        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 15, 2012 Session

               STATE OF TENNESSEE v. DAVID L. BRUMMITT

             Direct Appeal from the Criminal Court for Sullivan County
                 No. S54,671     Robert H. Montgomery, Jr., Judge


                No. E2011-01002-CCA-R3-CD - Filed October 30, 2012


A Sullivan County Criminal Court Jury convicted the appellant, David L. Brummitt, of
especially aggravated robbery, aggravated burglary, and reckless aggravated assault, and the
trial court sentenced him to twenty-four, six, and four years, respectively. The trial court
ordered that the appellant serve the six- and four-year sentences concurrently on probation
but consecutively to the sentence of twenty-four years in confinement. On direct appeal, this
court modified the appellant’s especially aggravated robbery conviction to aggravated
robbery and remanded the case for sentencing as to that offense. State v. David L. Brummitt,
No. E2009-01358-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 875, at *2 (Knoxville, Oct.
14, 2011), perm. to appeal denied, (Tenn. 2011). On remand, the trial court sentenced the
appellant to twelve years for the aggravated robbery conviction. The trial court also ordered
that the appellant serve the six- and four-year sentences in confinement, consecutively to
each other, and consecutively to the twelve-year sentence. On appeal, the appellant contends
that his twelve-year sentence for the aggravated robbery conviction is excessive and that the
trial court’s resentencing him for the aggravated burglary and reckless aggravated assault
convictions exceeded the scope of this court’s direct appeal opinion. Based upon the oral
arguments, the record, and the parties’ briefs, we conclude that the trial court properly
sentenced the appellant for the aggravated robbery conviction but that the trial court did not
have jurisdiction to resentence the appellant for the remaining convictions. Therefore, the
appellant’s original sentences for aggravated burglary and reckless aggravated assault remain
in effect.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                      Affirmed in Part and Reversed in Part.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON ,
P.J., and T HOMAS T. W OODALL, J., joined.

Gene G. Scott, Jr., Jonesborough, Tennessee, for the appellant, David L. Brummitt.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Barry Staubus, District Attorney General; and Julie R. Canter, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        We glean the following facts from this court’s direct appeal opinion: On the night of
January 1, 2008, the appellant went to the home of Michael May, who knew the appellant
“from [the] neighborhood.” State v. David L. Brummitt, No. E2009-01358-CCA-R3-CD,
2010 Tenn. Crim. App. LEXIS 875, at *3 (Knoxville, Oct. 14, 2011), perm. to appeal denied,
(Tenn. 2011). At some point, the appellant went into the kitchen to talk on his cellular
telephone, and May heard the kitchen door open. Id. Two men, one armed with a knife and
one armed with a baseball bat, entered the home, forced May upstairs, and searched the
upstairs area for money and drugs. Id. at **3-4. After searching the upstairs rooms, the man
with the knife kicked or pushed May down the stairs, and the two armed men searched the
kitchen for money and drugs. Id. at *5. When May’s partner, Gary Adams, arrived and
entered the home, the man with the bat hit Adams on the head, knocking him unconscious.
Id. Both of the assailants fled, taking money and jewelry. Id. at *6. May also discovered
that his Jeep, laptop, and cellular telephone were missing. Id. May was certain that the two
armed assailants did not take those items. Id.

       A Sullivan County Criminal Court Jury convicted the appellant of the especially
aggravated robbery of May, a Class A felony; aggravated burglary, a Class C felony; and the
reckless aggravated assault of Adams, a Class D felony. After a sentencing hearing, the trial
court sentenced the appellant to twenty-four, six, and four years, respectively. The twenty-
four-year sentence was to be served in confinement at one hundred percent. The trial court
ordered that the appellant serve the six- and four-year sentences on probation and
concurrently with each other but consecutively to the twenty-four-year sentence. On direct
appeal, the appellant argued that the evidence was insufficient to support the convictions and
that the trial court erred by ruling the State could impeach him with prior misdemeanor
convictions. Id. at *2. This court concluded that the State failed to prove May suffered
serious bodily injury, an essential element of especially aggravated robbery, and modified the
conviction to aggravated robbery, a Class B felony. This court remanded the case to the trial
court for sentencing as to that offense but affirmed the appellant’s remaining convictions.
Id.

      On remand, the trial court sentenced the appellant to twelve years for the aggravated
robbery conviction. The court also ordered that the appellant serve the six- and four-year

                                             -2-
sentences in confinement, consecutively to each other, and consecutively to the twelve-year
sentence.

                                          I. Analysis

                            A. Sentencing - Aggravated Robbery

       The appellant contends that his twelve-year sentence for aggravated robbery is
excessive. The State argues that the trial court properly sentenced the appellant. We agree
with the State.

