State of Tennessee v. Burton W. Webb ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 24, 2014 Session
STATE OF TENNESSEE v. BURTON W. WEBB
Appeal from the Criminal Court for Hamilton County
No. 283234 Rebecca J. Stern, Judge
No. E2013-02107-CCA-R3-CD - Filed July 29, 2014
The Defendant, Burton W. Webb, pleaded guilty to three counts of reckless aggravated
assault, Class D felonies, two counts of vehicular assault, Class D felonies, and driving under
the influence (DUI) second offense, a Class A misdemeanor. See T.C.A. §§ 39-13-102, 39-
13-106, 55-10-401 (2010). The trial court merged the DUI conviction with the vehicular
assault convictions and sentenced the Defendant as a Range I, standard offender to two years
for each reckless aggravated assault conviction and to three years for each vehicular assault
conviction. The court ordered consecutive service of the vehicular assault convictions, for
an effective six-year sentence. On appeal, the Defendant contends that the trial court erred
(1) by applying certain enhancement factors to the vehicular assault convictions, (2) by
denying alternative sentencing, and (3) by ordering consecutive sentences. Although we
conclude that the trial court erroneously applied two enhancement factors, the lengths and
the manner of service of the sentences are proper. We also conclude that the trial court erred
by failing to state its factual findings underlying its conclusion that consecutive sentences
were warranted pursuant to State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We
remand the case in order for the court to state its factual findings on the record.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed in Part; Case Remanded
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.
Jerry H. Summers (on appeal) and Benjamin McGowan (at the guilty plea and sentencing
hearings and on appeal), Chattanooga, Tennessee, for the appellant, Burton W. Webb.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Although the Defendant pleaded guilty to two counts of vehicular assault and to three
counts of reckless aggravated assault, a transcript of the guilty plea hearing is not included
in the appellate record. The record reflects, though, that the Defendant pleaded guilty with
the understanding that the trial court would determine the length and the manner of service
of his sentences. At the sentencing hearing, Stephanie Anders testified that she prepared the
presentence report, which was received as an exhibit. The report shows that the Defendant
had previous convictions for resisting a stop and frisk in 2007, driving with a suspended,
canceled, or revoked license in 2007, and DUI in 2005.
Regarding the present offenses, the presentence report shows that the Defendant was
released on bond on July 9, 2012, on the condition that he complete an intensive outpatient
treatment program at “CADAS.” The Defendant failed a drug screen and was placed in an
in-patient treatment program. On October 3, 2012, the Defendant was permitted to enter a
treatment program at English Mountain Recovery in Sevierville, Tennessee that was followed
by six months at St. Paul Sober Living in St. Paul, Minnesota. Although he successfully
completed the English Mountain Recovery program, on April 24, 2013, the Defendant was
discharged from St. Paul Sober Living because of a “relapse on heroin, alcohol, and
oxycodone.” The Defendant failed to notify his attorney and the trial court of his
unsuccessful attempt to complete the program. After the Defendant’s discharge from the
program was discovered during the presentence investigation, the trial court forfeited the
Defendant’s bond for failure to comply with the conditions of his pretrial release and issued
a capias for his arrest. He was arrested on July 26, 2013, and held in confinement until the
sentencing hearing on August 26, 2013.
The presentence report shows that the Defendant graduated from high school but did
not complete college. He reported first drinking alcohol at age seventeen and first using
heroin, oxycodone, and marijuana in his twenties. He said he stopped using oxycodone and
marijuana in 2012 because “I had to - I didn’t want to, but I had to - it was killing me.” The
Defendant reported entering a rehabilitation program in Newport Beach, California in 2003,
but the information was unverified because the program was closed.
Although the Defendant reported successfully completing the program in Minnesota,
Ms. Anders received a letter from the program director stating that the Defendant was asked
to leave the program on April 24, 2013, for failing a drug screen. The Defendant admitted
to the program director that he used opiates, which was his second relapse. On March 4,
2013, the Defendant admitted consuming alcohol to a staff member. On April 19, 2013, the
Defendant admitted consuming alcohol to a staff member and was asked to leave the facility
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but given until the end of the week to find other arrangements. On April 23, the Defendant
was “high on oxycodone” and asked to leave the facility immediately.
