State of Tennessee v. Willie Hardy, Jr. - concurring in part, dissenting in part

07/13/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2017
STATE OF TENNESSEE v. WILLIE HARDY, JR.
Circuit Court for Montgomery County
No. 41400478
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No. M2016-01748-CCA-R3-CD
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JOHN EVERETT WILLIAMS, J., concurring in part and dissenting in part.
I agree with the majority’s conclusion that the evidence was sufficient to support the
Defendant’s conviction for aggravated robbery and that the record supports the length of
the Defendant’s within-range sentences. However, I respectfully dissent from the
majority’s conclusion regarding the trial court’s imposition of consecutive sentences.
I agree that the trial court failed to make the requisite findings provided in State v.
Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), in concluding that the Defendant is a
“dangerous offender” pursuant to Tennessee Code Annotated section 40-35-115(b)(4).
However, I disagree with the majority’s conclusion that the Defendant’s criminal history
did not support a finding that his “record of criminal activity is extensive” pursuant to
section 40-35-114(b)(2). The record reflects that the Defendant has three prior felony
convictions in Illinois for aggravated fleeing or attempting to elude police and was
convicted of violating the terms of his probation on two prior occasions. According to the
presentence report, the Defendant admitted to smoking marijuana daily since the age of
thirteen. See State v. Koffman, 207 S.W.3d 309, 324 (Tenn. Crim. App. 2006) (holding
that “an extensive record of criminal activity may include criminal behavior which does
not result in a conviction”). Based on the deference that this court must give to the trial
court’s exercise of its discretionary authority to impose consecutive sentences, I cannot
conclude that the trial court abused its discretion in finding that the Defendant had an
extensive record of criminal activity and in imposing consecutive sentences.
Accordingly, I would affirm the judgments of the trial court.
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JOHN EVERETT WILLIAMS, JUDGE