DocketNumber: E1999-00044-CCA-R3-CD
Judges: Judge Jerry L. Smith
Filed Date: 12/6/1999
Status: Precedential
Modified Date: 10/30/2014
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1999 FILED STATE OF TENNESSEE, ) C.C.A. NO. E1999- 00044-CCA-R3-CD December 6, 1999 ) Cecil Crowson, Jr. Appellee, ) Appellate Court Clerk ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY THOMAS, JR. ARTHUR COPELAND, ) JUDGE ) Appellee. ) (Direct Appeal- Class A Misdemeanor) FOR THE APPELLANT: FOR THE APPELLEE: ROBERT W. WHITE PAUL G. SUMMERS 404 Ellis Avenue Attorney General & Reporter Maryville, TN 37804 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 MIKE FLYNN District Attorney General WILLIAM REED Assistant District Attorney 363 Court Street Maryville, TN 37804 OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE OPINION The appellant, Arthur Copeland, was convicted by a Blount Coun ty jury of one (1) coun t of simple assa ult, a Class A m isdemea nor. The trial court sentenced him to eleven (1 1) months and twenty-nine (29) day s in the county jail and ordered tha t the ap pellan t’s sen tence for ass ault run cons ecutive ly to his sentence for a prior aggravate d robbery conviction. On appeal, the appellant claim s that th e trial co urt erre d in (1) im posin g sen tence imm ediate ly after the jury rendered its verdict without affording the appellant a separate sentencing hearing; and (2) orderin g con secu tive sen tence s. After thorou ghly reviewing the rec ord be fore this Cour t, we co nclud e that th ere is n o evide nce in the record to support the trial court’s imposition of consecutive sentences. Therefore, this case is remanded to the trial court for another sentencing hearing. I. The appellant was convicted for striking Willia m G oodw in on th e side of his face with a han dgun. A fter the jury ren dered its ve rdict, the trial court proceeded to sentence the appellant for his conviction of simp le assault. After a brief discussion regarding whether the ap pellan t’s sen tence shou ld run c oncu rrently or consecutively to his p rior conviction for aggra vated robbe ry, defense counsel stated to th e trial court: of cours e, we w ould n aturally prefer them to run con currently. If we’re not going to be able to agree with the State on that issue, quite honestly, I’m not – I didn’t really come here prepared for sentencing today. I’d like to – if it’s going to be a question of whether it’s going to be consecutive or concurrent, then I’d like a chance to prepa re and have a prese ntenc e repo rt so we could look at differen t factors that wo uld be relevant. I can’t just on my client’s behalf, althou gh the Cour t may h ave a re al goo d idea of wha t it wants to do, I hate to just agree to consecutive sentencing. The trial court then immediately imposed sentence. The court found that the appellant had an exten sive criminal history and had several prior convictions for violent offens es. In m aking this determination, the trial court referenced a -2- presentence report prepared for sentencing on a prior offense. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days and ordered that this sentence run consecutively to his sentence for aggravated robbery. From the trial court’s imposition of sentence, the appellant now brings this ap peal. II. A. This Court’s review of the sentence imposed by the trial court is de novo with a presu mption of correctn ess. Tenn. Code Ann. § 40-35 -401( d). Th is presumption is conditioned upon 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. Poo le,945 S.W.2d 93
, 96 (Tenn. 1997). The burden is upon the appealing party to show that the sente nce is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting o ur review, we are require d, pursu ant to Te nn. Co de 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 pre senten ce repo rt; (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 statem ent the defen dant w ishes to ma ke in th e defe ndan t's own behalf about sentencing. -3- Consec utive sentencing is governed by Tenn. Code Ann. § 4 0-35-11 5. A trial court may order sentences to run consecutively if it finds that one or more of the statutory criteria exists by a p repond erance of the evide nce. Te nn. Code Ann. § 40-35-11 5(b); State v. Black,924 S.W.2d 912
, 917 (Tenn. Crim. App. 1995). B. It appears that the trial court ordered consecutive sentences based upon a finding that the appellant was “an offender whose record of criminal activity is extensive .” Tenn . Code Ann. § 40-35 -115( b)(2). T his is cle arly an app ropriate basis upon which to impose consecutive sentences. Howeve r, the trial court made its finding while referencing a presentence report believed by the trial judge to have been prepared for the appe llant’s sente nce for a prior conviction. This presentence report is not in the record before this Court. Despite repeated efforts by this Court to supplement the record with the prior presentence report, we have been informed by the Blount Coun ty Circuit Court Clerk’s Office and by the appellant’s probation officer that such p resente nce rep ort does not exist. Genera lly, under this Court’s standard of review, we would presume that the trial court’s findings are correct. Tenn. Code A nn. § 40-35-4 01(d). However, there is no evidence in the record to support the trial court’s decision to impose consecu tive sentences in this case. Therefore, this case must be reman ded to the trial court for resentencing.1 See Tenn. Code Ann. § 40-35-401(c). Upon resentencing, the trial cour t is not precluded from considering the propriety of consecu tive senten cing. However, if the trial court determ ines that conse cutive sentences are appropriate, that conc lusion mus t be su pporte d by ev idenc e in the record. 1 The appellant also raises the issue whether the trial court erred in refusing a separate sentencing hearing . Typically, one w ho is con victed of a misde mea nor is not s tatutorily entitled to a s eparate senten cing hea ring. See Tenn. Code Ann. § 40-35-302(a). However, because we must remand for resente ncing, this is sue is ren dered m oot. -4- III. There is no evidence in the record to support the trial court’s imposition of consecu tive sente nces in this case. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court for resentencing. ______________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ GARY R. WADE, PRESIDING JUDGE ___________________________________ JAMES CURWOOD WITT, JR., JUDGE -5-