         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 1, 2006

                STATE OF TENNESSEE v. BRANDON WALLACE

                    Appeal from the Circuit Court for Lauderdale County
                          No. 7346-D    Joseph H. Walker, Judge



                  No. W2005-02514-CCA-R3-CD - Filed November 7, 2006



The Appellant, Brandon Wallace, appeals the sentencing decision of the Lauderdale County Circuit
Court. Following a jury trial, Wallace was convicted of two counts of attempted first degree murder,
attempted second degree murder, attempted especially aggravated robbery, especially aggravated
burglary, and felony reckless endangerment. Wallace’s conviction for attempted especially
aggravated robbery was merged with his conviction for especially aggravated burglary. Following
a direct appeal of his convictions and sentences, a panel of this court affirmed the convictions but
remanded for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2005). After a resentencing hearing was conducted, Wallace was sentenced to twenty years for each
attempted first degree murder conviction, eight years for attempted second degree murder, eight
years for attempted especially aggravated robbery, eight years for especially aggravated burglary, and
one year for felony reckless endangerment. Based upon the imposition of partial consecutive
sentencing, Wallace received an effective sentence of forty-years confinement. On appeal, he
challenges the trial court’s application of enhancement factors, failure to apply mitigating factors,
and imposition of consecutive sentencing. After review, the sentences are affirmed. However, we
remand for entry of corrected judgment of conviction forms to properly reflect merger of the offenses
and imposition of the aggregate forty-year sentence.

   Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed; Remanded for Entry of
                           Corrected Judgments of Conviction

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
ROBERT W. WEDEMEYER , J., joined.

William Dan Douglas, Jr., Ripley, Tennessee, for the Appellant, Brandon Wallace.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer-Walker, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                            OPINION

                                      Factual Background

       The relevant facts of the case, as established on direct appeal, are as follows:

               On July 1, 2002, the [Appellant] and two codefendants, Maurice Garrett and
       William Bumpus, forced their way into a mobile home in Lauderdale County,
       intending to rob the owner, Jerome Eisom, of drugs and money. A third codefendant,
       Tyrese Smith, waited in the driver’s seat of the getaway car. A struggle ensued inside
       the home, and Eisom was shot four times while a visitor in the home, Bobby Harrell,
       was shot twice. Eisom’s live-in girlfriend, Deborah Macklin, was chased by the
       [Appellant] out of the house, as well as chased and shot at by the driver of the car,
       but she was not hit. Candi Bynum, a seventeen-year-old cousin of Eisom, and four-
       year-old Jeremecia Eisom and nine-month-old Jerome Eisom, Jr., the children of
       Eisom and Macklin, were in the home at the time but were not injured. The
       [Appellant] and his codefendants fled the scene in the getaway car and three of them,
       including the [Appellant], were arrested near Brownsville a short time later.

       ....

                Jerome Eisom testified that when he had opened his front door, he saw a blue
       car sitting in the middle of the road and “two guys were like standing at the corner
       of the door.” One pointed a gun at Eisom, who tried to grab it, but the gun fired and
       struck Eisom. Then, according to his testimony, “this tall guy comes over the top and
       shoots me in the shoulder, and so I let the gun go.” He and the first man began
       wrestling down the hallway and ended up in the bedroom. Eisom described the
       second man who shot him as wearing an “orange bandana, and, you know, he was
       just gun-crazy, gun-happy and all that. He was just shooting and bouncing around
       and his little bandana flopping. And he had braids, long braids, and real tall.” Eisom
       identified the [Appellant] in the courtroom as the second man who shot him. He also
       explained how the three assailants “worked together.”

State v. Brandon Wallace, No. W2003-01967-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 28,
2005) (remanded for resentencing in accordance with Blakely v. Washington). On direct appeal, the
Appellant challenged the sufficiency of the convicting evidence, as well as the trial court’s
sentencing decisions regarding the sentence lengths and imposition of consecutive sentences. Id.

