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Sentence Based on "Professional Criminal" Factor Upheld

When sentencing a defendant found guilty of multiple crimes, a trial court must not only determine the specific sentence for each crime, but also determine whether those sentences should be served at the same time or stacked consecutively. A few crimes and circumstances require consecutive sentencing. But in many cases, the decision is left to the discretion of the trial court. In those cases, a trial court must still find at least one of the statutory factors which are required before the trial court has the discretion to order consecutive sentencing. In the recent case of State v. McCathern, M2011-01612-CCA-R3-CD (Tenn.Crim.App. 11-16-2012), the trial court ordered consecutive sentences after finding that the Defendant had an extensive criminal history and was a professional criminal who makes much of his living from committing crime.

The Defendant in the McCathern case was convicted of aggravated burglary and possession of twenty-six grams or more of cocaine with intent to sell or deliver, in a school zone. He received ten years for the burglary and twenty-five for the drug conviction, for total sentence of thirty-five years. On appeal of the consecutive sentence, the Court of Criminal Appeals affirmed the trial court ruling, noting that the evidence indicated the Defendant had no legitimate income and had a number of drug convictions. This evidence supported the trial court finding that the Defendant made his income mostly from crime, which is a factor allowing for consecutive sentences.

An interesting aspect of this ruling in this case concerns the standard of appellate review of sentence alignment. The majority of the Court of Criminal Appeals panel in this case indicate they believe a recent Tennessee Supreme Court ruling (State v. Bise, Tenn. 2012) has changed the standard of appellate review of even sentence alignment issues. Judge Witt, in a concurring opinion, suggests it is not clear that it has changed, with regard to sentence alignment issues (but notes the outcome of Mr. McCathern's case would be the same either way). Judge Witt's concurring opinion in this case raises a question about the appropriate standard of appellate review when it comes to reviewing the imposition of consecutive sentencing. Perhaps this is an issue the Tennessee Supreme Court will clarify in a future opinion.

For more information regarding sentencing issues in criminal cases, contact Hindman & Associates.

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