State of Tennessee v. James Allen Pollard

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 2, 2013 Session

STATE OF TENNESSEE v. JAMES ALLEN POLLARD

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2006D2820 Monte Watkins, Judge

No. M2011-00332-SC-R11-CD - Filed December 20, 2013

The defendant was convicted of felony murder, first degree premeditated murder, and

especially aggravated robbery. After merging the murder convictions, the trial court imposed

consecutive sentences of life for the murder and eighteen years for the especially aggravated

robbery. On appeal, the Court of Criminal Appeals affirmed the convictions but remanded

to the trial court for a proper determination of whether the sentences should be served

consecutively or concurrently. We hold that, when a trial court places findings on the record

to support its sentencing decision, the applicable standard of appellate review for a challenge

to the imposition of consecutive sentences is abuse of discretion with a presumption of

reasonableness. Because, however, the trial court failed to address the factors required to

impose consecutive sentences based on the dangerous offender classification, we affirm the

judgment of the Court of Criminal Appeals and remand to the trial court for a new sentencing

hearing.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed; Case Remanded to the Trial Court

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney

General; and Debbie Housel, Leticia Alexander, and Deshea Dulany Faughn, Assistant

District Attorneys General, for the appellant, State of Tennessee.

Richard Lewis Tennent (at trial and on appeal) and Edward J. Gross (at trial), Nashville,

Tennessee, for the appellee, James Allen Pollard.

OPINION

I. Facts and Procedural History

At approximately 11:26 a.m. on March 24, 2006, officers of the Metropolitan Police

Department of Nashville and Davidson County responded to a 911 report of a shooting at 301

North Eighth Street. Upon their arrival, they found the body of twenty-five-year-old Jamil

Branhan (the “victim”) lying on the living room floor of his apartment with two gunshot

wounds to his head. There was no evidence of a forced entry.

During their investigation, Detectives Jeff Wiser and Michael Windsor traced the

victim’s last accepted phone call to Lakeisha Hooten. Describing her as “a person of

interest,” the detectives interviewed her on five separate occasions over a period of months.

Initially, Ms. Hooten implicated two individuals by name, both of whom were eliminated as

suspects upon further inquiry. During her fifth interview, however, she “finally broke

down,” informing the detectives that her boyfriend, James Allen Pollard (the “Defendant”),

was involved in the incident.

The detectives conducted a video-recorded interview with the Defendant. After being

informed of and waiving his Miranda rights, the Defendant stated that on the night of the

shooting Ms. Hooten had arranged for him to meet the victim at his apartment to purchase

a “dime sack”1 of marijuana, as he had done on prior occasions. Admitting that he had a .38

caliber firearm in his pocket when he arrived at the apartment, the Defendant claimed that

the victim was “gone on something,” got “spooked” when he saw the Defendant’s weapon,

and, at that point, retrieved his own gun, a nine-millimeter semi-automatic. The Defendant

told the officers that he drew his gun, and, during a struggle with the victim, his gun

discharged. He acknowledged that he shot a second time, claiming that he did so when the

victim raised his arm and pointed the semi-automatic in his direction. The Defendant also

asserted that the victim fired his own gun once during the episode. After initially denying

to Detectives Wiser and Windsor that he had “take[n] anything,” the Defendant eventually

admitted that after he shot the victim he took his weapon and his PlayStation.

The Defendant was charged and arrested. Later, the Davidson County Grand Jury

indicted the Defendant on three counts: (1) felony murder; (2) premeditated murder; and

(3) especially aggravated robbery.

At trial, the State presented the Defendant’s video-recorded statement as evidence.

Other testimony offered by the State established that the victim’s mother, Marilyn Branhan,

1

A “dime sack” refers to the amount of marijuana that can be purchased for ten dollars. Merriam-

Webster, http://www.merriam-webster.com/dictionary/dime (last visited Dec. 13, 2013). The Defendant

described this amount as two grams.

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had become concerned after not being able to contact her son and had asked the apartment

manager to check inside his unit. The apartment staff discovered the body, the police were

notified, and several items were found missing from her son’s apartment, including his

PlayStation, gun, keys, and cell phone. An empty gun holster was found in a bin inside the

bedroom.