The presentence report showed that the Defendant was employed at Paradise Car
Wash from November 2012 to May 2013. Although the Defendant reported earning $8.00
per hour, employment records showed that he earned $7.25 per hour and that he was a
“voluntary quit,” which usually meant the person failed to show up for work. The Defendant
also reported working at Montana Harvest as a cashier from 1995 to 1997 and quitting for
an undisclosed reason. The Defendant reported working at various health food stores,
performing HVAC work, and following the music band Phish on tour but provided no
documentation.
On cross-examination, Ms. Anders testified that although the Defendant failed to
comply with the terms of his pretrial release in the present case, she found no previous
violations of probation.
Philip Boring testified that he was the victim of one of the vehicular assaults, which
occurred on September 12, 2011. He said the accident occurred at 8:00 a.m. when he was
taking his four children to school before going to work. He said that he was stopped at a
traffic light, that he proceeded into the intersection when the light turned green, and that he
saw the Defendant’s car just before the impact. He said he turned his car toward the
Defendant’s car in an effort to direct the impact to his door instead of the rear door where his
children were sitting in the back seat. He said the Defendant’s car hit his car on the driver’s
side door, which caused the car to spin. He said that when his car stopped, it was facing the
opposite direction.
Mr. Boring testified that his children were ages five, six, seven, and eight at the time
of the accident. He said the children’s mothers were deceased at the time of the accident.
His son Alex was in the front passenger seat and only sustained a few scratches. His
youngest son, who was sitting in the back seat, had a scar on his right cheek, which he
assumed was caused by broken glass. He said his oldest son received a “real bad” bruise to
his left elbow, although the doctors first thought the arm was broken. He said his daughter
received the most severe injuries. He said she sustained a brain injury that was similar to an
injury caused by shaken baby syndrome. He stated that she was paralyzed on her left side
for approximately two months and that the doctors initially did not think she would survive.
He said she was transferred to a rehabilitation center in Atlanta, Georgia for almost two
months and continued rehabilitation for one year. He said she had to relearn to speak and
walk because of the extended duration of the paralysis. He stated that at the time of the
sentencing hearing, she was “functional” and that she was a straight A student. He said,
though, she continued to have difficulty walking.
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Mr. Boring testified that he suffered ten broken ribs, a punctured lung, a broken
femur, and a fractured pelvis. He said he was hospitalized for one and one-half months and
was confined to a wheelchair for an additional one and one-half months. He said he
progressed to a walker and then a cane. He said he had to learn to walk again. He said he
had a 16" to 18" scar on his leg where the doctor’s inserted a metal rod. He said he
underwent multiple surgeries, developed arthritis, and continued to have a lot of soreness.
Mr. Boring testified that he was unable to care for his children when he was
hospitalized and that they were happy to see him when he returned home. He said his two
oldest children were receiving counseling. He said that after the accident, he had to find
another place to live because a third-floor apartment was not conducive to a wheelchair. He
said his car was a total loss. He said that he paid $4000 for the car and that the insurance
company paid him $3000. On cross-examination, Mr. Boring testified that the Defendant’s
insurance company paid him $100,000 for the personal injuries, which was the policy limit.
Chattanooga Police Officer Steve York testified that he arrived at the scene at 8:12
a.m. and that a man who was not involved in the accident told him the Defendant was
involved in the accident and walking toward Krystal restaurant. He saw the Defendant walk
with a limp, enter the restaurant, walk into the restroom, and lock the door. He said he
knocked, identified himself, and asked the Defendant to step outside. He said the Defendant
responded that he needed to use the restroom. He said that the Defendant was in the
restroom “for an extended amount of time” and that he heard the toilet flush several times.
