            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                November 10, 2015 at Greeneville

       STATE OF TENNESSEE v. WILLIAM FRANKLIN ROBINETTE

                     Appeal from the Criminal Court for Greene County
                        No. 10CR211 John F. Dugger, Jr., Judge


                  No. E2015-00154-CCA-R3-CD – Filed January 12, 2016


The defendant, William Franklin Robinette, appeals from his Greene County Criminal
Court jury convictions of solicitation to commit first degree murder, claiming that the
sentence imposed by the trial court was excessive. Discerning no error, we affirm the
judgments of the trial court.

             Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, William Franklin
Robinette.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; C. Berkeley Bell, District Attorney General; and Lesley Tiller,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                OPINION

              A Greene County Criminal Court jury convicted the defendant of two
counts of the solicitation of first degree premeditated murder. The defendant appealed,
and this court affirmed the convictions but remanded the case to the trial court for
resentencing because no presentence report had been prepared prior to the original
sentencing hearing as mandated by Tennessee Code Annotated section 40–35–205(a).1
See State v. William Franklin Robinette, No. E2012-00640-CCA-R3-CD, slip op. at 1
        1
          Code section 40-35-205(a) provides that, “[u]pon acceptance of a guilty plea or upon a verdict
or finding of guilty, the court shall, in the case of a felony, . . . direct the presentence service officer to
make a presentence investigation and report, except as provided in § 40-35-203 and subsection (b).”
T.C.A. § 40-35-205(a).
(Tenn. Crim. App., Knoxville, Sept. 30, 2013), perm. app. denied (Tenn. Feb. 12, 2014).

              The facts, as summarized by this court on direct appeal, established that the
defendant solicited “Allen Correll and Amanda Turner to kill Rick Bowser, the
[defendant‟s] co-defendant in another case, and Bowser‟s girlfriend, Ina Roberts.” Id.,
slip op. at 2. Mr. Correll said that in May 2010, while he stood outside the Greene
County Courthouse smoking a cigarette, the defendant “approached [Mr. Correll] about
„making [his] charge partner disappear‟” and told Mr. Correll that “„if he didn‟t find
somebody to do it that he was going to do [it] himself.‟” Id., slip op. at 5. Mr. Correll
and Ms. Turner, who had overheard part of the conversation, reported the matter to the
police.

              The police arranged for Mr. Correll to participate in a controlled telephone
call with the defendant. During the call, Mr. Correll arranged to meet the defendant at a
Wendy‟s restaurant. Prior to his meeting with the defendant, Mr. Correll was outfitted
with audio recording equipment. During the conversation, which was monitored but not
audio recorded due to an equipment malfunction, the defendant “asked Correll „about
blowing up a trailer. In order to do that he needed propane tanks and water hose.‟” Id.,
slip op. at 2. When Mr. Correll “asked why he could not shoot the victims,” the
defendant told him “that the victims had dogs and that after the first victim was shot, the
other victim would call the police” and “insisted that [Mr.] Correll use propane tanks to
blow up the house.” Id. At the end of the conversation, the men made plans to meet at
the defendant‟s residence on the following day.

              Before the next day‟s meeting, the police provided Mr. Correll with an air
compressor and propane tanks to take to the meeting and again outfitted Mr. Correll with
audio recording equipment. See id. The police also placed a camera inside Ms. Turner‟s
purse. During that day‟s monitored and recorded conversation, the defendant said “that
he wanted [Mr.] Correll and [Ms.] Turner to blow up the mobile home of [Ms.] Roberts
and [Mr.] Bowser, who was the [defendant‟s] co-defendant on a theft charge.” Id., slip
op. at 3. The defendant told the pair to

             “put those propane tanks under the house trailer and turn
             them on ever so slightly you would have to run hose from
             where the propane tanks were, . . . about two hundred feet,
             away from the house. Then you would use another propane
             tank to charge that water hose line, and then once that line
             was charged it would act as a fuse. It would light one end of
             the hose that you were actively safe and the propane would
             burn up the hose and eventually reach to where the propane
             tanks were.”
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Id., slip op. at 3. The defendant agreed to furnish the propane tanks. The defendant also
told Mr. Correll and Ms. Turner to feed the victims‟ dogs “to keep them quiet while
positioning the propane tanks.” Id. He suggested that they “steal the water hose so that it
could not be traced to them” and “gave them $20 cash.” Id.

             The jury convicted the defendant as charged of soliciting the first degree
premeditated murder of Mr. Bowser and Ms. Roberts, and the trial court imposed
consecutive sentences of 20 years‟ incarceration. As indicated, this court affirmed the
convictions but remanded for a new sentencing hearing.

             The trial court conducted a sentencing hearing on January 9, 2015. The
State entered into evidence the defendant‟s presentence report, which listed six prior
felony convictions and 3 prior misdemeanor convictions spanning nearly 30 years.

               In determining the defendant‟s sentence, the trial court found the defendant
to be a Range II offender and found that three enhancement factors were applicable: the
defendant had a previous history of criminal convictions; the risk to human life was high;
and the defendant was on probation at the time of the commission of the crimes. See
T.C.A. § 40-35-114(1), (10), (13). The trial court found no mitigating factors to be
applicable. With respect to the manner of service, the trial court found that confinement
was necessary to avoid depreciating the seriousness of the offense and to protect society
from a defendant with a lengthy criminal history, in addition to the defendant‟s lack of
potential for rehabilitation. See T.C.A. § 40-35-103(1), (5). With respect to consecutive
sentencing, the court found the defendant to be a professional criminal who knowingly
devoted his life to crime; that the defendant had an extensive criminal record; and that the
defendant was a dangerous offender whose behavior indicated little or no regard for
human life and who had no hesitation to commit the crimes when the risk to human life
was high. See T.C.A. § 40-35-115(b)(1), (2), (4). The trial court sentenced the defendant
to 20 years‟ incarceration for both counts of solicitation to commit first degree
premeditated murder and ordered the sentences to be served consecutively to one another
and to the defendant‟s prior 6-year sentence for theft of property valued at $10,000 or
more but less than $60,000, for a total effective sentence of 46 years.

             On appeal, the defendant contends only that the trial court erred in its
application of one enhancement factor and thus abused its discretion in imposing an
excessive sentence. The State argues that the record fully supports the trial court‟s
sentencing decision in this case.

             Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
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sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (stating that “although
the statutory language continues to describe appellate review as de novo with a
presumption of correctness,” the 2005 revisions to the Sentencing Act “effectively
abrogated the de novo standard of appellate review”). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the
sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). The
supreme court cautioned that, despite the wide discretion afforded the trial court under
the revised Sentencing Act, trial courts are “still required under the 2005 amendments to
„place on the record, either orally or in writing, 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.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 40-35-210(e)).
Under the holding in Bise, “[a] sentence should be upheld 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.

                In the instant case, the defendant concedes that the trial court properly
applied the enhancement factors of a previous history of criminal convictions and his
commission of the crimes while on probation, and the defendant does not contend that the
trial court erred in its application of consecutive sentencing. The defendant only argues
that the trial court erred in its application of the enhancement factor of the commission of
the crimes when the risk to human life was high. We need not tarry long over the
defendant‟s claim because, even assuming that the trial court misapplied this
enhancement factor, “a trial court‟s misapplication of an enhancement or mitigating
factor does not invalidate the sentence imposed unless the trial court wholly departed
from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. Nothing in the
record suggests that the trial court in this case “wholly departed from” the Sentencing
Act. To the contrary, the record reflects that the trial court carefully considered all the
relevant principles associated with sentencing, including the enhancement factors and the
factors related to consecutive sentencing, when imposing the sentence in this case. Thus,
we conclude that the record fully supports the length of sentence imposed in this case.

              Accordingly, we affirm the judgments of the trial court.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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