Officers determined that the victim suffered two gunshot wounds, one to the chin and

one to the temple. No shell casings were found in the apartment, and no bullet holes were

found in the walls. Further testimony established that the victim’s nine-millimeter semi-

automatic would have ejected shells if fired. A forensic scientist with the Tennessee Bureau

of Investigation concluded that the bullets causing the death of the victim were .38 caliber,

typically fired from a revolver rather than a semi-automatic pistol.

A search of the apartment did not yield any evidence indicating that the victim had

been dealing illegal drugs. Other witnesses, including the victim’s girlfriend, Reshena

Barnes, and a co-worker, Rose Reese, testified that the victim, who was employed at

AutoZone, did not sell drugs.

Anthony Bowers, a federal inmate who had shared a cell with the Defendant, testified

that the Defendant informed him that his girlfriend had arranged a meeting with the victim

so that the Defendant could “rob him for some marijuana.” According to Bowers, the

Defendant claimed that he drew his revolver after the victim became suspicious and that,

when the victim struggled and attempted to arm himself, the Defendant shot the victim in the

head. Bowers stated that the Defendant admitted taking some marijuana, a cell phone, and

a pistol from the apartment, and he also admitted shooting the victim a second time to ensure

that he would not be identified. The Defendant explained to Bowers that he had been

arrested only because his girlfriend “broke down” and told the investigating detectives the

truth; he further recommended to Bowers that using a revolver was the better practice in a

killing because it did not leave shell casings.

The forensic pathologist who performed the autopsy concluded that one of the bullets

entered the left side of the victim’s chin, breaking his chin and lacerating his tongue, causing

him to swallow a moderate amount of blood. More blood was found in his lungs, indicating

that the victim was still alive after this shot. A second bullet, fired within six inches, entered

the victim’s left temple, fracturing the brain and portions of the brain stem, rendering the

victim immediately unconscious. The victim’s body contained minimal levels of marijuana

and had a blood alcohol content of .04.

Although the Defendant chose not to testify, three witnesses described him as a “good

kid,” a hard worker at his full-time job, and a reliable person.

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At the conclusion of the trial, the jury found the Defendant guilty on all charges. The

trial court merged the felony murder conviction with the first degree premeditated murder

conviction and imposed consecutive sentences of life for the murder and eighteen years for

the especially aggravated robbery. As support for consecutive sentencing, the trial court

ruled that the Defendant qualified as a “dangerous offender whose behavior indicate[d] little

or no regard for human life and no hesitation about committing a crime in which the risk to

human life is high.” Tenn. Code Ann. § 40-35-115(b)(4) (2006).

On direct appeal, the Court of Criminal Appeals affirmed the Defendant’s convictions,

finding no merit in the Defendant’s several allegations of error during the course of the trial,

and upholding the length of each of the two sentences. Because, however, the trial court had

failed to specifically address underlying factors essential to a dangerous offender

classification, as set forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the Court of

Criminal Appeals remanded that issue to the trial court for reconsideration of whether the

sentences should be served consecutively or concurrently. State v. Pollard, No. M2011-

00332-CCA-R3-CD, 2012 WL 4142253, at *21 (Tenn. Crim. App. Sept. 17, 2012); see also

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

This Court granted the State’s Rule 11 application to determine the appropriate

standard of appellate review for consecutive sentencing, namely: (1) whether the abuse of

discretion standard of review that this Court adopted in State v. Bise, 380 S.W.3d 682, 707

(Tenn. 2012), regarding the length of sentences, and in State v. Caudle, 388 S.W.3d 273,

278-79 (Tenn. 2012), as to alternative sentences, should apply to consecutive sentencing;

and, if so, (2) whether the trial court should still be required to make specific findings of fact

on the record to support an imposition of consecutive sentences based upon the dangerous

offender classification as required by our decision in Wilkerson, 905 S.W.2d at 939.

II. Analysis

The State asks this Court to formally adopt the abuse of discretion standard of review

with a presumption of reasonableness for an appeal of the imposition of consecutive

sentences, notwithstanding the statutory language providing for de novo review with a

presumption of correctness. See Tenn. Code Ann. § 40-35-401(a), (d) (2010).2 The State

submits that our decisions in Bise and Caudle, coupled with the discretionary language in

Tennessee Code Annotated section 40-35-115, which governs consecutive sentencing,

2

Section 40-35-401(d) provides as follows:

When reviewing sentencing issues raised pursuant to subsection (a), including the granting

or denial of probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of the issues. The review shall be conducted with a presumption that

the determinations made by the court from which the appeal is taken are correct.

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logically require such a result.

A. Historical Background

The Tennessee Criminal Sentencing Reform Act of 1982 (the “1982 Act”) completely

overhauled the state’s sentencing structure. See Act of Apr. 28, 1982, ch. 868, 1982 Tenn.

Pub. Acts 556, 561-62 (repealed 1989); David L. Raybin, Tennessee Criminal Sentencing

Reform Act of 1982: Practice and Procedure, 18 Tenn. B.J. 36, 36 (1982) [hereinafter

Raybin, 18 Tenn. B.J.]. This legislation, which implemented sentencing ranges for offenses,

created a comprehensive sentencing scheme designed to establish “fair and consistent

treatment of all defendants by eliminating unjustified disparity in sentences.” Tenn. Code

Ann. § 40-35-102 (1982). Trial judges, rather than juries, were empowered to impose

sentences consistent with the purposes and principles of the 1982 Act. Raybin, 18 Tenn. B.J.

at 37. Although the 1982 Act did not originally provide a standard of review on appeal, an

amendment in 1985 provided for de novo review without a presumption of correctness. Act

of Dec. 11, 1985, ch. 5, § 31, 1985 Tenn. Pub. Acts 22, 34 (repealed 1989).

In 1989, the General Assembly amended the 1982 Act. Act of May 24, 1989, ch. 591,

1989 Tenn. Pub. Acts 1169 (the “1989 Act”). Among other revisions, the new legislation

provided for de novo appellate review with a presumption of correctness for the “length,

range or the manner of service of the sentence imposed” as well as for the “imposition of

consecutive sentences.” Tenn. Code Ann. § 40-35-401(a), (d) (addressing appeals by

criminal defendants); id. § 40-35-402(a), (d) (2010) (addressing appeals by the State).

Further, the 1989 Act required trial courts to first determine an appropriate sentence range

and then adjust the sentence upward or downward from a binding “presumptive sentence”

by considering the applicability of enhancement and mitigating factors. Bise, 380 S.W.3d

at 692.

Subsequent rulings by the United States Supreme Court in Apprendi v. New Jersey,

530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005), called into question the validity of certain provisions of the

1989 Act based primarily upon the right to trial by jury under the Sixth Amendment to the

United States Constitution. See Bise, 380 S.W.3d at 696. In Apprendi, the Court considered

whether the state trial judge, upon a finding by a preponderance of the evidence that the

defendant had committed a “hate crime,” could sentence the defendant to an “extended term”

of imprisonment. 530 U.S. at 468-69. A New Jersey statute provided that the possession of

a firearm for an unlawful purpose was punishable by five to ten years’ imprisonment. Id. at

468. Another statute, however, authorized New Jersey trial judges to impose an extended

sentence between ten and twenty years upon a finding by a preponderance of the evidence

that the defendant committed the crime with the “purpose to intimidate an individual or

group of individuals because of race, color, gender, handicap, religion, sexual orientation or

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ethnicity.” Id. at 468-69 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000)

(repealed 2002)). The Court observed that submitting facts to the jury as to every element

of a crime, which must be proven beyond a reasonable doubt, provides procedural protection

against the risk of erroneously depriving a defendant of his or her liberty. See id. at 483-84.

After concluding that the “hate crime” determination was an element of the crime rather than

a sentencing factor, id. at 493, the Court struck down the legislation as violating not only the

Sixth Amendment right to trial by jury but also the Due Process Clause of the Fourteenth

Amendment, which requires proof beyond a reasonable doubt of every fact, other than a prior

conviction, that results in an increase of punishment beyond the statutory maximum. Id. at

490 (finding that “[i]t is unconstitutional for a legislature to remove from the jury the

assessment of facts that increase the prescribed range of penalties to which a criminal

defendant is exposed,” and that all facts resulting in criminal penalties must be proven

beyond a reasonable doubt (quoting Jones v. United States, 526 U.S. 227, 252-53 (1999)

(Stevens, J., concurring))).

