         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE

                       OCTOBER 1999 SESSION


                                               FILED
                                              December 15, 1999

                                              Cecil Crowson, Jr.
                                             Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    NO. M1998-00447-CCA-R3-CD
      Appellee,                  )
                                 )    COFFEE COUNTY
VS.                              )
                                 )    HON. GERALD L. EWELL, SR.,
GLENN H. EARLS,                  )    JUDGE
                                 )
      Appellant.                 )    (Attempt to Commit Felony Murder;
                                  )   Attempt to Commit Especially
                                  )   Aggravated Robbery)



FOR THE APPELLANT:                    FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR.               PAUL G. SUMMERS
222 Second Ave. North                 Attorney General and Reporter
Suite 360M
Nashville, TN 37201                   TODD R. KELLEY
(At Trial)                            Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
H. THOMAS PARSONS                     425 Fifth Avenue North
101 West Main Street                  Nashville, TN 37243-0493
Manchester, TN 37355-1542
(On Appeal)                           C. MICHAEL LAYNE
                                      District Attorney General
                                      307 South Woodland
                                      P.O. Box 147
                                      Manchester, TN 37355-0147




OPINION FILED:



AFFIRMED IN PART; REVERSED IN PART; REMANDED
JOE G. RILEY, JUDGE
                                    OPINION

       A Coffee County jury convicted the defendant, Glen H. Earls, of criminal

attempt to commit especially aggravated robbery, and criminal attempt to commit

first degree felony murder. The trial court sentenced defendant as a Range I

standard offender to twenty-five years for attempted first degree felony murder and

twelve years for attempted especially aggravated robbery. The trial court ordered

the sentences to be served concurrently. In his appeal as of right, defendant

presents two issues for review:

      (1) whether he was properly convicted of attempt to commit first degree
       felony murder, and

      (2) whether his sentence is excessive.

After a thorough review of the record, we set aside the conviction for attempted

felony murder; remand for a new trial on attempted first degree premeditated

murder; and affirm the conviction and sentence for attempted especially aggravated

robbery.




                                    I. FACTS

      On February 26, 1995, the defendant and his wife (co-defendant) stopped

to visit the eighty-two-year-old victim. In an apparent robbery attempt, defendant

retrieved an ax handle from his truck, struck the victim over the head and beat the

victim on the shoulders, legs and ankles. The defendant subsequently knocked the

victim against the wall and attempted to take his wallet, but the victim kicked the

defendant away. The victim then fell to the floor, where he grabbed a hand ax, and

threatened to strike the defendant. The defendant wisely fled the premises.



      At sentencing, the trial court found there were no mitigating factors, and

applied the following enhancement factors:

      (2) the defendant was a leader in the commission of an offense involving
      two or more criminal actors;

      (4) the victim was particularly vulnerable because of age; and


                                        3
       (5) the defendant treated the victim with exceptional cruelty during the
       commission of the offense

Tenn. Code Ann. § 40-35-114.




                           II. STANDARDS OF REVIEW



                                    A. Plain Error

       Defendant asks us to set aside his conviction for attempted felony murder as

plain error since this issue was not raised in his motion for new trial. An error which

has affected the substantial right of a defendant may be noticed at any time in the

discretion of the appellate court where necessary to do substantial justice. Tenn.

R. Crim. P. 52(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). “Plain error”

or “fundamental error” is recognized under Tenn. R. Crim. P. 52(b). State v.

Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). Plain error is an

egregious error that strikes at the “fairness, integrity or public reputation of judicial

proceedings.” United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir. 1989);

Adkisson, 899 S.W.2d at 639-40. Some errors are so fundamental and pervasive

that they require reversal without regard to the facts or circumstances of the

particular case. Delaware v. Van Arsdall, 475 U.S. 673 (1986).




                                   B. Sentencing

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).




                                           4
       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d

803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.

1991). However, if such factors do exist, a trial court should start at the minimum

sentence, enhance the minimum sentence within the range for enhancement factors

and then reduce the sentence within the range for the mitigating factors. Tenn.

Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the

statute, as the weight given to each factor is left to the discretion of the trial court

as long as the trial court complies with the purposes and principles of the

sentencing act and its findings are supported by the record. State v. Moss, 727

S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.

App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see

Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless,

should there be no mitigating factors, but enhancement factors are present, a trial

court may set the sentence above the minimum within the range. Tenn. Code Ann.

§ 40-35-210(d); see Lavender, 967 S.W.2d at 806 (Tenn. 1998); Manning v. State,

883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).




                                   III. ANALYSIS

                           A. Attempted Felony Murder

        A jury convicted defendant of attempted felony murder in the perpetration

of a robbery. He argues this conviction should be set aside. Although this issue

was not raised in the motion for new trial, we find plain error and set aside this

conviction.



       The Tennessee Supreme Court has held attempt to commit first degree

felony murder is not an offense. State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn.

1996). The Tennessee Supreme Court concluded that “one cannot intend to


                                           5
accomplish the unintended. Consequently the offense of attempted felony murder

does not exist in Tennessee.” Id. at 892.



       This Court specifically addressed this issue in co-defendant’s appeal. See

State v. Holly Lack Earls, C.C.A. No. 01C01-9612-CC-00506, Coffee County, 119

WL 15896, at *4 (Tenn. Crim. App. filed January 16, 1998, at Nashville). In Holly

Lack Earls, we dismissed the defendant’s conviction for attempted felony murder.

We noted, however, that she was indicted for attempting to kill the victim “unlawfully,

intentionally, deliberately and with premeditation,” but the jury was instructed only

on attempted felony murder. Id. at *4. The same language appears in this

defendant’s indictment, and the jury was only charged with attempted felony

murder. In Holly Lack Earls, we remanded the case to the trial court for the

defendant to be retried on the charge of attempted first degree premeditated

murder. The same result is warranted in the instant case.



