IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 15, 2012

STATE OF TENNESSEE v. DANNY RAY HENSLEY

Appeal from the Criminal Court for Hawkins County

No. 11CR177 John F. Dugger, Judge

No. E2011-02325-CCA-R3-CD - Filed October 31, 2012

The Defendant, Danny Ray Hensley, pleaded guilty to robbery, a Class C felony. See T.C.A.

§ 39-13-401 (2010). He was sentenced as a Range I, standard offender to eight years’

confinement. On appeal, he contends that the trial court erred in denying an alternative

sentence. Because the trial court did not consider a presentence report, we reverse its

judgment and remand for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;

Case Remanded

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which THOMAS T. WOODALL

and NORMA MCGEE OGLE, JJ., joined.

Michael J. LaGuardia, Kingsport, Tennessee, for the appellant, Danny Ray Hensley.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; C. Berkeley Bell, District Attorney General; and Kevin Keeton, Assistant

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

OPINION

According to the facts recited by the prosecutor at the guilty plea hearing:

[The Defendant] purchased a car from [the victim] at Bellaire

Grill/T and T Auto Sales, for around $1,400 and . . . there was

a problem with the car and how it functions as maybe

represented to [the Defendant]. And the next day [the

Defendant] went back to the business and demanded the money,
the $1,400 from [the victim]. While demanding the money, [the

Defendant] pulled a handgun. [Defense counsel] says it’s a

starter pistol.

. . .

Our file indicates that it was a .22 caliber pistol that was

recovered, but I think there’s some dispute as to whether that

was the actual [weapon.]

. . .

[A]t some point during this the victim agrees to go to his car and

get the money and on his way out attempts to run. [The

Defendant] catches him a short time later after running around

the scene at which . . . a number of other bystanders . . . see him

with this starter pistol or gun. He gets [the victim] on the

ground and tells him it’s over. [The victim] convinces him to let

him give him the money and gives him a bank bag that has – I

think there is a . . . dispute to exactly how much it had in it, but

it was quite a bit more than the $1,400. Our victim reports that

it was $10,000 along with two credit cards and two checkbooks.

At that time, [the Defendant] took the money and got in his

vehicle and left the scene. The bank bag was recovered and Mr.

Hensley told officers that the only money missing from the bag

was the $1,400 that he took out of it . . . for the car that he

purchased.

Defense counsel stated that there were some discrepancies in the statement but that none

were material. The original charge was aggravated robbery, a Class B felony for which

probation was not an available sentence. See T.C.A. § 40-35-303(a) (2010). The plea

agreement was for a conviction of robbery, a Class C felony, and provided that the court

would determine the manner of service. The Defendant acknowledged that he was accepting

an eight-year sentence as a Range I offender, which was outside the three- to six-year

sentencing range for a Range I offender for a Class C felony, but that he would be classified

as a Range I offender for purposes of determining release eligibility. The record reflects that

the Defendant also agreed to be subject to a restraining order, which prohibited him from

contacting the victim. The court accepted the Defendant’s guilty plea and the agreed-upon

eight-year sentence. The court proceeded to consider the manner of service of the sentence.

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The Defendant testified that he bought a truck from the victim. He said that the

truck’s transmission malfunctioned as he left the business and “wouldn’t pull out at the top

of the hill.” He agreed that the victim refused to refund his money when he attempted to

return the truck. He said that the crime took place a week later and that in the interim, he

went to the business to attempt to obtain the title and that he went to the sheriff’s department

about the matter. He said he was unable to obtain a warrant when he contacted the clerk’s

office because the fee was approximately $157, which he did not have. He acknowledged

that the crime was not justified. He said that $1400 was a large amount of money to his wife

and him and that his wife threatened to divorce him due to the problems with the truck

purchase. He said that on the day of the crime, the victim gave him the money. He denied

that the victim was on the ground. He said that he contacted the Tennessee Bureau of

Investigation (T.B.I.) afterward and that two agents were investigating the victim. He agreed

the T.B.I. Investigator advised him that the victim was “thrown out” of Virginia for

committing fraud against customers at a car dealership and began selling cars in Tennessee.

The Defendant agreed that he had heart problems, that he had a heart attack when the officers

arrived to arrest him, and that he had to be taken to the hospital by ambulance. He had no

prior convictions and requested alternative sentencing. The prosecutor stated that the plea

agreement included the agreement that the State would not seek aggravated assault charges

for the Defendant against two other victims who were at the car dealership.