Similarly, in Blakely, the Court considered the propriety of an “exceptional”

sentence—a sentence above the top of the standard range but below the statutory maximum

for the offense—imposed by a Washington state trial judge who had determined that the

defendant had acted with “deliberate cruelty.” 542 U.S. at 298. Washington’s sentencing

act authorized a trial judge to impose a sentence above the “standard range” if the judge

found the presence of an aggravating factor that justified such a departure based on

“substantial and compelling reasons.” Id. at 299. A judge could not, however, under any

circumstances, impose a sentence beyond the “statutory maximum” for a given felony. Id.

at 303. The state argued that, because the sentence imposed fell within the applicable

statutory range of the felony, no Apprendi violation existed. Id. The Court rejected this

argument and ruled that the “statutory maximum,” for purposes of Apprendi, is the sentence

“a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Id. Because the increase in the sentence was based upon “deliberate

cruelty,” a fact that was neither found by the jury nor admitted by the defendant, the Court

held that the sentencing procedure violated the Sixth Amendment right to a jury trial. Id. at

313-14.

Finally, the Booker Court consolidated two cases, United States v. Booker, 375 F.3d

508 (7th Cir. 2004), and Fanfan v. United States, No. 03-47, 2004 WL 1723114 (D. Me. June

28, 2004), and addressed whether the Federal Sentencing Guidelines violated the Sixth

Amendment. Booker, 543 U.S. at 226. In one of the cases, the district judge had increased

the defendant’s sentence after making factual determinations that had not been considered

by the jury, whereas the district judge in the other case had refused to increase the

defendant’s sentence in view of the ruling in Blakely. 543 U.S. at 227, 228-29. While

recognizing that the district judges’ discretion to impose a sentence within the sentencing

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range did not violate the Sixth Amendment, id. at 233, the Court determined that a departure

from the mandatory sentencing range upon a finding of aggravating or mitigating

circumstances, which were not reflected in the jury verdict or admitted by the defendant, did,

id. at 244. The Court warned that, although the removal of factfinding from the jury may

appear merely convenient and efficient, the infringement “upon this sacred bulwark of the

nation [is] fundamentally opposite to the spirit of our constitution; and that, though begun

in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in

questions of the most momentous concerns.” Id. (quoting 4 William Blackstone,

Commentaries on the Laws of England 343-44 (1769)). Thus, the Court struck down the

Guidelines’ mandatory application as well as the de novo standard of appellate review for

sentences that departed from the applicable range. Id. at 259.

Our 1989 Act contained the same constitutional flaw as the statutes at issue in

Apprendi, Blakely, and Booker. The presence of enhancement factors, as determined by the

trial judge rather than the jury, authorized an increase above the “presumptive sentence,”

which was otherwise mandatory. State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007); David

L. Raybin, State v. Gomez: Tennessee Sentencing Law Violates the Sixth Amendment, 43

Tenn. B.J. 24, 26 (2007). In direct response to the Supreme Court rulings in Blakely and

Booker, Governor Phil Bredesen created a Task Force to propose amendments designed to

remedy any constitutional infirmities. Bise, 380 S.W.3d at 696. In 2005, pursuant to the

recommendations made by the Task Force, the General Assembly adopted several

amendments that eliminated a mandatory “presumptive sentence” and made the enhancement

and mitigating factors advisory only. Id. at 697-98.

Although the statutory language promulgating the standard of appellate review

remained unchanged after the 2005 amendments—de novo with a presumption of

correctness—this Court in Bise held that

because the General Assembly, in an effort to bring the 1989 Act into

compliance with Apprendi, Blakely, and Booker, made advisory the minimum

sentence that should be imposed and the enhancement and mitigating factors

that might be considered, the 2005 amendments also effectively abrogated the

de novo standard of appellate review [in our statutory scheme]. . . . [T]oday

we adopt an abuse of discretion standard of review, granting a presumption of

reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.

Id. at 707.

