IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 3, 2024

STATE OF TENNESSEE v. GEMEYAL STROWDER

Appeal from the Circuit Court for McNairy County

No. 4913 J. Weber McCraw, Judge

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No. W2023-00936-CCA-R3-CD

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The defendant, Gemeyal Strowder, entered an open plea to aggravated robbery, and the 

trial court imposed a sentence of eighteen years’ incarceration in the Tennessee Department 

of Correction. On appeal, the defendant argues the trial court failed to consider applicable 

mitigating factors. After reviewing the record and considering the applicable law, we 

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN W. CAMPBELL, SR.,

and MATTHEW J. WILSON, JJ., joined.

Jamie L. Davis, Adamsville, Tennessee, for the appellant, Gemeyal Strowder.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant 

Attorney General; Mark Davidson, District Attorney General; and Lisa Miller, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

On April 27, 2023, the defendant entered an open plea to aggravated robbery (count 

one), with sentencing to be determined by the trial court.

1

 The facts underlying the plea, 

as explained by the State, were as follows:

 

1 The defendant was also indicted for aggravated assault (count two), possession of a firearm by a 

convicted felon (count three), and theft under $1,000 (count four), but those charges were dismissed as part 

of the plea deal.

02/28/2024
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[O]n May 18th of 2022, McNairy County dispatch gave county unit 

the call for an armed robbery in progress at the Ramer Quick Stop located at 

4453 Highway 57 West in Ramer. Dispatch advised a black male wearing a 

mask had come in the store with a firearm asking the store clerk for all the 

money. Dispatch then advised the male subject got into a car with a female 

driver and left the scene traveling north on Friendship Road. Deputy Davine 

was traveling on New Bethel Road toward Friendship Road when she passed 

a vehicle similar to that description, turned around, initiated a traffic stop of 

that vehicle in front of an address of 2975 New Bethel Road. She noticed 

the vehicle was driven by a female with the opposite being a black male. She 

ordered the black male subject out of the car and told him to show her his 

hands. He complied, and explained to him that he was detained as she was 

investigating an incident that just happened at the Ramer Quick Stop.

During a pat[-]down of the male to make sure he did not have any 

weapons for her safety, approximately nine hundred thirty-five dollars cash 

was stuffed in his right front pants pocket. She secured the money. She then 

asked the female driver to exit the vehicle, which she also complied, female 

identified as Christy Barnes, and the male identified as the defendant []. 

During this time, Deputy Hawkins went to the Ramer Quick Stop to speak 

with the store clerk. He spoke with Ms. Dorothy Switzer. She advised that 

the black male was wearing a mask came into the store, held a gun across the 

counter at her and stated “give me all of it.” Ms. Switzer did give all the cash 

in the cash register to the male. Sergeant Gilbert then arrived on the scene 

and he Mirandized [the defendant] to which he stated he understood his 

rights. While speaking with Sergeant Gilbert, [the defendant] did admit to 

going to the Quick Stop with a firearm and asking for all the money. He 

stated that Ms. Barnes did not know what was going on – did not know he 

was going to rob the store. Sergeant Gilbert also Mirandized Ms. Barnes to 

which she stated she understood her rights. Ms. Barnes stated that she did 

not know what [the defendant] had done, that he had just asked her to drop 

him off to use the restroom. At that time a search of the vehicle was 

conducted. During the search a black mask was found in the console along 

with a 9 mm pistol in the passenger floorboard. While searching Ms. Barnes’ 

property, a glass pipe, scale, and grinder was found. All these items were 

placed into evidence. The vehicle was towed, and [the defendant] was 

charged as he was indicted. After he was arrested and then incarcerated, [the 

defendant] did make several phone calls the State believes were 

incriminating as well, that we would plan to use if we went forth to trial, 

specifically those being on 05/18 of 2022 when whoever he was talking to 
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says “Man, which way did y’all go” and he said, “I went on Friendship 

Road,” one on 05/19/22 he says “I didn’t do this s**t” – “I did this s**t and 

got away. It’s just the MF that was driving ain’t no driver,” 05/19/22 also 

talks about the times and thinks he was set up. 05/19/22 also he talked about 

the money was going to change the situation, he was going to buy whoever 

he was talking to a ring. Also, on 05/19/22 he’s talking about why he got an 

agg[ravated] assault charge and says, “It’s my word against theirs. They got 

me on camera but they don’t got me on camera.” 05/19/22 also talking to 

someone, says “I didn’t shoot anybody. I just had a gun.” Also, on 05/19/22 

says “I’m still thinking about how I got caught. That s**t just got weird but 

if I had just listened to you, if I had went through Ramer, I’d be straight.” 