He said that when he asked the Defendant why he flushed the toilet multiple times, the
Defendant responded that he had to use the restroom. He escorted the Defendant to the
scene. He said that the victims had been taken to the hospital when he returned. He learned
during his investigation the Defendant’s car “failed to stop for the red traffic light.” On
cross-examination, Officer York testified that although he believed the Defendant’s conduct
inside the restroom was suspicious, he agreed he did not find any evidence showing the
Defendant engaged in wrongdoing.
Leah Webb, the Defendant’s mother, testified that the Defendant was thirty-five years
old and lived with her at the time of the accident. She agreed the Defendant had relationships
with his father and his grandmother. She said that the Defendant would live with her if the
trial court imposed probation. She said the Defendant would have his own room and would
not have access to her car. She agreed the Defendant had a substance abuse problem and said
she learned of his addiction when he entered the English Mountain rehabilitation program.
She said that the Defendant did well there and that afterward, the Defendant did not have
“continuing . . . substance abuse” problems.
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Ms. Webb testified that she suspected but did not know for sure if the Defendant was
using drugs at the time of the accident. She said that before the accident, the Defendant was
not living with her and that she did not know about the Defendant’s activities. She said that
if the Defendant lived with her, he would live under her rules. She said the Defendant was
looking for a job and studying to become an insurance agent when he was released on bond.
She said that the Defendant received monthly income from a life insurance annuity but that
she controlled the funds as a trustee. She thought the Defendant’s father could provide
support, too.
Ms. Webb testified that the Defendant called her to pick him up in Minnesota when
he was discharged from the rehabilitation program. She denied the Defendant told her that
he was discharged from the program and said she assumed the Defendant had completed the
program. She agreed she was angry, disappointed, and frustrated with the Defendant. She
said that if the Defendant received probation, she would give the probation officer full access
to her house and would inform the probation officer if she thought the Defendant was using
drugs.
On cross-examination, Ms. Webb clarified that the Defendant lived with her at the
time of the accident and testified that she did not know the Defendant was using drugs. She
said, though, she could now look at the Defendant’s face and determine if he was using
drugs. She said that although the Defendant was discharged from various rehabilitation
programs, she could provide “more oversight” than the program staff because the last
program provided little supervision. She agreed she could not be with the Defendant all the
time. When asked if the Defendant was capable of rehabilitation, she said the Defendant
was “a good boy” who made bad choices. She said that the Defendant changed completely
after he received a job with Liberty National Insurance and that he was excited and looked
forward to the future. She said the Defendant began studying after he was discharged from
the Minnesota rehabilitation program.
On redirect examination, Ms. Webb testified that public transportation stopped at the
end of her road. She said the Defendant returned from Minnesota in May and was taken into
custody in late July.
The Defendant addressed the trial court and stated,
First and foremost I just would like to apologize to Mr. Boring and his family.
I’d like to say that I have a niece and nephew . . . [who] were around the same
age. And I think about that daily. And it hurts me to think that I’ve troubled
his family as much as I have. And I deserve to live with this pain and I am
truthfully sorry. And I’m sorry. That’s, you know, the bottom line. And I’d
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like to also apologize to my family for the embarrassment that I’ve caused
them. And I truly am trying to get my life in order. And that’s all I have to
say. Thank you.
The Defendant’s Department of Safety driving record was received as an exhibit. The
document showed that the Defendant was convicted of DUI in 2005, which involved an
accident with property damage, driving on a revoked license reduced to not carrying a
driver’s license in 2007, and speeding involving an accident with personal injury in 2011.
The trial court found that statutory enhancement factors (1), (6), (10) applied to the
vehicular assault convictions. See T.C.A. § 40-35-114(1) (2010) (“The defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range[.]”); -114(6) (“The personal injuries inflicted upon, or the
amount of damage to property sustained by . . . the victim was particularly great[.]”); -
114(10) (“The defendant had no hesitation about committing a crime when the risk to human
life was high[.]”). In mitigation, the court found that the Defendant had good social ties and
had made some efforts at rehabilitation, although not always successfully. See id. § 40-35-
113(13) (2010) (“Any other fact consistent with the purposes of the Sentencing Act.”). The
court noted that it did not find “anything unusual about these circumstances.” The court
sentenced the Defendant as a Range I, standard offender to three years for each conviction.
