# FILED
July 15, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9810-CC-00319 Appellee, ) ) Decatur County v. ) ) Honorable C. Cree d McGinley, Judge JOHNNY LYNN CR USE, ) ) (Sentencing) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: J. Michael Ivey Paul G. Summers 36 Tennessee Avenue South Attorney General & Repor ter P. O. Box 127 Parsons, TN 38363 Georgia Blythe Felner Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 G. Robert Radford District Attorney General 111 Church Street P. O. Box 686 Huntingdon, TN 38344-0686 Jerry W. Wallace Assistant District A

ttorney General P. O. Box 637 Parsons, TN 38363-0637

OPINION FILED: _________________________

_____ AFFIRMED PURSUANT TO R ULE 20 L. T. LAFFERTY, SENIOR JU DGE 

### O P I N I O N2 The appellant, Johnny Lynn Cr use, appe als as of right from the judg ment of the Decatur County Circuit Court impo sing a sentence of twenty-fiv e years following his guilty plea to murder second degree. The appel lant submits one appellate iss ue: whether the trial court erred in imposing the maximum senten ce of twenty-five years as a Range I, violent offender.

After a review of t he entire record, b riefs of the parti es, and a ppropria te law, we AFFIRM the trial cour

t’s judgment.

On February 16, 1998, the Dec atur County gran d jury in dicted the defendant (Johnny Lynn Cruse), Daniel

Lynn Matthews, and Terry Dale Miller for the premeditated murder ofThomas L. Hay on December 1, 1997. On May 7, 1998, the defendant, in the presence of his attorney, entered a plea of guilty

to the reduced offense of murder second degree and requested that the trial court determine the appropri ate sentence. The trial court ordered a presentence r eport.

At the sentencing hearing on J une 22, 1998, the defendant testified he did not wish to call any witnesses, nor did he wish to testify. The presentence report was s ubmitted to the trial court for consider ation of the appropriate sentence. After the defendant’s arrest, he gave a statement to the Decatur County Sheriff’s Department, which was incorporated into the p resentence report. Prior to the shooting, the defendant, Dani el Matthews, an d TerryMiller were at a friend’s house drinking beer. Miller s tarted talk

ing about ho

w some guy had “f----- them.” The defendant di d not know who they were talking about. After riding around, they arrived at “Hook’s” house. Matthews had a rif le, and he and Miller cleaned the bullets with Windex and loaded the rifle. They drove up the vict im’s drivewa y. Miller went up to the house, returned to the car, and told Matthews to “go do it. . . . He’s sitting in the chair. Go do it or we’ll leave.” Matthews got out, walked up to the house, and fired several shots throug h the door. The defendant drove off, but

stopped down the road,
a n d all three returned to the house, where Miller took some rocks and arrowheads.3

Matthews took two long guns, a lever -action rifle, and something in a “zip-up” bag.The defendant admitted that he kn ew “we were going to ki ll that man. . . . My onl y participation
was that I was driving them around, went back to the hous e after the man was dead, and talked to them about not parking down the road, when the planning was going on.”

The State submitted three enhancement factors for thepurpose of enhancing the defendant’s sentence: (1) the defendant has a previous history

of criminal convicti ons or criminal behavior; (2) the defendant w as a leader

in the commission of

an offense involving two or more criminal actors; and (3) the defendant possessed or emp loyed a firearm in the commission of the offense. Tenn. Code An n. § 40-35-114(1), (2), and (9). The trial court found enhancement factors (1) and (9) applicable. The defendant stipulated there were
no mitigating factors, but took issue that he was a leader in the commission of the offense. The trial court rejected the application of factor (2), the defendant was a leade r in the commission of the offense. In the absence of any mitigating factor

s, the trial court imposed the maximum sentence with in Rang e I for murder second degree at twenty-five years in the Department of Correction.

When the accused challenges the length , range , or mann er of ser vice of a sentence, this Court has a duty t o conduct a de novo review of th e senten ce wi t h a presumption of correctne ss that the de

termination s ma de by the trial court are corr ect. Tenn. Code Ann. 40-35-401(d). This presumption is “conditione d upo n the aff irmative 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).

When conducting a de novo review of a sentence, thi s Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternat ives; (d) the nature and cha racteristics of the cri minal conduct involve d; (e) any statutory

mitigatingo r enhancementfactors ; (f) any statement made by the defendant regarding sentenc ing; and (g) the potential or lack of potential for rehabilitation or tre atment. State v. Smith, 73 54

S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.

From a review of the recor d, the trial court follow

ed the sentencing principles of the Tennessee Criminal Sentenci ng Reform Act of 1989, thus this review is de novo with a presumption of correctness. As part of his argument, the defendant contends that thetrial court should have appliedthe followingmitigating factors: ( 4) the defendant played a minor role in the commission of the offense; and(10) the defendant assisted the authorities in locating and recovering the gun and stolen property . Tenn. Code Ann. § 40-35-113(4) and (10). From our review

of the record, we have been unable to find any evidence in support of factor (10) , Tenn. Code Ann. § 40-35-113. In denying the State’s request to ap ply enhance ment factor (2), Tenn. Code Ann. 40-35- 114, namely, that the defendant was a leader in the c ommissi on of the o

ff e nse, the trial court found the ev idence was not clear
as to which of th e three defendants was the “lead er” of the offense. However, the evidence was clear that “ther e was substantial inv

olvement

by all” of the

defendants. Thus, the trial court was not in error for failing t o apply mitigating factor (4), Tenn. Code Ann. § 40-35-113.

The trial court found that the defendant was an of fender whose record of criminal activity is extensive. See

Tenn. Code Ann. § 40-35-115(b)(2) (1997). The record of the defendant’s prior criminal hist ory and behavi or is uncontroverted and more than adequately supportsthe trial court’s conclusion. The sentence imposed by the trial court reasonably relatesto the severity of thi s offense and was necessar y to protect society from the defendant’s criminal activity

. State v. Wilkerson, 905 S.W.2d 933, 938 ( Te n n. 1995). If appellate review reflects that the trial court properly considered all relev

ant factors and its findings of fact are adequately supported in the record, this Court must affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The judgment of the trial court is affirmed p urs uant to Rule 20 of the Tennessee Court of Criminal Appeals.5 __ ________________

_____________________ _ L. T. LAFFERTY, SENIOR JU DGE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ DAVID G. HAYES, JUDG E