State of Tennessee v. Garrett Nicholas Sons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 19, 2003
STATE OF TENNESSEE v. GARRETT NICHOLAS SONS
Direct Appeal from the Criminal Court for Loudon County
No. 10,419C E. Eugene Eblen, Judge
No. E2003-01082-CCA-R3-CD
November 21, 2003
The defendant pled guilty to aggravated robbery and felony evading arrest. The trial court ordered
the sentences for the offenses committed in Loudon County to be served consecutively to a sentence
for robbery in Knox County. The defendant contends on appeal that the trial court erred in imposing
consecutive sentencing. The trial court did not err in imposing consecutive sentencing because the
defendant was on probation when the current offenses were committed. The judgments of the trial
court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
ALAN E. GLENN, JJ., joined.
Mary K. Longworth, Loudon, Tennessee, for the appellant, Garrett Nicholas Sons.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and Daryl Roger Delp, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The defendant, Garrett Nicholas Sons, pled guilty to aggravated robbery (Class B felony) and
evading arrest (Class D felony). The trial court sentenced the defendant to concurrent sentences of
twelve years on the aggravated robbery conviction and three years on the felony evading arrest
conviction. The trial court reserved judgment on whether the sentence should be served
consecutively to an eight-year sentence for a robbery conviction in Knox County. Following a
sentencing hearing, the trial court ordered the current sentences to be served consecutively to the
eight-year sentence received in Knox County, for a total effective sentence of twenty years. This
appeal timely followed. The defendant contends on appeal that the trial court erred in imposing
consecutive sentencing. The judgments of the trial court are affirmed.
Facts
The defendant pled guilty to robbery in Knox County on June 25, 2001, and was sentenced
to eight years probation. On September 15, 2001, the defendant, along with two co-defendants,
traveled to Loudon County and went to a local motel. The defendant took currency in the amount
of $563 from an employee of the motel without his consent, putting him in fear with the use of an
item used in such a way as to suggest that it was a deadly weapon. The defendant left the scene in
a vehicle and fled from law enforcement officers, causing risk of death or injury to innocent
bystanders or other persons on the road. The defendant was later arrested and pled guilty to
aggravated robbery and felony evading arrest. Finding that the defendant was on probation for the
robbery in Knox County when the Loudon County offenses were committed, the trial court ordered
the sentences to be served consecutively to the Knox County sentence.
Analysis
The defendant contends on appeal that the trial court erred in ordering the Loudon County
sentence to be served consecutively to the Knox County sentence. A defendant who challenges his
or her sentence has the burden of proving the sentence imposed by the trial court is improper. Tenn.
Code Ann. § 40-35-401, Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). When a defendant appeals the length, range, or manner of service of his or her
sentence, it is this Court’s duty to conduct a de novo review of the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of
correctness is conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540,
543-44 (Tenn. 1999).
Generally, it is within the discretion of the trial court to impose consecutive sentences if it
finds by a preponderance of the evidence that at least one of the following statutory criteria apply:
(1) [t]he defendant is a professional criminal who has knowingly devoted such
defendant’s life to criminal acts as a major source of livelihood;
(2) [t]he defendant is an offender whose record of criminal activity is extensive;
(3) [t]he defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) [t]he 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;
(5) [t]he defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
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time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
(6) [t]he defendant is sentenced for an offense committed while on probation; or
(7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to applying
general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find
an extended sentence is necessary to protect the public from further criminal conduct by the
defendant, and, second, it must find consecutive sentencing to be reasonably related to the severity
of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific
factual findings are unnecessary for the other categories of Tennessee Code Annotated section 40-35-
115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
The defendant contends that the trial court erred because it did not make the specific factual
findings required by Wilkerson. As noted above, such findings are only necessary if the court bases
consecutive sentencing on the dangerous offender category of Tennessee Code Annotated section
40-35-115(b). In this case, the trial court imposed consecutive sentencing because the defendant was
on probation when the current offenses were committed and made no mention of the dangerous
offender category. The record clearly supports this finding by the trial court. The defendant’s
argument is without merit.
Conclusion
The trial court did not err in imposing consecutive sentencing because the defendant was on
probation when the current offenses were committed. Based on the foregoing and the record as a
whole, the judgments of the trial court are affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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