### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3
STATE OF TENN ESSEE v. N'KOSI TUGGLE Appeal from the Criminal Court for Shelby County No. 01-05479 W. Otis Higgs, Judge

No. W2002-02625-CCA-R3-CD - Filed May 15, 2003

The defenda

nt, N'K osi Tuggle, entered a

plea of guilt to aggra

vated robbery . The trial court imposed a Range I sentence of eight y ears. In this appeal of r ight, the defendant argue s that he should have been classified as an especially mitigated offender. The judgment is af firmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delive red the o pinion of t

he court , in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined.
John A. Peebles (on appeal) and Robert Felkner (at trial), Assistant Public De fenders, fo r the appellant, N'Kosi Tuggle.
Paul G. Summers , Attorne y General & Repor ter; Kat hy D . Asl inger, Assistant Attorney Gene ral; and David Zak, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION Shortly before 10:00 A.M. on June 8, 2000, the defendant and Marcus McGhee, who was armedwith a pistol, robbed a Taco Bell in Memphis of $225.00. During the robbery, the

defendant covered his face with his shirt. While McGhee used a scarf to hide his identity , he was recognized by one of the

employ ees as a former T aco Be

ll employee. B efore leaving the scene, the defenda nt and McGhee forced

Taco Bell employ ees into a freezer. L ater, police recovered par t of the proceeds at the defendant's addre ss and the remaind er in the getaw ay car. Ea ch of the men admitt

ed his participation in the crime. Police also recovered the we apon used in the robbery

. McGhee, who was a

juvenile at the time

of the offense, was treated as an a dult and received an eight- ye ar se ntence . The def endant, w ho reque sted more

lenient se

ntencing as an esp ecially mitigatedoffender, also received an e ight-ye ar sentence. At the sentencing he a ring, it was established that the defendant, age 18 at the time of the offense, had no prior criminal record.-2-

The defendant, who had an IQ of 52, had been pla

ced in a special education program during his scho ol years . The

offe nse o ccur red a ppro xi mately

three weeks after his gra duation from Hamilton High School, where he attended regularly and had satisfactory

behavioral marks. He was below the fourth percentile in reading and ma thematics. The presentence report established that the defendant admitted h aving u sed marij u ana abo ut o nce eve ry two week s "a long

time ag o." His employment

record includ ed part- time hourly positions with a fast food restaura nt, a trucking company, a tire

company, and a

landscaper beginning in 1998 and e nding in 2002. The defendant also claimed that he held a position as a church musician for which he received compensation. At the time of the hearing, he worked at G& P Tire, where he repaired flat tires a nd washed cars.
In arriving at the sentence, the trial cour tmade referenc e to the facts of the case, compared the eight-y ear s en tence he had imposed on McGhee and, while obser ving that the defendant had

" problems in school a

nd that the

re were no enhancement f

actors o ffere d by

the state ," decl

i ned t o classify the defendant as an especially mitigated offender based upo n the seriou s nature and dangerous circumstances of the c rime.
In this appeal, the defendant contends that he is entitled to an especially mitigated sentence. He points out that he had no prior criminal record and arg ues that the trial court, by ma king reference to McGhee's sentence, failed to impose an individualized sentence. When there is a challenge to the length, range, or manner of ser vice of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court ar e correct. Tenn. Code Ann. § 40-35-4 01(d). T

his presumpt

ion is "conditioned upon the affirmative showing in the rec ord t hat the trial court considered the sentencing pr inciples and all relevant facts and circu mstance s. " Statev. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial cour t applies inappropriate factors or otherwise fa ils to follow the 1989 Sentencing Act, the presump tion of corre ctness fall s." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impro priety of the sente nce. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mments.
Our review requires an analysis of ( 1) the evidence, if any , received at the trial and sentencing hearin g; (2) the p

resente nce rep ort; (3) t

he princ ip les of se nte ncing and the arguments of counse l relative to sentencing alternatives; (4) the nature and chara cteristics of the offense; (5) any mitig ating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn. Code A nn. § § 40-35-102, -103, -210; Statev. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If the trial court' s findings of fact are adequa

tely supporte d by

the rec ord, this court may not modify the sentence even if it would have preferred a differe

nt result. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991).
Trial courts have the discretion to classify defe

ndants as especially

mitigatedoffenders when there are no prior felony

conviction s an d there are mitigating, but no enhanc ement factors. Tenn. Code Ann. § 40-35-109(a). If the trial court determines that the defendant is an especia lly mitigated offender, it shall reduce the minimum sentence by 10%, reduce the release eligibility date to 20%,-3-

or both. Tenn. Code Ann. § 40-35-109(b). The decision to cl assify

a defendant as a

n especi ally mitigate d offend

er is discretionary. See State v. Buttrey , 756 S.W.2d 718, 722 (Tenn. Crim. App. 1988). In State v. Braden , 867 S.W.2d 750, 762-63 (Tenn. Crim. App. 1993), this court upheld the trial court's re fusal to classify the def endant as an especially

mitigated offender due to the serious nature of t he offense. In State v. Blackstock , 19 S.W.3d 200 (Tenn. 2000), our supreme cour t modified the classification of the defendant, who had an IQ of 55 andfunctioned as aneight- or nineye ar-old child, to especially mitiga ted offender status based u pon the erroneous application of a single enhanc ement f

actor. While this case is similar to Blackstock , the state correctly points out that there were no enhancement fa ctors in Blackstock

and the trial court could have applied an enhancement

factor in this cas e. By

acknowl edging

his prior, regula

r use of marijuana, the defendant admitted a history of cr

iminal behavior. See Tenn. Code Ann. § 40-35-1 14(1) (1 997); State v. Dirk Braden Carter , No. 02C01 -9710-CC- 00421 (Te nn. Crim. App., at Jackson, July 28, 1998) (pr ior use of marijuana which did not result in a conviction m ay be a pplied as an enhancement factor wher e the def end ant cla im s t o be an e spe cia ll y mit iga ted off end er) . In our view, that would disqualify the defendant from consideration as an especially mitigatedoffender. The single enhancement factor , in combination with the use of a we apon in a r obbery involving

severa l employ ees of a business, establishes that the trial court did not abuse its discretion. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE