                                                                                       07/31/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs June 25, 2019

          STATE OF TENNESSEE v. SHALONDA RENEE PETTUS

               Appeal from the Criminal Court for Davidson County
               No. 2017-C-2163 Angelita Blackshear Dalton, Judge
                     ___________________________________

                          No. M2018-01851-CCA-R3-CD
                      ___________________________________


The defendant, Shalonda Renee Pettus, entered an open plea to aggravated child neglect,
and the trial court sentenced her to fifteen years’ incarceration in the Tennessee
Department of Correction. On appeal, the defendant argues the trial court improperly
weighed enhancement factor (1). After reviewing the record and considering the
applicable law, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Jay Umerley, Nashville, Tennessee, for the appellant, Shalonda Renee Pettus.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Glenn Funk, District Attorney General; and Jeffrey A. George,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       The defendant was charged with murder in the perpetration or attempt to
perpetrate aggravated child neglect. She subsequently agreed to plead guilty to
aggravated child neglect. Pursuant to Hicks v. State, the defendant agreed to be
sentenced as a Range II offender with sentencing to be determined by the trial court. 945
S.W.2d 706, 709 (Tenn. 1997). A sentencing hearing was held on April 12, 2018.
       During the sentencing hearing, the State introduced the presentence report as well
as the testimony of Detective Chris Bowden. Detective Bowden with the Metro
Nashville Police Department testified he responded to Metro General Hospital on
October 22, 2016, and encountered the six-month-old victim, who was taken to the
hospital by his mother, the defendant. Although hospital staff attempted to resuscitate the
victim, they were unable to revive him, and death was pronounced shortly after arrival.
The defendant told Detective Bowden that she placed the victim on her bed before falling
asleep on the couch. When she awoke several hours later, the defendant found the victim
unresponsive. She attempted to perform CPR and rushed him to the hospital.

       Detective Bowden then accompanied the defendant to her apartment and reviewed
the scene. The bed where the defendant had placed the victim was a full-sized adult bed,
and had numerous items on it including a pack of cigarettes, a loose cigarette, a package
of condoms, a baby toy, clothing, a bottle, a green plastic bag, a burned spoon, a shoe, a
cleaning bottle, and an ash tray containing cigarettes, a “marijuana blunt,” and an item
“used to smoke crack cocaine.” The plastic bag was “twisted into a narrow cylindrical
shape” that appeared to be the same shape and size as the victim’s throat. Detective
Bowden noticed fluid on the bag and sent it to the crime lab for further analysis. The
DNA recovered from the plastic bag matched a DNA sample from the victim.

      Detective Bowden testified the Department of Children’s Services (“DCS”) also
conducted an investigation in this case. A DCS case worker asked the defendant to
submit to a drug test the same day the victim was taken to the hospital. The results of the
drug test revealed the defendant tested positive for benzodiazepines, cocaine,
methamphetamine, and cannabinoids.

       On cross-examination, Detective Bowden acknowledged the victim did not have
drugs or alcohol in his system at the time of his death, and the autopsy report indicated
there were no signs of abuse or trauma. Following Detective Bowden’s testimony, the
State concluded its proof. The defendant called Ruthie Pettus, Chantele Toran, Fannie
Mae Jones, Toya Nettles Pettus, Nakia Nicole Caffee, and Jameyia Pettus as witnesses.

      Ruthie Pettus1, the defendant’s mother, testified the defendant was a “loveable”
person and “loves her kids.” When the defendant began dating the victim’s father, Ruthie
was worried for her daughter because the victim’s father was “hostile” and “controlling”
toward the defendant. She hoped the defendant received the minimum sentence and “any
type of treatment” available to her. On cross-examination, Ruthie admitted she was
unaware of the defendant’s drug issues prior to the victim’s death.

       1
       Because several witnesses have the same last name, Pettus, we will refer to them by their first
name. We intend no disrespect.
                                                -2-
       Chantele Toran testified she owned the day care center the defendant’s children
attended. Ms. Toran read a letter she wrote to the trial court regarding the defendant.
She described the defendant as a “kind loving mother” and stated the defendant would
“drop[] everything to make sure that her kids are okay.”

        Fannie Mae Jones, the defendant’s grandmother, testified the defendant was “a
good person.” However, when the defendant was dating the victim’s father, “they [were]
always having disagreements.” Ms. Jones did not believe the defendant should be in jail
for a long period of time because she needed help for her “drug problem.”

       Toya Nettles Pettus, the defendant’s aunt, testified the defendant was “sweet” and
“caring” as a child. Toya stated the defendant was “not a murderer” and should be
rehabilitated instead of going to jail.

       Nakia Nicole Caffee, the defendant’s aunt, testified her son and the defendant
grew up together, and the defendant “was always very loving.” She did not think the
defendant deserved to be “thrown in a cage with . . . murderers and pedophiles” because
losing her son is punishment enough.

        Jameyia Pettus, the defendant’s sister, testified she was raising the defendant’s
four-year-old daughter while the defendant is incarcerated. Although she knew the
defendant smoked marijuana, Jameyia did not think it prohibited the defendant from
being a good mother. When she learned of the victim’s death, Jameyia met the defendant
at the hospital and stayed with her while she was interviewed by Detective Bowden. She
hoped the defendant would get the minimum sentence because she didn’t “mean[] to do
anything.”