Regarding the reckless aggravated assault convictions, the court found that
enhancement factors (1) and (10) and the same mitigation applied. See id. § 40-35-114 (1),
(10); -113(13). The court sentenced him as a Range I, standard offender to two years for
each conviction. The court further found that confinement was necessary to avoid
depreciating the seriousness of the offenses and to provide an effective deterrent to others
likely to commit similar offenses.
The trial court ordered that the vehicular assault sentences be served consecutively
and that the reckless aggravated assault sentences be served concurrently. The court found
that the Defendant had been given “every opportunity at rehabilitation” and had failed to
show amenability to rehabilitation. The court found consecutive sentences were justified
because he was a dangerous offender whose behavior indicated little or no regard for human
life and because he had no hesitation about committing a crime in which the risk to human
life was high. See id. § 40-35-115(b)(4) (2010). The court found that consecutive service
was reasonably related to the severity of the offenses committed and was necessary to protect
society from the Defendant’s further criminal acts. This appeal followed.
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I
The Defendant contends that the trial court erred by applying enhancement factors (6)
and (10) to the vehicular assault convictions. He argues factor (6) was erroneously applied
because serious bodily injury was an element of the offense and because insufficient
evidence was presented regarding the amount of property damage. Regarding enhancement
factor (10), he argues no evidence was presented showing that individuals other than those
named in the indictment were placed at risk by the Defendant’s conduct. The State responds
that the trial court properly applied each factor.
The length of a sentence “within the appropriate statutory range [is] to be reviewed
under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise,
380 S.W.3d 682, 708 (Tenn. 2012). In determining the proper sentence, the trial court must
consider: (1) any evidence received at the trial and sentencing hearing, (2) the presentence
report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the
nature and characteristics of the criminal conduct, (5) any mitigating or statutory
enhancement factors, (6) statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee, (7) any statement that the
defendant made on his own behalf, and (8) the potential for rehabilitation or treatment.
T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).
Generally, challenges to a trial court’s application of enhancement and mitigating
factors are reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We
must apply “a presumption of reasonableness to within-range sentencing decisions that
reflect a proper application of the purposes and principles of our Sentencing Act.” Id. at 707.
“[A] trial court’s misapplication of an enhancement or mitigating factor does not invalidate
the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Id. at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court within
the appropriate range should be upheld.” Id.
We note that although the trial court did not state on the record whether it applied
enhancement factor (6) based on the personal injuries or the amount of property damage
sustained by the victims, the State requested application of this factor based on the amount
of property damage. The prosecutor told the court that the injuries sustained by the victims
were “contemplated in the elements of the offense” but that it sought application of factor
(6) based on the value of the car and Mr. Boring’s having to find housing to accommodate
his being in a wheelchair. The Defendant correctly states that in the context of personal
injuries, this factor is not applicable to vehicular assault convictions because serious bodily
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injury is an element of the offense. Factor (6) is not applicable in vehicular assault cases
based on the personal injuries sustained by the victim. See State v. Jones, 883 S.W.2d 597,
602 (Tenn. 1994); see also State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995).
Application of factor (6), though, is permitted when based on the amount of property
damage sustained by the victim. Mr. Boring testified that he paid $4000 for his car, that the
car was a total loss, and that he received a $3000 payment from the insurance company for
the value of the car. Although Mr. Boring testified that his injuries prevented him from
living in his third-story apartment, we conclude that the loss of his apartment is not property
damage as contemplated by factor (6). Likewise, we conclude that the amount of property
damage regarding the victim’s car was not particularly great and that the trial court erred by
applying this factor.
Regarding enhancement factor (10), this court has concluded that a “trial court may
consider this factor when the defendant endangers the lives of people other than the victim.”
