         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 25, 2001

              STATE OF TENNESSEE v. ANTONIO TERAN SEAY

                     Appeal from the Criminal Court for Wilson County
                    No. 99-0344, 99-0344E  John D. Wootten, Jr., Judge



                     No. M2000-01696-CCA-R3-CD - Filed May 14, 2001


Upon his guilty plea, the Defendant was sentenced to two concurrent ten year sentences to be served
on community corrections. Several months into service of his sentences, the Defendant was arrested
and his community corrections sentences were revoked. The trial court subsequently resentenced
the Defendant to two consecutive ten year sentences. The Defendant now appeals, contending that
the trial court was without authority to impose consecutive sentences and that consecutive sentences
are improper. We affirm the trial court’s judgment.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN, JJ., joined.

Comer Donnell, Public Defender; Virginia Townzen, Assistant Public Defender, Lebanon,
Tennessee; and John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Antonio Teran Seay.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and David Durham, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The Defendant, Antonio Teran Seay, pled guilty to criminal responsibility for attempted
especially aggravated robbery and conspiracy to possess more than 26 grams of cocaine with intent
to sell or deliver. He was sentenced to two concurrent terms of ten years for these crimes, to be
served one year in confinement, day for day, with the balance on community corrections. Several
months into the community corrections program the Defendant was charged with possession of a
weapon and resisting arrest. He also failed a drug test. The trial court revoked the Defendant’s
community corrections sentences and ordered a new sentencing hearing. After the hearing, the trial
court resentenced the Defendant to a ten year sentence of incarceration for each of the offenses, to
be served consecutively. The Defendant now appeals the trial court’s imposition of consecutive
sentences. Upon our review of the record and relevant legal authority, we affirm the judgment of
the trial court.

        The Defendant initially contends that the trial court lacked the authority to change the service
of his sentences from concurrent to consecutive. We respectfully disagree. In State v. Carl Steven
McGill, No. 03C01-9409-CR-00345, 1995 WL 550793, at *3 (Tenn. Crim. App., Knoxville, Sept.
19, 1995), this Court upheld a trial court’s change of concurrent sentences to consecutive sentences
following the revocation of a community corrections sentence, holding that “any lawful sentence
within the defendant’s range which is justified by the facts, circumstances and sentencing laws and
principles may be ordered by the trial court in resentencing a defendant after a community
corrections sentence has been revoked.” See also Tenn. Code Ann. § 40-36-106(e)(4).1 The
Defendant’s contention regarding the trial court’s authority to modify his original sentences from
concurrent to consecutive is, therefore, without merit.

         The Defendant next contends that the trial court erred in ordering consecutive sentences
because he does not satisfy the criteria required for the imposition of consecutive sentences. When
an accused challenges the length, range, or manner of service of a sentence, 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. § 40-35-401(d). 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden
of showing that the sentence is improper rests upon the defendant. See Tenn. Code Ann. § 40-35-
401(d) Sentencing Commission Comments.

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and 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) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See State v. Brewer, 875 S.W.2d 298, 302 (Tenn. Crim. App. 1993);
State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102,
-103, -210.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court 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 modify the sentence even if we would have



         1
           “The court shall also possess the power to revoke the [community corrections] sentence imposed at any time
due to the conduct of the defendant . . . and the court may resentence the defendant to any appropriate sentencing
alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense
committed, less any time actually served in any community-based alternative to incarceration.”

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preferred a different result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       A trial court may order sentences for multiple convictions to run consecutively if it finds by
a preponderance of the evidence that, inter alia,
               (1) [t]he defendant is a professional criminal who has knowingly
                devoted [his or her] life to criminal acts as a major source of
                livelihood;
                (2) [t]he defendant is an offender whose record of criminal activity is
                extensive; [or]
                ...
                (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[.]

Tenn. Code Ann. § 40-35-115(b). In order to impose consecutive sentences on the basis that the
defendant is a dangerous offender, the trial court must make two additional findings: that an
extended sentence is necessary to protect the public against further criminal conduct by the
defendant, and that the consecutive sentences reasonably relate to the severity of the offenses
committed. See State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Moreover, no matter which
basis the trial court relies upon in imposing consecutive sentences, the actual length of the sentence
must be “justly deserved in relation to the seriousness of the offense[s]” and “no greater than that
deserved for the offense[s] committed.” See Tenn. Code Ann. §§ 40-35-102(1), -103(2); see also
State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999).

        In this case, the presentence report reveals that the Defendant was eighteen at the time he
committed the instant offenses. In addition to the charges to which he pled guilty, the Defendant was
also charged with conspiracy to commit especially aggravated robbery and three counts of criminal
responsibility for the commission of aggravated assault.2 His prior record includes two convictions
of misdemeanor assault and juvenile convictions of aggravated assault and possession of cocaine.
The Defendant also admitted to using marijuana and cocaine. He has never held a job. He had been
serving his sentence on community corrections less than six months when he was again arrested for
a weapons charge and for resisting arrest; he also tested positive for cocaine use. The Defendant’s
instant convictions stem from a drug deal/robbery attempt involving an agent with the Tennessee
Bureau of Investigation and two bystanders. While the Defendant acted as “lookout,” his two co-
defendants shot the TBI agent twice in the head. Although the agent lived, he required multiple
surgeries and lost the sight in one of his eyes.

         In considering whether to order the Defendant’s sentences to be served concurrently or
consecutively, the trial court found that the Defendant’s record of criminal activity is extensive. The
trial court declined to find the Defendant a professional criminal, but did find him to be a dangerous


       2
           These charges we re nolled in conjunction with the D efendant’s guilty pleas to the instant offenses.

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offender on the basis that his behavior in committing the instant crimes indicated little or no regard
for human life and showed no hesitation about committing a crime in which the risk to human life
was high. The trial court did not make any other specific findings with respect to its decision to run
the Defendant’s sentences consecutively.

           We agree with the trial court that the Defendant’s record of criminal activity is extensive.
Although many of the Defendant’s crimes were committed while he was a juvenile, “a juvenile
record of criminal conduct may properly be considered in assessing a suitable sentence after a felony
conviction [as] an adult.” State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). The
Defendant’s juvenile record includes drug use, some of it frequent;3 an aggravated assault; and
possession of cocaine. As an adult he garnered two misdemeanor assault convictions (one reduced
from aggravated assault); the two instant convictions; and numerous other arrests, all before he
turned twenty years old. We find that the Defendant’s record is sufficient to satisfy the definition
of “extensive.” See, e.g., State v. Pettus, 986 S.W.2d 540, 545 (Tenn. 1999) (the defendant’s prior
record of two thefts, an unlawful weapons conviction, contributing to the delinquency of a minor,
and driving on a revoked license was sufficient to support consecutive sentences). Pursuant to the
Lane decision, we also conclude that a twenty year sentence is “‘justly deserved in relation to the
seriousness of the offense[s]’” and is “‘no greater than that deserved for the offense[s] committed.’”
Lane, 3 S.W.3d at 460 (citations omitted). This issue is therefore without merit.

        Although consecutive sentences may be based solely upon a finding of a record of extensive
criminal activity, we also agree with the trial court that the Defendant satisfies the definition of a
dangerous offender. The instant offenses resulted in the victim being shot twice in the head while
two innocent bystanders stood by. The victim suffered permanent serious injury and has had
multiple surgeries. Clearly, this Defendant engaged in behavior showing no hesitation about
committing crimes in which the risk to human life is high and little or no regard for human life.
Moreover, shortly after being released on community corrections the Defendant was caught using
cocaine and carrying a weapon. An armed man who uses cocaine while serving a sentence for
almost killing a TBI agent continues to demonstrate conduct worthy of “dangerous offender” status.
Additionally, the record supports a finding that an extended sentence is necessary to protect the
public against further criminal conduct by this Defendant. See Wilkerson, 905 S.W.2d at 939.
Given his age and criminal history, it is apparent that the only time the Defendant is not committing
crimes is when he is incarcerated. The record also supports a finding that the effective sentence of
twenty years reasonably relates to the severity of the instant crimes. Id. Accordingly, we find no
error in the trial court’s imposition of consecutive sentences on the basis that the Defendant is a
dangerous offender.

       The Defendant having failed to carry his burden of showing that his sentence is improper,
we affirm the judgment of the trial court.



        3
           According to the presentence report the Defendant admitted using cocaine and marijuana, “using marijuana
at least every oth er day since h e was 16 ye ars old.”

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      ___________________________________
      DAVID H. WELLES, JUDGE




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