         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 21, 2005

               STATE OF TENNESSEE v. LAMONN LEE HARRIS

                  Direct Appeal from the Circuit Court for Marshall County
                              No. 16151    Charles Lee, Judge



                      No. M2004-02443-CCA-R3-CD - Filed July 1, 2005


The defendant, Lamonn Lee Harris, entered an open guilty plea to fourteen counts of forgery, Class
E felonies, and one count of theft less than $500.00, a Class A misdemeanor. He was sentenced to
an effective sentence of six years as a Range I, standard offender. On appeal, he argues that the trial
court erred in denying alternative sentencing and in imposing an excessive sentence. Following our
review, we affirm the judgments of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which GARY R. WADE, P.J. and JOSEPH M.
TIPTON , J., joined.

Andrew Jackson Dearing, III., Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
Lamonn Lee Harris.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W.
Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               I. Facts

       This case relates to the theft and forgery of checks by the defendant. The defendant was
charged with one count of theft of property and twenty-seven counts of forgery. At the plea
acceptance hearing, the State recounted the incriminating proof as follows:

               These events all occurred in Marshall County, Tennessee. The victim . . . had
       a longstanding . . . relationship with the defendant. One that might be described [as]
       boyfriend and girlfriend. . . . [H]e was the father of her child.
               ....

               . . . [O]n or about April 28th of this year [the defendant] went into her dresser
       drawer and removed a checkbook, a pad of checks. Proceeded to write those. When
       she discovered this . . . she called in law enforcement. They began an investigation.
       The checks were passed at several locations here.

               Detective Dac Burrow [conducted an investigation]. He learned several
       things. He talked to some witnesses at some of the stores, [who] could identify the
       defendant as having passed the checks. [He also] went to . . . Wal-Mart and received
       a video tape which show[ed] [the defendant] committing the offense.

                . . . Count 1 of the indictment is the misdemeanor theft of the book of checks
       that occurred on the 28thof April. [The defendant] took check number 1587 on April
       28 . . . and wrote that check out for an amount under $100.00. Passed that at the
       Wal-Mart store here in Lewisburg.

              On the next day, April 29th, he took another check, wrote it out for $107.90.
       Again passed that at Wal-Mart. On the same date he wrote another check out for
       21.06 that being 1592, passed that at Wal-Mart. On May 2nd of this year, he took
       check 1561 for $69.69, wrote that out and again passed that at Wal-Mart. On the
       same date, May 2nd, he wrote another check out for $25.68, and passed that at Wal-
       Mart. On the next day, May 3rd, 2004, he wrote check number 1567 for $113.63;
       passed that at the Wal-Mart store here. On the same day, May 3rd, 2004, check
       number 1568, he made out for $196.59; passed that at the Wal-Mart store here. On
       May 3rd, 2004, he wrote another check out for $21.04, her check number 1569;
       passed that at the Wal-Mart store.

The State then continued to recount other instances where the defendant forged checks and passed
them to various merchants between April 28th and May 3rd, 2004. The State also indicated that the
victim would testify that all these checks were forgeries and passed without her consent.

        The defendant pled guilty to the offenses as charged. At the sentencing hearing, the State
entered the defendant’s presentence report into evidence, which indicated that the defendant had
been previously convicted of a number of offenses including traffic offenses, possession of drugs,
assault, and passing worthless checks. The report also showed that the defendant had been
previously granted probation, had violated the terms of his probation in the past, and had committed
the present offenses while on probation.

       The defendant testified that, at the time of his arrest, he was living with his girlfriend, the
victim. The defendant stated that they had a son together. The defendant also stated that he was
employed at the time of his arrest and had a job available to him if released on probation. He



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admitted that during April and May he was addicted to cocaine. He stated he believed that he not
only ruined his life but also lost the trust of his girlfriend and son, whom he loved.

         The defendant admitted that he had prior convictions and two probation revocations, which
he stated were caused by his drug addiction and not paying fines and costs. The defendant asked the
trial court to give him a community corrections sentence and allow him to seek treatment for his drug
addiction. The defendant also insisted that he would pay any restitution ordered.

