### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 2, 200 5

STA TE OF TEN NES SEE v. DE NN IS HOD GES

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 02-09114 Chris Cr aft, Jud ge

No. W2004-02716-C CA-R 3-CD - F iled Septem ber 27, 2005

A Shelby CountyCrimina l C o u rt jury convicted the appellant, De nnis Hodg es, of two c ounts of voluntary manslaug hter. The trial court mer g ed the first count i nto the sec ond count and se ntence d the app e lla nt t o f

if te e n y e ars a s a

Ra ng e I I I , pe rs ist e nt of

fe nd e r. I n this app e a l, the app e lla nt c la ims (1) that the e vidence is insufficient to support the convictions, (2) that the State made imprope r
c los ing arg ume nt, a nd (3 ) tha t his sen te nc e is exc e ssi ve

. Up on re vie w o f the re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J
., delivere d the opinion of the court, in which D AVI D H. W ELLES a nd J.C. M C L IN , J J
., joined.

Robert Wils on J ones and Phy llis Aluko (on appea l) and Willi am Robilio and Garland E rg uden (a t tr ia l) , M e mph is, Te nn e sse e , f or the app e lla nt, De nn is H od g e s.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re po rt e r; Re ne e W. Tur ne r, As sis ta nt Att or ne y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and A landa Dw y er, A ssist an t Di s t ri ct Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

I. F ac tu al B ac kgr ound

This case rela tes to the shooting de ath of De bra N g uy en. Or a Murr ell testified that in May 2002, she lived at 1213 Spring dale, a partment number

5. Her apartment was adja cent to the victim’s

apa rt me nt, a ndsh e a ndthe vic tim we re frie nd s. She ha d kn ow n the app e lla nt f or abo ut f ive y e ars

. On the nig ht of May

21, 2002, Ms. Murrell telephoned the victim and aske d if the victim had any Ty lenol. She t h en wa l k ed to the victim’s apartment to ge t the medicine a nd saw the a ppellant standing at t he victim ’s back door. Ms. Murre ll walked to the victim’s bac k door and spoke to the

app e lla nt, bu t he didno t r e sp on d. Ms. Mu rrel l kn oc ke d o n th e vic tim ’s do or , a ndthe vic tim-2-

answe red i t an d gav e Ms. M urre ll the Ty lenol. Whil e the victim still had the door open, the appellant wa lked up behind Ms. Murre ll. The victim asked the a ppellant, “[H]ow can I h elp y ou, baby [? ]” Ms. Murre ll and the appe llant went into the victim’s apartment, and the appe llant asked the victim for two cig ars. Ms. Murre ll saw that the appellant had his hands behind his bac k, and he showed Ms. Murre ll a pistol. The appellant then g rabbe d the victim by the collar
, put the gun t o the victim’s chin, and said, “ [G] ive me that money , Bitch[.]” Ms. Murrell hear d the v i ctim tell the appellant that she did not ha ve any money , and Ms. Mur rell quietly slipped out the door. She starte d

ru nn ing a ndsc re a min g , d ia le d 9 11 on he r c e llu lar te le ph on e , a nd tol d the 91 1 d isp a tc he r tha t D e nn is Hodg es wa s robbing the victim. Whi le she was talking on the telephone, she hear d a g unshot. L ater that night, she went to the police department a nd identified the appellant’ s photogr aph as the pe rson wh o r ob be d th e vic tim

.
Corliss Goree te stified that at t he ti me of the shooting, she lived in apa rtment number 2. The vic tim wa s k no wn a s th e “ c a nd y

la dy ” be c a us e sh e g a ve c a nd y to n e ig hb or

ho od c hil dr e n. Th e vic tim

a lso so ld c hip s, dr ink s, a nd c ig are tte s to peo ple in the ne ig hb or ho od

