         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON              FILED
                         JULY 31, 1998 SESSION        August 21, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 02C01-9710-CC-00418
      Appellee,                    )
                                   )    HARDEMAN COUNTY
VS.                                )
                                   )    HON. JON KERRY BLACKWOOD,
BURL JARRETT,                      )    JUDGE
                                   )
      Appellant.                   )    (Arson - Sentencing)



FOR THE APPELLANT:                      FOR THE APPELLEE:

DAVID CRICHTON                          JOHN KNOX WALKUP
111 W. Market Street                    Attorney General and Reporter
P.O. Box 651
Bolivar, TN 38008-0651                  GEORGIA BLYTHE FELNER
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General

                                        JERRY W. NORWOOD
                                        Assistant District Attorney General
                                        Hardeman County Courthouse
                                        Bolivar, TN 38008-2359




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION



       The defendant, Burl Jarrett, pled guilty for judicial sentencing in the

Hardeman County Circuit Court to one (1) count of arson, a Class C felony. The

trial court sentenced him as a Range I offender to five (5) years imprisonment. The

court further ordered that defendant’s sentence run consecutively to a prior felony

drug conviction. On appeal, defendant contends the trial court erred in (1) imposing

an excessive sentence, and (2) ordering that his sentence run consecutively to the

prior drug conviction. After a thorough review of the record before this Court, we

find no reversible error. Therefore, we affirm the judgment of the trial court.



                                             I



       In January 1997, defendant was indicted on two (2) counts of arson. He

subsequently pled guilty in May 1997 to one (1) count of arson. At the sentencing

hearing in May 1997, defendant’s probation officer testified that defendant had been

placed on probation in June 1995 for a state felony drug conviction. Defendant was

subsequently indicted in federal district court on five (5) counts of distribution of

cocaine, alleged to have occurred in June 1996 while defendant was on probation

for the state drug offense. Defendant thereafter pled guilty in federal court to these

five (5) offenses in February 1997 and was awaiting sentencing. A revocation

hearing was simultaneously conducted along with defendant’s sentencing hearing

on the present offense.

       In his testimony, defendant admitted participation in the arson. He testified

that he fully cooperated with the FBI and ATF in connection with this offense.

However, he acknowledged that he was scheduled to be a witness for the state in

his brother’s trial for the present offense, but failed to appear in court that day.1

       The pre-sentence report indicated that defendant had a state criminal record


       1
         Defendant’s brother, Horace Jarrett, was indicted along with defendant on two (2)
counts of arson. Horace pled guilty to vandalism and received a sentence of six (6) days and
a $50 fine.

                                             2
consisting of one (1) felony drug conviction, one (1) forgery conviction and seven

(7) misdemeanor convictions, one (1) of which was cocaine related. The report also

notes that defendant had not yet been sentenced for the five (5) cocaine convictions

in federal court.

       The trial court found as enhancement factors that (1) defendant had a

previous history of criminal convictions, Tenn. Code Ann. § 40-35-114(1); and (2)

defendant had a previous history of unwillingness to comply with the conditions of

a sentence involving release in the community, Tenn. Code Ann. § 40-35-114(8).

As mitigating factors, the trial court found that (1) defendant’s conduct neither

caused nor threatened serious bodily injury, Tenn. Code Ann. § 40-35-113(1); and

(2) defendant admitted his guilt, Tenn. Code Ann. § 40-35-113(13). The trial court

found that the enhancement factors outweighed the mitigating factors and imposed

a Range I sentence of five (5) years, one (1) year short of the maximum sentence.

The trial court further revoked defendant’s probation on his state drug conviction

based upon his commission of the federal offenses while on state probation.

       The trial court further found that defendant’s record of criminal activity was

extensive and ordered that defendant’s sentence run consecutively to the probation

revocation on the state drug conviction. Defendant now brings this appeal.



                                         II



       Defendant asserts that the trial court erred in imposing an excessive

sentence. Specifically, he alleges that the trial court placed too much emphasis on

an enhancement factor and erroneously failed to apply certain mitigating factors.

He further argues that consecutive sentencing is inappropriate.

                             A. Standard of Review

       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). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.



                                         3
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 conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

                             B. Excessive Sentence

       Defendant contends that the court placed too much weight on his prior

criminal record as an enhancement factor. He also suggests that the trial court

erred in failing to apply as mitigating factors that he assisted the FBI and the ATF

with information concerning the present offense. See Tenn. Code Ann. § 40-35-

113(9), (10).

                                          1.

       At the time of sentencing, defendant had a prior criminal record consisting

of two (2) state felony convictions and seven (7) misdemeanors. Furthermore,

defendant had pled guilty in February 1997 to five (5) federal drug charges and was

awaiting sentencing. Although the arson was committed prior to the commission of

some of the other offenses, a sentencing court can consider criminal behavior which

occurred prior to the sentencing hearing as evidence of a previous history of

criminal convictions under Tenn. Code Ann. § 40-35-114(1), regardless of whether

the criminal behavior occurred before or after the commission of the offense under

consideration. State v. John Allen Chapman, C.C.A. No. 01C01-9604-CC-00137,

Grundy County (Tenn. Crim. App. filed September 30, 1997, at Nashville). Although

defendant claims that the trial court placed too much weight upon this factor, the

weight to be given enhancement and mitigating factors is discretionary with the trial


                                          4
court. State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The trial

court did not err in placing great weight upon this enhancement factor.

                                          2.

       Defendant also claims that he assisted the FBI and the ATF by giving

information concerning the present offense, and this should have been considered

to mitigate defendant’s sentence. See Tenn. Code Ann. § 40-35-113(9), (10).

Defendant testified that he cooperated fully with the federal authorities, including

giving details about the offense. However, there is no other evidence in the record

that defendant did, in fact, cooperate fully with the federal authorities. Nor does

defendant point to any evidence which would support the application of these

mitigating factors other than defendant’s assertions. We further note that defendant

did not appear in state court to testify at his brother’s trial for the subject offense.

We, therefore, cannot conclude that the trial court erred in failing to apply Tenn.

Code Ann. § 40-35-113(9) and (10) as mitigating factors. Even if the trial court

should have accorded some weight to the alleged cooperation, we still conclude that

the five (5) year sentence was appropriate.

                                          3.

       We find no error in the trial court’s application of enhancement and mitigating

factors in imposing defendant’s sentence. Therefore, we conclude that defendant’s

Range I sentence of five (5) years for a Class C felony was appropriate. This issue

is without merit.

                           C. Consecutive Sentencing

       Defendant further argues that consecutive sentencing was inappropriate in

this case. Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115.

The trial court may order sentences to run consecutively if it finds by a

preponderance of the evidence that one or more of the required statutory criteria

exist. 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


                                           5
general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.

1995).

         The trial court found that defendant had an extensive criminal history and

imposed consecutive sentences on that basis. Tenn. Code Ann. § 40-35-115(b)(2).

Defendant had fourteen (14) prior convictions, consisting of six (6) felony drug

convictions, a conviction for forgery and numerous misdemeanors. Defendant’s

record of criminal activity is extensive within the meaning of Tenn. Code Ann. § 40-

35-115(b)(2). See State v. Baker, 956 S.W.2d 8, 18 (Tenn. Crim. App. 1997).

         Furthermore, upon our de novo review, this Court finds that consecutive

sentences are reasonably related to the severity of the offenses committed, serve

to protect the public from defendant’s further criminal conduct, and are congruent

with the general principles of sentencing. State v. Wilkerson, 905 S.W.2d at 939.

In the interim between the commission of the present offense and his conviction,

defendant was convicted of six (6) felony drug offenses. The five (5) federal

offenses were committed while defendant was on probation for the state felony drug

offense. Furthermore, although the defendant testified that “it won’t never happen

no more,” defendant has developed a pattern of repeatedly violating and ignoring

the law. Consecutive sentencing was appropriate.

         This issue has no merit.




                                           III



         We conclude that the trial court properly sentenced the defendant; therefore,

the judgment of the trial court is affirmed.




                                           6
                             JOE G. RILEY, JUDGE



CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID G. HAYES, JUDGE




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