The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
July 31, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * No. 01C01-9706-CR-00202 Clerk
Appellate Court
Appellee, * Davidson County
vs. * Hon. Thomas H. Shriver, Judge
JEFFREY AARON PEWITT, * (Consecutive Sentencing)
Appellant. *
For Appellant: For Appellee:
Jeffery A. DeVasher John Knox Walkup
Assistant Public Defender Attorney General & Reporter
1202 Stahlman Building
Nashville, TN 37201 Daryl J. Brand
(on appeal) Assistant Attorney General
425 Fifth Avenue North
Jefferson Dorsey Cordell Hull Building, Second Floor
Assistant Public Defender Nashville, TN 37243-0493
1202 Stahlman Building
Nashville, TN 37201 Nicholas Bailey
(at trial) Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
OPINION FILED:___________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Jeffrey Aaron Pewitt, indicted on four counts of
aggravated robbery, entered pleas of guilt to three counts of robbery, a Class C
felony. See Tenn. Code Ann. § 39-13-401. The trial court classified the defendant
as a Range II offender and imposed two concurrent nine-year sentences and a
consecutive sentence of six years. This effective sentence of fifteen years is to be
served consecutively to a previous sentence in which the defendant's release on
community corrections had been revoked.
In this appeal of right, the defendant challenges the trial court's
imposition of consecutive sentences. We find no error and affirm the judgment of
the trial court.
The state presented a summary of proof at the guilty plea hearing. On
April 3, 1996, Carolyn Sue Vick was walking across the parking lot of a Nashville
grocery store. As she approached the store entrance, the defendant reached from
the passenger side of a moving vehicle to snatch her purse. Ms. Vick was dragged
several feet before she let go of her purse. She required treatment for a head injury,
cuts and bruises. Later that afternoon, Ila Mae Bass was similarly robbed of her
purse by the defendant in a different Nashville grocery store parking lot. She also
suffered injuries requiring medical treatment.
The next day, the police discovered that a car fitting the description of
the one used in the robberies was registered to Rhonda Brownlee, a co-defendant.
Ms. Brownlee, who had been arrested earlier that day on an unrelated offense,
described the two men she had allowed to drive her car. Later that day, police
observed Ms. Brownlee's car enter a grocery store parking lot. The individuals in
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the car matched the description provided by the victims and Ms. Brownlee. The
police followed the suspects from the grocery store to a nearby K-Mart. Shortly after
their arrival, the defendant leaned from the window of the moving vehicle to grab the
purse of Wendy Peplinski. After a brief pursuit, the police apprehended the
defendant and co-defendant Jenkins. The defendant admitted his involvement in
the three robberies.
At the sentencing hearing, Ms. Vick recalled that she was dragged six
to ten feet before she was able to release her purse. She suffered a concussion,
contusions, and severe scratches on her back. Ms. Vick testified that the incident
had resulted in marked emotional trauma requiring treatment. As a result, she was
unable to continue her work. It was her opinion that the defendant should receive
mandatory drug rehabilitation treatment and some term of incarceration.
At the sentencing hearing, Ms. Bass testified that she had just finished
loading her groceries into the trunk of her car when she was accosted from behind,
knocked down, and dragged by a car. She suffered a concussion, internal bleeding
on the brain, numerous scratches on her arms and ankle, and an injury to her hand.
Ms. Bass indicated that the emotional strain had been difficult and that she was
fearful of going out. She stated that she had been unable to sleep for two months
following the robbery and asked for a harsh sentence.
Ms. Peplinski testified that as she walked through the K-Mart parking
lot, a car was driven beside her and an occupant grabbed her purse. She stated
that while she had suffered only minor bruises to her arm, she was fearful now and
limited her activities because of the incident. Ms. Peplinski asked that the
defendant be punished "to the fullest extent of the law."
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The defendant testified that since his arrest he had taken responsibility
for his crimes and that he was "glad" he was caught because, otherwise, he would
not have known how to stop his destructive behavior. He voluntarily provided police
with a statement fully describing the offenses. The defendant testified that his father
died when he was eight and that he had experienced a bitter relationship with his
family. While acknowledging that he started using drugs and alcohol at the age of
sixteen and had a lengthy criminal record, he expressed remorse for his lifestyle and
drug habit. Since being incarcerated, the defendant had completed the Life Line
Program, a drug rehabilitation and behavior modification program. At the time of
sentencing, he was an intern with the program and worked with other individuals
who had similar problems. The defendant maintained that he had experienced no
disciplinary problems in jail or at Life Line. He is enrolled in computer classes
through the jail and has maintained a 3.7 grade point average. The defendant
stated that he intended to continue with the drug rehabilitation program upon his
release and would devote his time to drug prevention among young people. He
expressed shame for his actions.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). 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." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
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Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in
this case demonstrates that the trial court followed Ashby and made adequate
findings of fact.
In calculating the sentence for Class B, C, D, or E felony convictions at
the time of these offenses, the presumptive sentence is the minimum within the
range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-
210(c). If there are enhancement factors but no mitigating factors, the trial court
may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A
sentence involving both enhancement and mitigating factors requires an assignment
of relative weight for the enhancement factors as a means of increasing the
sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced
within the range by any weight assigned to the mitigating factors present. Id.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989,
the limited classifications for the imposition of consecutive sentences were set out in
Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court
ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the
court established an additional category for those defendants convicted of two or
more statutory offenses involving sexual abuse of minors. There were, however,
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additional words of caution:
[C]onsecutive sentences should not routinely be imposed
. . . and . . . the aggregate maximum of consecutive
terms must be reasonably related to the severity of the
offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court only upon a determination that one or
more of the following criteria1 exist:
(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;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The 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;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation;
(7) The defendant is sentenced for criminal contempt.
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The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
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Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing
could be imposed upon the dangerous offender, as now defined by subsection
(b)(4) in the statute, 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.
In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high
court reaffirmed those principles, holding that consecutive sentences cannot be
required of the dangerous offender "unless the terms reasonably relate[] to the
severity of the offenses committed and are necessary in order to protect the public
(society) from further criminal acts by those persons who resort to aggravated
criminal conduct." The Wilkerson decision, which modified somewhat the strict
factual guidelines for consecutive sentencing adopted in State v. Woods, 814
S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human
process that neither can nor should be reduced to a set of fixed and mechanical
rules." Wilkerson, 905 S.W.2d at 938.
At the sentencing hearing, the trial judge found that the defendant had
thirty-four prior arrests, eighteen misdemeanor convictions, two felony convictions,
and seven violations of probation. The trial judge denied a grant of probation on the
basis that the defendant was unlikely to perform well given his extensive criminal
history. The trial judge enhanced each sentence by applying the following factors:
the defendant had a number of previous convictions, he had a history of
unwillingness to comply with release to the community, and he committed these
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offenses while on probation. Tenn. Code Ann. § 40-35-114(1), (8), and (13). The
trial court then imposed concurrent, enhanced sentences of nine years on counts
one and three. The defendant received a six-year sentence for count four, to be
served consecutively to count three.
The trial judge imposed consecutive sentencing based on two
grounds: the defendant's prior record and his commission of these offenses while
on probation. Tenn. Code Ann. § 40-35-115(b)(2), (6). The defendant contends
that the trial court improperly applied Tenn. Code Ann. § 40-35-115(b)(6) because
he committed these offenses while serving a sentence on community corrections
not probation. A panel of this court has concluded that this provision may be
applied by the trial court as a basis for consecutive sentencing regardless of the
distinction between community corrections and probation. State v. Jabbaul Pettus,
No. 01C01-9602-CC-00056 (Tenn. Crim. App., at Nashville, Jan. 30, 1997), app.
granted, (Tenn., Sept. 22, 1997). The supreme court, however, has granted review
on this issue. Accord State v. Larry G. Hart, No. 02C01-9406-CC-00111 (Tenn.
Crim. App., at Jackson, June 28, 1995), as clarified on petition to rehear, (July 26,
1995); but see State v. James F. Brown, No. 01C01-9412-CC-00419 (Tenn. Crim.
App., at Nashville, Aug. 11, 1995) (holding the probation factor was an inappropriate
basis for consecutive sentencing given the substantial differences between
probation and community corrections).
In our view, consecutive sentencing was warranted regardless of
whether the trial court correctly applied Tenn. Code Ann. § 40-35-115(b)(6). "[T]he
trial court's reliance on alternative factors in its determination to impose consecutive
sentences is permissible." State v. Kenny Dewayne Covington, No. 01C01-9401-
CR-00010, slip op. at 3-4 (Tenn. Crim. App., at Nashville, Oct. 6, 1994), app.
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denied, (Tenn., Jan. 3, 1995). The Sentencing Commission Comments authorize
consecutive sentences "in the discretion of the court if the court finds one or more of
the criteria set forth in [Tenn. Code Ann. § 40-35-115(b)]." (Emphasis added).
Here, the trial court found that the defendant had an extensive criminal record.
Tenn. Code Ann. § 40-35-115(b)(2). The record supports this finding. The
defendant has engaged in criminal conduct since the age of twenty and has
accumulated twenty convictions and seven probation violations in seven years. The
nature of the defendant's crimes have become progressively more serious. Here,
his conduct caused both physical and emotional injuries to his victims. Our
conclusion is that a consecutive sentence is warranted based on the defendant's
extensive criminal record.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
Thomas T. W oodall, Judge
_______________________________
L. T. Lafferty, Special Judge
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