        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 21, 2010

              STATE OF TENNESSEE v. BRITTANY SCOTT PYE

                   Appeal from the Circuit Court for Maury County
                      No. 17640     Stella L. Hargrove, Judge




                  No. M2009-00825-CCA-R3-CD - Filed May 11, 2010


The Defendant, Brittany Scott Pye, was convicted by a Maury County jury of sale of .5 grams
or more of cocaine, a Class B felony. See Tenn. Code Ann. § 39-17-417. Following a
sentencing hearing, the trial court imposed a fifteen-year sentence for this conviction, which
was ordered to be served consecutively to two prior sentences. In this direct appeal, the
Defendant challenges only the imposition of consecutive sentences. After a review of the
record, we affirm the judgment of the trial court. However, we must remand for entry of a
corrected judgment.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Larry Samuel Patterson, Jr., Columbia, Tennessee, for the appellant, Brittany Scott Pye.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; and Mike Bottoms, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                                   Factual Background

       This case stems from the October 20, 2006 sale of a bag of crack cocaine to a
confidential informant. The confidential informant telephoned the Defendant to meet her at
a car wash. After the Defendant’s arrival, the confidential informant got into a car with the
Defendant and Brandon Russell. The informant put her money on the console of the car and
“picked up the dope.” The informant returned to the officer with a quantity of crack cocaine
weighing .8 grams. The sale was observed by an undercover police officer and was recorded
by video camera. Following a jury trial, the Defendant was convicted of sale of .5 grams or
more of cocaine, a Class B felony. See Tenn. Code Ann. § 39-17-417(a), (c)(1).

                                    Sentencing Hearing
       A sentencing hearing was held on March 19, 2009. At this hearing, Emily Thigpin,
an employee of the Tennessee Board of Probation and Parole, testified that she prepared the
presentence report in the Defendant’s case. Ms. Thigpen explained that the Defendant
provided a written statement for her report, wherein the Defendant professed he was innocent
of the crime:

              I know I put myself in this situation but I’m innocent because there was
       another person in this case and was not charged. But I’ve sold drugs in the
       past and have taken them. So I know I do have a problem and I didn’t do this
       crime like they say I have.

The Defendant also admitted that he needed drug treatment and stated that he “would like
to see [his] children grow up . . . .” However, on the questionnaire the Defendant indicated
that he had never used alcohol or drugs. The Defendant reported no physical or mental
health problems.

       Ms. Thigpen reported that the Defendant had failed three drug tests while on
probation, testing positive for (1) marijuana, benzodiazepines and cocaine on April 12, 2005,
(2) marijuana on May 2, 2005, and (3) marijuana and cocaine on December 12, 2005.
According to Ms. Thigpen, the Defendant’s probation was revoked based upon the instant
conviction.

        As for the Defendant’s employment history, the Defendant reported working for A-
Plus Cleaning, being supervised by Debra Pye, and for CPS, making wrapping paper. The
Defendant did not provide dates of employment or any other information. Ms. Thigpen
believed Debra Pye was the Defendant’s aunt. Ms. Pye sent a letter to Ms. Thigpen stating
that the Defendant worked for her approximately three days a week and earned $40 per day
cleaning office buildings and homes. When asked about the Defendant’s education, Ms.
Thigpen stated that the Defendant attended Columbia Central High School through the tenth
grade; he did not have a high school diploma and had not obtained a GED.

      The Defendant’s mother, Gloria Arelne Pye, confirmed that the Defendant worked for
Debra Pye cleaning houses and office buildings about three days a week. She also testified

                                             -2-
that the Defendant worked for CPS for about five months. Before his incarceration, the
Defendant lived with his mother. His ten-year-old daughter also lived there; however, his
three-year-old son resided with the child’s mother. The Defendant’s mother was not aware
that the Defendant had a drug problem. When asked if she had noticed a difference in her
son since his incarceration, she stated that “[h]e seems to be more mature now” and “his life
is more focused.”

       On cross-examination, the Defendant’s mother testified that the Defendant had also
worked at Lasko for about three or four months. She also stated that the Defendant had
supported his children financially when he was living with her and that he had sometimes
given her money to “help out.” According to the Defendant’s mother, the Defendant did not
“believe they should have found him guilty.”

        The twenty-seven-year-old Defendant also testified at his sentencing hearing. He
acknowledged that he was on probation for ten years at the time he committed this offense.
He admitted to selling cocaine, stating, “I didn’t wanna work at the time. I know I’ve made
the wrong choices.” When asked if he had a drug problem, he confirmed that he had used
drugs in the past. He reported that he was taking a GED class while in prison and was trying
to get into a “therapeutic drug program[.]” The Defendant testified that, after his release, he
wanted to care for his children and to obtain “a real job[.]” He wanted to “just be a better
person[.]”

