State v. Michael Harvey

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 20, 1998
• Docket: 02C01-9701-CC-00049
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION FILED February 20, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9701-CC-00049 Appellee, ) ) Madison County V. ) ) Honorable Franklin Murchison, Judge MICHAEL D. HARVEY, ) ) (Sentencing) Appellant. ) )

FOR THE APPELLANT: FOR THE APPELLEE:

J. Colin Morris John Knox Walkup Attorney at Law Attorney General & Reporter 204 West Baltimore P.O. Box 1623 Janis L. Turner Jackson, TN 38302-1623 Counsel for the State Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

Jerry Woodall District Attorney General

Donald H. Allen Assistant District Attorney General State Office Building, Suite 201-A P.O. Box 2825 Jackson, TN 38302

OPINION FILED: _______________________

AFFIRMED

PAUL G. SUMMERS, Judge OPINION

The appellant, Michael D. Harvey, pled guilty to two counts of aggravated

burglary, theft of property over $1000, and theft of property under $500. In

September 1996 the trial court sentenced the defendant as a Range I, standard

offender, to six years for each count of the aggravated burglary, four years for

the theft of property over $1000, and eleven months and twenty-nine days for the

theft of property under $500. All of the appellant’s sentences were to run

concurrently.

The appellant presents the following issues for our review: first, whether

his sentence was excessive and second, whether the trial court erred by ignoring

the presumptions of minimum sentencing. We affirm.

The appellant’s argues that the trial court erred in applying the maximum

sentence for each of his felony cases. He contends that the trial court did not

comply with Tennessee Code Annotated § 40-35-102(2) (Supp. 1996), which

assures “fair and consistent treatment of all defendants by eliminating unjustified

disparity in sentencing and providing a fair sense of predictability of the criminal

law and its sanctions.” The appellant asserts that the trial court should have

sentenced him to the minimum sentence on each conviction because he is a

Range I, standard offender. Therefore, he maintains that he should have

received the presumptive minimum sentence on each count of aggravated

burglary, which would have been three years, and the presumptive minimum

sentence for theft of property over $1000, which would have been two years.

The appellant does not contest his sentence for the theft of property under $500.

The state argues that the trial court properly sentenced the appellant. It

asserts that Tennessee Code Annotated § 40-35-210(d) (Supp. 1996) allows

-2- the trial court to start with the minimum sentence and then enhance the sentence

if there are enhancement factors. The state asserts that the trial court found

several enhancing factors and no mitigating factors, and thus, the appellant’s

sentence for each conviction was at the top of the range. The state further notes

“that the enhancing factors justified sentencing the defendant at the top of the

range” in light of the fact that the trial court ordered the sentences to run

concurrently, not consecutively.

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) (1990). 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) (1990), 40-35-210(b) (Supp. 1996).

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.

1994).

-3- The trial court did not err in sentencing the appellant to the top of the

range for each of his convictions. Based on the record before us, the trial court

followed the principles of sentencing. The trial court based its decision on the

appellant’s extensive criminal history under Tennessee Code Annotated § 40-

35-114(1) (Supp. 1996) and the appellant’s unwillingness to comply with

probation conditions while on probation in the past under Tennessee Code

Annotated § 40-35-114(8) (Supp. 1996). The trial court also noted the

seriousness of the crimes the appellant had committed as a juvenile. Finding no

error mandating reversal, we affirm the trial court’s judgment.

-4- _______________________ PAUL G. SUMMERS, Judge

CONCUR:

____________________________ DAVID G. HAYES, Judge

____________________________ JOE G. RILEY, Judge

-5-