        At the conclusion of the sentencing hearing, the trial court sentenced the defendant to “one
year and six months [on each offense] based solely upon his history of prior convictions.” The trial
court merged the forgery convictions into the passing of forged instrument convictions because “they
[were] theories of the same offense.” When determining whether the sentences were to run
consecutively or concurrently, the trial court found that “some of these sentences will be ordered to
serve consecutively because the defendant has an extensive history of criminal behavior . . . and that
these [present] offenses were committed while the defendant was on probation.” The trial court
ordered the convictions based on the offenses that occurred on the same day to run “concurrent with
one another but consecutive to each other which would give the defendant a total sentence of six
years.”

        The trial court denied alternative sentencing finding that “measures less restrictive than
confinement have . . . been recently and unsuccessfully applied to the defendant.” The trial court
also considered the short time period over which the offenses were committed and opined that the
State had overcome the presumption of eligibility for alternative sentencing.

                                            II. Analysis

         On appeal, the defendant argues that the trial court erred in sentencing him to confinement
when alternative sentencing was warranted rather than incarceration. The defendant also argues that
the trial court erred by improperly applying certain statutory enhancement factors in violation of
Blakely v. Washington, 542 U.S. ---, 123 S. Ct. 2531 (2004).

        Before a trial court sentences a convicted defendant, it must consider (1) the evidence
received at the trial and/or sentencing hearing; (2) the presentence report; (3) the principles of
sentencing; (4) the arguments of counsel relative to sentencing alternatives; (5) the nature and
characteristics of the criminal conduct involved; (6) any mitigating or enhancement factors; (7) any
statements made by the defendant in his or her own behalf; and (8) the defendant's potential or lack
of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Imfeld,
70 S.W.3d 698, 704 (Tenn. 2002). The trial court is also required to place on the record its reasons
for imposing the specific sentence, including the identification of the mitigating and enhancement
factors found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated in determining the sentence. Id. 704-05.




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        Appellate review of a challenged sentence is a de novo review of the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). This
presumption of correctness 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). However, if the record shows 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). On appeal, the defendant has the burden of showing that the
sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing
Commission Comments.

        A defendant is eligible for probation if the actual sentence imposed is eight years or less and
the offense for which the defendant is sentenced is not specifically excluded by statute. See Tenn.
Code Ann. § 40-35-303(a). In addition, a defendant is presumed to be a favorable candidate for
alternative sentencing if the defendant is an especially mitigated or standard offender convicted of
a Class C, D, or E felony and there exists no evidence to the contrary. Tenn. Code Ann. § 40-35-
102(6). However, this presumption is unavailable to a defendant who commits the most severe
offenses, has a criminal history showing clear disregard for the laws and morals of society, and has
failed past efforts at rehabilitation. Id. § 40-35-102(5); State v. Fields, 40 S.W.3d 435, 440 (Tenn.
2001).

        A trial court shall automatically consider probation as a sentencing alternative for eligible
defendants Id. §40-35-303(b). A trial court must also presume favorable candidacy for alternative
sentencing unless it is presented with evidence sufficient to overcome this presumption. See Ashby,
823 S.W.2d at 169. The presumption in favor of alternative sentencing may be overcome by facts
contained in the presentence report, evidence presented by the State, the testimony of the accused
or a defense witness, or any other source, provided it is made part of the record. State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996). Moreover, entitlement to probation is not automatic and
the defendant still bears the burden of proving suitability for full probation. Tenn. Code Ann. §
40-35-303(b), Sentencing Commission Comments; State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997).


       Guidance as to whether the trial court should grant alternative sentencing or incarcerate is
found in Tennessee Code Annotated section 40-35-103. Sentences involving confinement should
be based upon the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;
       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or



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        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103.

