        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 8, 2011

                  STATE OF TENNESSEE v. CALVIN OLIVER

              Direct Appeal from the Circuit Court for Marshall County
                        No. 14989     Robert Crigler, Judge


                  No. M2010-01135-CCA-R3-CD - Filed July 8, 2011


The defendant, Calvin Oliver, appeals his effective sentence of twenty-two years in the
Department of Correction. On appeal, he asserts that the trial court erred in the imposition
of consecutive sentencing. Following review of the record, we find no error and affirm the
sentences as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Oliver.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E.
(Eddie) Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

         The relevant facts underlying the defendant’s convictions, as recited by this court
on direct appeal, are as follows:

       On the night of March 18, 2002, the victim and her boyfriend were in bed
       when some men kicked open the victim’s back door and forced their way into
       her home. The victim’s boyfriend was awakened, poked in the back with a
       rifle, and told that he was going to be shot. The gun also was pointed at the
       victim, the victim’s young daughter, and another woman who was staying in
       the home. The victim gave the men her pocketbook, and they fled the scene.
       When the police arrived, they found masks, gloves, and a rifle. The police also
       stopped a car that they had seen in the area immediately before the crimes and
       arrested two of the robbers. At some point, the police arrested the defendant,
       who gave a statement and admitted his involvement in the offenses.

State v. Calvin Jerome Oliver, No. M2002-02438-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Aug. 21, 2003). Thereafter, on June 19, 2002, the defendant pled guilty to
aggravated robbery, aggravated burglary, two counts of attempted aggravated robbery, and
three counts of aggravated assault. Subsequently, the trial court merged the two attempted
aggravated robbery convictions into the aggravated robbery conviction and sentenced the
defendant, as a Range II offender, to eighteen years for the aggravated robbery conviction.
The court also imposed sentences of seven years for the aggravated burglary conviction and
eight years for each of the aggravated assault convictions. Each of these sentence lengths
was based upon the court’s finding of various enhancement factors. The court also imposed
partial consecutive sentencing and ordered the defendant to serve his effective sentence of
twenty-six years in the Department of Correction.

        The defendant’s convictions and sentences were then affirmed on direct appeal by a
panel of this court. Id. Likewise, the denial of the defendant’s petition for post-conviction
relief was also affirmed on appeal. Calvin Jerome Oliver v. State, No. M2004-01564-CCA-
R3-PC (Tenn. Crim. App. at Nashville, Mar. 3, 2005). The defendant then filed a petition
for habeas corpus relief in the federal courts, alleging that he was denied the effective
assistance of counsel in sentencing because trial counsel failed to introduce expert testimony
regarding the defendant’s mental health condition as a mitigating factor. The federal court
granted the defendant’s petition and remanded the case to the trial court for a new sentencing
hearing. Calvin Oliver v. Tony Parker, Warden, No. 1:05-00058 (M.D. Tenn., Dec. 21,
2007). A re-sentencing hearing was held, at which the defendant expressed his desire to be
sentenced under the law prior to changes made by the 2005 sentencing amendment. The trial
court again found applicable enhancing factors and sentenced the defendant to an effective
sentence of twenty-six years. The defendant then appealed the imposed sentence to this
court. State v. Calvin Oliver, No. M2008-01824-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Feb. 26, 2010). As relevant here, a panel of this court summarized the proof
presented at the re-sentencing hearing as follows:

              According to the presentence report [which was introduced into
       evidence by the State], [the] Defendant, who was twenty-four years old at the
       time of sentencing, committed his first offense of shoplifting when he was
       eleven years old. When he was twelve years old, Defendant had three juvenile
       adjudications for theft of property valued at $500 or less, and one juvenile

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       adjudication for theft of property valued between $500 and $1,000. Defendant
       had one juvenile adjudication the following year for criminal trespassing, and
       he was found in violation of his probation when he was fourteen years old.
       When he was sixteen years old, Defendant had one juvenile adjudication for
       joyriding. In addition, the report revealed that Defendant was placed in the
       custody of the Department of Human Services on several occasions and
       escaped numerous times from the facility in which he was then residing. On
       one occasion, Defendant stole the facility’s van to effectuate his escape.
       Defendant was apprehended on each occasion and returned to the
       Department’s custody. Defendant was released from the Wilder Youth Center
       on December 19, 1995 when he turned eighteen.

