FILED

October 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00419

)

Appellee, )

)

) HARDEMAN COUNTY

VS. )

) HON. JON KERRY BLACKWOOD

BRENT BROWN, ) JUDGE

)

Appellant. ) (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 Avenue 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
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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 charged. 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 for the aggravated robbery conviction,

raising the following issue: whether the trial court properly considered Appellant’s

juvenile record as a basis for enhancing his sentence for the aggravated robbery

conviction.

After a review of the record, we affirm the judgment of the trial court.

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 took approximately $300 from the register and left

the store. 

At the sentencing hearing, 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

disorderly 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

evidence. 

After hearing the testimony, the arguments of counsel, and reviewing the

presentence report, the trial court ruled:

The Court finds that you have a prior history of criminal convictions or

criminal behavior, in addition to those necessary to establish the

appropriate range, and that enhancement factor outweighs the fact that

you have admitted your guilt, as a mitigating factor; and the Court

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 sentences will run concurrently, and you’ll be

given credit for 249 days.

USE OF APPELLANT’S JUVENILE RECORD

Appellant contends that the trial court improperly considered his juvenile

record when it enhanced his sentence for aggravated robbery from eight years

to nine years. Specifically, 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 appropriate

range.” Tenn. Code Ann. § 40-35-114(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 court

shall conduct a de novo review on the record of such issues. 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. § 40-35-401(d) (1997).

“However, the presumption of correctness which accompanies the trial court’s

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991). “The defendant has the

burden of demonstrating that the sentence is improper.” 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 presentence report; (3) [t]he principles of sentencing and

arguments as to sentencing 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

defendant wishes to make in his own behalf about sentencing. 

Tenn. Code Ann. § 40-35-210 (1997). In addition, this section provides that the

minimum sentence within the range is the presumptive 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 mitigating factors it found, if any, as well

as findings of fact as required by § 40-35-209.” Tenn. Code Ann. § 40-35-210(f)

(1997). Because of the importance of enhancing and mitigating factors under the

sentencing guidelines, even the absence of these factors must be recorded if

none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. Because the

trial court failed to make any findings of fact, our review is de novo without 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 defendant was adjudicated 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

amendment, factor (20) became the exclusive factor for enhancing a sentence

based on a defendant’s juvenile record. We agree. Indeed, this Court has

previously stated:

A recent amendment to Tenn. Code. Ann. § 40-35-114 requires that only

those delinquent acts by a juvenile that would constitute a felony 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.
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 31, 34 (Tenn. 1993). Howeve r, this

case was decided before the Legislature amended the statute.

2Appellee’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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State v. Shipley, No. 02C01-9601-CR-00031, 1997 WL 21190, at *7 n.1 (Tenn.

Crim. App., Jackson, Jan. 22, 1997); State v. Timothy Adams, No. 02C01-9512-

CC-00376, 1997 WL 1821, at *4 n.4 (Tenn. Crim. App., Jackson, Jan. 3, 1997).1

Thus, Appellant is correct that for offenses comm itted on or after July 1, 1995, a

court may only consider juvenile offenses under factor (20) and further, may only

consider offenses that would have been felonies if com mitted by an adult.2

However, the fact that we agree with Appellant that the trial court erred 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 adjudicated delinquent for acts, (theft of property worth more

than $500,) that would have been Class E felonies if committed by an adult. See

Tenn. Code Ann. § 39-14-105 (1997). Thus, although the trial court erred in

considering the other delinquent acts that would not have been felonies if

committed by an adult, it correctly considered these two delinquent acts under

factor (20). We agree that this enhancement factor outweighs the fact that

Appellant admitted his guilt. Therefore, we find the trial court's determination of

the length of sentence to be appropriate.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE