        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                       AUGUST SESSION, 1998                  FILED
                                                      October 26, 1998
STATE OF TENNESSEE,        )   C.C.A. NO. 02C01-9710-CC-00419
                           )                          Cecil Crowson, Jr.
      Appellee,            )                                 Appellate C ourt Clerk
                           )
                           )   HARDEMAN COUNTY
VS.                        )
                           )   HON. JON KERRY BLACKWOOD
BRENT BROWN,               )   JUDGE
                           )
      Appe llant.          )   (Direct Appeal - Sentencing)




FOR THE APPELLANT:             FOR THE APPELLEE:

DAVID CRICHTON                 JOHN KNOX WALKUP
111 W. Market Street           Attorney General and Reporter
P. O. Box 651
Bolivar, TN 38008              GEORGIA BLYTHE FELNER
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               ELIZABETH RICE
                               District Attorney General

                               JERRY NORWOOD
                               Assistant District Attorney
                               302 Market Street
                               Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       On May 5, 1997, Appellant Brent Brown was indicted by the Hardeman

County Grand Jury on one count of aggravated robbery and two counts of

aggravated assault. On September 9, 1997, Appellant pleaded guilty to the

offenses as charg ed. A sentencing hearing was also held on September 9, 1997,

after which the trial court sentenced Appellant to nine years for the aggravated

robbery conviction and three years for each aggravated assault conviction.

Appellant challenges only his sentence fo r the aggravated robbery conviction,

raising the followin g issue: whether the trial co urt pro perly co nside red A ppella nt’s

juvenile record as a basis for enhancing his sentence for the aggravate d robbery

conviction.



       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                         FACTS




       On December 6, 1996, Appellant and another armed man entered and

robbed a convenience store in Hardeman County.                      After entering the

convenience store, Appellant and the other man both pointed guns at the three

individuals in the store and forced one of them to open the cash register.

Appellant and the other man to ok app roximate ly $300 fro m the re gister and left

the store .



       At the sente ncing he aring, the State’s evidence consisted of the

presentence report and one witness. The presentence report indicated that


                                            -2-
Appellant had a juvenile record which consisted of eight delinquent acts: three for

disord erly conduct, one for a traffic offense, one for shoplifting, one for an act that

was not defined, and two for theft of property worth more than $500. Counsel for

Appellant cross-examined the State’s witness, but otherwise presented no

evidenc e.



       After hearing the testimony, the arguments of counsel, and reviewing the

presentence report, the trial court ruled:



       The Cour t finds th at you h ave a p rior history of criminal convictions or
       criminal behavior, in addition to those necessary to establish the
       approp riate range, and that enhancement factor outweighs the fact that
       you have admitted your guilt, as a m itigating factor; and the C ourt
       sentences you to nine (9) years in the first count of the indictment; and
       three (3) years in the second and third counts of the indictment, as a
       Standard Offender, to serve thirty (30) percent before you’re eligible for
       release classification. These se ntences will run co ncurrently, and you’ll be
       given credit for 249 days.




                 USE OF APPELLANT’S JUVENILE RECORD




       Appellant conte nds th at the tria l court im prope rly cons idered his juve nile

record when it enhanced his sentence for aggravated robbery from eight years

to nine years. Spe cifically, Appellant contends that juvenile records cannot be

used under Tennessee Code Annotated § 40-35-114(1), which allows for

enhancement if “[t]he defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the app ropriate

range.” T enn. C ode An n. § 40-3 5-114(1 ) (1997).


                                          -3-
      Under Tennessee law, “[w]hen reviewing sentencing issues . . . including

the granting or denial of probation and the length of sentence, the appellate cou rt

shall condu ct a de no vo review o n the rec ord of su ch issue s. Such review shall

be conducted with a presumption that the determinations made by the court from

which the appeal is taken are correct.” Tenn. Code Ann. § 40-3 5-401(d) (199 7).

“Howeve r, the pre sum ption o f correc tness which acco mpa nies th e trial co urt’s

action is conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circums tances .”

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991). “The defendant has the

burden of de monstrating that the sentenc e is imprope r.” Id.



      A portion of the Sentencing Reform Act of 1989, codified at Tennessee

Code Annotated § 40-35-210, established a number of specific procedures to be

followed in sentencing. This section mandates the court's consideration of the

following:



      (1) The evidence, if any, received at the trial and the sentencing hearing;
      (2) [t]he prese ntence report; (3) [t]he principles of sentencing and
      argum ents as to sen tencing alternatives;           (4) [t]he nature and
      characteristics of the criminal conduct involved; (5) [e]vidence and
      information offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the
      defend ant wishe s to ma ke in his ow n beha lf about se ntencing .


