         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 29, 2002

          JAMES ROBERT CRAWFORD v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Cumberland County
                             No. 5473B Lillie Ann Sells, Judge



                                   No. E2002-01535-CCA-R3-PC
                                         December 9, 2002

The defendant, indicted on counts of especially aggravated robbery, conspiracy to commit aggravated
robbery, theft over $1,000.00, and evading arrest, entered pleas of guilt to aggravated robbery and
theft over $1,000.00. The trial court imposed an effective sentence of ten years. There was no
appeal. Later, the defendant filed a petition for post-conviction relief and the trial court granted a
delayed appeal. The issues presented for our review are as follows: (1) whether the guilty plea was
knowingly and voluntarily entered; (2) whether trial counsel was ineffective by failing to file a direct
appeal or by failing to timely file a motion to reduce the sentence; (3) whether the trial court properly
modified an illegal sentence; and (4) whether the sentence imposed was excessive. The judgment
is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and ROBERT W.
WEDEMEYER, JJ., joined.

Kevin R. Bryant (on appeal) and Tom Beesley (at trial), Crossville, Tennessee, for the appellant,
James Robert Crawford.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and
Anthony J. Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.


                                              OPINION

        On March 11, 1999, the defendant, David William Collins, Billy L. Kilby, and Joshua Ray
Robbins, were involved in the robbery of a Kentucky Fried Chicken restaurant. According to the
stipulated facts presented by the state at the time of the guilty pleas, the defendant and one of the
others, who was armed with a knife, broke into the back of the restaurant wearing stocking masks
and toboggans. An employee, Crystal Horne, was struck in the face several times and stabbed in the
leg as she was forced to remove more than $1,000.00 from the safe. An off-duty police officer
observed the men, who were carrying a knife and the cash, as they left the restaurant and made the
arrests. The defendant admitted his participation in the robbery. As a part of the original plea
agreement, charges of conspiracy to commit aggravated robbery and evading arrest were dismissed
by the state. The charge of especially aggravated robbery was reduced to the lesser offense of
aggravated robbery, to which the defendant pled guilty. The defendant also pled guilty to theft over
$1,000.00. Initially, the trial court imposed a ten-year sentence which was to be suspended after one
year in jail; probation was ordered to extend for 12 years. Three days after the hearing on the guilty
pleas, the state, after determining that probation was not permitted for the crime of aggravated
robbery, filed a motion to correct the illegal sentence. Less than two weeks later, the trial court
offered the defendant the opportunity to withdraw his pleas of guilt. When he declined, choosing
instead to remain bound to the plea agreement, a sentence of ten years was imposed to be served in
the Department of Correction. There was no appeal.

         In 2001, 11 months after the corrected sentence was imposed, the petitioner filed a petition
for post-conviction relief. After determining that the defendant was denied direct appellate review,
the trial court granted this delayed appeal. See Tenn. Code Ann. § 40-30-213.

                                                  I
       Initially, the defendant contends that his pleas were not voluntary. He claims that he was
compelled by the unusual circumstances to re-enter his guilty pleas at the second proceeding.
Further, the defendant alleges that his trial counsel was ineffective for failing to file a motion to
reduce the sentence or a direct appeal of the sentence imposed.

       The defendant alleges in his post-conviction petition that his plea was involuntary, that his
sentence violated double jeopardy and due process principles and, by an amended petition after his
attorney was appointed, that his trial counsel was ineffective by having failed to file a motion to
reduce the sentence or prosecute a direct appeal. The trial court granted a delayed appeal under
Tennessee Code Annotated section 40-30-213, which provides in pertinent part as follows:

       When the trial judge conducting the hearing pursuant to this part finds that the
       petitioner was denied the right to an appeal from the original conviction in violation
       of the Constitution of the United States or the Constitution of Tennessee and that
       there is an adequate record of the original trial proceeding available for such review,
       the judge can . . . grant a delayed appeal.

Tenn. Code Ann. § 40-30-213(a)(1).

        In Gibson v. State, 7 S.W.3d 47, 50 (Tenn. Crim. App. 1998), this court established
procedural guidelines for the delayed appeal. Our court ruled that when a delayed appeal was
warranted, as in this instance, the remaining allegations should be dismissed without prejudice while
the direct appeal is in process. The dismissal was to be without prejudice so that, at the conclusion
of the direct appeal, a subsequent petition for post-conviction relief could be filed without any
concern over procedural bars such as waiver or previous determination. See Tenn. Code Ann. § 40-


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30-206(g) and (h); cf. Tenn. Code Ann. § 40-30-202©) ("[i]f a prior petition has been filed which
was resolved on the merits by a court of competent jurisdiction, any second or subsequent petition
shall be summarily dismissed"). Recently, however, our supreme court amended Rule 28 of the
Rules of the Supreme Court related to the granting of a delayed appeal:

        [I]n cases in which the trial court or the Court of Criminal Appeals determines that
        the petitioner was deprived of the right to an appeal pursuant to Rule 3, Tennessee
        Rules of Appellate Procedure, the trial court or the Court of Criminal Appeals shall
        stay the post-conviction proceedings pending the final disposition of the delayed
        appeal.

