The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1998 FILED
October 26, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00419
) Cecil Crowson, Jr.
Appellee, ) Appellate C ourt Clerk
)
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKWOOD
BRENT BROWN, ) JUDGE
)
Appe llant. ) (Direct Appeal - Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID CRICHTON JOHN KNOX WALKUP
111 W. Market Street Attorney General and Reporter
P. O. Box 651
Bolivar, TN 38008 GEORGIA BLYTHE FELNER
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
ELIZABETH RICE
District Attorney General
JERRY NORWOOD
Assistant District Attorney
302 Market Street
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On May 5, 1997, Appellant Brent Brown was indicted by the Hardeman
County Grand Jury on one count of aggravated robbery and two counts of
aggravated assault. On September 9, 1997, Appellant pleaded guilty to the
offenses as charg ed. A sentencing hearing was also held on September 9, 1997,
after which the trial court sentenced Appellant to nine years for the aggravated
robbery conviction and three years for each aggravated assault conviction.
Appellant challenges only his sentence fo r the aggravated robbery conviction,
raising the followin g issue: whether the trial co urt pro perly co nside red A ppella nt’s
juvenile record as a basis for enhancing his sentence for the aggravate d robbery
conviction.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
On December 6, 1996, Appellant and another armed man entered and
robbed a convenience store in Hardeman County. After entering the
convenience store, Appellant and the other man both pointed guns at the three
individuals in the store and forced one of them to open the cash register.
Appellant and the other man to ok app roximate ly $300 fro m the re gister and left
the store .
At the sente ncing he aring, the State’s evidence consisted of the
presentence report and one witness. The presentence report indicated that
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Appellant had a juvenile record which consisted of eight delinquent acts: three for
disord erly conduct, one for a traffic offense, one for shoplifting, one for an act that
was not defined, and two for theft of property worth more than $500. Counsel for
Appellant cross-examined the State’s witness, but otherwise presented no
evidenc e.
After hearing the testimony, the arguments of counsel, and reviewing the
presentence report, the trial court ruled:
The Cour t finds th at you h ave a p rior history of criminal convictions or
criminal behavior, in addition to those necessary to establish the
approp riate range, and that enhancement factor outweighs the fact that
you have admitted your guilt, as a m itigating factor; and the C ourt
sentences you to nine (9) years in the first count of the indictment; and
three (3) years in the second and third counts of the indictment, as a
Standard Offender, to serve thirty (30) percent before you’re eligible for
release classification. These se ntences will run co ncurrently, and you’ll be
given credit for 249 days.
USE OF APPELLANT’S JUVENILE RECORD
Appellant conte nds th at the tria l court im prope rly cons idered his juve nile
record when it enhanced his sentence for aggravated robbery from eight years
to nine years. Spe cifically, Appellant contends that juvenile records cannot be
used under Tennessee Code Annotated § 40-35-114(1), which allows for
enhancement if “[t]he defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the app ropriate
range.” T enn. C ode An n. § 40-3 5-114(1 ) (1997).
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Under Tennessee law, “[w]hen reviewing sentencing issues . . . including
the granting or denial of probation and the length of sentence, the appellate cou rt
shall condu ct a de no vo review o n the rec ord of su ch issue s. Such review shall
be conducted with a presumption that the determinations made by the court from
which the appeal is taken are correct.” Tenn. Code Ann. § 40-3 5-401(d) (199 7).
“Howeve r, the pre sum ption o f correc tness which acco mpa nies th e trial co urt’s
action is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circums tances .”
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991). “The defendant has the
burden of de monstrating that the sentenc e is imprope r.” Id.
A portion of the Sentencing Reform Act of 1989, codified at Tennessee
Code Annotated § 40-35-210, established a number of specific procedures to be
followed in sentencing. This section mandates the court's consideration of the
following:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) [t]he prese ntence report; (3) [t]he principles of sentencing and
argum ents as to sen tencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the
defend ant wishe s to ma ke in his ow n beha lf about se ntencing .
Tenn. Code Ann. § 40-35-21 0 (1997). In addition, this section provides that the
minimum sentence within the range is the presump tive sentence. If there are
enhancing and mitigating factors, the court must start at the minimum sentence
in the range and enhance the sentence as appropriate for the enhancement
factors and then reduce the sentence within the range as appropriate for the
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mitigating factors. If there are no mitigating factors, the court may set the
sentence above the minimum in that range but still within the range. The weight
to be given each factor is left to the discretion of the trial judge. State v. Shelton,
854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Act further provides that
“[w]henever the court imposes a sentence , it shall place on the record either
orally or in writing, what enhancement or mitiga ting fac tors it fou nd, if any, as well
as findings of fact as requ ired by § 40-35-209 .” Tenn . Code Ann. § 4 0-35-21 0(f)
(1997). Because of the importance of enhancing and mitigating factors under the
sentencing guide lines, e ven the abse nce o f these factors mus t be rec orded if
none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. Because the
trial court failed to make any findings of fact, our rev iew is de n ovo witho ut a
presumption of correctness.
In 1995, the Legislature amended Tennessee Code Annotated § 40-35-114
by adding enhancement factor (20), which allows for enhancement of a sentence
if “[t]he defendan t was adjudica ted to have committed a delinquent act or acts as
a juvenile that would constitute a felony if committed by an adult.” Tenn. Code
Ann. § 40-35-114(20) (1997). Appellant contends that after this 1995
amen dmen t, factor (20) became the exclusive factor for enhancing a sentence
based on a d efend ant’s ju venile record. We agree. Indeed, this Court has
previously stated:
A recent amendment to Tenn. Code. Ann. § 40-35-114 require s that o nly
those delinque nt acts by a juve nile tha t would cons titute a fe lony if
committed by an adult be considered to enhance a sentence. That
provision of the act took effect on July 1, 1995, and applies to sentencing
of any defendant committing an offense on or after that date.
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State v. Shipley, No. 02C01-9601 -CR-00031, 199 7 WL 21190, at *7 n.1 (Tenn.
Crim. App., Ja ckson, J an. 22, 19 97); State v. Timothy Adams, No. 02C01-9512-
CC-00376, 1997 W L 1821, at *4 n.4 (Tenn. Crim . App., Jackso n, Jan. 3, 1997 ).1
Thus, Appellant is correct that for offenses comm itted on or a fter July 1, 19 95, a
court may only consider juvenile offenses under factor (20) and fu rther, m ay only
consider offenses that would have been felonies if com mitted by an adu lt.2
Howeve r, the fact that we agree with Appellant that the tria l court e rred in
considering his juvenile record under factor (1) does not mean that he is entitled
to a reduction in his sentence. Indeed, the presentence report indicates that
Appellant was twice adju dicated delinqu ent for acts, (theft of prope rty worth more
than $500,) that would have been Class E felonies if committed by an adu lt. See
Tenn. Code Ann. § 39-14-105 (1997). Thus, although the trial court erred in
considering the oth er delin quen t acts th at wou ld not h ave be en felo nies if
committed by an adult, it correctly considered these two delinquent acts under
factor (20). W e agree that this en hance ment fa ctor outw eighs the fact that
Appellant admitted his gu ilt. Ther efore, w e find th e trial co urt's determination of
the length of sentence to be appropriate.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
1
It is true that the Tennessee Supreme Court has stated that a court may properly consider
juvenile co nvictions u nder fac tor (1). State v. Adams , 864 S.W .2d 3 1, 34 (Te nn. 1 993 ). Ho weve r, this
case was decided before the Legislature amended the statute.
2
Appellee’s Brief contains a lengthy footnote which cites numerous cases in an attempt to show
that this Court has allowed consideration of any juvenile offense under factor (1), even after the 1995
amendment. However, an examination of these decisions indicates that in every one of them, the
offenses involved were committed before July 1, 1995 (with the exception of one decision that does not
indicate when the offense was c omm itted).
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CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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