        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville April 29, 2009

         STATE OF TENNESSEE v. RAMONE PIERRE GHOLSTON

                Appeal from the Circuit Court for Montgomery County
                    No. 40500611    John H. Gasaway, III, Judge




                No. M2008-01283-CCA-R3-CD - Filed January 5, 2010


The Defendant, Ramone Pierre Gholston, was convicted by a Montgomery County jury of
facilitation of first degree murder, a Class A felony, and facilitation of especially aggravated
robbery, a Class B felony. The trial court sentenced the Defendant as a Range I, standard
offender to twenty-one years for the facilitation of first degree murder and to ten years for
the facilitation of especially aggravated robbery, to be served concurrently. On appeal, the
Defendant contends that his sentence for the facilitation of first degree murder is excessive.
Because no written waiver of ex post factor rights signed by the Defendant is in the record,
the Defendant was improperly sentenced under the 2005 amendments to the Sentencing Act
of 1989. We reverse the judgment of the trial court, and we remand the case for
resentencing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Ramone Pierre Gholston.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
John Wesley Carney, Jr., District Attorney General; and John E. Finklea, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       We gather the following information from the transcript of the sentencing hearing and
the presentence report. On July 21, 2004, the Defendant and two co-defendants robbed the
victim, Shane Crossley, at the victim’s residence. The victim suffered from Huntington’s
corea, which rendered him particularly vulnerable. The victim was beaten by a co-defendant
and bled to death as a result of his injuries. A jury convicted the Defendant of facilitation
of first degree murder and facilitation of especially aggravated robbery.

        At the sentencing hearing, the trial court found that the Defendant was a Range I,
standard offender. The trial court applied enhancement factor (1), a previous history of
criminal convictions or criminal behavior, because the Defendant had prior convictions for
failure to carry a driver’s license and for disorderly conduct. See T.C.A. § 40-35-114(1)
(2006). The trial court also applied enhancement factor (4), that the victim was particularly
vulnerable because of age or physical or mental disability. See id. § 40-35-114(4).

        The Defendant contends that twenty-one years is an excessive sentence for the
facilitation of first degree murder. He asserts that the jury rejected the notion that he had
perpetrated a robbery and a murder and found that he had merely facilitated those crimes.
Thus, he argues that enhancement factor (4) should not apply. The State argues that the trial
court properly sentenced the Defendant.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. § 40-35-401(d) (2006 & Supp. 2008). This
presumption of correctness is conditioned upon the affirmative showing that the trial court
considered the relevant facts, circumstances, and sentencing principles. State v. Carter, 254
S.W.3d 335, 344-45 (2008); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the
Sentencing Commission Comments to section 40-35-401(d) note, the burden is on the
appealing party to show that the sentence is improper.

        However, “the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” Ashby, 823 S.W.2d at 169.
In this respect, for the purpose of meaningful appellate review,

              the trial court must place on the record its reasons for arriving at
              the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e).



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        Also, in conducting a de novo review, we must consider (1) the evidence, if any,
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 as to sentencing practices for similar offenses in Tennessee, (7) any statement
that the Defendant made on his or her own behalf, and (8) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss,
727 S.W.2d 229 (Tenn. 1986).

        On appeal, the Defendant was required to prepare a record which conveyed a fair,
accurate, and complete account of what transpired with respect to those issues that are the
bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
“In the absence of an adequate record on appeal, this court must presume that the trial court’s
rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.
Crim. App. 1991); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). The
Defendant failed to include the transcript of the trial in the appellate record, and we cannot
conduct a complete de novo review.

      Despite the limited record, we are not prohibited from reviewing it for plain error.
Rule 52(b) of the Tennessee Rules of Criminal Procedure provides:

              (b) Plain Error. - When necessary to do substantial justice, an
              appellate court may consider an error that has affected the
              substantial rights of an accused at any time, even though the
              error was not raised in the motion for a new trial or assigned as
              error on appeal.