       On appeal, a panel of this court concluded that the evidence was sufficient to support each
of the Appellant’s convictions but found error in the application of enhancing factors under the
holding of Blakely v. Washington. Id. Accordingly, the case was remanded for resentencing. Id.
Notwithstanding remand, this court proceeded to conduct a de novo review of all remaining



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sentencing issues and concurred with the trial court’s rejection of mitigating factor (6),1 as well as
concluding that the record abundantly supported the trial court’s findings with regard to consecutive
sentencing. Id.

         A second sentencing hearing was held on October 5, 2005, at which the victim Jerome
Eisom, the Appellant, and the Appellant’s mother testified. Moreover, the State and the Appellant
agreed to stipulate to the presentence report which was submitted at the first hearing, as well as an
updated victim impact statement. Although the presentence report is not included in the record
before us, we glean from the record in the prior appeal, as well as from testimony offered at the
second sentencing hearing, that the Appellant was released from the custody of the Department of
Children’s Services on his nineteenth birthday on June 14, 2002, and was arrested for the instant
offenses on July 1, 2002. Id. As a juvenile, the Appellant was adjudicated a delinquent based upon
his acts of aggravated assault and two counts of aggravated robbery. Id. Additionally, the Appellant
has juvenile adjudications for two counts of unauthorized use of a vehicle, theft of property,
vandalism, and escape.

         Eisom testified as to the circumstances of the offenses, as well as the emotional impact the
event has had on his family. He conceded that the events in question lasted only thirty to forty
seconds. A victim impact statement from the victim Harrell was admitted, which described the
continuing health problems he has endured as a result of the shooting. The Appellant’s mother
testified that the Appellant had expressed remorse for his actions.

        The trial court observed that, following the remand in this case, the Tennessee Supreme
Court released its decision in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), which held that the
Tennessee Sentencing Reform Act did not violate the Sixth Amendment holding in Blakely v.
Washington. At the remand hearing, the trial court applied the same two enhancement factors as
applied at the initial hearing: (1) that the Appellant was a leader in the commission of an offense
involving two or more criminal actors; and (2) that the Appellant was adjudicated to have committed
delinquent acts as a juvenile which would constitute a felony if committed by an adult. See T.C.A.
§ 40-35-114(3), (21) (2003). Additionally, the court again found that no mitigating factors were
applicable. Thus, after considering the appropriate factors, the trial court sentenced the Appellant
to twenty years for each attempted first degree murder, eight years for attempted second degree
murder, eight years for attempted especially aggravated robbery, eight years for especially aggravated
burglary, and one year for reckless endangerment. The trial court merged the especially aggravated
robbery conviction with the especially aggravated burglary conviction. Next, the trial court
considered consecutive sentencing and again found that the Appellant had a record of criminal
activity which was extensive and that the Appellant was a dangerous offender. As such, the court
ordered that the two twenty-year sentences for attempted first degree murder be served consecutively
and that the remaining sentences be served concurrently to each other, as well as concurrently with
the two sentences for attempted first degree murder.


        1
          Mitigating factor (6) permits mitigation of the sentence if the defendant, because of his youth, lacked
substantial judgment in committing the offense. T.C.A. § 40-35-113(6) (2003).

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          At this juncture, we are constrained to note that the judgment of conviction forms state that
the twenty-year sentence for attempted first degree murder (count one), the twenty-year sentence for
attempted first degree murder (count two), and the eight-year sentence stemming from the merger
of count four (attempted especially aggravated robbery) and count five (especially aggravated
burglary) were ordered to run consecutively, resulting in an aggregate sentence of forty-eight years.
However, the transcript of the sentencing hearing on remand reflects that the trial court ordered only
that the two twenty-year sentences for attempted first degree murder be served consecutively. When
there is a conflict between the judgment forms and the oral findings of the trial court, the oral
findings control. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). Furthermore, with
regard to the merger of the Appellant’s convictions for attempted especially aggravated robbery
(count four) and especially aggravated burglary (count five), both Class B felonies, it is unclear from
the judgment forms which single conviction and sentence survive for Department of Correction
records and sentencing calculation purposes. Typically, under the merger concept, the lesser offense
is not extinguished, but simply merged with the greater offense resulting in one judgment of
conviction. Accordingly, remand is necessary for entry of corrected judgment of conviction forms
to reflect an aggregate consecutive sentence of forty years and for entry of corrected judgment forms
to reflect which single conviction, either count four or count five, remains for Department of
Correction purposes.