The trial court noted that the Defendant “took the law in [his] own hands,” rather than

pursuing a civil remedy. The court also noted that the offense involved a weapon, that the

plea agreement allowed the Defendant to plead guilty to the lesser offense of robbery, rather

than the charged offense of aggravated robbery, and that the Defendant could have received

an eight-to-twelve-year sentence to be served at 85% if he were convicted of aggravated

robbery. The court noted that the detective and the victim opposed an alternative sentence.

The court said that a report submitted by the prosecution reflected the Defendant was

previously charged but not convicted for shooting at a person and aggravated assault and that

“it sounds like you’re a hothead when you go into a car dealership with a gun and scare

people.” The court ordered the Defendant to serve his eight-year sentence in the Department

of Correction.

The Defendant contends on appeal that the trial court erred by denying an alternative

sentence. The State responds that the Defendant has not shown that the trial court erred. We

conclude that the judgment must be reversed and the case remanded because the record fails

to reflect that the trial court considered a presentence report when sentencing the Defendant.

Appellate review of sentencing is for abuse of discretion. We must apply “a

presumption of reasonableness to within-range sentencing decisions that reflect a proper

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application of the purposes and principles of our Sentencing Act.” State v. Susan Renee

Bise, — S.W.3d —, —, No. E2011-00005-SC-R11-CD,slip op. at 29 (Tenn. Sept. 26, 2012).

In determining the proper sentence, the trial court must consider: (1) any evidence

received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical

information provided by the administrative office of the courts as to sentencing practices for

similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see

State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236

(Tenn. 1986). The record reflects that the trial court failed to consider a presentence report.

Although there is a “prosecution report” in the record, it is not in the form nor does it contain

the information required of a presentence report. See T.C.A. § 40-35-207(a) (2010) (listing

the required information in a presentence report).

We note that the trial court referred to a “presentence report” during the sentencing

hearing. The record reflects, however, that the documents received by the court were: (1)

a document prepared by the Board of Probation and Parole listing the Defendant’s prior

charges and convictions; (2) a “prosecution report” prepared by a law enforcement officer

that identified the facts of the crime, the victim’s identity, the victim’s injuries and damages,

and the witnesses; (3) an offense report prepared by a sheriff’s deputy; the affidavit of

complaint; and (4) the victim’s written statement about the facts of the crime. These

documents were prepared from a law enforcement perspective, were geared to the facts but

not the circumstances of the offense, and lacked relevant information that is required in a

presentence report. These documents did not address, in any meaningful way, the

circumstances of the offense, Defendant’s “physical and mental history and condition, family

history and background, education, occupation, and personal habits;” information regarding

the enhancement or mitigating factors, information to assist the court in deciding whether and

on what terms to grant probation or community corrections; and the Defendant’s financial

resources and obligations, in order to assist the court in determining restitution. See id. § 40-

35-207(a) (1), (2), (3), (5), (6), (7), (9).

Although the Defendant testified and provided some information about himself and

defense counsel posed no objection to the lack of a presentence report, a presentence report

prepared pursuant to the statute is required for felony convictions. Id. § 40-35-205(a) (Supp.

2012). The presentence report provides relevant information to assist the trial court in

making the appropriate sentencing determination. See id. § 30-35-205, Advisory Comm’n

Cmts. (“If the judge is to make an informed sentencing determination, it is necessary to have

as much data about the defendant and the circumstances of the offense as possible. . . . The

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commission believes that sentencing reports should not be adversarial in nature but should

be informative.”) Sentencing a defendant in the absence of a presentence report is reversible

error. State v. Rice, 973 S.W.2d 639, 642 (Tenn. Crim. App. 1997); see also State v. Edward

Wooten Titus, No. E2011-02407-CCA-R3-CD (Tenn. Crim. App. Aug. 17, 2012). Because

the trial court sentenced the Defendant without a presentence report, the case must be

remanded for preparation of a report that complies with the statute. Upon receipt of a proper

presentence report, the trial court shall conduct a sentencing hearing and sentence the

Defendant in accordance with the principles and provisions of the Sentencing Act.

Although not raised by the parties, we note that the judgment correctly reflects the

Defendant’s conviction of robbery but incorrectly reflects the statutory citation for robbery

as Tennessee Code Annotated section 39-13-402. That section defines aggravated robbery.

The citation for robbery is section 39-13-401. On remand, the trial court’s new judgment

should contain the correct citation to the robbery statute.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is reversed and the case is remanded for further proceedings consistent with this

opinion.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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