# FILED

March 09, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9703-CR- 00109 Appellee, * SHELBY COU NTY VS. * Hon. James C. Be asley, Sr., Judge (by designation) TYRONE CHALMERS, * (Attempted Especially Aggravated Robbery

Appellant. * and Attempted First Degree Murder)

* For Appellant : For Appellee : Linda Kendall Garner John Knox Walkup Attorney Attorney General and Repor ter 50 North Front Street, Suite 780 Memphis, TN 38103 Georgia Blythe Felner Counsel for the State Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 James Challen Assistant District A

ttorney General 201 Poplar Avenue, Third Fl oor Memphis, TN 38103

OPINION FILED:__________________________

JUDGMENT AFFIRMED; SENTENCES MODIFIED

GARY R. WADE, PRESIDING JUDGE1 At the ti me of this sentenci ng hearing, a first degree murder charge was pendi ng against t he defend ant for an offens e com mitted o n the sam e date. 2 OPINION The defendant, Tyrone Chalmers, entere d guilty pleas of attempted especially aggravated robbery and attempted first degree murder. The trial court imposed Range I con current s entence s of nine and twent y-five years , respect ively. In this appeal of right, the defendant claims tha t the sentence is excessive because of the misapplication of an enhancement factor and the failure of the trial judg e to adhere to the principles of sent encing. Due to the misappli cation of an enhancement factor on each sentence, the j udgment of the trial court is modified to provide for concurrent ei ght and twenty-four y ear sentences.
On August 20, 1994, at approx imately 3:00 A.M., the v ictim, Joseph Hunter, was shot several times by the defendant. According to the presentence report, the victim w

as returning to his r

esidence in his vehicl e when the defendant yelled, "Give it up,give it up." The defendant then fir ed at least fourteen rounds from an automatic weapon. The vi ctim was struck by three of the gunshots and was transported to the hospital i n critical condition. The defendant claimed that if the victim had stopped and gi ven him his money, he w ould not have fired the shots. After wounding the victim, the defendant ran. After the shooting, the defendant sold the weapon to buy cocaine. Losses suffered by the victim due to his medical care and the damage to his vehicl e approximated $17,000.00.

At the sentenc ing hearing, 1 the defendant claimed to have found the weapon, possibly an AK- 47, in an alley near the crime scene. He testified that when he saw the victim, he decided to commit a robbery so as to be able to buy il legal drugs. The defendant, who clai med that he did not know how to operate the3 weapon and did not attempt to kil l the victim, blamed his actions on being "under the influence of drugs." At the sentencing hearing, he asserted th at he had resolved his drug problem during hi s time in jail prior to his guilty pleas

.

The defendant, who was twenty -three years old at the time the sentence was imposed, w as not married and had a four-y ear-old son. He had been employed as a welder for seven years at Zip P roducts, making $7.75 per hour, and had paid child support in the sum of $210.00 per month. He had a cocaine dependency throughout his y ears of employment.
Especially aggr

avated robbery is a C lass A felony. Tenn. Code Ann. § 39-13-403. Because the defendant was charged and convicted of an attempt, this offense qualifies as a Class B felony with a range of eight to twelve years . Tenn. Code Ann. § 39-12-107. Attempt to c ommit first degree murder is a Class A felony having a range of fifteen to twenty-five years. Tenn. Code Ann. §§ 39-11-117 (a)(2), 40-35-110, -112.

As to the attempt to commit especial ly aggravated r obbery, the trial court found that there were no mitigating factors and concluded that a single enhancement ap plied: "The de fendant had no he

sitation abo ut committin g a crime when the risk to human life was high." Tenn. Code Ann. § 40-35-114(10). W hile the trial court determined that the defendant had some remorse for wh ich he credited "slight" consi deration, there were other wise no mitigating

factors. See Tenn. Code Ann. § 40-35-113.

As to the attempted first degree murder, the trial court det ermined that three enhancement factors were applicable:4 (6) The personal injurie s inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly

great; (9) The defenda nt possessed or employed a firearm, explosive devic

e or other deadly weapon during the commission of the offense; and (10) The defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114.

The trial court gave pa rticularly gr eat weight to enhancement factor (6) due to the extent of the injuri es to the victim and the amount of damage he suffered. Again, the trial court determined that the defenda nt had expressed some remorse and also pointed out that the defendant had c ompleted high school and had been gainfully employed at the same location over an ex tended period. The sentence of twenty-five years was imposed "to avoid depreciating the seriousness of the offense and to properly punish the defendant and protect the public...."

When there is a challenge to the length, range, or manner of servi ce 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 are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the5 nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In calculating the sentenc e for felonies committed before July 1, 1995, the presumptive sentence is the minimum within the range if there are no enhancement or mitigating facto rs. Tenn. Code Ann. § 40-35-210( c) (1990) (amended July 1, 1995 to provide that the presumptive sentence f or a Class A felony as the midpoint in the r ange). If there are enhancement factor s but no mitigating factors, the t rial court may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A s entence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement f actors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced withi n the range by any w eight assigned to the mitigating factors present. Id.

The def endant a rgues tha t enhanc ement f actor (10 ) should n ot have been utilized because it w as an essential element to the offense of ag gravated robbery. Because there w as no proof establishing ri sk to life other than that of the victim, the risk involved here was an essential element of the offense. Thu s, enhancement factor (10) was i nappropriately applied t o the conviction for attempted especially aggr

avated robbery. State v. Si ms , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). The state concedes that the tr ial court so erred. See State v. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1996). Because ther e were no other enhancement factors, the sentence must be modi fied to eight years. See Tenn. Code Ann. § 40-35-210(c).6 Similarly, the state c

oncedes that the application of enhancement factor (10) was inappropr iately applied to the sent ence for attempted first degree murder. The defendant does not contest the ap plication of enhancement factor (6) or (9). Clearly , the trial court gav e some weight to enhancement factor (10) but determined that the defendant still q ualified for the maximum twenty -five year sentence despite the presence of mitigating facto rs:

I do find that the defendant has express ed remorse, and I believe he's sincere in that, and regrets that it happened. He is unusual in tha t ... he did comp lete high school and was gainfully employed before he got in this trouble. Under the type o f cases that the court is deali ng with here, though, they are not entitled to very much weight; in fact, ver

y little weig ht when I consider the [other] aggravating

circumstances.
Utilizing the same rationale applied in the tr ial court and omitting the enhancement factor, this court ord ers a twenty-four y ear sentence by beginning at the minimum in the range, apply ing two enhancement factors, and providing for some mitigation due to the cir cumstances articulated in th e trial court.
Accordingly, the judgment is affirmed except that the sentences sha ll be modif ied to eigh t years fo r attemp ted espe cially aggra vated rob bery and twe ntyfour years for attempted first deg ree murder.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

______________________________ Thomas T. W oodall, Judge

______________________________ John Everett Williams, Judge