Opinion
No. M2006-01448-CCA-R3-CD.
Assigned on Briefs February 13, 2007.
Filed April 4, 2007.
Appeal from the Circuit Court for Marshall County; Nos. 16716, 16717, 16718; Robert Crigler, Judge.
Judgment of the Circuit Court Affirmed.
Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the Appellant, Carlos Alvarez Levy.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.
DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and J.C. MCLIN, JJ., joined.
OPINION
The Appellant, Carlos Alvarez Levy, appeals the imposition of consecutive sentences by the Marshall County Circuit Court. Levy's sentences stem from his guilty pleas to one count of aggravated assault, two count s of especially aggravated kidnapping, one count of aggravated robbery, one count of attempted aggravated robbery, and one count of unlawful possession of a weapon. Following a sentencing hearing, the trial court imposed the minimum sentence of fifteen years for each of the especially aggravated kidnapping convictions, as a violent offender, and ordered that the sentences be served consecutively. The sentences imposed for the remainder of the convictions were ordered to be served concurrently for an aggregate effective sentence of thirty years. After review, the trial court's sentencing decision is affirmed.
Factual Background
In June 2005, a Marshall County grand jury returned indictments against the Appellant arising from three separate cases. In count one of case number 16716, the Appellant was indicted for the aggravated assault of Rodney Polk, which occurred on April 30, 2005, during a verbal altercation in Marshall County, at which the Appellant "produced a knife and cut Mr. Polk on the left shoulder and back of the head with that knife causing him to go to the emergency room." In case number 16717, the Appellant was indicted for two counts of especially aggravated kidnapping, one count of aggravated robbery, and one count of attempted aggravated robbery involving the victims, Fletcher Watson and John Conger. The factual basis for these crimes established that on the night of May 10, 2005, Watson and Conger were playing in a band at "Ellison Place" in Nashville. The victims were standing near Watson's car during a "band break" when they first encountered the Appellant. The Appellant, brandishing a pistol, ordered the victims into the car and demanded "that he be taken some place." The victims were at times unable to understand the Appellant's demands due to the Appellant's difficulty in speaking English. The twenty-three-year-old Appellant informed the victims that he was a "mafioso" or gang leader and "that he could do them harm." After entering onto Interstate 65, the victims were ultimately directed to drive to Lewisburg, where the Appellant stated he had relatives. Upon arriving in Lewisburg, the Appellant ordered the two victims out of the car and demanded their money at gunpoint. Approximately $25 was taken from Watson; however, Conger informed the Appellant that he had no money. After searching Conger's pockets, the Appellant walked away. The two victims contacted the police and identified the Appellant from a photo lineup.
On May 14, 2005, police, who were searching for the Appellant as a result of the outstanding warrants, were informed that he was at his girlfriend's residence in Lewisburg. The Appellant was found by the police in the back seat of his girlfriend's car with a loaded handgun. Based upon these facts, the Appellant was indicted in case number 16718 with one count of unlawful possession of a weapon.
On April 19, 2006, the Appellant entered "open" guilty pleas to the offenses of aggravated assault, especially aggravated kidnapping, aggravated robbery, attempted aggravated robbery, and unlawful possession of a weapon. A sentencing hearing was held on June 7, 2006. In case number 16716, the trial court imposed a sentence of five years for aggravated assault. In case number 16717, the court imposed fifteen-year sentences for each especially aggravated kidnapping conviction, a ten-year sentence for the aggravated robbery, and a five-year sentence for the attempted aggravated robbery. The court further ordered that the robbery convictions be served concurrently to each other, as well as to the kidnapping charges. However, the court ordered that the two kidnapping sentences, which were required to be served at 100%, be served consecutively to each other. In case 16718, the court imposed a sentence of eleven months and twenty-nine days for the unlawful possession of a weapon conviction. The sentences in each of the three separate cases were ordered to be served concurrently, resulting in an effective sentence of thirty years. This appeal followed.
Analysis
On appeal, the Appellant asserts that the trial court erred in imposing consecutive sentences in case 16717 because "the offenses were as a result of a common scheme, plan and criminal design." In the alternative, he asserts that if this Court finds consecutive sentencing appropriate, then it should further find that "a minimum sentence is the least severe measure necessary to protect the public from his future criminal conduct and that the [Appellant's] potential for rehabilitation is great."
When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." Ashby, 823 S.W.2d at 169. Furthermore, we emphasize that facts relevant to sentencing must be established by a preponderance of the evidence and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). The party challenging a sentence bears the burden of establishing that the sentence is erroneous. T.C.A.§ 40-35-401(d), Sentencing Comm'n Comments.
A trial court may impose consecutive sentencing upon a determination that one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This section permits the trial court to impose consecutive sentences if the court finds, among other criteria, that "[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" or that "[t]he defendant is sentenced for an offense committed while on probation[.]" T.C.A. § 40-35-115(b)(4), (6) (2003). The length of the sentence, when consecutive in nature, must be "justly deserved in relation to the seriousness of the offense" and "no greater than that deserved" under the circumstances. T.C.A. § 40-35-102(1), -103(2) (2003). Additionally, whether sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion of the trial court. State v. Hastings, 25 S.W.3d 178, 181 (Tenn.Crim.App. 1999).