        The defendant testified on her own behalf, stating the victim was a “happy” baby.
On the morning of his death, the defendant placed the victim on her bed, and, when she
checked on him a few hours later, “he looked unconscious.” After performing CPR, she
drove him to the hospital. Although she acknowledged being negligent in placing the
victim on the bed, when asked about Detective Bowden’s work, the defendant stated she
felt the pictures of her bed did not depict “the way it was.” She also denied using several
of the drugs that showed up in her drug screen and stated the crack pipe was from a
houseguest. However, she did admit to using cocaine and marijuana occasionally.

       On cross-examination, the defendant reiterated her   claim that the pictures of the
bed did not accurately reflect its appearance that night.   Specifically, she testified the
chemical bottle, shoe, ashtray, and spoon were not on the   bed that night. Although she
did not believe Detective Bowden put those items on the     bed, the defendant stated “he
                                           -3-
scattered it around” to make it appear as if “everything was just laying there around my
baby.”

       Following the defendant’s testimony, the court suspended the hearing to allow the
State to subpoena Detective Bowden as a rebuttal witness. Prior to the second sentencing
hearing, the defendant filed a motion to withdraw her guilty plea, and her attorney filed a
motion to withdraw as counsel. The trial court granted trial counsel’s motion to
withdraw and appointed the defendant new counsel. The defendant subsequently
“struck” the motion to withdraw her guilty plea.

       At the second sentencing hearing, the defendant called Dawn Harrington and
Ruthie Pettus as witnesses. Ms. Harrington testified the defendant completed two
parenting programs while incarcerated and was a “standout in the class.” Ruthie testified
the defendant, if not incarcerated, would live in her home.

        The defendant then made a statement on her own behalf. During her allocution,
the defendant stated she did not “intentionally put [the victim] in harm’s way.” She also
apologized for not “being completely honest” at the first sentencing hearing but stated
she is ready to “move on and recover from that day.”

       In sentencing the defendant, the trial court considered the evidence presented
during the sentencing hearing, including the presentence report, testimony offered, and
the arguments of counsel. In reviewing the applicable enhancement factors, the trial
court found enhancement factors (1), the defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the
appropriate range; (4), a victim of the offense was particularly vulnerable because of age
or physical or mental disability; and (14), the defendant abused a position of public or
private trust, or used a professional license in a manner that significantly facilitated the
commission or fulfillment of the offense. Tenn. Code Ann. § 40-35-114(1), (4), (14).
The trial court found no applicable mitigating factors and sentenced the defendant as a
Range II offender to fifteen years at 85 percent. This timely appeal followed.

                                         Analysis

       On appeal, the defendant argues the trial court erred in improperly weighing
enhancement factor (1). Specifically, the defendant asserts the defendant’s prior
conviction of domestic assault has “no bearing” on an aggravated child neglect sentence,
and the trial court did not properly explain why the prior misdemeanor conviction
enhanced her current sentence. The State contends the trial court properly exercised its
discretion in imposing the defendant’s sentence. We agree with the State.

                                           -4-
       In determining an appropriate sentence, a trial court must consider the following
factors: (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)
evidence and information offered by the parties on mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Id. § 40-35-103(4).

       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See id.
§§ 40-35-114, -210(c). Although the application of the factors is advisory, a court shall
consider “[e]vidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5).
The trial court must also place on the record “what enhancement or mitigating factors
were considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.” Id. § 40-35-210(e).

        When an accused challenges the length and manner of service of a sentence, this
Court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancement or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Id. at 709. This Court will uphold the trial court’s sentencing
decision “so long as it is within the appropriate range and the record demonstrates that
the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Id. at 709-10. Moreover, under such circumstances, appellate courts may not
disturb the sentence even if we had preferred a different result. See State v. Carter, 254
S.W.3d 335, 346 (Tenn. 2008). The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §
40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       Although the defendant contends enhancement factor (1) is inapplicable because
her prior domestic assault conviction has “no bearing” on her current sentence, she has
cited no legal authority to support her claim. Enhancement factor (1) does not require the
prior convictions or criminal behavior to relate to the current sentence. Instead, the prior
convictions or criminal behavior must only be “in addition to those necessary to establish
                                            -5-
the appropriate range.” Tenn. Code Ann. § 40-35-114(1). Additionally, the defendant
argues the trial court failed to explain why the prior conviction enhanced the conviction.
However, in its order, the trial court listed all applicable enhancement factors and
adequate reasoning for each.

      Moreover, the defendant’s sentence is presumed reasonable. The defendant was
convicted of a Class B felony and faced a sentencing range of twelve to twenty years.
Tenn. Code Ann. § 40-35-112(b)(2). The trial court applied enhancement factors (1), (4),
and (14) and found no applicable mitigating factors. The trial court then imposed a
sentence of fifteen years to be served at 85 percent.

       Our review of the record indicates the trial court imposed a within-range sentence
after properly considering the evidence adduced at the sentencing hearing, the
presentence report, the principles of sentencing, the parties’ arguments, the nature and
characteristics of the crime, and evidence of mitigating and enhancement factors. Tenn.
Code Ann. §§ 40-35-103(5), -114, -210(b). Therefore, the trial court did not abuse his
discretion in sentencing the defendant, and the defendant is not entitled to relief.

                                          Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                             ____________________________________
                                            J. ROSS DYER, JUDGE




                                          -6-