         As a standard offender convicted of Class E felonies, the defendant was presumed to be a
favorable candidate for alternative sentencing in the absence of evidence to the contrary. However,
the record reflects that the defendant had a prior history of criminal convictions, had several
probation violations, and had committed the theft and forgeries while on probation. In denying the
defendant alternative sentencing, the trial court found that measures less restrictive than confinement
had frequently and recently been applied unsuccessfully to the defendant. The record supports the
trial court’s denial of alternative sentencing. Therefore, the defendant is not entitled to relief on this
issue.

         The defendant also challenges his sentences by arguing that the trial court improperly applied
certain statutory enhancement factors in violation of Blakely. According to the defendant, Blakely
holds that any facts supporting an excessive sentence which are neither admitted by the defendant
nor found by a jury violates the Sixth Amendment right to trial by jury. Consequently, the defendant
asserts that “all of the twenty-three enhancement factors enumerated in [Tenn. Code Ann.] § 40-35-
114, are now prohibited under Blakely, or they are inherent in the charged offense.”

        According to Tennessee sentencing statutes, the sentencing range for a Range I offender who
commits a Class E felony is one to two years. Tenn. Code Ann. § 40-35-112(a)(5). In calculating
the sentence for a Class B, C, D, or E felony conviction, the presumptive sentence is the statutory
minimum for a Range I offender if there are no enhancement or mitigating factors. See, Id. §
40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence
above the minimum, but still within the range. Id. § 40-35-210(d). A sentence involving both
enhancement and mitigating factors requires an assignment of relative weight for the enhancement
factors as a means of increasing the sentence. Id. § 40-35-210(e). The sentence must then be
reduced within the range by any weight assigned to the mitigating factors present. Id.

        Previously, this Court had concluded that Blakely impacted the validity of our statutory
sentencing scheme, insofar as our enhancement provisions permitted a trial court to increase a
defendant’s presumptive sentence based upon facts not reflected in the jury’s verdict or admitted by
the defendant. See, e.g., State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004
WL 2726034 (Tenn. Crim. App., at Nashville, Nov. 30, 2004), perm. app. denied, (Tenn. 2005).
However, recently our supreme court has held that Blakely does not announce a new rule of law or
impact the validity of our statutory sentencing scheme. State v. Edwin Gomez and Jonathan S.
Londono, No. M2002-01209-SC-R11-CD, --- S.W.3d ----, 2005 WL 856848 (Tenn. Apr., 14, 2005),
petition to rehear denied (Tenn. May 18, 2005). Our supreme court opined that Blakely’s
prohibition against the imposition of an enhanced sentence based upon facts not authorized by a jury
verdict rested on the premise that the sentencing scheme was mandatory and imposed binding
requirements on all judges imposing sentences. Gomez, 2005 WL 856848, at *18-19 (quoting


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United States v. Booker, __ U.S. __, 125 S. Ct. 738, 749 (2005)). According to our supreme court,
Tennessee’s sentencing scheme does not mandate an increase in sentencing upon the finding of
enhancement factors. Id. at *19-22. Instead, Tennessee’s sentencing scheme reflects a discretionary
process where a trial judge is required to consider enhancement and mitigating factors but is free to
exercise discretion when choosing a sentence within the statutory range. Id. at *22. Therefore, our
supreme court held that Tennessee’s sentencing scheme constitutes a non-mandatory scheme which
does not violate the Sixth Amendment right to a jury trial. Id.

         Not only is the defendant’s Blakely argument misplaced in light of Gomez, but also his
argument fails under Blakely. Prior convictions are an exception to Blakely and need not be found
by a jury or admitted by the defendant. See Blakely, 124 S. Ct. at 2536. The record clearly reflects
that the defendant had the following prior convictions: four counts of driving with a suspended
license, numerous traffic offenses, two counts of assault, a weapons offense, two counts of
possession of marijuana, and six counts of passing worthless checks. The record also reflects that
the trial court sentenced the defendant to “one year and six months [on each offense] based solely
upon his history of prior convictions.” Accordingly, the defendant’s history of prior convictions
alone warrant the enhanced sentence of one year, six months per conviction, six months over the one
year presumptive sentence. Therefore, we conclude that the trial court properly sentenced the
defendant and the issue is without merit.

                                          III. Conclusion

         Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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