       Thus, we reverse defendant’s conviction for attempted felony murder and

remand for a new trial on the charge of attempted first degree premeditated murder.



                                     B. Sentencing

       The defendant argues the trial judge inappropriately applied three

enhancement factors. Although we conclude one enhancement factor was

misapplied, we decline to reduce the sentence.1



                               1. Leader of the Offense

       The defendant claims that he was not a leader of the offense, and this factor

should not have been applied by the trial judge. See Tenn. Code Ann. § 40-35-

114(2). We disagree


       1
         Because this court has dismissed the conviction for attempted felony murder,
 defendant’s argument as to that sentence is moot. Our analysis will only address the
statutory enhancement factors as they relate to the charge of attempted especially aggravated
robbery.


                                             6
         Defendant made a statement to police claiming his wife was not aware of his

intent to rob the victim and was not involved in the attack. He argues that this factor

cannot be applied in cases where there is no proof that two separate criminal actors

were involved. However, the defendant contradicted his statement to police at the

sentencing hearing by testifying that he lied to police to protect his wife. In addition,

the victim testified that the defendant went to his vehicle and returned with an ax

handle. Furthermore, the victim testified that it was the defendant who beat him

repeatedly and attempted to take his wallet.



         There was sufficient evidence for the trial court to determine the defendant

acted as a leader in the commission of the attempted robbery. This issue is without

merit.



                            2. Vulnerability Due to Age

         The defendant claims the trial court inappropriately held that the victim was

particularly vulnerable due to his age. Tenn. Code Ann. § 40-35-114(4). We agree.



         It cannot be presumed that a victim was particularly vulnerable based solely

on age. State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997). Before a trial court may

apply Tenn. Code Ann. § 40-35-114(4), the State must prove the victim was

particularly vulnerable, State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993), and the

age of the victim was a factor during the commission of the crime. State v. Butler,

900 S.W.2d 305, 313 (Tenn. Crim. App. 1994); State v. Seals, 735 S.W.2d 849,

853-54 (Tenn. Crim. App. 1987).



         With regard to the circumstances of the instant case, this Court held in the

co-defendant’s appeal that the trial court erred in applying this enhancement factor.

See Holly Lack Earls, supra at *9. We reach the same conclusion in the instant

case.




                                           7
                                3. Exceptional Cruelty

       The defendant argues that the trial court did not state which actions, apart

from the elements of the offense, it used to find the defendant treated the victim

with exceptional cruelty.      See Tenn. Code Ann. § 40-35-114(5).             Therefore,

defendant argues the trial court inappropriately considered this factor. We disagree.



       In the guise of friendship, the defendant and his wife entered the victim’s

home. Defendant attacked him from behind with a deadly weapon, retreating only

after the victim secured an ax for self-protection. The defendant left the victim there

to die, knowing that the victim was badly injured and had no phone to call for help.

The victim testified that after the defendant left, he tried to yell for help from his front

porch. When no one responded, he went back inside where he lost consciousness.



       Exceptional cruelty is not an element of attempted especially aggravated

robbery and may be considered as an enhancement factor under appropriate facts.

See Poole, 945 S.W.2d at 98. Again, just as we did in co-defendant’s appeal, we

conclude the trial court did not err in applying this enhancement factor. See Holy

Lack Earls, supra at *10.



                                      4. Sentence

       Since the trial court misapplied an enhancement factor, the imposed

sentence is not entitled to a presumption of correctness. The standard range for a

Class B felony is eight to twelve years. In this case, there are no mitigating factors

and two enhancement factors. A finding that one of the enhancement factors was

erroneously applied does not necessarily equate to a reduction in sentence. State

v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998). We conclude in our de novo

review that the twelve year sentence was appropriate.




                                     CONCLUSION


                                             8
      We SET ASIDE defendant’s conviction for attempted felony murder and

REMAND for a new trial on the indicted offense of attempted first degree

premeditated murder.   The conviction and sentence for attempted especially

aggravated robbery are AFFIRMED.




                                     ____________________________
                                     JOE G. RILEY, JUDGE




CONCUR:


____________________________
THOMAS T. WOODALL, JUDGE




____________________________
JAMES CURWOOD WITT JR., JUDGE




         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE



STATE OF TENNESSEE,                  )
                                     )     C.C.A. No. 01C01-9805-CC-00197
      Appellee,                      )
                                     )     Coffee County No. 27053F
vs.                                  )
                                     )     (Attempt to Commit Felony Murder;
                                     )     Attempt to Commit Especially

                                     9
                                           )       Aggravated Robbery)
GLENN H. EARLS,                            )
                                           )       AFFIRMED IN PART; REVERSED
                                           )       IN PART; REMANDED
       Appellant.                          )




                                    JUDGMENT



       Came the appellant, GLENN H. EARLS, by counsel, and the state, by the

Attorney General, and this case was heard on the record on appeal from the Circuit

Court of Coffee County; and upon consideration thereof, this Court is of the opinion

that there is no reversible error in the judgment of the trial court.



       It is, therefore, ordered and adjudged by this Court that the judgment of the

trial court is AFFIRMED, and the case is remanded to the Circuit Court of Coffee

County for execution of the judgment of that court and for collection of costs

accrued below.



       It appears that appellant is indigent. Costs of appeal will be paid by the State

of Tennessee.



                                                   Per Curiam

                                                   Joe G. Riley, Judge
                                                   Thomas T. W oodall, Judge
                                                   James Curwood W itt Jr., Judge




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