State v. Donald Green

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9808-CR-00276
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE June 3, 1999

Cecil Crowson, Jr. APRIL SESSION, 1999 Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00276 ) Appellee, ) ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ DON ALD M ITCH ELL G REE N,) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MAR TIN PAUL G. SUMMERS P. O. Box 426 Attorney General and Reporter Knoxville, TN 37901-0426 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

RANDALL E. NICHOLS District Attorney General

ROBERT L. JOLLEY, JR. Assistant Attorney General City-County Building Knoxville, TN 37902

ORDER FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE ORDER

This is an appeal as of right from the judgment of the Knox County Criminal

Court. On June 14, 1994, Appellant pleaded guilty to aggravated robbe ry,

misdemeanor theft, and failure to appear. Appellant received a thirty year sentence

for aggravated robbery, to be served concu rrently with an eleven m onths a nd twen ty

nine day sentence for misdemeanor theft. T hese sente nces are to ru n con secu tively

with the six year sente nce for failure to app ear.

Appellant concedes that he was a Range III persistent offender for aggravated

robbery. However, Appellant argues that he should receive only the minimum

sentence for a Range III aggravated robbery offender, twenty years. Appellant

asserts that a tw enty ye ar sen tence for this offense would be sufficient and that the

trial court erred in imposing the maximum sentence for a Range III aggravated

robbery offender. However, after a careful review of the record and briefs in this

matter we are of the opinion that the judgment of the trial court should be affirmed

pursua nt to Rule 20, Rule s of the C ourt of Crim inal App eals.

The standard of review for the appeal of a sentence imposed by the trial court

is de novo with a presumption of correctness for the determinations made by the trial

court. Tenn. Code Ann. § 40-35-401( d). Th is pres ump tion of c orrect ness is

“conditioned upon the affirm ative show ing in the record that the trial court considered

the sentencing principles and a ll relevant facts and circum stances.” State v. Ashby

823 S.W. 2d 166, 169 (Tenn. 1991). If the record shows that the court did not

consider those factors , the sta ndard of review is strictly de novo. However, contrary

to Appellant’s assertion, the record here indica tes that the trial court did, in fact,

consider these factors in making its determination of the proper sentence. The trial

court seem ed con vinced tha t, given Ap pellant’s pr ior crimina l record w ith no

-2- evidence showing potential for rehabilitation other than Appellant’s statements that

he is remo rseful, a thirty year sentence as a Range III offender was appropriate.

Appellant ha s not satisfied his burd en of proving tha t the sentence was impro per.

Therefore, we will not disturb the decision of the trial court and affirm pursuant

to Rule 20, Rules of the Court of Criminal Appeals. It app earing that Ap pellan t is

indigent, costs of the appeal will be paid by the State of Tennessee

______________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ NORMA MCGEE OGLE, JUDGE

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