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State v. Dailey6/16/2000
utory provisions of § 40-35- 102(1)(1997) and § 40-35-103(2) (1997) as well as § 40-35-103(4)" in determining the sentence for his felony theft conviction. Specifically, the defendant contends that this was not a particularly egregious crime which did not result in any personal injury to any victim.
In determining the appropriate sentence for a felony conviction, the sentencing court, if there are enhancing factors but no mitigating factors, may set the sentence above the minimum in that range but still within the range. See Tenn. Code Ann. § 40-35-210(d) (1999 Supp.); State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). There is no mathematical formula of valuating the enhancement factors to calculate the appropriate sentence. See generally Boggs, 932 S.W.2d at 475. "Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record." Id. at 475-76 (citations omitted). The trial court, after weighing and considering the enhancing factors, imposed a sentence of eight years. We conclude, upon de novo review, that imposition of a sentence of eight years is not excessive and is "the least severe measure necessary to achieve the purposes for which the sentence is imposed." Tenn. Code Ann. § 40-35-103(4). This issue is without merit.
II. Denial of Alternative Sentencing
The defendant contends that he was entitled to a sentencing alternative to total confinement, specifically, split confinement. In support thereof, he cites several factors that the trial court failed to consider in ordering a sentence of total confinement:
(1) The defendant has remained incarcerated since the date of his arrest on the instant offenses, approximately one year prior to the sentencing hearing;
(2) There was no damage to the automobile, the stolen property, therefore, no restitution was involved; and
(3) The defendant, due to his history of drug use, was in need of treatment and rehabilitation unavailable in the Department of Correction.
Initially, we conclude that the defendant is not entitled to the presumption for an alternative sentencing option, because he is a Range II, multiple offender. See Tenn. Code Ann. § 40-35-102(6). Moreover, because the defendant "has a long history of criminal conduct" and "measures less restrictive than confinement" have proven unsuccessful, confinement is necessary. Tenn. Code Ann. § 40-35-103(1)(A) and (C). Accordingly, we find the trial court did not err in imposing a sentence of total confinement. This issue is without merit.
We affirm the sentencing decision of the trial court; however, the judgment of conviction for resisting arrest is remanded for modification reflecting that this sentence be served concurrently with counts one and two.
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