One of the most difficult parts of practicing law in Tennessee is trying to advise clients what a potential sentence would be after trial. I’ve previously written about how complicated Tennessee’s criminal statutes have become.¹ The 1989 code revision sought to make punishment simple and easy to predict. You just had to know the class of felony and the defendant’s criminal history range. Now, there are sentencing provisions in the substantive crime statutes. There are some crimes for which the ranges are no longer based on the defendant’s real criminal history. There are various registries. And there are many offenses for which release eligibility has either been abolished or restricted to 85% or 70% percent.

One of the more difficult aspects to predict is whether consecutive sentencing might apply. Most criminal episodes can be charged as a variety of crimes. Commonly, indictments charge multiple offenses. If the statutory maximum were applied to all counts, the potential punishment is sometimes hundreds of years. You commonly hear in the media that a defendant is facing this kind of time. That is only possible, however, if the trial court imposes consecutive sentences.

Statutory Framework and Rule 32 of the Tennessee Rules of Criminal Procedure

Tenn. Code Ann. § 40-35-115 governs sentencing in cases of multiple convictions. The statute requires the trial court to impose concurrent sentences unless the state can prove by a preponderance of the evidence certain statutory factors. The factors are listed in subsection 115(b) and include such facts as whether the defendant is a professional criminal, has a lengthy record, is a “dangerous mentally abnormal person,” is a dangerous offender, the offense involved certain sex abuse of a minor, the defendant was on probation, involved contempt, or the offenses involved multiple victims. These are simplifications and the statute contains specific facts that must be found. The court can consider proof from trial and both parties have the opportunity to put on proof at a sentence hearing.

Additionally, there are certain offenses, like using a firearm during a crime of violence, that require the imposition of consecutive sentences.

While here we are mainly looking at consecutive sentences for offenses arising out of the same criminal episode, Rule 32(c) of the Tennessee Rules of Criminal Procedure should also be consulted because it governs both sentences from the same case and whether sentences should be concurrent or consecutive to prior sentences.

Rule 32(c) specifically says the trial court shall issue an order specifying the reasons for a decision on consecutive or concurrent sentences. As seen below, appellate review also emphasizes the importance of factual findings by the trial court.

Appeal of Consecutive Sentences

Appellate review of sentencing decisions, including the decision regarding consecutive sentencing, is governed by a deferential standard. Generally, appellate courts review consecutive sentencing for abuse of discretion with a presumption that the decision was reasonable.² But there is a big caveat here — deference only applies if the trial court has provided reasons in the record supporting its finding of at least one of the statutory factors listed in subsection 115(b).³

Consequences of Trial Court’s Failure to Make Findings

When a trial court fails to provide adequate reasons on the record for imposing consecutive sentences, the appellate courts do not presume that the consecutive sentences are reasonable. According to the Tennessee Supreme Court, when adequate findings have not been stated on the record, appellate courts can either conduct a de novo review or remand to the trial court to consider the statutory factors.⁴

Recent Cases Illustrate that Specific Statutory Findings Are Required

The Court of Criminal Appeals regularly hears challenges to consecutive sentences. A few recent cases, decided within a month of each other, illustrate some of the issues with fact-finding and illustrate when the alternative approaches on appeal are appropriate. It appears that most consecutive sentence decisions are affirmed based on the trial court’s findings. The court struggles more when the basis for the determination is not clear from the record.

For example, in State of Tennessee v. Tondre Dupress Ragland, the Court of Criminal Appeals reversed the trial court’s imposition of consecutive sentences because the record did not set out the basis for the trial court’s determination that the defendant was a dangerous offender as set out in the statute.⁵ The defendant had been convicted of attempted second degree murder and several related offenses. In the Ragland case, the court did not remand for further findings, the court found that the record was sufficient to conduct a de novo review. The analysis shows that the question is more nuanced than whether the defendant engaged in dangerous behavior. All people with multiple convictions could be called dangerous, but the statute requires more.

The main case on the issue of the dangerous offender provision is State v. Wilkerson in which the Tennessee Supreme Court found that the trial court must make “specific findings regarding the severity of the offenses and the necessity to protect society before ordering consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(4)”).⁶

In Ragland, the Court of Criminal Appeals had reversed and remanded previously for further findings on the issue of whether the defendant was a dangerous offender. The court noted that just reciting the Wilkerson factors is not the same as making adequate factual findings to support the factors. The court’s opinion in the second appeal sets out the proper analysis of this factor. The court acknowledged that firing the gun at a victim was dangerous conduct, but that is not all that is required to rely on this factor to impose consecutive sentences. The court explained that a trial court may impose consecutive sentences upon finding by a preponderance of the evidence that “[t]he 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[.]”⁷

Other findings must be made as well. The court has to find “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.”⁸

Some of the consecutive sentencing factors are broad and difficult to apply. In Ragland, the court noted the dangerous offender classification “is the most subjective and hardest to apply.”⁹

Additionally, the court noted that the effective sentence imposed must be “justly deserved in relation to the seriousness of the offense” and “no greater than that deserved for the offense committed.”¹⁰

The court also stated that the Tennessee sentencing statute contains a parsimony provision that requires a finding that the sentence “should be the least severe measure necessary to achieve the purposes for which the sentence is imposed.”¹¹

The court in Ragland chose to apply de novo review and, based on a careful analysis of the facts of the case, determined that the already lengthy 16-year sentence did not require additional consecutive sentences. The defendant had already received a statutorily mandated consecutive sentence for use of a firearm during a crime of violence under Tenn. Code Ann. § 39-17-1324.