In Gray, our supreme court held that before consecutive sentencing could be imposed upon the finding of a defendant to be a dangerous offender, other conditions must be present: (a) that the crimes involved aggravating circumstances; (b) that consecutive sentences are a necessary means to protect the public from the defendant; and (c) that the term reasonably relates to the severity of the offenses. Gray v. State, 538 S.W.2d 391, 393-94 (Tenn. 1976). In State v. Wilkerson and State v. Imfeld, our supreme court reaffirmed those principles, holding that before sentencing a defendant to serve consecutive sentences on the basis that he is a dangerous offender, the trial court must find that the resulting sentence is reasonably related to the severity of the crimes and necessary to protect the public against further criminal conduct. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002); State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Proof that a defendant's behavior indicated no hesitation when the risk to life was high "is proof that the offender is a dangerous offender, but it may not be sufficient to sustain consecutive sentences." Wilkerson, 905 S.W.2d at 938.
In imposing consecutive sentencing in this case, the trial court found that the Appellant was a dangerous offender and that he committed the offenses while on probation. The Appellant does not contest the trial court's findings with regard to either factor, recognizing "that the Court in its discretion may find consecutive sentencing appropriate in the instant case." However, relying on State v. Denton, 149 S.W.3d 1 (Tenn. 2004), the Appellant asserts that consecutive sentencing was improper because "the offenses were as a result of a common scheme, plan and criminal design."
The Appellant's argument regarding "common scheme, plan and criminal design" is clearly misplaced. There is no "common scheme or design" exception authorized under the consecutive sentencing provisions of Tennessee Code Annotated section 40-35-115. See T.C.A. § 40-35-115; see also State v. Christopher Wayne Holden, No. M2006-01447-CCA-R3-CD (Tenn.Crim.App. at Nashville, Jan. 30, 2007). Additionally, the Appellant cites no sentencing principle or authority which would require a trial court to impose concurrent sentences if such a continuing plan or scheme was established. The Appellant's reliance on Denton is misplaced as that case deals with evidentiary issues in terms of severance of multiple crimes, not the issue of consecutive sentencing.
With regard to imposing consecutive sentencing, the court made only the following pronouncement:
The State argues that 4 and 6 apply. The [Appellant] is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime to which the risk to human life was high.
Number 4, which I do find applies.
Also Number 6, the [Appellant] is sentenced for a offense committed while on probation.
We note that a finding of any one of the factors for consecutive sentencing enumerated in Tennessee Code Annotated section 40-35-115(b) is sufficient to justify the imposition of consecutive sentences. The record in this case clearly supports the trial court's finding that the Appellant was on probation at the time the instant offenses were committed. The pre-sentence report in the case indicates that the Appellant received a suspended sentence of eleven months and twenty-nine days on December 6, 2004. The kidnapping offenses occurred on May 16, 2005, well within the probationary period. Thus, we conclude that the trial court did not abuse its discretion in ordering that the especially aggravated kidnapping sentences be served consecutively.
We are constrained to note that the trial court's decision was premature in that, although the court found the Appellant to be a dangerous offender, the court failed to determine, on the record, that (1) the resulting sentence is reasonably related to the severity of the crimes and (2) it is necessary to protect the public from further criminal conduct. See Wilkerson, 905 S.W.2d at 938. We emphasize that our supreme court has repeatedly held that it is incumbent on the trial court to make findings regarding these two factors before imposing consecutive sentences. See e.g. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
Notwithstanding this failure, following de novo review, we conclude that consecutive sentencing is also warranted on the ground that the Appellant is a dangerous offender. The conduct of the Appellant in this case involved the kidnapping and terrorizing of two young men in Nashville. He forced them to drive him to Marshall County where he robbed one of the victims and attempted to rob the other at gunpoint. At the time he committed these crimes, he was being investigated for the aggravated assault of another victim. Additionally, when he was finally located by police, he was hiding in the back seat of his girlfriend's car armed with a weapon. These facts clearly demonstrate that the Appellant had little or no regard for human life and no hesitation about committing a crime in which the risk to life was high. See T.C.A. § 40-35-115(b)(4).
Moreover, we find that consecutive sentencing is necessary to protect the public from further criminal behavior by the Appellant. In less than two weeks, the Appellant was involved in numerous serious crimes, involving deadly weapons, against multiple victims. Again, these facts demonstrate that consecutive sentencing is necessary to protect the public from further criminal conduct by the Appellant. Moreover, with regard to the length of the aggregate sentence and its relationship to the severity of the offenses, we also find that the record supports the imposition of consecutive sentencing based upon the facts presented.
The Appellant contends that "in the alternative if the Court in its discretion applies consecutive sentencing, then the Court [should] apply the principles set forth in Desirey, Smith, and Woods and find that a minimum sentence is the least severe measure necessary to protect the public from his future criminal conduct and that the [Appellant's] potential for rehabilitation is great." A review of the cases relied upon reveals that they have no relevance to the Appellant's argument. See State v. Desirey, 909 S.W.2d 20 (Tenn.Crim.App. 1995); State v. Woods, 814 S.W.2d 378 (Tenn.Crim.App. 1991); overruled in part by Wilkerson, 905 S.W.2d at 938; State v. Jeffrey Smith, No. E2002-01147-CCA-R3-CD (Tenn.Crim.App. at Knoxville, Mar. 18, 2003). Moreover, with regard to the Appellant's assertion that he should receive a "minimum sentence," the record indicates that the Appellant did receive the minimum sentence of fifteen years for each of his especially aggravated kidnapping convictions.
CONCLUSION
Based upon the foregoing, the sentencing decision of the Marshall County Circuit Court is affirmed.