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

Briefs D ecem

ber 10, 200 3
STATE OF TENNESSEE v. THOMAS G . LAMPLEY, JR.
Direct Appeal from the Criminal Court for Davidson County No. 2002-A-220 Cheryl Blackburn, Judge

No. M2003-00531-CCA-R3-CD - F iled January 27, 2004

The Defendant, Thomas G. La mpley, Jr., was co nv ic te d o f a ggr av at ed bu rg la ry, a C la ss C f el on y. After determining the Defendant to be a Rang e II I, persistent offender , the trial cou rt senten ced him to twelve ye ars in the

Departm ent of Cor

rection , consecutive to an prior sentence. The Defenda nt now appeals , alle ging th at his sentence for the instant crime should be ten y ears. We affirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E

. G LENN , JJ., joined.

Ja y No rm an , N as hv il le , T en ne ss ee , f or th e a pp el la nt , T ho ma s G . La mp le y.
Paul G. Summers , Attorne y General and Repor

ter; Eliza beth B. M arney , Assistan

t A ttorney Ge neral; Victor S. Johnson, District Attorney General; and Robert McG uire, Ass i stant District Attorney General, for the appellee, State of Te nnessee.
OPINION A jury convicted the

Defendant of

aggravated burg

lary, a Class C felony. See

Tenn. Code Ann. § 39-14-403(b). At the sentencing hear ing, the trial judge determined the Def end ant to be a Range II I, persistent offender , see id. § 40-35-107(c), a classification the Defe ndant does not challenge. As suc h, th e Defen dant w as sub ject t o a sen tenci ng range of ten to fifteen y ears. See id. § 40-35-112(c)( 3). The trial judge fu rther de termined that thre e enhan cement f

actors w ere app licable to the Defendant’s sentence: (1) the De fendant has a previous history of crimin al convictions or criminal behavior

in addition to those necessary to establish the appropriate range, (2) the Defendant has a previous history

of unwilli ngness to comply with the c onditions o f a sente nce involving re

lease in the community, and (3) the D efendant committed the instant offense while on bail. See id. § 40- 35-114(2), (9), (14)(A). The tria l c ourt also applied two mitigating factors: (1) the Def endant’s conduct in committing the instant offense neither caused nor threatened serious bodily injury, and-2-

(2) the D efenda

nt was suf

fering from a mental or physical c ondition that sig nifican tly r educed his culpability

for the instant offense. See id. § 40-35-113(1), (8). On the basis of these factor s, the trial judge sentenced the Defendant to twelve years of incarceration, consecutive to a previous five-y ear sentence.
The Defendant does not challenge the tri al court’s application of the enhancement or mitigating factors. N either does he challenge the trial court’s orde r that the instant sentence be served consecu tively to the previous sentence. Rather, he contends that the trial court should have
sen ten ced hi m t o t he m in im um Ran ge III term of ten years. The Def endant a rgues t hat ten y ears - but not twelve yea

rs - satisfies our statutory r equirement that his sentence “be the least sever e measure necessa

ry to achieve the purposes for which the sentenc e is imposed.” Id. § 40-35-103(4).

Before a trial court imposes sentence upon a convicted criminal defendant, it must consider (a) the evidence adduced a t the trial and the sentencing hearing ; (b) the presentence report; (c) the principles of sentencing and argume nts as to sentencing alternatives; (d) the nature a nd characteristics of the criminal conduct involved; (e) evidence and infor mation offered

by the parties
on the enha

ncement and mitig ating f

actors s et forth i n Tennessee Code Annotated sections 40-35- 1 13 and 40-35-114; and (f) any statement the defendant wishes to make in the def endant’s ow n behalf about sente ncing. See Tenn. Cod e Ann. § 40 -35-210(

b); Statev. Imf

eld , 70 S.W.3d 698, 704 ( Tenn. 2 002). To f

acilitat e appell ate review, the t

rial cou rt is requ ired to pla

ce on the record its
reasons for imposi ng the sp ecific s entence , includin g the ide ntificat ion of the

mi tigati ng and enhancement

factors found, the specific facts supporting each enhan cement fac tor found, and the method by which the mitigating and enha ncement factor s have be en evalu ated and balance d in determining the sentence. See State v. Sa muels , 44 S.W.3d 489, 492 (Tenn. 2001). Upon a challe

nge to th e sentence impose d, this Cour t has a dut y to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principle s and all r elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If our r eview reflects that the trial court followed

the statutory sentencing

procedure, that the court imposed a lawful sentenc e after having given d ue consid eration and prop er weig

ht t o the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are a dequately supporte d by

the record, t hen th e presumption is applicable and we may not modify the sentence even if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-27 (Tenn. 1 998). We w ill uphold t he sentence imposed by the trial court if (1) the sentence complies with the purp oses an d principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequate ly supported by the recor d. See State v. A rnett , 49 S.W.3d 25 0, 257 (Te nn. 2001) . The bur

den of sho wing th at a sentence is improper i s upon the appealing party

. See Tenn. Code Ann. § 40-35-401 Sentencing Commission Co mments; Arnett , 49 S.W.3d at 257.

The simple facts are that the Defendant broke into his neig hbor’s house and stole a television set and some money. The

forty-six-y

ear-old Defendant has a leng thy history of drug

abuse and

drug--3-

related criminal convictions dating back to 1978. He has at least nine felony convictions, including one for a ggra vated as sault.

The Defendant

has failed to carry

his burden of demonstrating that his sentence is improper. The presumptive sentence for a Class C felony is the minimum in the range. See Tenn. Code Ann. § 40-35-210(c). Where there are both enhancement and mitigatingfactors, the trial court must start withthe presumptive sentence and increase the se ntence on the basis of the enhancement factors, and then decrea se the se

ntence o n the basi s of the mit igating factor s. See id. § 40-35-210(e). Here, the trial court increased the minimum sentence on the basis of three e nhancement

factors, and then reduced the sente nce on the

basis of two mitig ating f

actors. In do ing so, th

e trial c ourt arr

ived at a mid-r ange sentenc e of twelve y ears where the minimum is te

n ye ars and t

he maximum is fif

teen ye ars. Given the

seriousn ess of the enhancement factors applicable in this case, and the Defendant’s demonstratedinability to refrain fr om continuing to commit criminal offenses, we see no error in the imposit ion of a t welve-y

ear sen tence. We

reitera te that the

weight to be aff

orded specific enhancement

and mitigating factors is left to the trial court’s discre tion, so long as the trial court complies with the purposes andprinciples of the 1989 Sentencing Act, and its findings are supported by the record. See Statev. Madden , 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). We see no error nor any abuse of discreti on by

the trial court in s entenci ng the D efenda nt.
The Defendant’s allegations are without merit. We affirm the judgment of the trial court.

___________________________________ DAVID H. WEL

LES, JUDGE