State v. Kaufmann

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 22, 1997
• Docket: 03C01-9607-CC-00260
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL 1997 SESSION October 22, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. No. 03C01-9607-CC-00260 ) Appellee, ) BLOUNT COUNTY ) VS. ) HON. D. KELLY THOMAS, JUDGE ) MICHAEL W. KAUFMANN, ) (Aggravated Burglary, 2 counts, ) Forgery, Theft) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

MACK GARNER JOHN KNOX WALKUP District Public Defender Attorney General and Reporter 419 High Street Maryville, TN 37801 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

MIKE FLYNN District Attorney General

PHILLIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37801

OPINION FILED:

AFFIRMED

CHRIS CRAFT, SPECIAL JUDGE

OPINION The defendant, Michael Kaufmann, appeals as of right from a sentence

imposed by the Blount County Circuit Court. He entered guilty pleas to five

indictments: two Aggravated Burglary indictments (eight years), Theft over $1,000

(four years), Theft over $500 (two years) and Uttering a Forged Instrument (two years),

all concurrent, as a Range II Multiple Offender, in the custody of the Department of

Correction. A sentencing hearing was then held for the sole purpose of determining

whether these five convictions would be served concurrently or consecutively to

unexpired sentences he was then serving for crimes committed in Loudon and

Anderson Counties, totaling five years. The defendant contends that the trial judge

erred in ordering that the effective eight year sentence for his Blount County crimes be

served consecutively to his previous five year sentences. We affirm the judgment of

the trial court.

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

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

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990).

However, this presumption of correctness is "conditioned upon the affirmative showing

that the trial court in the record considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the

event that the record fails to demonstrate such consideration, review of the sentence

is purely de novo. Id. If appellate review reflects that the trial court properly considered

all relevant factors and its findings of fact are adequately supported by the record, this

Court must affirm the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).

The procedure the trial court must follow in deciding whether or not a sentence

should be served concurrently or consecutively with another unexpired sentence is set

out in Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure, as follows:

Sentence When Defendant Has Prior Sentence Not Fully Served. If the defendant has additional sentences not yet fully served as the result of convictions in the same court or in other courts of this state and if this fact is made known to the court prior to sentencing, the court shall recite this in the judgment setting sentence, and the sentence imposed shall be deemed to be concurrent with the prior sentence or sentences, unless it affirmatively appears

2 that the new sentence being imposed is to be served consecutively with the prior sentence or sentences. The judgment to make the sentences consecutive or concurrent shall explicitly recite the judge's reasons therefor, and is reviewable on appeal.

This Court has previously held that the exercise of discretion given the trial court by

Tenn. R. Crim. App. 32(c)(2) essentially involves the consideration of the consecutive

sentencing criteria provided in Tenn. Code .Ann. § 40-35-115(b)(1990). See State v.

Lisa Gaye Copeland, 1997 Tenn. Crim. App. LEXIS 453, No. 03C01-9605-CC-00196,

Knoxville, May 13, 1997, and State v. Thomas Edward Capps, 1996 Tenn. Crim. App.

LEXIS 125, No. 01C01-9506-CC-00164 (Tenn. Crim. App., Nashville, February 29,

1996). The trial court has the discretion to run sentences consecutively if it finds any

of seven criteria by a preponderance of the evidence.

Tenn. Code Ann. § 40-35-115(b) states in relevant part that “the court may

order sentences to run consecutively if the court finds by a preponderance of the

evidence that: (1) The defendant is a professional criminal who has knowingly devoted

himself to criminal acts as a major source of livelihood; (2) The defendant is an

offender whose record of criminal activity is extensive,” and “(6) The defendant is

sentenced for an offense committed while on probation.” The trial judge found all three

of these criteria applicable to the defendant, and his findings are amply supported by

the record.

The presentence report and testimony of the defendant show that he served 19

months of a 3 year sentence in 1984 for trafficking in cocaine. In 1988, a warrant was

issued for him for five counts of fraud involving felony bad checks, which was served

on him in 1991, resulting in convictions. He then became partners in crime with a

friend he met in prison, crossing the country on interstate highways, burglarizing

houses close to shopping malls and expressway exits, stealing checks and forging and

cashing them before moving to the next county or state, repeating the same crimes

there. The defendant began this in 1993, using his half of the proceeds to pay rent,

bills and to buy cocaine for himself and his girlfriend. Between trips he testified he

would work one or two days a week making golf videos. Eventually he gave up his

video business in 1994, when he was arrested and convicted under a false name for

Forgery in Florida. The authorities placed him on probation for five years, not knowing

3 his real identity. When he was released from jail on probation, instead of reporting to

the probation office, he and his partner left Florida, working their way up the interstate

committing burglaries, and stealing and cashing checks as his sole source of

livelihood, until finally arrested in Loudon County, Tennessee. The defendant admitted

that he was on probation from Florida at the time of these crimes, and that at the time

of sentencing there was a hold placed on him by the Federal authorities for

counterfeiting.

The trial judge found that the defendant was a professional criminal who has

knowingly devoted himself to criminal acts as a major source of livelihood, that his

record of criminal activity was extensive, and that he was on probation when all his

Tennessee crimes were committed. The record supports this determination. Whether

sentences are to be served concurrently or consecutively is a matter addressed to the

sound discretion of the trial court. State v. James, 688 S.W.2d 463 (Tenn. Crim. App.

1984). The record also shows clearly that the consecutive sentences are necessary

to protect the public from further misconduct by the defendant, and reasonably reflect

the severity of the offenses. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.

1995).

The judgment of the trial court is AFFIRMED.

CONCUR:

4 JERRY L. SMITH, JUDGE

JOE RILEY, JUDGE