        At the appellant’s sentencing hearing for the aggravated robbery conviction, the
parties relied on the evidence presented at the original sentencing hearing. Therefore, a
review of the original sentencing hearing is in order. During the hearing, Michael May
testified that at the time of the offenses, he had just undergone radiation therapy for cancer.
He lost jewelry and items worth $5,000 during the robbery, and his property was never
recovered. He said that after the robbery, he began keeping loaded guns in his home and
became “extra cautious” about going into his house after dark. On cross-examination, May
acknowledged that he claimed in his victim impact statement that his stolen property was
worth $2,500. He said that he thought $2,500 was “a conservative estimate at the time” but
that “I’d stick with [$2,500] since that’s what I put down.” Gary Adams testified that he
would never be the same after being hit with the baseball bat. He said that he still had
numbness on the left side of his face, that he had difficulty sleeping, and that he would
“never trust anyone again.”

       The State introduced the appellant’s presentence report into evidence. In the report,
the then thirty-year-old appellant said he did not graduate from high school but obtained his
GED. According to the report, the appellant described his physical and mental health as
“excellent.” He stated in the report that he began drinking alcohol and experimented with
marijuana when he was thirteen years old and that his use of alcohol caused him to commit
crimes. He also stated in the report that he became addicted to prescription pain medication
when he was about twenty-three years old and that he had worked as a restaurant chef,
construction laborer, and Walmart produce manager. The report shows that the appellant has
numerous prior convictions, including convictions for failure to appear, misdemeanor theft,
possession of burglary tools, criminal trespass, resisting arrest, unlawful possession of drug
paraphernalia, littering, improper use of vehicle registration, leaving the scene of an accident,
public intoxication, attempted burglary, false imprisonment, passing a worthless check,
driving on a revoked license, and underage possession of alcohol. He also has several
convictions for misdemeanor assault and domestic violence. The report shows that the
appellant has violated probation previously.

                                               -3-
        The trial court stated that it had considered the appellant’s presentence report, the
principles of sentencing, the parties’ arguments, the nature and characteristics of the criminal
conduct involved, and the enhancement and mitigating factors. Regarding enhancement
factors, the trial court applied factor (1), that the “defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range”; (2), that the “defendant was a leader in the commission of an offense
involving two (2) or more criminal actors”; (4), that the victim of the offense was particularly
vulnerable, because Michael May was being treated for cancer at the time of the crimes; (5)
that the defendant allowed a victim, May, to be treated with exceptional cruelty during the
commission of the offenses; and (14), that the defendant abused a position of private trust,
because May trusted the appellant and allowed the appellant into his home. Tenn. Code Ann.
§ 40-35-114(1), (2), (4), (5), (14). Although the State had argued that the trial court also
should apply enhancement factor (10), that the defendant had no hesitation about committing
a crime when the risk to human life was high, the trial court refused to apply that factor
because serious bodily injury was an element of especially aggravated robbery and bodily
injury was an element of reckless aggravated assault. See Tenn. Code Ann. § 40-35-114(10).
The court applied no mitigating factors.

        The trial court placed “a great deal of weight” on enhancement factor (1), noting that
the appellant had a lengthy criminal history, that some of his prior crimes were crimes of
violence, and that he had violated probation. The trial court sentenced him as a Range I,
standard offender to twenty-four years for the especially aggravated robbery conviction, a
Class A felony; six years for the aggravated burglary conviction, a Class C felony; and four
years for the reckless aggravated assault conviction, a Class D felony. Each sentence was
the maximum punishment in the range. See Tenn. Code Ann. § 40-35-112(a)(1), (3), (4).
Pursuant to Tennessee Code Annotated § 40-35-501(i)(2)(E), the especially aggravated
robbery conviction was to be served at 100%. The trial court ordered that the appellant serve
the six- and four-year sentences on probation. The court also ordered that the appellant serve
the six- and four-year sentences concurrently but consecutively to the twenty-four-year
sentence.

        On remand for sentencing for the aggravated robbery conviction, the trial court
reapplied enhancement factors (1), (2), (4), (5), and (14). The trial court also applied
enhancement factor (10), because serious bodily injury was no longer an element of the
offense. The trial court again stated that the appellant’s criminal history was significant and
that his prior crimes included crimes of violence. The trial court noted that the appellant
committed the instant crimes while on probation and sentenced him to twelve years for the
aggravated robbery conviction, the maximum punishment in the range for a Class B felony.
See Tenn. Code Ann. § 40-35-112(a)(2).



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       Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Susan Renee Bise, ___ S.W.3d
___, No. E2011-00005-SC-R11-CD, 2012 Tenn. LEXIS 645, at *76 (Knoxville, Sept. 26,
2012). See Tenn. Code Ann. § 40-35-401(d). In conducting its review, this court considers
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 enhancement and mitigating 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 by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-103(5), -210(b); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The
burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.