In another recent case, the Court of Criminal Appeals emphasized that the trial court’s failure to make adequate findings on the statutory factors does not always require reversal. In State of Tennessee v. Billy Gene Sliger, the trial court had imposed a lengthy consecutive sentence (much longer than the defendant’s life expectancy – 74-year sentence for 63-year-old defendant) in a sex abuse case. The trial court only cited deterrence, which is not a statutory reason for consecutive sentencing.

On appeal the state conceded that the trial court did not make adequate findings of statutory reasons for consecutive sentencing. Under State v. Bise, the appellate court did not presume the correctness of the finding but found the record was adequate to conduct a de novo review. The court found the evidence clearly supported a statutory ground for consecutive sentencing where the “defendant is convicted of two 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.”¹²

In another case decided the same month, the Court of Criminal Appeals chose a different remedy and remanded the case to make appropriate findings of fact.¹³ While this remedy might not ultimately help the defendant, who received a life sentence plus a consecutive 25-year term, the court found that the trial court failed to make adequate findings supporting consecutive sentence. However, instead of engaging in de novo review, the appellate court remanded for additional findings, citing the “sparse record.”

These three recent cases illustrate that specific factual findings are required. While sometimes the record is developed enough for the Court of Criminal Appeals to engage in de novo review, sometimes the court feels more comfortable using the second option of remanding for the trial court to make findings.

Strategies for Trial Judges, Defense Counsel and Prosecutors

The main lesson from recent cases is that trial courts need to make specific factual findings supporting the statutory factors either for or against consecutive sentencing. Defense counsel should make sure the factual record is developed in favor of the client to allow arguments against consecutive sentences and to make sure all mitigation is in the record to argue against consecutive sentencing if an appellate court decides to engage in de novo review. Prosecutors need to make sure that trial courts are presented with the precise statutory factors that could apply and make the proper record. Additionally, defense counsel should be prepared to argue on appeal that remand is not necessary because, as in Ragland, the record is sufficient for a de novo finding that consecutive sentencing is not appropriate. Also, don’t forget the argument that consecutive sentencing would violate the statutory provision that requires the sentence to be the least severe measure. Finally, the parties should begin to evaluate whether consecutive sentencing might apply at the very beginning of every case in order to properly engage in negotiation.

Conclusion

The possibility of consecutive sentences makes the potential punishments vary greatly and makes the ultimate sentence very difficult to predict. The statutory factors are not always clear and can be challenged at the trial court and sometimes de novo on appeal. |||

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WADE DAVIES is the owner of The Davies Law Firm in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.     

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NOTES
1. Davies, “Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers,” Tennessee Bar Journal, March 2013, Vol. 49, No. 3.
2. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013)(applying Bise standard to consecutive sentencing).
3. Pollard, 432 S.W. 3d at 861-62.
4. Pollard, 432 S.W.3d at 864 (citing Bise, 380 S.W.3d at 705 & n.41).
5. State v. Ragland, No. W2024-00535-CCA-R3-CD, 2025 Tenn. Crim. App. LEXIS 234, 2025 LX 56466, 2025 WL 1430579 (Tenn. Crim. App. May 19, 2025).
6. State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995).
7. Ragland, 2025 Tenn. Crim. App. LEXIS 234 at 20-21, citing Tenn. Code Ann. § 40-35-115(b)(4).
8. Ragland at 21, quoting State v. Wilkerson, 905 S.W.2d 938, 939 (Tenn. 1995); also citing State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
9.  Ragland at 23, quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
10. Ragland at 21, quoting Tenn. Code Ann. § 40-35-102(1), -103(2); and citing State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
11. Ragland at 25-25, quoting Tenn. Code Ann. §§ 40-35-102(1), -103(2).
12. State of Tennessee v. Billy Gene Sliger, No. E2024-00508-CCA-R3-CD, 2025 Tenn. Crim. App. LEXIS 206, 2025 LX 63975, Slip Op at 24-25, citing Tenn. Code Ann. § 40-35-115(b)(5).
13. State of Tennessee v. Christopher Glenn Clark, No. M2024-01204-CCA-R3-CD (Tenn. Crim. App. May 20, 2025).