# FILED October 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710- CC-00419 ) Appellee, ) ) ) HARDEMAN COUNTY VS. ) ) HON. J ON KERRY BL ACKWOOD BRENT BROWN, ) JUDGE ) Appe llant. ) (Direct Appeal -

Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : DAVID CRICHTON JOHN KNOX WALKUP 111 W. Market Street Attorney Generaland Reporter P. O. Box 651 Bolivar, TN 38008 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 ELIZAB ETH RICE Distri ct Attor ney General JERRY NO RWOOD Assistant Distri ct Attor ney 302 Market Street Somervill e, TN 38068
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On May 5, 1997, Appel lant Brent Brown was indicted by the Hardeman Count y Gra nd Jury on one count of aggravated robbery and t wo counts of aggravated assa ult. On September 9, 1997, Appel lant ple aded guilt y to the offenses as charg ed. A sentencing hear ing was also hel d on September 9, 1997, after which the tri al court sentenced Appellant t o nine years f

or the aggravated robbery convicti on and thre e years for each aggravated as sault convi ction. Appellant

challenges only his sent ence fo r the aggravated robbery convicti on, raising the followin g issue: whether th e 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 convicti on.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

On December 6, 1996, Appell ant and another a rmed man entered and rob be d a convenience store in Hardeman County. After entering the convenience store, Appel lant and t he other man both poi nted guns at t he three indiv iduals in the store and forced oneof them to open t he cash regi ster
. 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 ev idence consisted of the presentence report and one wi tness. The presentence report i ndicated t hat-3-

Appellant

had a juvenile record which consisted of eight del inquentacts: t hree for disord erly conduct, one for a traffi c offense, one for shopli fting, one for an act that
was not defin ed, and two for theft of property worth more than $500. Counsel for Appellant

cross-examined the State’s wit ness, but otherwise prese nte d no evidenc e.

After hearing the testimony, the arguments of counsel , and revi ewing the presentence repor

t, the t rial cour

t ruled:

The Cour t finds th at you h ave a p rior his tory of c riminal convicti ons or criminal behavior, in addit ion to those nece ssary to est ablish t he approp riate range, and that enhancement factor

outweighs t he fact th at you hav e adm i tte d your guilt, as a m itigating factor; and the C ourt sentences you to nine (9) years in the first c o unt of the i ndictment; and three (3) years in the second and third coun ts of the indi ctment, as a S tan dard Offender, t

o serve thi rty (30)percent befor e you’re el igiblefor release classif icatio n. These se ntences will run co ncurrently, and you’llbe given credit for 249 days.

USE OF APPE LLANT’ S JUVENIL E RECORD
Appel lant conte nds th at the tria l court im prope rly cons idered his juve nile record when it enhanced hi s sentence for aggravated r

obbery from eightyears to nine years. Spe cifically, Appe llant contends that juvenil e records cannot be used unde r Tennessee Code Annotated § 40-35- 114(1), whi ch allows for enhancement if “[

t]he defendant

has a previous

history of crimi nal convic

tions or criminal behavior in additi on to those necess ary to establish the app ropriate range.” T enn. C ode An n. § 40-3 5-114(1 ) (1997).-4- Under Tennessee law, “[w]hen r eviewing sentencing issues . . . i ncluding 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 wit h a presumption t hat the determinat ions made by the court f rom which the appeal i s taken are cor rect.” 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 condit ioned upon the affirmative showing in the reco rd that the trial court considered the sentenci ng princi ples and all rel evant 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 port ion of th e Sent enci ng Re for m Act of 1989, codified at Tennessee Code Annotated § 40-35- 210, establi shed a number of specifi c procedures to be followed in sentenci ng. This sect ion mandat e s the court 's consider ation of t he following:
(1) The evidence, if any, r eceived at t he trialand the sentenci ng hearing; (2) [t]he prese ntence report; (3) [t] he principl es of sentenci ng and argum ents as to sen te ncin g alternat ives; (4) [t] he nature and characteri sti cs of the cri minal conduct i nvolved; (5) [e] vidence and informati on offered by the pa rtie s on the enhancement and mit igating factors in §§ 40-35-11 3 and 40-35-114; an d (6 ) [a] ny statement t he 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 addit ion, thi s section pr ovides that

the minimum s entence within the range is the presump tive sentence. If there are enhancing and mitigat ing factors, thecourt must start at t he minimum sentence in the range and enhance the sentence as ap propriate for the enhancement factors and then reduce t he sentence wit hin the range as appropriate f or the-5-

mitigati ng factors. If there are no miti gating fac tors, t he court may set the sentence above the mini mum in that range but stil l withi n the range. Theweight to be given each factor i s left to the dis cretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 ( Tenn. Crim. App. 1992) . The Act fur ther provi des that “[w]henever

the court i mposes a sent ence , it shall pl ace on the recor d either orally or in wri ting, what enhancement ormitiga 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 i mportance of enhanci ng and mitigat ing factors under the sente nc ing 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 trialcourt fail ed to make any findings o f fact, our rev iew is de n ovo witho ut a presumption of correctness.

In 1995, the Legis lature amended Tennessee Code Annotated § 40-35-11 4 by adding enhancement fac tor(20), whi ch allows for enhancement of a sentence if “[t]he defendan t was adjudica ted to have committed a deli nquent act or acts as a juvenil e that would constit ute a felo ny if commit ted by an adult .” Tenn. Code Ann. § 40-35-114(20) (1997). Appel lant cont ends that af ter thi s 1995
amen dmen t, factor (20) became the exclusi ve factor for enhanci ng a sentence based on a d efend ant’s ju venile record. We agree. Indeed, this Court has previousl y stated:

A recentamendment to Tenn. Code. Ann. § 40- 35-114 require s that o nly those de l inque nt acts by a juve nile tha t would cons titute a fe lony if committed by an ad ult be consi dered to enhance a sentence. That provisi on of the act

took effe ct on July

1, 1995, and appliesto sentenci ng of any defendant

committing an of

fense on or af

ter that date.1 It is true that the Tennessee Supreme Court has stat ed that a cour

t 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 befor e the Legisl ature amended the statute.
2 Appellee’ s Brief cont ains a lengthy footnot e which cit

es numerous cases in an att empt to show that this Court has allowed considerat ion of any juvenil e offense under factor (1),even after the 1995 amendment. However, an examinati on of these deci sions indi cates that in every one of them, the offenses invo lved were committed bef ore July 1, 1995 (wi th the except ion of one deci sion that does not indicate when the offense was c omm itted). -6- State v. Shipley , No. 02C01-9601 -CR-00031, 199 7 WL 21190, at *7 n.1 (Tenn. Cri m. App., Ja ckson, J an. 22, 19 97); State v. Timo thy 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 consi der juveni le offens es under factor (20) and fu rther, m ay only consider

offenses t hat would have bee n fe lonies if com mitted by an adu lt. 2 Howeve r, the fact that we agree wi th Appe llant th at the tria l court e rred in consideri ng his juven ile recor d under factor

(1) does not mean t hat he is enti tled to a reductio n in his sentence. Indeed, the presen tence report i ndicates t hat Appellant

was twice adju dicated delinqu ent for acts, (theft of prope rty worth more than $500,) thatwould have been Class E felonies

if committed by an adu lt. See Tenn. Code Ann. § 39-14-105 ( 1997). Thus, al though the trial court erred i n consi de ring the oth er delin quen t acts th at wou ld not h ave be en felo nies if committed by an adult, it corr ectly cons idered these two delinque nt acts under factor (20). W e agree that this en hance ment fa ctor outw eigh s the fact that Appellant

admitted his gu ilt. Ther efore, w e find th e trial co urt's determinati on of the length of sentence to be appropriate.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE-7-

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JOHN K. BYERS, SENIORJUDGE