Tenn. Sup. Ct. Order amending Sup. Ct. R. 28 § 9(d), Oct. 22, 2002 (emphasis added).

        In this case, the trial court did not expressly stay the post-conviction proceedings. It did not,
however, address the constitutional claims included in the post-conviction petition in its order
granting the delayed appeal. Because the trial court made no findings of fact with regard to the
defendant's claims that his pleas were not voluntary and that he did not receive the effective
assistance of counsel, appellate review of those claims is premature. In consequence, the appropriate
action is to stay the post-conviction proceedings as they relate to the petitioner's claims that his
counsel was ineffective and that his pleas were not voluntarily entered.

                                                    II
        Next, the defendant argues that the trial court erred by modifying his original sentence, which
involved a term of imprisonment followed by probation, to a fully incarcerative sentence. He also
claims that he merited a lenient sentence, as indicated by the trial court's initial sentence of ten years,
with all suspended except for one year in jail.

         Tennessee Code Annotated section 40-35-112(a)(2) establishes that a Range I sentence for
a Class B felony must be between eight and twelve years. Tennessee Code Annotated section 40-35-
303(a) provides that a defendant sentenced to more than eight years is not eligible for any form of
probation. In addition, a defendant convicted of aggravated robbery under Tennessee Code
Annotated § 39-13-402 is not eligible for probation at all. See Tenn. Code Ann. § 40-35-303(a).
Moreover, a defendant convicted of aggravated robbery is not eligible for a community corrections
sentence. See Tenn. Code Ann. § 40-36-106(a)(2). In this case, the sentence imposed for the
defendant's conviction for aggravated robbery provided for a term of imprisonment followed by
probation, in direct contravention of the sentencing act. It is well-settled that "'a judgment imposed
by a trial court in direct contravention of express statutory provisions regarding sentencing is illegal
and is subject to being set aside at any time, even if it has become final.'" McConnell v. State, 12
S.W.3d 795, 798 (Tenn. 2000) (quoting State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn. 1987)).
The trial court, therefore, had no choice but to correct the illegal sentence.

       After being advised of the alternatives at the hearing on the motion to correct the illegal
sentence, the defendant elected not to withdraw his guilty pleas even when the trial court offered to


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let him do so. The trial court then ordered that the original ten-year sentence be served in the
Department of Correction. When imposing the corrected sentence, the trial court reiterated that the
following statutory enhancement factors were applicable:

        (1) The defendant has a previous history of criminal convictions or criminal behavior
        in addition to those necessary to establish the appropriate range;
        (5) the defendant treated or allowed the victim to be treated with exceptional cruelty
        during the commission of the offense;
        (8) the defendant has a previous history of unwillingness to comply with the
        conditions of a sentence involving release in the community;
        (10) the defendant had no hesitation about committing the crime when the risk to
        human life was high;
        (16) the crime was committed under circumstances under which the potential for
        bodily injury to a victim was great; and
        (20) the defendant was adjudicated to have committed a delinquent act or acts as a
        juvenile that would constitute a felony if committed as an adult.

See Tenn. Code Ann. § 40-35-114(1), (5), (8), (10), (16), and (20). The trial court determined that
two mitigating factors, the defendant's young age (19) and his sincere apology to the victim, see
Tenn. Code Ann. § 40-35-113(6) and (13), were applicable but concluded that they would be given
very little weight.

         When there is a challenge to the length, range, or manner of service 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 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); see State v.
Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics 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. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

       The defendant alleges that the trial court erred by the application of factors (5), (10), and (16).
The state concedes that the trial court erred by applying factors (10) and (16), see State v.
Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994) (holding that factors (10) and (16) are


                                                   -4-
not applicable to an aggravated robbery conviction because the crime necessarily involves risk to
human life and potential for bodily harm), but asserts that enhancement factor (5), that the defendant
treated or allowed the victim to be treated with exceptional cruelty, was appropriate.

        Before enhancement factor (5) may be applied, the facts must demonstrate a culpability
distinct from and greater than that incident to the crime. State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997). The trial court is required to place on the record the actions of the defendant which qualified
as exceptionally cruel. State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995). Initially,
while the trial court referred to testimony of both the victim and the defendant, there is no transcript
of the testimony. It is the responsibility of the appellant to prepare an adequate record for appeal.
See Groseclose v. State, 615 S.W.2d 142 (Tenn. 1983). When critical portions of the record are
omitted, this court must presume that the decision was correct. State v. Keen, 996 S.W.2d 842
(Tenn. Crim. App. 1999); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Here, the
evidence presented at the sentencing hearing apparently established that the defendant entered the
store with the co-defendant and that the victim was manhandled, choked, and stabbed. The trial
court also noted that the victim begged for mercy, informing the perpetrators that she was the mother
of two young children. Further, the defendant threatened the victim that she would be killed if she
made any attempt to contact authorities. In our view, the trial court properly applied enhancement
factor (5).

       In conclusion, because there were four applicable enhancement factors, to which great weight
was given, and only two applicable mitigating factors, a ten-year sentence is appropriate.

       Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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