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Unlike a judicial determination that increases the penalty for a crime beyond the

statutory maximum allowed by Apprendi, alternative sentencing and consecutive sentencing

decisions do not implicate Sixth Amendment concerns. See State v. Allen, 259 S.W.3d 671,

689-90 (Tenn. 2008). In Allen, this Court made the following observations:

The decision whether to impose consecutive sentences for multiple

crimes is a decision about the manner in which a defendant serves his or her

multiple punishments. Whether or not to “stack” sentences for multiple crimes

is therefore akin to a trial court’s decision as to how and where a defendant

serves his sentences: on probation, on community corrections, in split

confinement, or in the penitentiary. Apprendi and Blakely simply do not

require the jury to determine the manner in which a defendant serves multiple

sentences.

Id.; see also Oregon v. Ice, 555 U.S. 160, 169 (2009) (“[L]egislative reforms regarding the

imposition of multiple sentences do not implicate the core concerns that prompted our

decision in Apprendi.”). Nevertheless, in State v. Caudle, this Court extended the abuse of

discretion standard of appellate review, accompanied by a presumption of reasonableness,

to alternative sentences. 388 S.W.3d at 278-79.

Initially, this Court acknowledged that the 2005 amendments rewrote the statute

addressing the manner of service of a sentence, Tenn. Code Ann. § 40-35-102(6) (2006), in

its entirety. Caudle, 388 S.W.3d at 278. These changes, which replaced binding

considerations with advisory ones, were identical to the revisions made to the statutes

affecting the length of a sentence. David L. Raybin, The Blakely Fix: New Tennessee Law

Restores Judicial Discretion in Criminal Sentencing, 41 Tenn. B.J. 14, 21 (2005) (noting that

Tennessee Code Annotated section 40-35-102(6)’s language providing for a “‘presumption’

that an individual was a favorable candidate for alternative sentencing options” was altered

in 2005 to replace the “presumption” with an advisory consideration, and recognizing that

this alteration was identical to the changes made to the statute affecting the length of

sentence). In addition, this Court recognized that appellate review for both types of

sentencing decisions should be governed by the same standard. Caudle, 388 S.W.3d at 278.

Tennessee Code Annotated section 40-35-401(a), (d) specifically provides for a de novo

standard of appellate review, with a presumption of correctness, for the “length, range or the

manner of service of the sentence” as well as issues that pertain to “the granting or denial of

probation.” Thus, we held in Caudle that the standard of review on appeal for alternative

sentences should be identical to that of an appeal of the length of a sentence, and we

concluded that “the abuse of discretion standard, accompanied by a presumption of

reasonableness, applies to within-range sentences that reflect a decision based upon the

purposes and principles of sentencing, including the questions related to probation or any

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other alternative sentence.” 388 S.W.3d at 278-79.

B. Standard of Review for Consecutive Sentencing

Although our consecutive sentencing statute does not implicate Sixth Amendment

principles and was unaffected by the 2005 amendments, we are convinced that the

appropriate standard of appellate review for consecutive sentencing is abuse of discretion

accompanied by a presumption of reasonableness. First, Tennessee Code Annotated sections

40-35-401(a), (d) and -402(a), (d) contemplate the same standard of appellate review for the

determination of the “length, range or the manner of service” of a sentence as well as “the

imposition of consecutive sentences.” Thus, the General Assembly has expressed an

intention to have all sentencing decisions, including consecutive sentencing, subject to the

same standard of appellate review. As held in Bise and Caudle, the standard is abuse of

discretion with a presumption of reasonableness. Second, the statutory language as to

consecutive sentencing has always afforded broad discretion to the trial courts. See Tenn.

Code Ann. § 40-35-115(b). The governing statute provides that “[t]he court may order

sentences to run consecutively if the court finds by a preponderance of the evidence that” the

defendant falls into one of seven delineated categories. Id. (emphasis added). So, unlike the

alternative sentencing statute addressed in Caudle, the language in the consecutive sentencing

statute did not require legislative modification to grant similar discretion. Just as the 2005

amendments, as to length of sentence, served to make de novo review with a presumption of

correctness irrelevant in light of the General Assembly’s grant of broader discretion to trial

courts, the discretionary language as to consecutive sentencing calls for the adoption of an

abuse of discretion standard with a presumption of reasonableness. Third, the 2005

amendments also signaled a general increase in the discretionary authority of the trial courts