        On cross-examination, the Defendant admitted he violated the terms of his probation
by taking drugs. He claimed he started attending drug classes after his positive drug tests.
When asked about his claim of innocence, the Defendant stated that he “was around the
wrong person at the wrong time.” He stated that he was not the person who handed the
cocaine to the confidential informant, but admitted that he did take the money from her and
that the drugs belonged to him.

        The presentence report reflected that, in addition to the three felony convictions used
to establish is Range II classification (facilitation of armed robbery, cocaine possession with
intent to sell, and attempted sale of cocaine), the Defendant also had four misdemeanor
convictions for driving while his license was suspended and failing to produce a license upon
demand. The presentence report also showed that the Defendant had been given an
opportunity to participate in a rehabilitation program. Following an assessment with the
Multi-County Alcohol/Drug Safety Program in May 2005, it was recommended that the
Defendant get further substance abuse treatment, and he attended treatment on an out-patient
basis until October 2005. He was dismissed from the program for failing to comply with the
attendance policy.



                                              -3-
        At the conclusion of the hearing, the trial court sentenced the Defendant to fifteen
years as a Range II, multiple offender. The trial court further ordered this sentence to be
served consecutively to Maury County cases number 12011 (three-years for facilitation of
attempted robbery) and number 12796 (eight years for cocaine possession with intent to
sell).1 This appeal followed.2

                                            Analysis
       The Defendant argues that the trial court erred in ordering him to serve consecutive
sentences. On appeal, the party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
When a defendant challenges the length, range, or manner of service of a sentence, it is the
duty of this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;



        1
          From our review of the record, it appears that the trial court intended this fifteen-year sentence to
be serve consecutively to the remaining ten years in case numbers 12796 and 16088, not 12011. We remand
only for correction of the judgment form.
        2
          These 2002 sentences were consecutive terms, resulting in an effective eleven-year sentence. In
2006, the Defendant was convicted in case number 16088 of attempted sale of cocaine, that two-year
sentence to be served consecutively to the effective eleven-year sentence. It was agreed at the Defendant’s
May 27, 2008 revocation hearing that his sentence in case number 12011 had expired. His probation (ten
years remaining) had already been revoked at the time of this sentencing hearing.

                                                     -4-
 and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:

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




                                               -5-
       In addition to these criteria, consecutive sentencing is also subject to the general
sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed,” that it “should be the least severe measure necessary
to achieve the purposes for which the sentence is imposed,” and that the defendant’s
“potential for rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5).
Additionally, we are advised that “the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved.” Tenn. Code Ann. § 40-35-115,
Sentencing Commission Comments.

         Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of a number of criteria
by a preponderance of the evidence. In this case, the trial court ordered consecutive
sentences based on its findings that (1) the Defendant “is a professional criminal who has
knowingly devoted [his] life to criminal acts as a major source of livelihood”; (2) the
Defendant “is an offender whose record of criminal activity is extensive”; and (3) the
Defendant “is sentenced for an offense committed while on probation.” See Tenn. Code
Ann. § 40-35-115(b)(1), (2), (6).

        The record in this case supports the findings underlying the trial court’s order that the
Defendant’s sentences be served consecutively. The twenty-seven-year-old Defendant had
spent much of his adult life in the criminal court system and had no significant employment
history. The trial court was “skeptical” of his employment with his aunt, concluding that he
is “a cocaine dealer.” His prior criminal history included convictions for facilitation of
aggravated robbery, cocaine possession with intent to sell, attempted sale of cocaine, and
four misdemeanors. The Defendant acknowledged that he was on probation at the time he
committed the instant offense. The trial court also found that the Defendant did not accept
full responsibility for his actions and that his potential for rehabilitation was poor. We note
that, in addition to his prior probation violation by testing positive for drugs three times, the
Defendant had previously been given an opportunity to participate in a rehabilitation
program, and he was dismissed from that program for failing to comply with the attendance
policy.

        The Defendant makes no forceful argument that these criteria do not apply; he simply
contends concurrent sentencing is “more appropriate” and “reasonably related to the severity
of the offenses involved.” The record supports the imposition of consecutive sentences
under any of the three criteria found by the trial court. We conclude that the trial court did
not abuse its discretion by ordering consecutive sentences. The Defendant is not entitled to
relief on this issue.




                                               -6-
                                      Conclusion
       We conclude that the trial court did not err in its sentencing determination. The
judgment of the Maury County Circuit Court is affirmed. This case is remanded solely for
the purpose of a corrected judgment form in accordance with this opinion.




                                                _________________________________
                                                DAVID H. WELLES, JUDGE




                                          -7-
