enhancement factors in Tennessee

201812/11/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs December 4, 2018 STATE OF TENNESSEE v. RODRICUS ANTWAN JOHNSON Appeal from the Criminal Court for Shelby County No. 02-07973 Chris Craft, Judge ___________________________________ No. W2018-00950-CCA-R3-CD ___________________________________ Rodricus Antwan Johnson, Movant, filed a Tennessee Rule of Criminal Procedure 36.1 motion seeking correction of what he claimed was an illegal sentence because the trial court applied enhancement factors that were required by Blakely v. Washington, 542 U.S. 296 (2004) to

2017Trial counsel said that the Petitioner’s sentencing range was a “big issue.” Trial counsel acknowledged that the trial court, not the jury, found the enhancement factors but stated that the trial court did not violate Blakely v. Washington, 542 U.S. 296, 303 (2004).

2011Appellate counsel recalled that he did not raise a Blakely argument with respect to the trial court’s application of the enhancement factors because, at the time he filed his brief, our supreme court had held in State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005) (“Gomez I”), that Tennessee’s sentencing scheme was constitutional.

2010Defense counsel then noted his disagreement with State v. Gomez [ 163 S.W.3d 632, 654-61 (Tenn. 2005) (Gomez I )], vacated and remanded, Gomez v. Tennessee, 549 U.S. 1190 , 127 S.Ct. 1209 (2007), and argued that “these enhancement factors are unconstitutional in any advisory rule; and, my position as a matter of law [is] that unless a jury has found the enhancement factors that they cannot be relied on and he should be given the minimum sentence.” After this discussion, the trial court stated that it could “use the enumerated enhancement factors as a guideline” and sentenced Black according to

2005See generally State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim.

2005See generally State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim.

2020We need not tarry long over the defendant’s claim because, even assuming that the trial court misapplied the enhancement factors in this case, “a trial court’s misapplication of an enhancement or mitigating factor does not invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706 .

2020And for those reasons, the Court findings that the enhancement factors outweigh the mitigating factors, the Court does again find that they outweigh the mitigating factors, and the Court feels like that based upon the facts and circumstances of this case, that the maximum four years is justified and hereby orders the sentence to be served in the Department of Correction. - 23 - Length of Sentence Trial courts are “required under the 2005 amendments to ‘place on the record, either orally or in writing, what enhancement or mitigating factors were considered, if any, as well as the reasons for th

1998“If enhancement and mitigating factors are supported by the proof, the trial court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” See Tenn.Code Ann. § 40-35-210(c), (d), & (e) (1997 Repl.); State v. Foote, 945 S.W.2d 93, 95 (Tenn.1997); State v. Jones, 883 S.W.2d 597, 601 (Tenn. *807 1994); State v. Adams, 864 S.W.2d 31, 33 (Tenn.1993).

1997If there are enhancement factors but no mitigating factors in the record, the court may “set the sentence above the minimum in that range but still within the range.” If enhancement and mitigating factors are in the record, the trial court “must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” See Tenn.Code Ann. § 40-35-210(c), (d), & (f)(1990); State v. Jones, 883 S.W.2d 597, 601 (Tenn.1994); State v. Adams, 864 S.W.2d 31, 33 (T

2002Enhancement factors must be appropriate for the offense and “not themselves essential elements of the crime.” Tenn. Code Ann. § 40-35-114 ; State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1995).

2002Enhancement factors may be applied “only when the factors are ‘appropriate for the offense’ and ‘not themselves essential elements of the offense.’” State v. Lewis, 44 S.W.3d 501, 504 (Tenn. 2001) (quoting State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997)).

2019Although the Defendant claims in this delayed appeal that the trial court misapplied an enhancement factor and erred in weighing the applicable enhancement factors, the misapplication of an enhancement factor is not a basis for reversal of a trial court’s sentencing decision so long as the sentence is consistent with the purposes and - 11 - principles of sentencing, see id. at 706 , and a claim that the trial court improperly weighed the enhancement and mitigating factors is not a ground for appeal, see State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008).

2012The post-conviction court determined that Petitioner’s challenge to the enhancement factors applied to his sentence was without merit because of the change in sentencing laws and the decision in State v. Carter, 254 S.W.3d 335 (Tenn. 2008).