. On the nig ht o f M a y 21 , M s. Gore e wa s in the victim’s a partment and the two of them wer e croc heting and watching television in the living room. Or a Murr ell knocked on the victim’s door, and the vic tim we nt into the kitchen to a ns we r i t. M s. Go re e he ardMs. Mu rr e ll t e ll the vic tim that sh e ha d c ome to g e t so me Ty le no l. Ms. Go re e the n h e arda no the r kno c k, a ndthe vic tim a ns we re d th e do or . A lth ou g h M s. Go re e c ou ld not see into the kitchen, she hear d a man sa y that he wa nted a ci gar

. M s

. Goree hea rd the man de ma ndmon e y

from th e vi cti m andhe ardthe vic tim sa y , “ I do n’ t ha ve a ny

mon e y , B aby .” Ms. Gore e then he ard the man t ell the vi ctim, “[G]i ve me the money , Debbie. I ’m g oing to shoot y our f* ** ing a ** . M s. Go re e sa id tha t sh e wa s st art le d, tha t he r c hair fe ll b a c kw ard , a ndthat th e ma n to ld her, “ [Y] ou better not move in ther e, B itch, I ’m g oing to kill y ou too.” The victim asked Ms. Goree to h a ndthe vic tim ’s pu rs e to the vic tim . M s. Go re e gave the vic tim he r p ur se a ndsa w the vic tim

cra wling a cross the floor. She then saw a hand and a silver g un and hear d a g unshot. The man shot the vi ctim three times. Ms. Gore e immediately went to the victim and saw that she wa s not bleeding

or br e a thi ng . T he ma n ra n out the ba c k doo r, a nd Ms. Go re e ra n out the fr on t do or to t ry to s e e him

. The man looke d at M s. Gore e, and Ms. Gore e saw a muscular man who looked c ross-ey ed. The man ran be hind a dumpster, and Ms. Gore e ran upstairs to her apartment to call 911. She said that she had neve r see n the man befor e. On cross-e x amination, Ms. G oree testified that it was dar k outside bu t th a t por c h lig hts we re on

. She a c kn ow le dg e d tha t she did no t te ll the po lic e the ma n w a s c ro ssey ed.

Offic er Tod L edg erw ood of the Memphis Police Depa rtment testified that he w as dispatche d to the victim’s apartment about 11:30 p.m. on May 21 and was the first office r on the sce ne. When he ar rived, the vic tim was ly ing f ac e- u p o n t h e floor and O ffice r L edg erw ood saw that she ha d a g u n s h o t w o u n d

. H e o b ta in e d a d e s c r ip ti o n o f th e s h o o te r f r o m w it n e s s e s a n d d is p atche d the information over his police radio. Of fice rs found a nd attempted to ar rest a pe rson who matche d the description, but t he man wa s able to g et away from the office rs. When the par amedics a rrived a nd moved the victim, they

found a loa ded re volver unde rneath her.-3-

Parame dic Matthew H amm testified that about 11:30 p.m . on May 21, 2002, he wa s dispatched to 1205 Springda le, apartment numbe r 3. The victim was ly ing on he r bac k and had be en shot once ne ar the heart and twice in the l ower abdomen. She ha d a hea rt rhythm but no puls e, and she wa s not breathing . When t h e p aramedics moved the vic tim onto a spine board, a g un was underne ath her

.
Doctor O . C. Sm ith, the M ed i ca l Ex aminer f or Shelby Countyat the time of the vic tim’s death, testified tha t he per formed the victim’s autopsy . The vi ct i m re ceive d two or three g unshot wounds. T h e fi rs t wound enter ed the victim’s upper left che st. The sec ond wound enter ed the victim’s lower lef

t abdomen. The bullet f

rom the second g unshot ma y have e x ited the victim’s body and re -ente red the body

though the victim’s rig ht thigh. The wound to the victim’s rig ht thigh may also have come f

rom a third bullet. The vic tim had a small lace ration t o the back of her head, but Dr. Smith stated that she probably rec eived the la cer ation about an hour befor e the shooting. He conclude d that the cause of de ath was multiple g unshot wounds a nd that the manner of death was a homicide. On c ross-examination, he testified that no alc ohol was found in the victim but that

me tha do ne wa s p re se nt.

