State vs. Donald Green
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE APRIL SESSION, 1999 STATE OF TENNESSEE, June 3, 1999 Cecil Crowson, Jr. Appellate Court Clerk ) ) Appellee, ) ) ) VS. ) ) DON ALD M ITCH ELL G REE N,) ) Appe llant. ) C.C.A. NO. 03C01-9808-CR-00276 FOR THE APPELLANT: FOR THE APPELLEE: JULIE A. MAR TIN P. O. Box 426 Knoxville, TN 37901-0426 PAUL G. SUMMERS Attorney General and Reporter KNOX COUNTY HON. MARY BETH LEIBOWITZ JUDGE (Dire ct Ap pea l - Agg ravat ed R obb ery) 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. ยง 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 -3-
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