         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         MARCH 1999 SESSION
                                                        May 13, 1999

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,            )
                               ) C.C.A. No. 01C01-9709-CR-00396
      Appellee,                )
                               ) Davidson County
V.                             )
                               ) Honorable Thomas H. Shriver, Judge
                               )
ROBERT D. MERRITT, JR.,        ) (Especially Aggravated Robbery)
                               )
      Appellant.               )




FOR THE APPELLANT:                FOR THE APPELLEE:

LIONEL R. BARRETT, JR.           JOHN KNOX WALKUP
Washington Square Two, Suite 418 Attorney General & Reporter
222 Second Avenue North
Nashville, TN 37201              KIM R. HELPER
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                  VICTOR S. (TORRY) JOHNSON III
                                  District Attorney General

                                  NICHOLAS BAILEY
                                  Assistant District Attorney General
                                  200 Washington Square, Suite 500
                                  222 Second Avenue North
                                  Nashville, TN 37201




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

      The defendant, Robert D. Merritt, pleaded guilty to especially aggravated

robbery, a Class A felony. The trial court sentenced him as a range I offender to

twenty-four years’ confinement, to be served at one hundred percent. See Tenn.

Code Ann. § 40-35-501(I)(1), (2)(E). The sole question presented for our review

is whether this sentence is excessive. We affirm the judgment of the trial court.




                                 BACKGROUND

      On the night of August 25, 1995, the defendant and an accomplice, Seria

Ward, drove to the parking lot of First Union Bank in Nashville, Tennessee.

About that time, the victim, Donald Bonds, parked his car near the bank’s

automated teller machine and got out to make a withdrawal. The defendant got

out of his car and directed Ward to take the driver’s seat and pick him up after he

robbed Bonds. Bonds withdrew forty dollars, put the money in his wallet, and

turned back toward his car. At that point, the defendant approached Bonds and,

brandishing a gun, demanded his wallet. Although Bonds relinquished his wallet

without resistance, the defendant shot him in the chest, narrowly missing Bond’s

heart. Ward, who had been waiting in the defendant’s car, immediately drove to

the defendant, picked him up, and the two left the area. Bonds was seriously

injured but managed to call for help on his cell phone and survived.



      The defendant and Ward were indicted for especially aggravated robbery.

After Ward was convicted in a jury trial, the defendant pleaded guilty. At the

defendant’s sentencing hearing, the trial court found applicable one

enhancement factor–that the defendant was a leader in the commission of the

offense–and no mitigating factors. Based on these findings, the trial court

enhanced the defendant’s sentence from the presumptive term of twenty years,

see Tenn. Code Ann. §§ 39-13-403; 40-35-112(a)(1), to twenty-four years.

The defendant contests this sentence.


                                        -2-
                             STANDARD OF REVIEW

       Appellate review of a challenge to the length or manner of service of a

sentence is de novo on the record, “with a presumption that the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann.

§ 40-35-401(d). This presumption “is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). If our review reflects that the trial court properly considered all relevant

factors and its findings of fact are adequately supported in the record, then this

Court may not disturb the sentence even if we would have preferred a different

result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The appellant carries the burden of showing that his sentence is improper. See

Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,

929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



       In conducting our review, this Court we must consider (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) any statutory

mitigating or enhancement factors; (6) any statement made by the accused in his

own behalf; and (7) the potential or lack of potential for rehabilitation or

treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735

S.W.2d 859, 863 (Tenn. Crim. App. 1987).



                                     ANALYSIS

       The defendant first contends that the trial court erred in applying

enhancement factor (2)–that the defendant “was a leader in the commission of

an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-

114(2). We disagree. Relative to this enhancement, the trial court found that

that the defendant supplied both the car and the weapon used in the offense,



                                          -3-
directed Ward to drive the car, and told him where to wait for the defendant

during the offense. In addition, the defendant was the one who shot the victim.

These facts sufficiently support the trial court’s finding that the defendant was a

leader. This issue is without merit.



       Next, the defendant argues that the trial court erred in failing to find three

mitigating factors: The defendant lacked substantial judgment due to youth, see

Tenn. Code Ann. § 40-35-113(6); the defendant has no prior criminal convictions

as an adult; and the defendant voluntarily entered a plea of guilty and truthfully

stated the facts of his offense. We find that the trial court was within its

discretion in rejecting each of these proposed mitigating factors.



       In considering whether a defendant lacked substantial judgment because

of his youth, chronological age alone is not determinative. See State v. Antonio

D. Mason, No. 01C01-9607-CC-00315 (Tenn. Crim. App. filed Oct. 24, 1997, at

Nashville). Rather, we are directed to “consider the concept of youth in context,

i.e., the defendant’s age, education, maturity, experience, mental capacity or

development, and any other pertinent circumstance tending to demonstrate the

defendant’s ability or inability to appreciate the nature of his conduct.” State v.

Adams, 864 S.W.2d 31, 33 (Tenn. 1993).



       At the time of his offense, the defendant was twenty years of age and in

good mental and physical health. As noted in Adams, a twenty-year old is “an

adult under Tennessee law.” Id. Other than his age, the defendant’s only proof

in support of this factor is the testimony of his mother who stated that he had

been diagnosed as learning disabled in 1978 or 1979, when the defendant would

have been three or four years’ old. While such a diagnosis might suggest some

lessened academic capacity, we do not think it demonstrates a lack of

“substantial” judgment as to the instant offense. Moreover, to the extent such

evidence might suggest any lack of capacity, it would not be, as the statute



                                         -4-
requires, “because of youth.” Furthermore, the defendant has a prior criminal

history involving the possession of a weapon. This history and the defendant’s

leadership role in planning the offense suggest a full appreciation for the

seriousness of his actions. Under these circumstances, we cannot conclude

that the evidence preponderates against the trial court’s decision. This issue is

without merit.



       The defendant next proposes that his lack of an adult criminal history

should have been accorded some weight in mitigation. The defendant’s mother,

however, testified that he had been arrested for taking a gun to school as a

juvenile. In Adams, the Tennessee Supreme Court concluded that juvenile

criminal conduct “may be taken into account in fashioning an appropriate

sentence.” Id. at 34. Accordingly, in State v. Carter, 908 S.W.2d 410, 413

(Tenn. Crim. App. 1995), this Court refused to mitigate an offender’s sentence

for lack of criminal history based on the offender’s juvenile history of criminal

behavior. We likewise find that the defendant’s juvenile history of criminal

behavior, while probably insufficient to support enhancement of the defendant’s

sentence, is sufficient to preclude mitigating his sentence for lack of a criminal

history.


       We find no merit in the defendant’s remaining proposed mitigating

circumstances.



                                  CONCLUSION

       Based on the above, we find no error in the trial court’s decisions

regarding enhancement or mitigating factors. The judgment of the trial court is,

therefore, AFFIRMED.




                                               _____________________________
                                               JOHN EVERETT W ILLIAMS, Judge

                                         -5-
CONCUR:




_____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




                                -6-