Steve B arr on, the victim’s brother, te stified t hat he lived with his sister and that she took

me tha do ne fo r a

rthr iti s p a in. On the nig ht of the sh oo tin g , Mr. B arr on wa s in the ba c k b e dr oo m w ith his father . He he ard a noise and walked out of the be droom and towa rd the kitche n. He sa id that the victim was sitting in the living r oom a nd that he saw someone holding a g un. When Mr. Ba

rron sa w the g un, he jumped back. He hear d g unshots a nd went into the living room. The vict i m was slouched ove r, and Mr. Ba rr o n t el ephoned 911. H e stated tha t he had sc hizophrenia and

ac k n o wl ed ged t h at h e h ad a d i ff i cu l tt i m e r em em b er i n g wh at h ap p en ed o n t h e n i gh to f t h e s h o o t i n g. On cr oss-examination, Mr. Bar ron testified t h at when the victim answere d her door at nig ht, she usually car ried a g un with her.

The a ppellant testified that on the day of the victim’s murder , he wa s “hang ing out” at the vic tim ’s apa

rt me nt c omp le x with Da le Was hin g ton and Da rs e y Mu rr e ll. At

so me po int , M ur

re ll beg an talking about “knoc king of f the c andy lady .” The appellant thought Murre ll wa s joking a nd tol d M ur re ll tha t he wo uldno t g a in a nythi ng by do ing that. Th e app e lla nt state d that he se nt M ur re ll to the victim’s apartment to buy a cig ar a nd that he s at o n t h e s t ep s near the victim’s back door

. Whil e he w as wa iting on Murr ell, he hea rd someone y ell. Ora

Murre ll came out of the victim’s apartment, and she wa s y elling that someone wa s robbing the ca ndy lady . The a

ppellant then hea

rd two g unshots and ran. H e st ated that he had nothing to do with the victim’s murder. He rela ted that he does not ha ve cr ossed ey es but that he doe s have a droopy ey elid.

On cr oss examination, the appe llant testified that he stay ed “on the lam” for about one month. On J une 16, 2002, the police found him a nd he g ave a statement. He acknow ledg ed that he had lied in previou s testimony , testify ing tha t he had no memory of wha t happene d on the nig ht of the shooting. He said that he wa s testify ing tr uthfully at trial. On redire ct examination, the appellant testified that he ha d n o t k n o wn t h e victim and that he ha d never been to he r apa

rtment complex befor e.-4-

Dale Washing ton testified that Dar sey Murre ll is hi s brother. O n the day of t he shooting , he and his brother

had bee n to Kamishia Har ris’ apa rtment. He r elated tha t the appellant wa s known in the neig hborhood as a

“cr ack he ad.”

Thamir F ree man testified that she had known Dale Washington for three to four y ear s and that she had know n Dar sey Murre ll for a short t i m e. On t he nig ht of May 21, Ms. Fre eman wa s upstairs in her a

partment. Ab out 9:00 p.m., the appellant ca me to Ms. Fre eman’ s apartment and wanted some cig ars. The appellant lef t and about twenty

minutes later, Ms. Fr eema n lear ned that the ca ndy lady had bee n killed.

Ka mis hia Ha rris t est if ied on re bu tta l f

or the Sta te . I n M a y

20 02 , M s. Ha

rris w a s li vin g in apartment numbe r 5, above the victim’s a partment. The day befor e the shooting, Ms. H arris sa w the appellant with Dale W ashing ton and the appellant “ just looked crazy .” He also was c arry ing a g un on his person. On the night of the shooting, the appe llant came to Ms. Ha rris’ a partment a nd asked her if she had any

cig ars. Ms. H arris told the appellant that he would have to g o to the candy lady ’s apartment to ge t cig ars. Af ter the a ppellant left, Ms. Harr i s h ear d noises that sounded like her neig hbor’s c abinets closing . She later le arne d that the victim had bee n killed. Although the appellant ha d been c harg ed with first d egre e pre meditated murde r and f irst deg ree felony

murder, the jury found him g uiltyof two counts of the lesser inc luded offe nse of voluntary manslaug hter.