And all those calls were provided to Counsel in discovery as well.

 

During the sentencing hearing, the State introduced into evidence the presentence 

report, certified copies of three prior aggravated robberies, and a written victim impact 

statement. The defendant also provided an allocution statement, apologizing for his actions 

and stating that he was angry at the time of the of the offense because his grandmother had 

recently passed away.

In sentencing the defendant, the trial court stated it considered the evidence 

presented during the guilty plea hearing and the sentencing hearing including, the 

presentence report, the defendant’s statement, and the arguments of counsel. In reviewing 

the appropriate and applicable enhancement factors, the trial court found enhancement 

factors (1), the defendant has a previous history of criminal convictions or criminal 

behavior, in addition to those necessary to establish the appropriate range, and (8) the 

defendant, before trial or sentencing, failed to comply with the conditions of a sentence 

involving release into the community. Tenn. Code Ann. § 40-35-114(1), (8). The trial 

court did not find any applicable mitigating factors. At the conclusion of the sentencing 

hearing, the trial court sentenced the defendant as a Range II offender to eighteen years’ 

incarceration at 100%.

Analysis

On appeal, the defendant contends the trial court erred in “failing to consider 

mitigating factors without cause.” The State submits the trial court properly sentenced the 

defendant. We agree with the State. 

In determining an appropriate sentence, a trial court must consider the following 

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the 

presentence report; (3) the principles of sentencing and arguments as to sentencing 

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) 
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evidence and information offered by the parties on mitigating and enhancement factors; (6) 

any statistical information provided by the administrative office of the courts as to 

sentencing practices for similar offenses in Tennessee; (7) any statement the defendant 

makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. 

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed 

should be the least severe measure necessary to achieve the purposes for which the sentence 

is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory 

presumptive minimum sentence and rendered enhancement factors advisory only. See

Tenn. Code Ann. §§ 40-35-114, -210(c). Although the application of the factors is 

advisory, a court shall consider “[e]vidence and information offered by the parties on the 

mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-

210(b)(5). The trial court must also place on the record “what enhancement or mitigating 

factors were considered, if any, as well as the reasons for the sentence, in order to ensure 

fair and consistent sentencing.” Id. § 40-35-210(e). 

When an accused challenges the length and manner of service of a sentence, this 

Court reviews the trial court’s sentencing determination under an abuse of discretion 

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in passing 

sentence, said error will not remove the presumption of reasonableness from its sentencing 

determination. Id. at 709. This Court will uphold the trial court’s sentencing decision “so 

long as it is within the appropriate range and the record demonstrates that the sentence is 

otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-10. 

Moreover, under such circumstances, appellate courts may not disturb the sentence even if 

we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). 

The party challenging the sentence imposed by the trial court has the burden of establishing 

that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; 

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The defendant argues the trial court erred in failing to consider the defendant’s 

“truthfulness, candor, cooperative nature, and his willingness to accept punishment.” He 

submits the trial court failed to place on the record any reasoning why the mitigating factors 

argued by the defendant were not considered when deciding the length of the defendant’s 

sentence. When discussing mitigating factors, the trial court noted

[w]ith regard to mitigating factors, there are no statutory mitigating factors, 

although Counsel argued for reasons why the sentence should be within the 

low range of the sentencing options.
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Although the defendant requested mitigating factor (13) based on the defendant’s 

truthfulness, candor, and willingness to accept punishment, the trial court did not articulate 

findings on the record to explain why factor (13) was inapplicable. While the trial court 

should have made more specific findings regarding its denial of this mitigating factor, any 

error was harmless in light of the existing enhancement factors, particularly that the 

defendant was on probation at the time the offense was committed and that the defendant 

had a history of criminal behavior in addition to the felonies used to establish his sentencing 

range. Furthermore, the “misapplication of an enhancement factor or mitigating factor 

does not invalidate the sentence imposed unless the trial court wholly departed from the 

1989 Act.” Bise, 380 S.W.3d at 706. 

Here, the defendant was convicted of a Class B felony, aggravated robbery and, as 

a Range II offender, was facing a sentence of not less than twelve nor more than twenty 

years in prison. Tenn. Code Ann. § 40-35-112(b)(2). The trial court imposed an applicable 

within-range sentence after properly considering the evidence adduced at the guilty plea 

and sentencing hearings, the presentence report, the principles of sentencing, the parties’ 

arguments, the nature and characteristics of the crime, the potential for rehabilitation, and 

the evidence of enhancement and mitigating factors. Id. §§ 40-35-103(5), -114, -210(b). 

Accordingly, the defendant is not entitled to relief on this issue.

Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed. 

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 J. ROSS DYER, JUDGE