Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 15, 2014
Appeal from the Criminal Court for Davidson County No. 2012A472 Mark J. Fishburn, Judge
Ivan Lopez, Nashville, Tennessee (on appeal); Mary-Kathryn Harcombe and Laura Getz, Nashville, Tennessee, (at trial) for the appellant, Olbin Euceda.
Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Sharon Reddick and Sarah Davis, Assistant District Attorneys General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
The trial court sentenced Defendant to serve twelve years for each count of aggravated robbery, twenty-five years for each of the three convictions for especially aggravated kidnapping, and twenty-five years for the conviction of rape of a child. The trial court structured the service of the sentences such that the convictions for the aggravated robberies and especially aggravated kidnapping of A.H. and J.H. would be served concurrently with each other. Also, the trial court ordered the convictions for aggravated robbery and especially aggravated kidnapping of Z.H. to be served concurrently with each other but consecutively to the sentences for the convictions for offenses committed against A.H. and J.H. Finally, the trial court ordered the sentence for the rape of a child conviction to be served consecutively to all the other sentences imposed.
The trial court ordered partial consecutive sentencing because it found, pursuant to T.C.A. § 40-35-115(b)(4), that Defendant was "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." Id. That statute permits a trial court to order sentences to run consecutively if it finds by a preponderance of the evidence the existence of at least one of seven stated categories, including the "dangerous offender" category described above. Id. at (b).
Defendant's specific factual arguments as to why the trial court erred by finding that he is a "dangerous offender" are as follows:
– Defendant's only prior convictions were for two offenses of driving a vehicle without a license in 2007.
– The trial court improperly used other charges pending against Defendant to justify consecutive sentencing.
– The trial court improperly considered Defendant's status as an illegal immigrant at the time of the conviction offense due to the fact he had returned to the United States after twice being deported.
– The trial court erred by disregarding evidence at the sentencing hearing that Defendant's "violent drug addiction" caused Defendant to commit the offenses.
– The trial court failed to give proper consideration to Defendant's prior employment history and also to Defendant's involvement ...