II. Ana lys is

A. Sufficienc y

of the Evidenc e

The a ppellant claims that the e vidence is insuff icient to support his convictions for voluntary manslaug hter. Spec ifically , he conte nds that the evidenc e shows that the p er p etra tor went to the victim’s apartment to rob her but does not de monstrate that the perpe trator acte d in a state of pa ssion pr od uc e d b y

a de qu a te pr ov oc a tio n. Th e Sta te arg ue s th a t th e e vid e nc e is s uf fi c ie nt f or a jury to

c on c lud e that the app e lla nt ac te d in a st a te of pa ssi on pr od uc e d b y

a de qu a te pr ov oc a tio n. Th e Sta te also contends that, in any event, the e vidence supports convi ct i o n s for f irst deg ree preme ditated murder a nd first deg ree murder c ommitt ed during the per petra tion of a robbe ry

and that t h e jury

c o u lde le c t t o f

in d th e ap p e ll a n t g u il ty

o f th e le s s e r in c lu d e d o f

f e n s e o f v o lu n ta r y ma n s la u g h te r

. We ag ree that t h e ev i d ence is sufficient to support the convic tions for voluntary manslaug hter. Moreove r, we ag ree t h at beca use the e vidence supports convictions for f irst deg ree murder, the appellant c annot complain that the jury chose to c onvict him of the lesser of fense

. When an appe llant challenges the sufficie ncy of the c onvicting e vidence , the standar d for revie w is “whe ther, a fter vie wing the evidenc e in the lig ht most favorable t o the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 (19 79 ); Ten n. R. A pp . P. 13(e ). On app e a l, the Sta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable or leg itimate inf ere nces which may be draw n there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions conce rning the credibility of wit nesses a nd the weig ht and value-5-

to be af forde d the evidence, as well as all fac tual issues raised by the evidence, are resolved by the j u ryas t ri ero f f

ac t

. S t at e v

. Bl an d
, 9 5 8 S

. W

. 2 d 6 5 1
, 6 5 9 (T en n

. 1 9 9 7 ). T h i s co u rt wi l l n o tre we i gh

or re e v a lu a te th e e v id e n c e

. I d

. B e c a u s e a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f in n ocenc e with which a de fenda nt is ini tially cloake d at trial and r eplac es i t on appea l with one of g uilt, a

c on vic te d d e fe nd a nt h a s the bu rd e n of de mon str a tin g to this c ou rt that th e e vid e nc e is i ns uf fi c ie nt. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

“Voluntary

manslaug hter is the intentional or knowing killing of a nother in a state of passion produce d by

adequate provoc ation sufficie nt to lead a r ea s o n able person to act in an ir rational

ma nn e r. ” Te nn . Co de An n. § 3 9- 13 -211 (a ). A d e te rm inatio n o f w he the r the re e xiste d “ a de qu a te provocation” is left to the jury . See State v. J ohnson, 909 S.W .2d 461, 464 (Tenn. Crim. App. 1995). Take n in the light most fa vorable to the State, we believe the evidenc e is suf ficient to suppo rt t he convictions for voluntary

manslaug hter. The evidenc e shows that the a ppellant had a

g un in his hand and ente red the victim’s apartment, intending t o ro b h er

. The a ppellant then put the g un to the victim’s chin and dema nded money . After the victim told the appell an t t h at she did not have a ny money , the appe llant shot her two or thre e times.

I n a ny e ve nt, a s th e Sta te no te s in its br ie f, ou r su pr e me c ou rt ha s he ld that a “ de fe nd a nt w ill not be hea

rd to complain of c onviction of a lesse r i n cl u d ed o ffense whe n he could ha ve bee n
conv i ct ed o f a highe r deg ree of homicide.” State v. Smit h, 695 S.W .2d 527, 529 (Tenn. 1985)