State v. Kelley, 35 S.W.3d 471, 480 (Tenn. Crim. App. 2000); see State v. Sims, 909 S.W.2d
46, 50 (Tenn. Crim. App. 1995) (stating that enhancement factor (10) “may be applied in
situations were individuals other than the victim are in the area and are subject to injury”).
The Defendant argues no evidence was presented at the sentencing hearing regarding other
drivers on the roadway. Although Officer York testified that he arrived at the scene of the
accident at 8:12 a.m. and that a man who was not involved in the accident told him the
Defendant was involved in the accident and walking toward Krystal, no evidence was
presented showing the man was in the zone of danger at the time of the accident. Likewise,
although the accident occurred around 8:00 a.m. on a weekday and counsel conceded the
intersection in which the accident occurred “was probably busy,” no evidence showed that
other drivers were on the roadway at the time of the accident. We conclude that the evidence
fails to support a conclusion that other drivers were on the roadway at the time of the
accident or that other persons were in the zone of danger. We conclude that the trial court
erred by applying factor (10).
Although we conclude that the trial court erred by applying enhancement factors (6)
and (10), the misapplication of an enhancement factor does not invalidate the Defendant’s
sentences. See Bise, 380 S.W.3d at 706. “So long as there are other reasons consistent with
the purposes and principles of sentencing, as provided by statute, a sentence imposed by the
trial court within the appropriate range should be upheld.” Id. The record reflects that the
court considered the purposes and principles of the Sentencing Act and the appropriate
evidence at the sentencing hearing and that the court properly applied the remaining
enhancement and mitigating factors. We note the court’s proper application of enhancement
factor (1) and the Defendant’s criminal driving history, which included DUI involving an
accident with property damage, driving on a revoked license reduced to not carrying a
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driver’s license, and speeding involving an accident with personal injury. Further, the nature
of the offense supports the length of the sentences. The Defendant chose to drive his car
while under the influence of an intoxicant and struck the victim’s car injuring Mr. Boring and
his four children. We note the significant injuries sustained by Mr. Boring and his daughter.
After the accident, the Defendant chose to leave the scene. He entered a nearby restaurant,
used the restroom, and flushed the toilet multiple times. We conclude that the court did not
abuse its discretion in imposing the sentences. The Defendant is not entitled to relief on this
basis.
II
The Defendant contends the trial court erred by relying on deterrence and depreciating
the seriousness of the offense in denying alternative sentencing. The State responds that the
trial court properly denied alternative sentencing. We agree with the State.
A defendant is eligible for probation if the sentence imposed is ten years or less. See
T.C.A. § 40-35-303(a) (2010); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008). A
defendant has “the burden of establishing suitability for probation.” T.C.A. § 40-35-303(b);
see Carter, 254 S.W.3d at 347. In order for a defendant to meet this burden, he or she must
show that “probation will ‘subserve the ends of justice and the best interest of both the public
and the defendant.’” Carter, 254 S.W.3d at 347 (quoting State v. Housewright, 982 S.W.2d
354, 357 (Tenn. Crim. App. 1997)). “A defendant’s sentence is based on ‘the nature of the
offense and the totality of the circumstances in which it was committed, including the
defendant’s background.’” State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006) (quoting
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991) (citations omitted)).
Our supreme court has concluded that the abuse of discretion with a presumption of
correctness standard in Bise applies to “questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). When determining if
incarceration is appropriate, a trial court should consider if:
(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[.]
T.C.A. § 40-35-103(1)(A)-(C) (2010); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).
