State v. Bolden

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 18, 1998
• Docket: 03C01-9706-CR-00230
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL 1998 SESSION May 18, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9706-CR-00230 Appellee, ) ) Roane County V. ) ) Honorable E. Eugene Eblen, Judge JIMMY RAY BOLDEN, JR., ) ) (Sentencing) Appellant. ) )

FOR THE APPELLANT: FOR THE APPELLEE:

Joe H. Walker John Knox Walkup District Public Defender Attorney General & Reporter

Walter B. Johnson, II Janis L. Turner Assistant District Public Defender Cordell Hull Building, Second Floor P.O. Box 334 425 Fifth Avenue North Harriman, TN 37748 Nashville, TN 37243-0493

Charles E. Hawk District Attorney General

Roger Delp Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED: _______________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION Appellant Jimmy Ray Bolden, Jr. was indicted for aggravated burglary and

theft of property over $1000. He pled guilty to both charges. The trial court

sentenced him as a Range II, multiple offender, to six years for the aggravated

burglary conviction and to four years for the theft conviction in the Tennessee

Department of Correction. The sentences were to run concurrently to one

another but consecutively to the appellant’s prior sentences which he was

serving.

The appellant’s sole issue on appeal is whether the trial court erred by

sentencing the appellant to consecutive sentences. We affirm.

The facts of the case show that the appellant entered the home of Danny

and Amanda Estes in Roane County without their consent with the intent to

commit theft. He stole firearms and a videocassette recorder. He later pawned

these items at the EZ Pawn Shop in Anderson County.

The appellant acknowledges that the trial court could, and did, find that

the appellant was a career criminal under Tennessee Code Annotated § 40-35-

115 (1997). However, the appellant contends that the trial court “must look to

the overall length of the sentences given in the determination of consecutive or

concurrent.” The appellant further maintains that sentencing him “to another 6

years on top of the lengthy sentences already being served is excessive.”

The state asserts that the trial court did not err in ordering consecutive

sentences. It contends that the trial court followed the principles of sentencing

and that although the appellant was a Range II, multiple offender, the trial court

sentenced him not only to the minimum sentence for aggravated burglary and to

theft of property valued over $1000 but also ordered that his sentences be

served concurrently to one another. Furthermore, the state contends that under

-2- Tennessee Code Annotated § 40-35-115 the trial court may order consecutive

sentencing “if the defendant has an extensive criminal history and if the instant

offense was committed while the defendant was on probation at the time of the

commission of the offense.” The appellant has numerous convictions in several

counties, and he was on community corrections at the time the instant offenses

occurred. Finally, the state argues that consecutive sentencing is necessary to

protect the public from the appellant, especially in light of his lengthy criminal

history. We note that his criminal history spans five pages in this record.

When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1997). However, this presumption is conditioned on an affirmative

indication in the record that the trial court considered the sentencing principles

and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

The appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and

(f) the appellant’s potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997).

The trial court has the “authority to consider whether or not the effective,

total sentence will meet the principles and purposes of the Sentencing Reform

Act when assessing what weight applies to those factors which affect both the

length of each sentence for the involved offenses and the consecutive

sentencing decision.” State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.

-3- 1994).

We conclude that the trial court did not err in ordering consecutive

sentencing. The appellant, who was only twenty-six years old at the time of

sentencing, already had a lengthy history of criminal activity. Furthermore,

because he was on community corrections at the time of the offenses in this

case, he has shown the judicial system that he is not a rehabilitation candidate.

To say that he is not amenable to correction is charitable. Frankly, the record

shows that he is not even curious about behaving himself.

We affirm the trial court’s judgment.

__________________________ PAUL G. SUMMERS, Judge

-4- CONCUR:

____________________________ JERRY L. SMITH, Judge

____________________________ CURWOOD W ITT, Judge

-5-