         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON            FILED
                        FEBRUARY 1999 SESSION          March 12, 1999

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 02C01-9803-CR-00063
      Appellee,                    )
                                   )    SHELBY COUNTY
VS.                                )
                                   )    HON. JOSEPH B. DAILEY,
CLEM HENRY,                        )    JUDGE
                                   )
      Appellant.                   )    (Motor Vehicle Habitual Offender)



FOR THE APPELLANT:                      FOR THE APPELLEE:

DANIEL A. SEWARD                        JOHN KNOX WALKUP
One Memphis Place                       Attorney General and Reporter
200 Jefferson Avenue, Suite #210
Memphis, TN 38103                       GEORGIA BLYTHE FELNER
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        DAVID C. HENRY
                                        Assistant District Attorney General
                                        Criminal Justice Center
                                        201 Poplar Avenue, Suite 301
                                        Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION

       A Shelby County Grand Jury indicted defendant, Clem Henry, in two

indictments for violations of the Motor Vehicle Habitual Offender’s Act, Class E

felonies. He pled guilty to both charges and submitted sentencing to the trial court.

The trial court sentenced defendant to two years in each case and ordered the

sentences to run consecutively to each other and another sentence imposed for an

earlier violation of the same law. The sole issue in this appeal as of right is whether

the trial court sentenced defendant properly. Upon a de novo review, this Court

agrees with the sentences imposed and AFFIRMS the judgments of the trial court.



                                         FACTS

       Defendant was declared a Motor Vehicle Habitual Offender (hereinafter

“MVHO”) in October 1994. In April 1996, he was caught driving while declared an

MVHO and charged with violation of the Motor Vehicle Habitual Offender’s Act. See

Tenn. Code Ann. § 55-10-616. While on bond for this Class E felony, he was

caught driving on September 8, 1996, and charged with driving without a license.1

On March 31, 1997, defendant drove again, was caught, and charged with a third

violation of the MVHO Act.

       Defendant pled guilty to the September 1996 and March 1997 violations

without an agreement as to sentencing. The trial court held a sentencing hearing

and ordered defendant to serve two years as a Range I standard offender for each

violation. It further ordered the sentences to run consecutively to each other, and

consecutively to another two-year sentence not at issue in this appeal. In reaching

its decision, the trial court discussed many of the facts and circumstances

surrounding the commission of the offenses. It did not, however, make statutory

findings on applicable enhancement and mitigation factors or consecutive

sentencing.




       1
        Defendant testified he was aware of his habitual offender status at the time of this
stop. The charge was ultimately indicted as driving while declared a motor vehicle
habitual offender, a Class E felony.

                                             2
                                     SENTENCING

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness, Tenn. Code Ann. § 40-35-401(d), provided there is

an affirmative showing in the record that the trial judge considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives,

there is no presumption of correctness and our review is de novo. State v. Poole,

945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the appealing party to show

that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing

Commission Comments. In this instance, the trial court failed to make the required

findings. Thus, our review of the sentences is de novo without the presumption of

correctness.



                                Length of Sentences

       Defendant contends the trial court erred in setting his sentences at the top

of the applicable range. His testimony at sentencing revealed that he was fifty-

seven years old and a high school dropout with no employment background.

Defendant admitted the criminal history presented by the pre-sentence report.2 On

cross-examination by the state, defendant conceded violating the terms of probation

he received for one of the misdemeanor convictions. While admitting awareness

and understanding of the consequences attendant to MVHO status, defendant

expressed remorse for having driven on these occasions.

       The state argued for the application of several enhancement factors in

defendant’s case: (1) a previous history of criminal convictions or criminal behavior

in addition to those necessary to establish the appropriate range; (2) a previous

unwillingness to comply with conditions of a sentence involving release into the

community; and (3) a felony committed while released on bail for another felony

charge. See Tenn. Code Ann. § 40-35-114(1), (8), and (13).


       2
        That history dates to pre-1960 and contains five convictions for driving on a
suspended license, misdemeanor theft, assault, robbery, and a juvenile burglary
adjudication.

                                            3
       We find the state’s argument for the application of three enhancement

factors meritorious. The trial court also found that defendant’s age of fifty-seven

was not a mitigating factor. We agree.

       Finally, notwithstanding counsel’s argument to the contrary, we choose to

follow the trial court’s finding that defendant failed to display sufficient remorse for

his actions. The trial court was in a much better position than this Court to evaluate

the defendant’s credibility.

       Defendant was convicted of driving on a suspended license five times before

being declared an MVHO in October 1994. He admits that he understood the

significance of that status, but chose to drive on at least three occasions.3 Based

upon the applicable enhancement factors, and the absence of mitigating factors, we

find two years to be the appropriate sentence in each case.



                               Consecutive Sentences

       Defendant also contends that he should receive concurrent sentences. A

court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that “[t]he defendant is an offender whose record

of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2); see also State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is

required to determine whether the consecutive sentences (1) are reasonably related

to the severity of the offenses committed; (2) serve to protect the public from further

criminal conduct by the offender; and (3) are congruent with general principles of

sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In the instant

case, defendant unquestionably has an extensive record of criminal activity. Thus,

it remains for us to consider the factors outlined by Wilkerson.

       Defendant displays a blatant disregard for the laws of this state and the

orders of its courts as evidenced by his commission of three felony driving offenses

after he admittedly understood he was to cease getting behind the wheel of a car.



       3
        Defendant claimed at sentencing that he drove only three times after being
declared an MVHO, and that he was caught all three times.

                                            4
Additionally, the two present offenses were committed while defendant was on bond

for another felony driving offense. These actions exhibit a lack of recognition that

driving is, in fact, a privilege requiring responsibility in its exercise. This leads us to

believe that given the opportunity, defendant would not hesitate to drive again. As

such, consecutive two-year sentences, totaling six years, appear reasonably related

to the severity of defendant’s crimes and serve to protect the public from further

criminal conduct by defendant.         Moreover, an effective six-year sentence is

congruent with general sentencing principles. In short, it appears the only way to

stop defendant from driving is by incarceration.



                                    CONCLUSION

       Defendant has failed to show that the nature and duration of these sentences

are improper. Therefore, the judgments of the trial court are AFFIRMED.



                                                   ____________________________
                                                    JOE G. RILEY, JUDGE


CONCUR:



____________________________
JOHN H. PEAY, JUDGE



____________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




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