The record reflects the trial court found that probation was not appropriate based on
the need to prevent depreciating the seriousness of the offenses and to deter others from
committing similar offenses. The Defendant apologized for his conduct and the injuries he
caused the victims, and the record reflects the Defendant’s conduct was the result of his
acknowledged drug addiction. Although the Defendant attempted to complete various drug
rehabilitation programs during his pretrial release, he was discharged for failing drug screens
and failed to report the discharge to counsel and to the court. His behavior indicates he failed
to appreciate the seriousness of his conduct and his inability to rehabilitate himself. The
Defendant chose to drive under the influence of drugs, resulting in an accident that caused
significant injuries to Mr. Boring and his daughter. We note Mr. Boring’s punctured lung
and fractured pelvis and his daughter’s paralysis and long-term rehabilitation to learn to
speak and walk again. We conclude that the trial court did not abuse its discretion and that
he is not entitled to relief on this basis.
III
The Defendant contends that the trial court erred by ordering consecutive service of
his vehicular assault sentences. He argues the court made “conclusory” findings without
specificity regarding its decision to impose consecutive sentences and requests this court
remand the case to the trial court for it to “specify the grounds” upon which consecutive
sentences were imposed. The State responds that the trial court’s ordering consecutive
sentences is supported by the record.
Our supreme court recently concluded that the appropriate standard of review for all
sentencing decisions, including the determination to impose consecutive sentences, is an
abuse of discretion with a presumption of reasonableness. State v. James Allen Pollard, —
S.W.3d —, —, No. M2011-00332-SC-CD, slip op. at 9, 14 (Tenn. Dec. 20, 2013).
Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b)(4)
(2010), which states, in pertinent part, that the court may order sentences to run consecutively
if it finds by a preponderance of the evidence that the 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.”
Our supreme court has concluded that when the imposition of consecutive sentences
is based on the trial court’s finding the defendant to be a dangerous offender, the court must
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also find “that an extended sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences must reasonably relate to the
severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939; see State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999). The abuse of discretion with a presumption of
reasonableness standard does not eliminate a trial court’s obligation to comply with
Wilkerson. James Allen Pollard, — S.W.3d at —, slip op. at 13. When a trial court fails to
comply with Wilkerson, the appellate courts many conduct a de novo review of the record
to “determine whether there is an adequate basis for imposing consecutive sentences” or
“remand for the trial court to consider the requisite factors in determining whether to impose
consecutive sentencing.” Id., — S.W.3d at —, slip op. at 14 (citing Bise, 380 S.W.3d at 705
& n.41).
The record reflects that the trial court imposed consecutive sentences on the basis that
the Defendant was a dangerous offender whose actions indicated little or no regard for
human life and that the Defendant had no hesitation in committing a crime in which the risk
to human life was high. The court, likewise, found that consecutive sentences were
“necessary to protect the public against further criminal conduct by the defendant” and
“reasonably relate[d] to the severity of the offenses committed.” See Wilkerson, 905 S.W.2d
at 939. Although the court made the appropriate conclusions pursuant to Wilkerson, the court
failed to state its factual findings underlying its conclusion that consecutive sentences were
warranted pursuant to Wilkerson.
In James Allen Pollard, the trial court failed to discuss the need to protect the public
and how consecutive sentences reasonably related to the severity of the offenses. Our
supreme court upheld this court’s remanding for a new sentencing hearing “because the
considerations required under Wilkerson involve a fact-intensive inquiry” and concluded that
“the better course is to remand to the trial court for consideration of the Wilkerson
requirements in determining the propriety of consecutive sentencing.” James Allen Pollard,
— S.W.3d at —, slip op. at 14. In light of our supreme court’s conclusions in James Allen
Pollard, we conclude that the trial court erred by failing to state on the record the facts
underlying its conclusion that consecutive sentences were needed to protect the public and
reasonably related to the severity of the offenses pursuant to Wilkerson. We remand the case
in order for the court to state on the record its findings underlying its conclusion that
consecutive sentences were warranted pursuant to Wilkerson.
Although we conclude that the trial court erroneously applied two enhancement
factors, the lengths and manner of service of the Defendant’s sentences are proper. We also
conclude that the trial court erred by failing to state on the record the facts underlying its
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conclusion that consecutive sentences were warranted pursuant to Wilkerson. We remand
the case in order for the court to make its findings on the record.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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