2013Here, the trial court submitted the enhancement factors to the jury, apparently relying on the precedent established by Blakely v. Washington, wherein the United States Supreme Court held that “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

2012At the sentencing hearing, he argued against the enhancement of the Petitioner’s sentences, but did not argue that the Supreme Court’s opinion, Apprendi v. New Jersey, 530 U.S. 466 (2000), applied to prohibit the application of many of the enhancement factors utilized by the trial court.

2017State v. Gomez, 239 S.W.3d 733, 741 (Tenn. 2007) (citing Cunningham v. Californz'a, 549 U.S. 270, 275 (2007)); see also Blakely, 542 U.S. at 301 (“‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”’) (quoting Apprena’z' v. New Jersey, 530 U.S. 466, 490 (2000)).

2008He also argues that the increased and consecutive sentences were imposed in violation of State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), because application of the enhancement factors found by the judge, rather than a jury, deprived him of his right to jury trial.

2024If a sentencing court “find[s] the presence of enhancement factors or mitigating factors, it must first ‘enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.’” Id. (citing T.C.A. § 40-35- 210(d), (e)) (2000) (subsequently amended).

2006W e will refer to the enhancement factors as the same numbers as the trial court to minimize confusion. -11- Additional evidence can include “sexually explicit remarks and overt sexual displays made by the defendant, such as fondling or kissing a victim or otherwise behaving in a sexual manner . . . .” Arnett, 49 S.W.3d at 262 .

2008State v. Keel, 882 S.W.2d 410, 419-21 (Tenn. Crim.

1998State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim.

2002Enhancement factors may appropriately be applied “only when the factors are ‘appropriate for the offense’ and ‘not themselves essential elements of the offense.’” State v. Lewis, 44 S.W.3d 501, 504 (Tenn. 2001) (quoting State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997)).

2002Enhancement factors may be applied “only when the factors are ‘appropriate for the offense’ and ‘not themselves essential elements of the offense.’” State v. Lewis, 44 S.W.3d 501, 504 (Tenn. 2001) (quoting State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997)).

2013This Court has held repeatedly that the 2005 amendments resolved the Sixth Amendment constitutional concerns addressed in Blakely v.Washington that arise when trial courts rely on enhancement factors that have not been found by a jury. 362 S.W.3d at 528 (citing State v. Hester, 324 S.W.3d 1, 69 (Tenn. 2010); State v. Banks, 271 S.W.3d 90, 144-45 (Tenn. 2008); State v. Carter, 254 S.W.3d 335, 342-44 (Tenn. 2007)).

2012Carter, 254 S.W.3d at 344-45 ; See also State v. Banks, 271 S.W.3d 90 (Tenn. 2008).

2010State v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim.

1998State v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim.

2000Cf, Pearson, 858 S.W.2d at 885 (Court of Criminal Appeals properly enhanced sentence based on defendant’s criminal record set forth in the presentence report); State v. Adams, 864 S.W.2d 31, 34 (Tenn.1993) (this Court applied enhancement factors for defendant’s criminal record and abuse of position of trust, but declined to apply two other enhancement factors where the record did not contain sufficient facts).

1998“If enhancement and mitigating factors are supported by the proof, the trial court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” See Tenn.Code Ann. § 40-35-210(c), (d), & (e) (1997 Repl.); State v. Foote, 945 S.W.2d 93, 95 (Tenn.1997); State v. Jones, 883 S.W.2d 597, 601 (Tenn. *807 1994); State v. Adams, 864 S.W.2d 31, 33 (Tenn.1993).

2010In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court held that, except for a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The trial court applied enhancement factors, including: the defendant had a previous history of criminal convictions; the offense involved more than one victim; the defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense; and the defendant has a previous history of unwilli

2007However, Blakely’s application to Tennessee’s sentencing statute has since been clarified by the United States Supreme Court’s release of Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), and the subsequent grant of certiorari vacating our supreme court’s judgment in Gomez v. Tennessee, 549 U.S. 1190 , 127 S.Ct. 1209 , 167 L.Ed.2d 36 (2007). 2 However, we need not address the propriety of the trial court’s application of the enhancement factors pursuant to Blakely if there are appropriate factors sufficient to justify the trial court’s imposition of sentence.

2005See Tenn. Code Ann. § 40-35-401 , Sentencing Commission Cmts.; see also Ashby, 823 S.W.2d at 169 . -12- There is no mathematical formula for evaluating the enhancement factors to calculate the appropriate sentence.

2002Ashby, 823 S.W.2d at 169 . -18- In sentencing the Defendant, the trial court applied the following enhancement factors: (1) that “[t]he defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range,” Tenn. Code Ann. § 40-35-114 (1); (2) that “[t]he defendant possessed or employed a firearm . . . during the commission of the offense,” id. § 40-35-114(9); and (3) that “[t]he defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult . .

2025Sentencing Defendant argues that the trial court erred in weighing the enhancement factors that were applied to his sentences, by finding him to be a dangerous offender under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), and by imposing partial consecutive sentencing.

2004State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). -3- The trial court found no mitigating factors and applied the following enhancement factors:1 (2) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; and (11) the defendant had no hesitation about committing a crime when the risk to human life was high.

2022She asserts that because her sentence was excessive and inconsistent with the purposes and principles of the relevant statutes, this court “should reduce the sentences for each count to the minimum of the sentencing range.” In addition, without fully considering the holding in Bise, the Defendant claims the trial court failed to “state the specific facts supporting each enhancement factor found” and failed to “articulate how the mitigating and enhancement factors ha[d] been evaluated and balanced in determining the sentence.” State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

2002With regard to the term of his sentence, Defendant argues that (1) one of the enhancement factors applied by the trial court was not proven by a preponderance of the evidence, as required by State v. Winfield, 23 S.W.3d 279 (Tenn. 1998), (2) a second enhancement factor was applied in error, and (3) the trial court failed to give appropriate weight to the mitigating factors applicable in his case.

2014Cf. State v. Cross, 362 S.W.3d 512, 529-30 (Tenn. 2012) (holding that the trial court’s sentencing decision was justified because “the trial court emphasized a variety of considerations beyond the enhancement factors which [were] consistent with the principles and policies of sentencing” and “also placed appropriately significant weight on two other [applicable] enhancement factors”).

2013In State v. Cross, 362 S.W.3d 512, 528 (Tenn. 2012), our supreme court aptly stated, [Appellant] fails to acknowledge or address the various decisions in which this Court has addressed the 2005 amendments to Tennessee’s sentencing provisions.

2014State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997) (citing Tenn. Code Ann. § 40-35-114 ).

1999See State v. Walton, 958 S.W.2d 724, 729 (Tenn.1997).

2012The State also asserts that “[t]here is no prohibition in the 1989 Sentencing Act against using the same facts and circumstances both to enhance sentences under the applicable enhancement factors and to require those sentences to be served consecutively.” See State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim.

1998State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim.

2011See id. at 691-92 .

2010See id. at 691-92 .

2011See State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002) (holding that factor (3) may not be applied where a defendant is convicted of separate offenses committed against each victim); see also State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim.

2006Having again reviewed the transcript, we conclude that the trial court applied the same nine enhancement factors toward the second degree murder and reckless endangerment sentences and applied eight enhancement factors toward each aggravated assault sentence. -15- In addition, the State concedes the trial court misapplied enhancement factor (4), that the offense involved more than one victim, toward Whited’s sentences for second degree murder and reckless endangerment.8 See State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim.

2011Whether enhancement factor (10) may be applied in some cases during sentencing for an aggravated robbery conviction when the only person whose life was placed at risk was the victim, the fundamental principle remains the same: “Enhancement factors are not intended to allow sentence adjustments based on the general nature of the offense.” State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).

2001“Enhancement factors are not intended to allow sentence adjustments based on the general nature of the offense.” State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996).

2011In that context, the term “victim” “is limited in scope to a person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime.” State v. Raines, 882 S.W.2d 376, 385 (Tenn.Crim.App.1994).

2003In this opinion, we will refer to the enhancement factors of Tennessee Cod e Annotated section 40-35-114 as they existed at the time of the sentencing hearing. -4- including at least one newborn baby who would clearly be “vulnerable,” the State points out that no person other than the owner of the single apartment damaged was technically a “victim.” As the State points out in its brief, a panel of this Court in State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim.

2021Tenn. Code Ann. § 40-35 - 114(1) (2018); See State v. Jackson, 60 S.W.3d 738, 742 (Tenn. 2001) (finding that the enhancement factors for extensive criminal history and for adjudication of juvenile delinquency are “mutually exclusive”).

2020Id. at 739-40 .

2018This court has held that an offender’s sentence may be mitigated “‘based upon his family contributions and work ethic.’” State v. Kelley, 34 S.W.3d 471, 482 (Tenn. Crim.

2002Since the weight to be given enhancement and mitigating factors is left to the discretion of the trial court, see Kelley, 34 S.W.3d at 479 , we see no reason to disturb the length of sentence set by the trial court.