. Voluntary

manslaug hter is a lesse r-include offe nse of f irst deg ree p re m ed i tated murde r. State v. Sims , 45 S.W .3d 1, 20-21 (Tenn. 2001). First deg ree preme ditated murder is the “pre meditated and intentional killi ng of [the victim] .” Tenn. Code Ann. § 39-13-202( a)( 1). Premeditation “is a n act done after the exercise of ref lection and judgme nt” and “mea ns that the i ntent to kill m ust have be en formed prior to the ac t itself. I t is not necessary that the purpose to kill pre -exist i n the mind of the

acc used for

any defini t e p er iod of time.” Tenn. Code Ann. § 39-13-202( d). Althoug h there is no

concr e te te s t f

o r d e te r mi n in g th e e xis te n c e o f p r e me d it a ti o n , T e n n e s s e e c o u r ts h a v e r e lie d upon

certain circ umstances to infe r pre meditation. See State v. Pike, 978 S.W .2d 904, 914 (Tenn. 1998)

. Specifica lly , the foll owing fac tors have been used to support a jury ’s infer ence of pre meditation: (1) the appe llant’s prior re lationship to t he victim which mig ht sug g est a mot ive for the killing; (2) the appellant’ s decla

rations of intent to kill; (3) the appellant’ s planning activities befor e the killing; ( 4) the ma nn e r o f the kil lin g , inc lud ing the app e lla nt’ s us ing a de a dly we apo n u po n a n u na

rm e d v ic tim
, killing the victim while the victim is retre ating or attempting esca pe, or k i l l i n g the victim in a particula rly crue l manner; a nd (5) the a p pellant’s deme anor be fore and af ter the killing , including

a ca lm demeanor immediately afte r the killing. See id. a t 914-15; State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Fe lony murder is de fined as a “killing of another committed in the pe rpetration of . . . any

. . . robbery .” Tenn. Code Ann. § 39-13-202( a)( 2). Robbery is define d as the “ intentional or knowing theft of pr operty from the pe rson of a nother by violence or putting the person in fear.” See Te nn. Code Ann. § 39-13- 401(a)

.

As state d a

bo ve , th e e vid e nc e sh ow s th a t th e app e lla nt w e nt t o th e vic tim ’s apa rtment , intending to r ob her. When the vic tim asked how she c o u l d h el p t he appe llant, he aske d for two cig ars. He then put a g un to the victim’s chin and dema nded money . Ms. G oree testified that the-6-

appellant told her that he would kill her too, indicating that the appellant preme ditated hi s killi ng the victim. I n Howar d v. State, 506 S.W .2d 951, 954 (Tenn. Crim. App. 1973) , this court conclude d that wh e re the jury wa s warr a nte d in con vic tin g the de fe nd a nt of se c on d de g re e mur de r, “ the jury a lso could elec t to convict the def endant of the lesser

offe nse of voluntary

manslaug h t er , althoug h the fac ts [ did] not comport with the technic al def inition of that crime.” See also State v. J eff ery L ee Mason, No. M2002-01709- CCA-R3-CD, 2004 T enn. Crim. App. LEXI S 447, *11 n.2 ( Nashville, May 19, 2004) (stating that “[i] n a case like this, whe re the defe ndant stands cha rg ed with attempted first deg ree murder, a

much m ore serious offe nse, t he st ate should not be expected to pr ove or e ven tr y to p ro ve that th e kil lin g wa s mi tig a te d b y pa ssi on pr od uc e d b y

a de qu a te pr ov oc a tio n” ), pe rm . to appea l denied, (Te nn. 2004); State v. Anthony Tony Sandy , No. M2001-023760CCA0R3-CD, 2003 Tenn. Crim. App. LEXI S 78, *14-15 (Nashville, Jan. 30, 2003) (citing Howar d and conc luding that wher e the evidence supported a c onviction for sec ond deg ree murder, the defe ndant was not e ntitled to relief w hen the jury

convicted him of voluntary manslaug hter), pe rm. to appea l denied, (Te nn. 2003). B eca

use we believe tha t the evidenc e is sufficie nt to support convictions for fi rs t deg ree pr e me dit a te d a nd fe lon y mur de r, the app e lla nt c a nn ot c omp la in tha t th e jury c ho se to c on vic t hi m of the lesse r off

ense.
B. Closing Arg ument

Next
, th e a

p p e ll an t c o n te nds that the State g ave imprope r re buttal closing a rg ument, imply ing that “the a ppellant invented his def

ense on the second da y

of trial and that the defense counsel knew that the state’s w itnesses wer e telling the truth.” How ever , as not ed in the S tate’s brief, the a ppellant didno t r a ise thi s is su e in h is m oti on fo r n e w t ri a l, p re c lud ing c on sid e ratio n of the iss ue on app e a l. Tenn. R. App. P. 3(e) . Moreove r, we discern no pla in error . See Te nn. R. Crim. P . 52(b).