in regard to all sentencing decisions, including the decision of whether to impose consecutive

sentences. See State v. Dorantes, 331 S.W.3d 370, 392 (Tenn. 2011) (“Whether sentences

are to be served concurrently or consecutively is primarily within the discretion of the trial

court.” (emphasis added)); State v. Lewis, No. W2012-00723-CCA-MR3-CD, 2013 WL

4080981, at *30 (Tenn. Crim. App. Aug. 9, 2013) (recognizing that all other sentencing

decisions are reviewed under the abuse of discretion standard and finding “no reason for the

imposition of consecutive sentencing to be treated differently”); State v. Edick, No. W2012-

01123-CCA-R3-CD, 2013 WL 3130953, at *9 (Tenn. Crim. App. June 13, 2013) (concluding

that the abuse of discretion standard with a presumption of reasonableness applies to

consecutive sentencing); State v. Tynes, No. W2010-02511-CCA-R3-CD, 2013 WL

1043202, at *26 (Tenn. Crim. App. Mar. 13, 2013), perm. app. denied (Tenn. June 11, 2013)

(“We review a trial court’s decision to impose consecutive sentences for an abuse of

discretion.”); State v. Dodson, No. M2010-01047-CCA-R3-CD, 2011 WL 5831759, at *7

(Tenn. Crim. App. Nov. 21, 2011), perm. app. denied (Tenn. Apr. 20, 2012) (“The

determination of concurrent or consecutive sentences is a matter left to the discretion of the

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trial court and should not be disturbed on appeal absent an abuse of discretion.”). But see

State v. Taylor, No. M2011-02754-CCA-R3-CD, 2012 WL 5377809, at *9 (Tenn. Crim.

App. Oct. 31, 2012) (retaining the de novo standard of appellate review for consecutive

sentencing). For all of these reasons, we hold that the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to consecutive sentencing

determinations.

By adopting this standard, we reject the Defendant’s contention that the presumption

of reasonableness should not apply to consecutive sentencing because our holdings in Bise

and Caudle only refer to a “presumption of reasonableness [for] within-range sentencing

decisions that reflect a proper application of the purposes and principles of our Sentencing

Act.” Bise, 380 S.W.3d at 707 (emphasis added); see also Caudle, 388 S.W.3d at 279.

Because the Sentencing Act does not provide “ranges” for consecutive sentences, the

Defendant maintains that the presumption should not apply.3

Our rationale in Bise illustrates the fallacy of this argument. Susan Renee Bise

appealed the length of her sentence, arguing that the trial court erred in the application of the

only enhancement factor. Bise, 380 S.W.3d at 688. The Court of Criminal Appeals agreed

that the factor had been erroneously applied and modified the defendant’s sentence

downward, id., as authorized by statute, see Tenn. Code Ann. § 40-35-401(c)(2) (providing

that the appellate court may “[a]ffirm, reduce, vacate or set aside the sentence imposed”).

This Court, however, reinstated the sentence because the record demonstrated that the trial

court, while in error as to the application of the enhancement factor, had otherwise

considered the purposes and principles of sentencing and the sentence imposed was within

the appropriate statutory range. Bise, 380 S.W.3d at 709-10. The underlying principle, of

course, is that the trial court must be afforded broad discretion in its sentencing decisions and

the presumption of reasonableness will apply unless the trial court fails to address on the

record the principles and purposes of our Sentencing Act. Id. In Bise, we made the

following observation:

Although our holding today replaces the presumption of correctness and de

novo standard of review with a presumption of reasonableness and abuse of

discretion standard, we continue to agree that appellate courts cannot properly

review a sentence if the trial court fails to articulate in the record its reasons

for imposing the sentence. Therefore it is critical that trial courts adhere to the

3

In the alternative, the Defendant urges this Court to adopt the standard of review employed by the

federal courts—a two-step substantive/procedural reasonableness determination. Because this would require

this Court to overturn our recent decisions in both Bise and Caudle and because our case law provides an

adequate framework for appellate review, we decline to do so.

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statutory requirement set forth in Tennessee Code Annotated section 40-35-

210(e): “When the court imposes a sentence, it shall place on the record, either

orally or in writing . . . the reasons for the sentence, in order to ensure fair and

consistent sentencing.”

Id. at 705-06 n.41 (quoting Tenn. Code Ann. § 40-35-210(e)). Consistent with Tennessee

Code Annotated section 40-35-210(e), our ruling in Bise specifically requires trial courts to

articulate the reasons for the sentence in accordance with the purposes and principles of

sentencing in order for the abuse of discretion standard with a presumption of reasonableness

to apply on appeal. Bise, 380 S.W.3d at 698-99 (“[T]rial courts [are] still required under the

2005 amendments to ‘place on the record . . . the reasons for the sentence . . . .’” (quoting

Tenn. Code Ann. § 40-35-210(e))).

In the context of consecutive sentencing, the presumption of reasonableness applies

similarly, giving deference to the trial court’s exercise of its discretionary authority to impose

consecutive sentences if it has provided reasons on the record establishing at least one of the

seven grounds listed in Tennessee Code Annotated section 40-35-115(b):

(1) The defendant is a professional criminal who has knowingly devoted the

defendant’s life 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;

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(6) The defendant is sentenced for an offense committed while on probation;

or

(7) The defendant is sentenced for criminal contempt.

Any one of these grounds is a sufficient basis for the imposition of consecutive sentences.

State v. Dickson, No. E2010-01781-SC-R11-CD, 2013 WL 5530670, at *11 (Tenn. Oct. 8,

2013) (citing State v. Mickens, 123 S.W.3d 355, 394 (Tenn. Crim. App. 2003)). So long as

a trial court properly articulates reasons for ordering consecutive sentences, thereby

providing a basis for meaningful appellate review, the sentences will be presumed reasonable

and, absent an abuse of discretion, upheld on appeal. See Tenn. R. Crim. P. 32(c)(1) (“The

order [for consecutive sentences] shall specify the reasons for this decision and is reviewable

on appeal.”); see also Bise, 380 S.W.3d at 705.

C. Dangerous Offender Classification

We now turn to consider the impact, if any, that the adoption of the abuse of discretion

standard accompanied by a presumption of reasonableness has on our holding in State v.

Wilkerson, which sets out two additional factors to be considered before a defendant may be

ordered to serve consecutive sentences based on the dangerous offender classification. See

Tenn. Code Ann. § 40-35-115(b)(4). The State asserts that, under this standard, the appellate

court should presume regularity, not error, from a silent record4 and should not set aside the

imposition of consecutive sentences for the mere failure to recite the specific findings as set

forth in Wilkerson. We disagree.

In Wilkerson, this Court first considered the impact that the codification of the

consecutive sentencing criteria in the 1989 Act had upon our rulings in Gray v. State, 538

S.W.2d 391 (Tenn. 1976), and State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). Wilkerson,

905 S.W.2d at 935-36. We observed that the statutory definition of “dangerous offender”

came directly from Gray. Compare Gray, 538 S.W.2d at 393 (“A defendant may be classified

as a dangerous offender if the crimes for which he is convicted indicate that he has little or

no regard for human life, and no hesitation about committing a crime in which the risk to

human life is high.”), with Tenn. Code Ann. § 40-35-115(b)(4) (“The defendant is a

4

In Bise, we recognized that “[m]ere inadequacy in the articulation of the reasons for imposing a

particular sentence . . . should not negate the presumption” of reasonableness. 380 S.W.3d at 705-06 & n.41.

This statement, however, did not create a presumption of regularity when the record was altogether silent.

See id. at 705 n.41 (“[W]hile we are not faced with a set of circumstances in which no reasons were given

in the record, we note that the trial court is in a superior position to impose an appropriate sentence and

articulate the reasons for doing so. While we have the statutory authority to modify the sentence, the more

appropriate course of action under such circumstances may be to remand to the trial court.” (citations

omitted)).

