            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                           DECEMBER 1998 SESSION                 FILED
STATE OF TENNESSEE,                *      C.C.A. # 02C01-9703-CR-00109

             Appellee,             *      SHELBY COUNTY
                                                                   March 09, 1999
VS.                                *      Hon. James C. Beasley, Sr., Judge
                                          (by designation)
TYRONE CHALMERS,                   *
                                                                Cecil Crowson, Jr.
                                          (Attempted Especially Aggravated Robbery
             Appellant.            *      and Attempted First Degree Murder)
                                                                 Appellate C ourt Clerk

                                   *


For Appellant:                            For Appellee:

Linda Kendall Garner                      John Knox Walkup
Attorney                                  Attorney General and Reporter
50 North Front Street, Suite 780
Memphis, TN 38103                         Georgia Blythe Felner
                                          Counsel for the State
                                          Criminal Justice Division
                                          Cordell Hull Building, Second Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          James Challen
                                          Assistant District Attorney General
                                          201 Poplar Avenue, Third Floor
                                          Memphis, TN 38103




OPINION FILED:__________________________



JUDGMENT AFFIRMED; SENTENCES MODIFIED



GARY R. WADE, PRESIDING JUDGE
                                             OPINION

                The defendant, Tyrone Chalmers, entered guilty pleas of attempted

especially aggravated robbery and attempted first degree murder. The trial court

imposed Range I concurrent sentences of nine and twenty-five years, respectively.

In this appeal of right, the defendant claims that the sentence is excessive because

of the misapplication of an enhancement factor and the failure of the trial judge to

adhere to the principles of sentencing. Due to the misapplication of an

enhancement factor on each sentence, the judgment of the trial court is modified to

provide for concurrent eight and twenty-four year sentences.



                On August 20, 1994, at approximately 3:00 A.M., the victim, Joseph

Hunter, was shot several times by the defendant. According to the presentence

report, the victim was returning to his residence in his vehicle when the defendant

yelled, "Give it up, give it up." The defendant then fired at least fourteen rounds

from an automatic weapon. The victim was struck by three of the gunshots and was

transported to the hospital in critical condition. The defendant claimed that if the

victim had stopped and given him his money, he would not have fired the shots.

After wounding the victim, the defendant ran. After the shooting, the defendant sold

the weapon to buy cocaine. Losses suffered by the victim due to his medical care

and the damage to his vehicle approximated $17,000.00.



                At the sentencing hearing, 1 the defendant claimed to have found the

weapon, possibly an AK-47, in an alley near the crime scene. He testified that when

he saw the victim, he decided to commit a robbery so as to be able to buy illegal

drugs. The defendant, who claimed that he did not know how to operate the



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         At the time of this sentencing hearing, a first degree murder charge was pending against the
defend ant for an offens e com mitted o n the sam e date.

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weapon and did not attempt to kill the victim, blamed his actions on being "under the

influence of drugs." At the sentencing hearing, he asserted that he had resolved his

drug problem during his time in jail prior to his guilty pleas.



              The defendant, who was twenty-three years old at the time the

sentence was imposed, was not married and had a four-year-old son. He had been

employed as a welder for seven years at Zip Products, making $7.75 per hour, and

had paid child support in the sum of $210.00 per month. He had a cocaine

dependency throughout his years of employment.



              Especially aggravated robbery is a Class A felony. Tenn. Code Ann.

§ 39-13-403. Because the defendant was charged and convicted of an attempt, this

offense qualifies as a Class B felony with a range of eight to twelve years. Tenn.

Code Ann. § 39-12-107. Attempt to commit first degree murder is a Class A felony

having a range of fifteen to twenty-five years. Tenn. Code Ann. §§ 39-11-117(a)(2),

40-35-110, -112.



              As to the attempt to commit especially aggravated robbery, the trial

court found that there were no mitigating factors and concluded that a single

enhancement applied: "The defendant had no hesitation about committing a crime

when the risk to human life was high." Tenn. Code Ann. § 40-35-114(10). W hile

the trial court determined that the defendant had some remorse for which he

credited "slight" consideration, there were otherwise no mitigating factors. See

Tenn. Code Ann. § 40-35-113.



              As to the attempted first degree murder, the trial court determined that

three enhancement factors were applicable:


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              (6) The personal injuries inflicted upon or the amount of
              damage to property sustained by or taken from the victim
              was particularly great;

              (9) The defendant possessed or employed a firearm,
              explosive device or other deadly weapon during the
              commission of the offense; and

              (10) The defendant had no hesitation about committing
              a crime when the risk to human life was high.

Tenn. Code Ann. § 40-35-114.



              The trial court gave particularly great weight to enhancement factor (6)

due to the extent of the injuries to the victim and the amount of damage he suffered.

Again, the trial court determined that the defendant had expressed some remorse

and also pointed out that the defendant had completed high school and had been

gainfully employed at the same location over an extended period. The sentence of

twenty-five years was imposed "to avoid depreciating the seriousness of the offense

and to properly punish the defendant and protect the public...."



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

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

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

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nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for felonies committed before July 1, 1995,

the presumptive sentence is the minimum within the range if there are no

enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c) (1990)

(amended July 1, 1995 to provide that the presumptive sentence for a Class A

felony as the midpoint in the range). If there are enhancement factors but no

mitigating factors, the trial court may set the sentence above the minimum. Tenn.

Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating

factors requires an assignment of relative weight for the enhancement factors as a

means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence

may then be reduced within the range by any weight assigned to the mitigating

factors present. Id.



              The defendant argues that enhancement factor (10) should not have

been utilized because it was an essential element to the offense of aggravated

robbery. Because there was no proof establishing risk to life other than that of the

victim, the risk involved here was an essential element of the offense. Thus,

enhancement factor (10) was inappropriately applied to the conviction for attempted

especially aggravated robbery. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.

1995). The state concedes that the trial court so erred. See State v. Nix, 922

S.W.2d 894, 903 (Tenn. Crim. App. 1996). Because there were no other

enhancement factors, the sentence must be modified to eight years. See Tenn.

Code Ann. § 40-35-210(c).


                                           5
             Similarly, the state concedes that the application of enhancement

factor (10) was inappropriately applied to the sentence for attempted first degree

murder. The defendant does not contest the application of enhancement factor (6)

or (9). Clearly, the trial court gave some weight to enhancement factor (10) but

determined that the defendant still qualified for the maximum twenty-five year

sentence despite the presence of mitigating factors:

             I do find that the defendant has expressed remorse, and
             I believe he's sincere in that, and regrets that it
             happened. He is unusual in that ... he did complete high
             school and was gainfully employed before he got in this
             trouble. Under the type of cases that the court is dealing
             with here, though, they are not entitled to very much
             weight; in fact, very little weight when I consider the
             [other] aggravating circumstances.



             Utilizing the same rationale applied in the trial court and omitting the

enhancement factor, this court orders a twenty-four year sentence by beginning at

the minimum in the range, applying two enhancement factors, and providing for

some mitigation due to the circumstances articulated in the trial court.



              Accordingly, the judgment is affirmed except that the sentences shall

be modified to eight years for attempted especially aggravated robbery and twenty-

four years for attempted first degree murder.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:


______________________________
Thomas T. W oodall, Judge


______________________________
John Everett Williams, Judge


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