C. Ex cessive Sente nce

F ina lly , the app e lla nt cl a ims that his sen te nc e is exc e ssi ve be c a us e the tr ia l c ou rt imp ro pe rl y enhanc ed his sentenc e in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The State arg ues that the trial c ourt proper ly sentenc ed the a

ppellant. We ag ree with the State.

At the sentenc ing he aring , J onathan B arr on, the victim’s brother, te stified that as a result of the victim’s death, he had suff ere d from depr ession, had suicidal thoug hts, and could not work. He state d th a t hi s mo the r c ri e d a ll the tim e a ndthat hi s b ro the r, Ste ve B arr on , h a d h a d a “ tr e me nd ou sly roug h time.” He sta ted that the victim was swee t and would neve r hurt any one. He rela ted that the appellant should neve r g et out of prison. Norma Shoemaker
, the victim’s mother , also testified that the victim would never

hurt any one and tha t the victim was “a n ang el on ea rth.”

Acc ording to the appellant’ s prese ntence report, the then forty -y ear -old appe llant was divorce d and had thr ee c hildren. He reported t hat he dropped out of hig h school in the ninth gr ade and had not be en em p l o y ed for the past five y ear s. I n the re port, the appe llant stated that he wa s diabetic a nd had hig h blood pressure

. He reported that he used coca ine and a lcohol “a lot” a nd that he pa rt ic ipate d in a

su bs ta nc e abu se pr og ra m whe n he wa s thirty -f ive y e ars oldbu t di d n ot c omp le te-7-

the prog ram. The report shows that the appe llant has an e x tensive criminal hist ory , including one conviction for ag g ravated assault, one conviction for theft of prope rty valued be tween f

ive hundre d and ten thousand dollar s, three c onvictions for selling illega l drug s, four c onvictions for misdemeanor a ssault, and one c onviction for misdemea nor theft and rec eiving stolen property . The report also shows that the appe llant has violated proba tion.

The trial court applied enhanc ement fac tor (2), that the appellant “has a pre vious historyof

c ri min a l c on vic tio ns or c ri min a l be ha vio r i n a dd iti on to tho se ne c e ssa ry to e sta bli sh the app ro pr ia te

ra ng e ,” a ndg a ve the fa c tor g re a t we ig ht. Se e Te nn . Co de An n. § 4 0- 35 -1 14 (2 ). Th e tr ia l c ou rt a lso

app lie d e nh a nc e me nt f

a c tor s ( 9) , th a t th e app e lla nt “ ha s a pr e vio us his tory

of un willi ng ne ss t o comply with the conditions of a sente nce involving rele ase in the c ommunity
, ” an d (10), that the appellant “ possessed or e mploy ed a f irea rm, explosi ve de v i ce o r ot her de adly wea pon during the commission of the offe nse,” to the a ppellant’s sentences. See Tenn. Code Ann. 40-35-114( 9), (10)

. The trial c ourt applied no mitigating f actor s and orde red the appellant to se rve f ifteen y ear s in the Depa rtment of Corre ction.