                                               Analysis

        On appeal, the Appellant challenges the sentences imposed by the trial court on remand, as
well as the imposition of consecutive sentencing. When an accused challenges the length, range, or
the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-
401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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." Ashby, 823 S.W.2d at 169. When conducting a de novo
review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the
sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any
statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his own
behalf; and (g) the potential or lack of potential for rehabilitation or treatment. T.C.A. §§ 40-35-102,
-103, -210 (2003); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant to
sentencing must be established by a preponderance of the evidence and not beyond a reasonable
doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945 S.W.2d 93,
96 (Tenn. 1997)). The party challenging a sentence bears the burden of establishing that the sentence
is erroneous. T.C.A.§ 40-35-401(d), Sentencing Commission Comments.

        If our review reflects that the trial court, following the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different


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result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness. See Ashby, 823 S.W.2d at 169.

          The Appellant was convicted as a Range I, standard offender of two counts of attempted first
degree murder, Class A felonies, which carry a sentencing range of fifteen to twenty-five years.
T.C.A. § 40-35-112(a)(1) (2003). He was also convicted of attempted second degree murder,
attempted especially aggravated robbery, and especially aggravated burglary, each Class B felonies,
which carry a sentencing range of eight to twelve years. Id. at (a)(2). Finally, the Appellant was
convicted of felony reckless endangerment, a Class E felony, which carries a sentencing range of one
to two years. Id. at (a)(5). The presumptive sentence to be imposed by the trial court for a Class A
felony is the midpoint of the range, while the presumptive sentence to be imposed by the trial court
for a Class B or E felony is the minimum sentence within the applicable range absent the presence
of enhancement or mitigating factors. T.C.A. § 40-35-210(c). If the trial court finds enhancement
factors but no mitigating factors, the court may set the sentence above the presumptive minimum
sentence. Id. at (d). However, if both enhancement and mitigating factors are present, the court must
start at the minimum sentence, enhance as appropriate for enhancement factors, and then reduce the
sentence as appropriate for applicable mitigating factors. Id. at (e).

         On appeal, the Appellant first challenges the trial court’s application of enhancement factors
(3) and (21). With regard to factor (3), the Appellant argues that the proof at trial was conflicting
with regard to the Appellant’s participation and leadership role in the crimes. The State, on the other
hand, argues that the only conflicting proof presented was the Appellant’s own statement. From the
brief testimony of Eisom at the sentencing hearing, as well as the record of the case on direct appeal,
we are able to ascertain that the Appellant and a co-defendant approached the front door of the home
and forced their way in. As the co-defendant and Eisom struggled, the Appellant shot Eisom. He
subsequently chased Eisom’s girlfriend out of the home and ordered the getaway driver to shoot her.
The Appellant then returned to the home to shoot Harrell. We agree with the State that the only
conflicting proof regarding the Appellant’s leadership in the commission of the crimes is his
statement that he was misled by the codefendants into committing the crimes. Clearly, the trial court
rejected that testimony. Moreover, we note that this court on direct appeal did not find that the factor
was not established, only that it violated Blakely. Thus, we conclude that there was no error in the
trial court’s application of enhancing factor (3).

        The Appellant also contests the court’s application of enhancement factor (21) based upon
his prior juvenile adjudications of delinquency. Again, we find no error in the application of this
factor. The record amply establishes that the Appellant had an extensive juvenile history. He
acknowledged that he was adjudicated a delinquent for the act of aggravated assault after stabbing
his victim in the head and face. Moreover, he acknowledged that he had been adjudicated a
delinquent for two separate acts of aggravated robbery. Additionally, the Appellant had
adjudications for two counts of unauthorized use of a vehicle, theft of property, vandalism, and
escape. Accordingly, enhancement factor (21) is supported by the record.



