State of Tennessee v. Terrance Lewis - Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 9, 2013
STATE OF TENNESSEE v. TERRANCE LEWIS
Appeal from the Criminal Court for Shelby County
No. 0806536 Chris Craft, Judge
No. W2012-00723-CCA-MR3-CD - Filed August 9, 2013
D. K ELLY T HOMAS, J R., J., concurring.
I write separately to address the current split of authority on the standard to be applied
to appellate review of consecutive sentencing. The majority determines that the abuse of
discretion standard with a presumption of reasonableness is the applicable standard.
However, as noted by the majority, the standard of review on the issue of consecutive
sentencing is not clear under our state’s current jurisprudence. In the arena of consecutive
sentencing, our supreme court has not issued a definitive ruling on the standard of review to
be applied by this court. In response, some panels of this court are applying an abuse of
discretion standard based upon the recent decisions of Bise and Caudle, while others are
continuing to apply a de novo standard of review until instructed otherwise by our supreme
court, and yet others are avoiding the standard of review altogether in deciding the issue. See
generally State v. Robert Fusco, No. M2012-01068-CCA-RM-CD, 2012 WL 6062856, at
*38-39 (Tenn. Crim. App. Dec. 06, 2012) (silent on standard of review to be applied), perm.
app. denied, (Tenn. Apr. 11, 2013); State v. Eric Demond McCathern, No. M2011-01612-
CCA-R3-CD, 2012 WL 5949096, at *4-5 (Tenn. Crim. App. Nov. 16, 2012) (majority
applying abuse of discretion standard of review and concurring opinion advocating de novo
standard of review), perm. app. denied, (Tenn. Feb. 25, 2013). I am hesitant to apply the
abuse of discretion standard wholesale to sentencing determinations until directed by our
supreme court to do so. Nonetheless, in my opinion, the imposition of consecutive sentences
in this case is appropriate under either standard of review, de novo or abuse of discretion.
For these reasons, I concur in the result reached by the majority.
D. KELLY THOMAS, JR., JUDGE