See also T.R.A.P. 36(b). Our supreme court has adopted the factors developed by this court
to be considered

              when deciding whether an error constitutes “plain error” in the
              absence of an objection at trial: “(a) the record must clearly
              establish what occurred in the trial court; (b) a clear and
              unequivocal rule of law must have been breached; (c) a
              substantial right of the accused must have been adversely
              affected; (d) the accused did not waive the issue for tactical
              reasons; and (e) consideration of the error is necessary to do
              substantial justice.”




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State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). In order for this court to reverse the judgment of a
trial court, the error must be “of such a great magnitude that it probably changed the outcome
of the [proceedings],” and “recognition should be limited to errors that had an unfair
prejudicial impact which undermined the fundamental fairness of the trial.” Adkisson, 899
S.W.2d at 642.

        In Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court held that any fact
other than that of a prior conviction used to enhance a defendant’s sentence must be proven
to a jury beyond a reasonable doubt. In Cunningham v. California, 549 U.S. 270 (2007), the
Court extended Blakely to strike down a state’s sentencing structure that permitted enhanced
sentencing based on judicially found facts. Thus, a sentencing court applying the pre-2005
sentencing law cannot enhance a defendant’s sentence above the presumptive minimum
unless the facts relied upon to support the enhancement were found by a jury beyond a
reasonable doubt. See State v. Gomez, 239 S.W.3d 733 (Tenn. 2007).

        In 2005, the 1989 Sentencing Act was amended to comply with Blakely. See 2005
Tenn. Pub. Acts, ch. 353, § 5. The amended acts provide that the court shall set a sentence
within the range, that the court consider that the minimum sentence should be imposed, and
that the length should be adjusted as appropriate for any enhancement and mitigating factors.
T.C.A. § 40-35-210(c). The court “shall consider, but is not bound by” certain “advisory
sentencing guidelines,” which include that the sentence should be adjusted, as appropriate,
for any enhancement or mitigating factors shown. T.C.A. § 40-35-210(c)(2). Criminal
defendants who commit offenses on or after July 1, 1982, and who are sentenced after June
7, 2005, may elect to be sentenced under the amended act by executing an waiver of ex post
factor protections. T.C.A. § 40-35-210, Compiler’s Notes. This court has consistently held
that such a waiver must be written. See, e.g., State v. Matthew Joseph Carter, No.
E2006-01265-CCA-R3-CD, Knox County (Tenn. Crim. App. Oct. 27, 2008) app. denied
(Tenn. Oct. 27, 2008); State v. Daryl S. Hooper, No. M2007-00094-CCA-R3-CD,
Humphreys County (Tenn. Crim. App. June 24, 2008).

       According to the record, the Defendant committed the offenses on July 21, 2004. At
the sentencing hearing, defense counsel stated that the Defendant had elected to be sentenced
under the 2005 Amendments to the Sentencing Act, and the trial court applied the amended
act. However, no waiver of the Defendant’s ex post facto protections is included in the
record. The trial court erred when it sentenced the Defendant under the 2005 Amendments
because the pre-2005 Sentencing Act was applicable absent a properly executed waiver. In
addition, application of enhancement factor (4) under the 1989 Sentencing Act may have
been impermissible under Blakely, because the victim’s particular vulnerability was not
found by a jury beyond a reasonably doubt. The record reflects that the trial court gave

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significant weight to factor (4), that the victim was particularly vulnerable. Thus, the
Defendant’s relief is necessary to do substantial justice. See Gomez, 239 S.W.3d at 743.

        In consideration of the foregoing and the record as a whole, we reverse the judgment
of the trial court, and we remand the case for resentencing. On remand, the court should
resentence the Defendant under the Sentencing Act as it existed before June 7, 2005, or allow
the Defendant to execute a written waiver for sentencing under the law effective June 7,
2005.




                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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