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         Next, the Appellant asserts that the trial court failed to apply applicable mitigating factors
in determining his sentence lengths. The Appellant argues that he should be sentenced to the
minimum sentence within the range based upon the fact that all of the convictions involved one
single continuous course of conduct which lasted only seconds, that the Appellant was only nineteen
at the time of the crimes, and that these were his first adult criminal offenses. First, this argument
is misplaced because the Appellant received the minimum sentence or presumptive minimum
sentence for each conviction. Furthermore, we find no error in the trial court’s refusal to apply
mitigating factors in this case. As previously noted, the Appellant had an extensive record of
juvenile delinquency and had been released from juvenile custody less than one month when these
violent crimes by use of a firearm occurred.

         Next, the Appellant challenges the trial court’s imposition of consecutive sentencing. As
noted, this court on direct appeal found no error in the trial court’s decision to impose consecutive
sentences based upon the Appellant’s record of extensive criminal behavior and his classification
as a dangerous offender. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This
section permits the trial court to impose consecutive sentences if the court finds, among other
criteria, that “[t]he defendant is an offender whose record of criminal activity is extensive;” or that
“[t]he defendant is a dangerous offender whose behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which the risk to human life is high[.]” T.C.A. § 40-
35-115(b)(2), (4) (2003). The length of the sentence, when consecutive in nature, must be “justly
deserved in relation to the seriousness of the offense” and “no greater than that deserved” under the
circumstances. T.C.A. § 40-35-102(1), –103(2).

        In Gray, our supreme court held that before consecutive sentencing could be imposed
following classification of the defendant as a dangerous offender, considered the most subjective of
the classifications and the most difficult to apply, other conditions must be present: (a) that the
crimes involved aggravating circumstances; (b) that consecutive sentences are a necessary means to
protect the public from the defendant; and (c) that the term reasonably relates to the severity of the
offenses. Gray v. State, 538 S.W.2d 391, 393-94 (Tenn. 1976). In State v. Wilkerson and State v.
Imfeld, our supreme court reaffirmed those principles, holding that before sentencing a defendant
to serve consecutive sentences on the basis that he is a dangerous offender, the trial court must find
that the resulting sentence is reasonably related to the severity of the crimes and necessary to protect
the public against further criminal conduct. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002); State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Proof that a defendant’s behavior indicated no
hesitation to commit a crime when the risk to life was high “ is proof that the offender is a dangerous
offender, but it may not be sufficient to sustain consecutive sentences.” Wilkerson, 905 S.W.2d at
938.

       In its order imposing consecutive sentencing, the trial court observed:

              This [Appellant] is an offender whose record of criminal activity is extensive,
       dating back for a number of years with the Juvenile Court system; and . . . this


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       [Appellant] is a dangerous offender whose behavior indicates little or no regard for
       human life and has no hesitation about committing a crime in which the risk to
       human life is high.

               There is proof in the record that a consecutive sentence is needed, and that
       such a sentence would reasonably be related to the severity of the offenses
       committed; further, that consecutive sentences would serve to protect the public or
       society from further criminal acts by this [Appellant], who resorts to aggravated
       criminal conduct, and that a consecutive sentence would be congruent with the
       general principles of sentencing, that this [Appellant] is a dangerous offender.

              The Court further finds that consecutive sentencing is appropriate in that it’s
       necessary to protect the public from criminal conduct by the [Appellant].

These findings reflect the relevant considerations required for the imposition of consecutive
sentences, and we find nothing in the record to preponderate against these findings. The nineteen-
year-old Appellant had numerous prior adjudications of delinquent acts as a juvenile which clearly
support the court’s finding of an extensive criminal history. Moreover, the record also supports the
finding that the Appellant is a dangerous offender. His armed invasion of an occupied home and the
repeated firing of his weapon in an area where others, including small children, were present clearly
demonstrates his lack of regard for human life and that he has no hesitation in committing a crime
in which the risk to human life is high. This issue is without merit.

                                         CONCLUSION

         Based upon the foregoing, the sentences imposed by the Lauderdale County Circuit Court
are affirmed. The case is remanded for entry of corrected judgment of conviction forms consistent
with the opinion.


                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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