Appellate r eview of

the leng th, rang e, or ma nner of service of a se n t en ce is de novo. See Tenn. Code Ann. § 40- 35-40 1 (d ). I n conducting its de novo review , this court considers the following fac tors: (1) the e vidence , if any , rec eived at the trial and the sentenc ing he aring ; (2) the prese ntence report; (3) the princ iples of sentenc ing a nd arg uments as to sentenc ing a lternatives; (4) the nature and char acte ristics of the criminal conduct involved; ( 5) evidenc e and information offe red by the parties on enhanc ement and mitigating fac tors; (6) any statement by the appe llant in his own behalf ; and (7) the potential for reha bilitation or trea tment. See Tenn. Code Ann. § 40-35-102, - 103, -210; see a lso St ate v. Ashby
, 823 S.W .2d 166, 168 (Tenn. 1991). The burde n is on the appellant to de monstrate the impropriety of his se ntence s. See Tenn. Code Ann. § 40-35-401
, Sentencing Commi ssion Com ments. Moreove r, if the r ecor d reve als that the trial court a dequate ly considere d sentenc ing principles and a ll releva nt fac ts and circ umstances, this court will a ccor d the trial court’s deter minations a presumption of cor rec tness. I d. at (d); Ashby , 823 S.W .2d at 169.

The a ppellant was c onvicted of a Class C felony

. At the time the appellant c ommitt ed the offe nses in question, the trial cour t wa s t o b eg in at the pre sumptive mini mum, then “enha nce the sentenc e within the rang e as appropriate for the enhanceme nt fac tors, and then r educe the sentenc e as appr opri at e for the miti g ating fac tors.” Te nn. Code Ann. § 40-35- 210(e) . The pre sumptive sentenc e for

a Class C f

elony is the minimum sentenc e within the appropriate rang e. See Te nn. Code A n n

. § 4 0

- 3 5

- 2 1 0 ( c )

. T h e ap p e l l a n t w a s s e n t e n c e d a s a R a n g e II I, p e r s i s t e n to f f e n d e r

. A c c o r d i n g l y, the pre sum p t i v e sentenc e wa s ten y ear s. See Tenn. Code Ann. § 40-35-112( c)( 3). The tr ial court applied thre e enha nceme nt fac tors to the appellant’ s sentence s and g ave o n e o f the fa ctors g rea t weig ht. I n light of the Blakely decision, the a

ppellant claims the trial co u rt improperly applied enhanc ement fa ct o r (1 0 ), t hat he possesse d or employ ed a f irea rm during the commission of the offe nse.

T h e U n i t ed S t at es S u p re m e C o u rt re l ease d Bla kelyb ef o re t h e a p p el l an t ’s s en t en ci n g h ea ri n g. I n B lake ly , th e Sup re me Cou rt he ld tha t-8- the “statutory

maxi mum” for Apprendi [v. New Jersey , 530 U.S. 466, 1 2 0 S

. C t

. 2 3 4 8
, (2 0 0 0 ), ] p u rp o s es i s t h e m ax i m u m s en t en ce a j u d ge may impose solely

on the basis of the f

acts re flec t ed i n the jury verdic t or admitted by

the def endant. I n other wor ds, the rele vant “statut o ry m axim um” is not the max imum sentence a judge may impose after

finding additional fac ts, but th e maxi mum he may imp os e wi tho ut a ny

a dd iti on a l f

ind ing s. W hen a jud g e inf lic ts punishment that the j ury ’s ver dict alone doe s not allow, the jury has not found all the fa cts “whic h th e l aw make s essential to the p u n i s h m e n t , ” a n d t h e j u d g e e x c e e d s h i s p r o p e r a u t h o r i t y.

Blakely , 542 U.S. at ___, 124 S. Ct

. at 2537. B lakely did not disput e the a

ppropriate ness of a

trial court’s a pplication of enhance ment fac tor (2), which is based on the exist ence of a de fenda nt’s prior criminal history
, but c alled into que stion the constitutionalit y of the application of the rema inder of

our s t at u t o ry en hance ment fac tors without such fac ts being found by a jury or admitted by

an
app e lla nt.

Howeve r, our supreme court rec ently held that Blakely does not a nnounce a new rule of la w and that the “ Tenne ssee Criminal Sentencing Reform Ac t does not authorize a sentencing proce dure which violates the Six th Amendment rig ht to jury trial.” State v. Gome z, 163 S .W.3d 632, 651 n.16 (T e nn . 2 00 5) . G ive n th e dic ta te s o f G ome z, th e app e lla nt’ s r e lia nc e on B la ke ly mus t f a il.

III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEE OGLE, J UDGE