              In 1996, Defendant was convicted of delivery of more than 0.5 grams
       of cocaine, a Class B felony, and was sentenced to ten years. In 1996,
       Defendant was also convicted of theft of property valued between $1,000 and
       $10,000, a Class D felony; burglary of a vehicle, a Class E felony; and simple
       assault, a Class A misdemeanor. He was sentenced to three years for the theft
       conviction, two years for the burglary conviction, and eleven months, twenty-
       nine days for the misdemeanor conviction. In 1997, Defendant was convicted
       of criminal impersonation, a Class B misdemeanor. In 2002, Defendant was
       convicted of theft of property valued at $500 or less, a Class A misdemeanor,
       and evading arrest, a Class A misdemeanor. Defendant was sentenced to
       eleven months twenty-nine days for each conviction. His sentences were
       suspended after service of a short period of time in confinement, and
       Defendant was placed on probation. According to the presentence report,
       Defendant was on probation for these misdemeanor offenses when he
       committed the charged offenses. The presentence report indicates that
       Defendant was sentenced in 1996 to ten years for his drug conviction, and he
       was transferred to Boot Camp later that year. Defendant was released from
       Boot Camp on probation on February 12, 1997. His probation was revoked on
       October 8, 1997, and he was returned to the Department of Correction. The
       presentence report indicates that Defendant was paroled on September 10,
       2001, for this conviction.

Id. The State also called one of the victims in the case, who testified regarding what she
termed as “the most frightening event of her life.” The victim gave testimony concerning the
crimes, as well as their devastating effect on her and her family. The State also called the
lead detective in the case, who testified that, while they had apprehended other participants,
the defendant remained at large for two months.



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         The defendant testified, as well as Dr. Pamela Auble, a clinical neuropsychologist who
conducted a mental evaluation of the defendant. Dr. Auble testified that the defendant was
mentally retarded and had been so certified since he was nine years old. She further related
that, because of his mental retardation, the defendant was easily manipulated and displayed
poor judgment, describing him as “impulsive” and “a follower.” The defendant testified that
he had initially been reluctant to join the group in the robbery but that his friend kept begging
him to go. He acknowledged that he was a participant but claimed, in contradiction to facts
given by his co-defendants, that he remained outside the home as a lookout. He went on to
testify that most of his prior crimes were committed at the urging or encouragement of others.

       This court noted that, because the defendant elected to be sentenced under pre-2005
law and because the trial court had again applied enhancement factors not found by a jury,
the sentences in the case were in violation of Blakely v. Washington. See 542 U.S. 296
(2004) (imposition of a greater sentence based upon factual determinations made by a trial
judge, rather than by a jury, violates the Sixth Amendment). Accordingly, the case was
remanded, and a second re-sentencing hearing was held. The State again introduced the
presentence report into evidence without objection. Likewise, a transcript of the proof, as
summarized above, of the prior re-sentencing hearing was also admitted into evidence. No
other proof was presented, and the defendant again elected to be sentenced pursuant to the
law in effect at the time he committed the crimes.

        The trial court concluded that there were two applicable mitigating factors, those
being the defendant’s mental condition and his confession, although the court felt they were
entitled to slight weight. With regard to enhancement factors, the court, as limited by law,
applied only the factor for a prior criminal history. However, the trial court noted the
defendant’s extensive history and stated that the factor carried great weight. The trial court
then imposed a Range II fifteen-year sentence for the aggravated robbery and seven-year
sentences for each of the remaining convictions. Based on the imposition of partial
consecutive sentencing, the trial court imposed an effective sentence of twenty-two years in
the Department of Correction. The defendant has now timely appealed this sentence.

                                           Analysis

        On appeal, the defendant raises the single issue of whether the trial court erred in
imposing consecutive sentencing. On appeal, the party challenging the sentence imposed by
the trial court has the burden of establishing that the sentence imposed is improper. T.C.A.
§ 40-35-401 (2010), Sentencing Comm’n Cmts; 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

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correct. T.C.A. § 40-35-401(d). This presumption of correctness, however, “‘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. Carter, 254 S.W.3d 335, 344-
45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however,
the trial court applies inappropriate mitigating and/or enhancement factors or otherwise fails
to follow the Sentencing Act, the presumption of correctness fails,” and our review is de
novo. Id. at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992);
State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).

       It is within the sound discretion of the trial court to determine whether an offender
should be sentenced to consecutive or concurrent sentences. State v. James, 699 S.W.2d 463,
465 (Tenn. Crim. App. 1984). Consecutive sentencing guidelines are set forth in Tennessee
Code Annotated section 40-35-115(b), which provides, in relevant part, that a trial court may
order sentences to run consecutively if it finds by a preponderance of the evidence that the
defendant “is an offender whose record of criminal activity is extensive” or “is sentenced for
an offense committed while on probation.” T.C.A. § 40-35-115(b)(2),(6) (2010).
Additionally, the trial court must “specify the reasons” behind its imposition of a consecutive
sentence. See Tenn. R. Crim. P. 32(c)(1). Finally, we note that the criteria listed in the
statute are stated in the alternative; as such, only one need exist to support the
appropriateness of consecutive sentencing.

       In this case, the trial court made the following findings with regard to consecutive
sentencing:

               I still - - maybe getting the cart ahead of the horse, but before I forget
       it, I would also find, under [40-35-115], the defendant is an offender whose
       record of criminal activity is extensive.

                Also, it may be number 6 now, but at the time it was like - - you are
       right, it is number 6, that the offense was committed while on probation, in this
       case, parole, I guess.

               At any rate, for either of those independently, if I am in error in finding
       either of those apply, I find that either . . . 2 or 6 is sufficient in and of itself for
       consecutive sentencing, and that the sentence I am intending to impose, that
       sentence, effective sentence, will be justly deserved in relationship to the
       criminal conduct involved in this case, and no greater than that deserved.

        On appeal, the defendant challenges the court’s findings with regard to both factors.
First, with regard to factor (6), the defendant argues that use of this factor was improper

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because the court applied it based upon the fact that he was on parole rather than probation.
We agree with the defendant’s contention that probation and parole are not interchangeable
in this context, as the statute clearly states that to impose consecutive sentencing using this
factor requires a finding that the defendant was on probation. See State v. Hepburn, No.
M2008-01979-CCA-R3-CD (Tenn. Crim. App. at Nashville, Jul. 23, 2010). We also agree
that the trial court in the instant case did, in fact, make the statement that he was relying on
the factor because the defendant was on parole at the time the instant offenses were
committed.

       However, based upon our entire reading of the record, we cannot conclude that this
precludes application of the factor. While the trial court might have made an incorrect
statement, a reading of the transcript, as well as the prior sentencing transcript, reveals that
the court was well aware that the defendant was on probation at the time. A lengthy
discussion was held with regard to the matter. Thus, the court’s ambiguous reference to the
defendant’s parole status is irrelevant because the record establishes that the court was aware
of the defendant’s probationary status. Moreover, there is no dispute in the record that the
defendant was on probation for a misdemeanor theft conviction at the time he committed
these offenses. Thus, we conclude that this was a proper basis for the imposition of
consecutive sentencing.

        Regardless, even had we found the above factor to be in error, the trial court also
relied upon the defendant’s extensive criminal history in imposing the sentences. As we
noted above, the existence of a single factor is sufficient to support the imposition of
consecutive sentences. The defendant challenges application of this factor as well.
However, we must disagree with the premise of his argument. He asserts that the b(2) factor,
that the defendant is an offender whose record of criminal activity is extensive, actually
“applies only in the situation where the Defendant’s instant offenses are extensive and
continuing, in contrast to a situation where the Defendant has an extensive prior criminal
history. Here, all the instant convictions are related to a single criminal episode.” This
interpretation of the statute is simply erroneous and not in accord with the case law of this
state. See State v. Palmer, 10 S.W.3d 638 (Tenn. Crim. App. 1999) (Tennessee Code
Annotated section 40-35-115(b)(2) applies to offenders who have an extensive history of
criminal convictions and activities, not just to a consideration of the offenses before the
sentencing court.)

        The factor set forth in Tennessee Code Annotated section 40-35-115(b)(2), as it
literally states, is to be applied for offenders who have an extensive record of criminal
activity over the course of their criminal careers. It is not limited to apply only to those
offenders who commit acts that are extensive and continuing. Here, the record clearly
reveals that the factor was properly applied in the defendant’s case. The defendant began his

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history of criminal activity at age eleven and committed an assortment of misdemeanors and
felonies between that time and the date of the instant offenses. A juvenile record of criminal
conduct may properly be considered in assessing a suitable sentence after a felony conviction
by an adult. State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986). These
adjudications and convictions are clearly set forth in the record and were considered by the
trial court. We find no error in the court’s finding, as the record sufficiently establishes that
the defendant’s history of criminal activity was extensive. As such, the defendant is not
entitled to relief.

                                       CONCLUSION

       Based upon the foregoing, the sentences are affirmed as imposed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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