       The appellant contends that his twelve-year sentence is excessive because his prior
criminal history consisted only of misdemeanors and because his role in the instant crimes
was “limited.” Granted, the appellant’s criminal history does not include any felony
convictions. However, the list of his convictions in the presentence report spans eight pages,
shows that he has been committing crimes since he was eighteen years old, and includes
crimes of violence. The trial court placed significant weight on enhancement factor (1)
regarding the appellant’s prior criminal history and behavior. As to the appellant’s “limited”
role in the offenses, the trial court found him to be a leader in the commission of the
offenses, and the appellant does not challenge the trial court’s application of that factor. We
conclude that the trial court did not abuse its discretion by sentencing the appellant to twelve
years for aggravated robbery.

        B. Resentencing - Aggravated Burglary and Reckless Aggravated Assault

       The appellant also contends that the trial court erred by resentencing him for the
aggravated burglary and reckless aggravated assault convictions because this court remanded
the case only for sentencing on count 1, aggravated robbery. The State contends that the trial
court had the authority to resentence the appellant because this court did not expressly limit
the scope of sentencing on remand. The State also argues that because the issue of
sentencing was not litigated on direct appeal, this court did not affirm the appellant’s
sentences for the aggravated burglary and reckless aggravated assault convictions. We
conclude that the trial court was without jurisdiction to resentence the appellant.

                                              -5-
       In this court’s direct appeal opinion, this court concluded that the State failed to prove
May suffered serious bodily injury during the robbery, modified the appellant’s conviction
from especially aggravated robbery to aggravated robbery, and remanded the case to the trial
court for “entry of judgment and sentencing for the lesser included offense of aggravated
robbery.” Brummitt, No. E2009-01358-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 875,
at *17. At the conclusion of the opinion, this court also stated that

               having . . . concluded that the State failed to present sufficient
               evidence of serious bodily injury to support the defendant’s
               conviction of especially aggravated robbery in count one, the
               judgment of the trial court is reversed and the case is remanded
               for entry of a judgment for aggravated robbery and resentencing
               as to count one.

Id. at *21. This court’s judgment, filed with the opinion, provided that the case was to be
remanded to the trial court for “further proceedings consistent with this court’s opinion.” The
opinion and the judgment specifically affirmed the aggravated burglary and reckless
aggravated assault convictions. See id. The appellant filed an application for permission to
appeal to our supreme court, which that court denied.

        On remand, the appellant argued that the trial court could not resentence him for the
aggravated burglary and reckless aggravated assault convictions because doing so would
exceed the scope of this court’s instructions in the direct appeal opinion. The State
disagreed, arguing that this court’s direct appeal opinion did not specifically prohibit the trial
court from resentencing the appellant. The State also argued that because the case had been
“remanded back down, these judgments are not final.” The trial court concluded that it could
resentence the appellant for the aggravated burglary and reckless aggravated assault
convictions, stating as follows:

                       Anyway, when it was remanded back I – I don’t think
               that the court of criminal appeals was asking me to – to deal
               with that in a vacuum. Because . . . anytime I or anybody as a
               judge makes a sentencing decision, I mean, they’re not making
               it in a vacuum. I think they have to look at all the facts and
               circumstances of the case. All the crimes that were committed.
               What the – what the jury’s verdict was.

                     And so for – for me to look at the – this charge of
               aggravated robbery, and can’t consider anything else, to me
               doesn’t – doesn’t seem to – doesn’t seem to me to make sense.

                                               -6-
       Given the disturbing facts of this case and the drastic reduction in the appellant’s
sentence for aggravated robbery, we can appreciate the trial court’s concern about being
unable to resentence the appellant for the aggravated burglary and reckless aggravated assault
convictions.1 However, this court specifically affirmed those judgments of conviction on
appeal, and the judgments became final when the supreme court denied the appellant’s
application for permission to appeal.             Cf. Roland R. Smith v. State, No.
M2007-01420-CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 850, at *5 (Nashville, Oct. 27,
2008) (stating that “there is no authority for the petitioner’s proposition that the judgments
affirmed by this court on direct appeal would not have been final until the remanded charges
were resolved“). Generally, a trial court has no power to amend its judgment once the
judgment becomes final.” State v. Green, 106 S.W.3d 646, 648-49 (Tenn. 2002). Therefore,
we are constrained to hold that the trial court was without jurisdiction to resentence the
appellant for aggravated burglary and reckless aggravated assault.

                                          III. Conclusion

        Based upon the oral arguments, the record, and the parties’ briefs, we conclude that
the trial court properly sentenced the appellant to twelve years for the aggravated robbery
conviction but that the trial court was without jurisdiction to resentence the appellant for the
aggravated burglary and reckless aggravated assault convictions. Therefore, those original
sentences remain in effect. The appellant is to serve the six- and four-year sentences on
probation, concurrently with each other, but consecutively to the twelve-year sentence.


                                                         _________________________________
                                                         NORMA McGEE OGLE, JUDGE




        1
          As noted by the trial court, this court incorrectly stated in its direct appeal opinion that
the trial court originally ordered that the appellant serve the six- and four-year sentences in
confinement for a total effective sentence of thirty years in confinement. Brummitt, No. E2009-
01358-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 875, at *17. However, the State did not file a
Petition to Rehear.


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