Tenn. Code Ann. § 40-35-21 0 (1997). In addition, this section provides that the

minimum sentence within the range is the presump tive sentence. If there are

enhancing and mitigating factors, the court must start at the minimum sentence

in the range and enhance the sentence as appropriate for the enhancement

factors and then reduce the sentence within the range as appropriate for the



                                         -4-
mitigating factors.   If there are no mitigating factors, the court may set the

sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge. State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Act further provides that

“[w]henever the court imposes a sentence , it shall place on the record either

orally or in writing, what enhancement or mitiga ting fac tors it fou nd, if any, as well

as findings of fact as requ ired by § 40-35-209 .” Tenn . Code Ann. § 4 0-35-21 0(f)

(1997). Because of the importance of enhancing and mitigating factors under the

sentencing guide lines, e ven the abse nce o f these factors mus t be rec orded if

none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. Because the

trial court failed to make any findings of fact, our rev iew is de n ovo witho ut a

presumption of correctness.



       In 1995, the Legislature amended Tennessee Code Annotated § 40-35-114

by adding enhancement factor (20), which allows for enhancement of a sentence

if “[t]he defendan t was adjudica ted to have committed a delinquent act or acts as

a juvenile that would constitute a felony if committed by an adult.” Tenn. Code

Ann. § 40-35-114(20) (1997).            Appellant contends that after this 1995

amen dmen t, factor (20) became the exclusive factor for enhancing a sentence

based on a d efend ant’s ju venile record. We agree. Indeed, this Court has

previously stated:



       A recent amendment to Tenn. Code. Ann. § 40-35-114 require s that o nly
       those delinque nt acts by a juve nile tha t would cons titute a fe lony if
       committed by an adult be considered to enhance a sentence. That
       provision of the act took effect on July 1, 1995, and applies to sentencing
       of any defendant committing an offense on or after that date.




                                           -5-
State v. Shipley, No. 02C01-9601 -CR-00031, 199 7 WL 21190, at *7 n.1 (Tenn.

Crim. App., Ja ckson, J an. 22, 19 97); State v. Timothy Adams, No. 02C01-9512-

CC-00376, 1997 W L 1821, at *4 n.4 (Tenn. Crim . App., Jackso n, Jan. 3, 1997 ).1

Thus, Appellant is correct that for offenses comm itted on or a fter July 1, 19 95, a

court may only consider juvenile offenses under factor (20) and fu rther, m ay only

consider offenses that would have been felonies if com mitted by an adu lt.2

Howeve r, the fact that we agree with Appellant that the tria l court e rred in

considering his juvenile record under factor (1) does not mean that he is entitled

to a reduction in his sentence. Indeed, the presentence report indicates that

Appellant was twice adju dicated delinqu ent for acts, (theft of prope rty worth more

than $500,) that would have been Class E felonies if committed by an adu lt. See

Tenn. Code Ann. § 39-14-105 (1997). Thus, although the trial court erred in

considering the oth er delin quen t acts th at wou ld not h ave be en felo nies if

committed by an adult, it correctly considered these two delinquent acts under

factor (20). W e agree that this en hance ment fa ctor outw eighs the fact that

Appellant admitted his gu ilt. Ther efore, w e find th e trial co urt's determination of

the length of sentence to be appropriate.



        Accordingly, the judgment of the trial court is AFFIRMED.



                                            ____________________________________
                                            JERRY L. SMITH, JUDGE


        1
          It is true that the Tennessee Supreme Court has stated that a court may properly consider
juvenile co nvictions u nder fac tor (1). State v. Adams , 864 S.W .2d 3 1, 34 (Te nn. 1 993 ). Ho weve r, this
case was decided before the Legislature amended the statute.

        2
          Appellee’s Brief contains a lengthy footnote which cites numerous cases in an attempt to show
that this Court has allowed consideration of any juvenile offense under factor (1), even after the 1995
amendment. However, an examination of these decisions indicates that in every one of them, the
offenses involved were committed before July 1, 1995 (with the exception of one decision that does not
indicate when the offense was c omm itted).

                                                      -6-
CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




                              -7-
