b), would qualify a

defendant for consecutive sentencing. In this appeal, the defendant first contends that

his record of criminal activity is not so extensive as to justify consecutive sentences. See

§ 40-35-115(b)(2). We disagree.



         2
         This statu te pro vides that a defe nda nt’s s ente nce ma y be en han ced for a f elony o ffen se if it
was co mm itted while on b ail for anoth er felony off ense a nd the de fendan t is ultimately co nvicted o f both
offenses.

                                                         4
              The record reflects that the defendant, age seventeen at the time he

committed the offenses in this case, was convicted as a juvenile for disorderly conduct

and for “violation of a valid court order” for truancy. From late 1996 to early 1997, while

the disposition of the instant cases remained pending, he was arrested for public

intoxication, twice convicted of contributing to the delinquency of a minor, and once

convicted for violating his probation.     Also, the defendant admits drinking alcohol,

smoking marijuana, and using crack cocaine “on a regular basis,” if not every day then

every other day. Given this sort of criminal behavior, the trial court did not err in finding

that the defendant had an extensive record of criminal activity under § 40-35-115(b)(2).



              “When a defendant falls within the statutory classifications for eligibility to

be considered for consecutive sentencing, the only remaining considerations are whether

(1) the sentences are necessary in order to protect the public from further misconduct by

the defendant and (2) <the terms are reasonably related to the severity of the offenses.’"

State v. Zachery L. Barnes, C.C.A. No. 01C01-9704-CC-00138, Rutherford County

(Tenn. Crim. App. filed March 5, 1998, at Nashville)(citing State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn.1995)). Here, the trial court failed to make these findings on the record.

Even so, the defendant admitted drinking alcohol, smoking marijuana, and using crack

cocaine to excess nearly every day, including the days he committed the crimes charged

in this case. Supposedly, the defendant attended a drug rehabilitation program in

December 1996, but he also admitted that since then, he has consumed alcohol, which

is contrary to the program’s plan of aftercare. Besides his underage drinking and illegal

drug use, the defendant’s criminal record indicates a steadfast disregard for authority and

refusal to adjust his behavior to society’s standards. Instead, with the instant offenses

of burglary, carjacking, and aggravated assault, the defendant’s behavior has escalated

to a more violent and dangerous nature. The defendant, intoxicated on alcohol and



                                             5
drugs, burglarized a home and intended to sell the property he had stolen, but

unfortunately for him, he was arrested before he could do so. Then, three months later

and again intoxicated on alcohol and drugs, the defendant and his codefendant

threatened several people with dangerous weapons in order to hijack a car so he could

travel to Springfield to fight another person.    When later arrested, the defendant

repeatedly threatened the life of the arresting officer. Under such circumstances,

consecutive sentences are necessary to protect the public from the defendant’s

misconduct and are reasonably related to the severity of the offenses committed. See

Barnes, C.C.A. No. 01C01-9704-CC-00138. As such, the trial court did not abuse its

discretion in imposing consecutive sentences under § 40-35-115(b)(2).



             Because the defendant’s eligibility for consecutive sentences must be

shown under only one of the statutory classifications listed in § 40-35-115(b), we need

not address the defendant’s other argument that the trial court erred in ordering

consecutive sentences on the basis he is a “dangerous offender” as defined in § 40-35-

115(b)(4). The defendant’s sentences are affirmed.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
THOMAS T. W OODALL, Judge



______________________________
L. TERRY LAFFERTY, Special Judge




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