      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                       JULY 1998 SESSION
                                                        August 20, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 01C01-9710-CR-00449
      Appellee,                  )
                                 ) Wilson County
V.                               )
                                 ) Honorable J. O. Bond, Judge
LARRY WATKINS,                   )
                                 ) (Sentencing)
      Appellant.                 )
                                 )




FOR THE APPELLANT:                 FOR THE APPELLEE:

G. Wayne Davis                     John Knox Walkup
Attorney at Law                    Attorney General & Reporter
Suite 2121, Parkway Towers
Nashville, TN 37219                Georgia Blythe Felner
                                   Counsel for the State
                                   Cordell Hull Building, Second Floor
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Tom P. Thompson, Jr.
                                   District Attorney General

                                   David Earl Durham
                                   Assistant District Attorney General
                                   111 Cherry Street
                                   Lebanon, TN 37087




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       On February 13, 1996, the appellant, Larry Watkins, was indicted for

second degree murder and conspiracy to commit second degree murder. On

April 4, 1997, he entered a best interest plea to criminal responsibility for

facilitation of second degree murder, which is a Class B felony. Following a

sentencing hearing on May 22, 1997, the trial court sentenced the appellant to

twelve years in the Tennessee Department of Correction as a Range I, standard

offender, although the appellant qualified for sentencing as a Range II, multiple

offender.



       The appellant’s sole issue for our review is whether the trial court erred by

ordering him to serve an excessive sentence. We affirm.



       The appellant argues that the trial court erred by imposing an excessive

sentence. He contends that the court erred in its characterization of his

behavior and that the court should have applied certain mitigating factors. First,

the appellant asserts that the following statement by the trial court was improper:

“People have a right to live free of violence. People have this right to know a

person should not be able to terrorize people, hurt people and get away with it.”

The appellant contends that there was no proof that he had terrorized anyone

and that the court erred by relying on this characterization because it is not one

of the statutory enhancement factors provided for in Tennessee Code Annotated

§ 40-35-114 (1997).



       Second, the appellant argues that several mitigating factors, specifically 4,

6, 11, and 13, under Tennessee Code Annotated § 40-35-113 (1997) were

applicable: (4) the appellant played a minor role in the commission of the

offense; (6) the appellant, because of his age, lacked substantial judgment in

committing the offense; (11) the appellant committed the offense under unusual



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circumstances that it is unlikely that a sustained intent to violate the law

motivated the appellant’s conduct; and (13) the “catchall” provision which

provides for any factor consistent with the purposes of this chapter. Therefore,

based on these mitigating factors, the appellant argues that he should have

received a sentence of eight years, not twelve.



       The state contends that the trial court properly sentenced the appellant. It

argues that the trial court determined that there were no mitigating factors and at

least five enhancement factors. Regarding the trial court’s statement about the

appellant “terrorizing” people, the state maintains that the court was referring to

probation, not enhancement factors, when it made the statement. Furthermore,

the state submits that the appellant fails to cite any legal authority for his position

on the mitigating factors, and therefore, this Court should consider the issue

waived. The state also notes that the record reveals that none of the mitigating

factors cited by the appellant would be applicable.



       When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1997). However, this presumption is conditioned on an affirmative

indication 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).



       The appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and (f)




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the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35-103(5), -210(b) (1997).



       The presentence report reveals that the appellant has a lengthy criminal

record. We also note that the appellant could have been sentenced as a

multiple offender, but based upon an agreement with the state, he was

sentenced as a standard offender. With regard to the trial court’s

characterization of the appellant’s behavior, we agree with the state that the trial

court was referring to probation and not to any enhancement of the appellant’s

sentence when it made the statement. The trial court provided not only oral

findings at the sentencing hearing, but also completed a sentencing form that

indicates the court’s findings. From our review of the record, we conclude that

the trial court followed the principles of sentencing in finding that at least five

enhancement factors and no mitigating factors were applicable.



        Therefore, finding no error mandating reversal, we affirm the judgment of

the trial court.




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                                      __________________________
                                      PAUL G. SUMMERS, Judge



CONCUR:




_____________________________
DAVID G. HAYES, Judge




_____________________________
JERRY L. SMITH, Judge




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