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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.”). Further, we

determined that both Gray and Taylor provided the underlying rationale for consecutive

sentencing and that the 1989 Act intended to codify their standards. Wilkerson, 905 S.W.2d

at 936 (“This statute is essentially a codification of two Tennessee [S]upreme [C]ourt cases

dealing with concurrent and consecutive sentencing. . . .” (quoting Tenn. Code Ann. § 40-35-

115 sentencing commission cmts.)). Applying the rationale from both Gray and Taylor, this

Court observed as follows:

Proof that an offender’s behavior indicated little or no regard for human

life and no hesitation about committing a crime in which the risk to human life

was high, is proof that the offender is a dangerous offender, but it may not be

sufficient to sustain consecutive sentences. Every offender convicted of two

or more dangerous crimes is not a dangerous offender subject to consecutive

sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read

in isolation from the other provisions of the Act. The proof must also establish

that the terms imposed are reasonably related to the severity of the offenses

committed and are necessary in order to protect the public from further

criminal acts by the offender. In addition, the Sentencing Reform Act [of

1989] requires the application of the sentencing principles set forth in the Act

applicable in all cases. The Act requires a principled justification for every

sentence, including, of course, consecutive sentences.

Wilkerson, 905 S.W.2d at 938 (emphasis added). In consequence, before imposing

consecutive sentences based upon the dangerous offender classification, trial courts must

conclude that the evidence has established that the aggregate sentence is “reasonably related

to the severity of the offenses” and “necessary in order to protect the public from further

criminal acts.” Id. This Court has consistently upheld this ruling. See, e.g., Dorantes, 331

S.W.3d at 391-92; Imfeld, 70 S.W.3d at 708; Lane, 3 S.W.3d at 461. The adoption of the

abuse of discretion standard with the presumption of reasonableness has not eliminated this

requirement.

D. Consecutive Sentences in this Case

To summarize, because the dangerous offender classification is the most subjective

to apply, the record must also establish that the aggregate sentence reasonably relates to the

severity of the offenses and that the total sentence is necessary for the protection of the public

from further crimes by the defendant. See Lane, 3 S.W.3d at 461 (recognizing that two

additional findings must be made prior to ordering consecutive sentences only under the

dangerous offender category). Thus, when trial courts fail to include the two additional

findings before classifying a defendant as a dangerous offender, they have failed to

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adequately provide reasons on the record to support the imposition of consecutive sentences.

In this instance, the trial court merely found the Defendant to be a “dangerous

offender” as defined by statute and imposed consecutive sentences. As pointed out by the

Court of Criminal Appeals, the trial court must consider the two additional Wilkerson factors,

and whether the proof supports their presence, in order to properly impose consecutive

sentences based on the dangerous offender classification. The trial court’s statement that the

behavior of the Defendant “indicate[d] little or no regard for human life, and [that he had]

no hesitation for committing a crime, in which [the] risk to human life is high,” Pollard, 2012

WL 4142253, at *21, is insufficient because it fails to demonstrate that the imposition of

consecutive sentences reasonably relates to the severity of the offenses or that the total

sentence is necessary to protect the public from the Defendant. See Wilkerson, 905 S.W.2d

at 939.

Where, as here, the trial court fails to provide adequate reasons on the record for

imposing consecutive sentences, the appellate court should neither presume that the

consecutive sentences are reasonable nor defer to the trial court’s exercise of its discretionary

authority. Faced with this situation, the appellate court has two options: (1) conduct a de

novo review to determine whether there is an adequate basis for imposing consecutive

sentences; or (2) remand for the trial court to consider the requisite factors in determining

whether to impose consecutive sentences. See Bise, 380 S.W.3d at 705 & n.41. Here,

because the considerations required under Wilkerson involve a fact-intensive inquiry, we

agree with the Court of Criminal Appeals that the better course is to remand to the trial court

for consideration of the Wilkerson requirements in determining the propriety of consecutive

sentencing.

III. Conclusion

The abuse of discretion standard, accompanied by a presumption of reasonableness,

is the appropriate standard of appellate review for all sentencing decisions. The standard

applies when the trial court properly addresses the purposes, principles, and considerations

for its sentence on the record. Further, the trial court must consider the factors set forth in

Wilkerson prior to imposing consecutive sentences based upon the dangerous offender

classification. Because the trial court did not do so in this instance, the judgment of the

Court of Criminal Appeals is affirmed, and the cause is remanded to the trial court for

reconsideration as to whether the sentences should be served consecutively or concurrently.

Costs of this appeal are taxed to the State of Tennessee.

_________________________________

GARY R. WADE, CHIEF JUSTICE

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