        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 18, 2013

            STATE OF TENNESSEE v. BRIAN PATRICK PIERCE

            Direct Appeal from the Circuit Court for Montgomery County
                      No. 41100847     Michael R. Jones, Judge


              No. M2012-02344-CCA-R3-CD - Filed September 18, 2013


The appellant, Brian Patrick Pierce, pled guilty in the Montgomery County Circuit Court to
aggravated kidnapping and aggravated robbery. The trial court sentenced the appellant to
concurrent sentences of ten years for each offense. On appeal, the appellant challenges the
sentences imposed by the trial court. Upon review, we affirm the judgments of the trial
court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which A LAN E. G LENN and
D. K ELLY T HOMAS, J R., JJ., joined.

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Brian Patrick Pierce.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       The appellant and his codefendant, Dexter Dewayne Alcorn, were originally indicted
on charges of especially aggravated kidnapping, a Class A felony, and aggravated robbery,
a Class B felony. The victim of both offenses was Anthony Steward. Subsequently, the
appellant’s case was severed from his codefendant’s. On the morning his trial was scheduled
to begin, the appellant entered guilty pleas to aggravated kidnapping and aggravated robbery,
Class B felonies. The plea agreement provided that the appellant would be sentenced as a
Range I, standard offender; that the trial court would determine the length of the sentences
for each conviction; and that if the petitioner testified truthfully against his codefendant, the
sentences imposed would be served concurrently with each other.

       At the guilty plea hearing, the State recited the following factual basis for the pleas:

                      On June the 14th of 2011[,] Anthony Steward was going
              to get some money out of an ATM [automatic teller machine].
              He stopped at a Bank of America ATM, and it was . . .
              approximately 10:30 in the evening. . . .

                      As he got money out of the machine[,] an individual
              walked up to him, placed a handgun in his ribs, took the money,
              which was $400 at that point, and forced [the victim] back to
              [the victim’s] own truck. When he got back to the truck[,] there
              was the accomplice, who the State would suggest is [the
              appellant], . . . in the driver’s seat of [the victim’s] truck. [The
              victim] was forced in the back seat by Mr. Alcorn, a
              codefendant, at gunpoint; they drove to . . . Regions Bank . . .
              [and] they attempted to take money out of there; that was
              denied.

                     They went on a little ways, and made [the victim] get in
              the driver’s set while Mr. Alcorn is in the front seat with the
              firearm, [the appellant] is in the back either with a firearm,
              depending on what – [the victim] would say he felt that there
              was a firearm that [the appellant] had. [The appellant’s]
              statement was that he was using his knuckle, placed in his back
              and so forth, threatened him – to kill him if he [did not]
              cooperate and so forth.

                      They drove . . . [to] two other banks; one was the F and
              M Bank, and that was around 11:09 where two $100
              withdrawals were taken; that equals $600 that was taken from
              [the victim’s] account[;] a $400 withdraw[al] was denied. They
              then went to a Planters Bank some seven minutes later . . . and
              made other attempts to withdraw money or have [the victim]
              withdraw money from his banking account.

                      Then they went across the state line to Kentucky, and

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      went on the interstate, and c[a]me back to . . . Legend’s Bank at
      . . . 11:35, and [a] $300 withdraw[al] was attempted, a $50
      withdraw[al] was attempted and denied; there was an attempt to
      transfer $800 in savings to the checking that was also denied.

             From that point[, the victim] was told to drive . . . to
      Parkway Place, which is a street, he pulled in there and they got
      out and left.

              Now, Parkway Place i[s] significant because that’s where
      Victor Murray lives. Victor Murray is a cousin or distant
      relative of Dexter Alcorn. Both Mr. Alcorn, [the appellant] ,
      and Mr. Murray are from Arkansas. While Mr. Murray was on
      leave from the military, went to Arkansas, and [Alcorn and the
      appellant came] back to stay with him for a period of time. . . .

      [The appellant’s] statement . . . says so we was drinking, all of
      us were riding in the . . . Cadillac. We were all riding and all of
      a sudden we startin [sic] to see people like vulnerable by the
      ATM machine. And on everything, I love [Alcorn], was like oh,
      man, there’s a lick right there. So, you know, I’m like you ain’t
      lyin, [sic] that’s a lick; that’s a lick. [The appellant] goes on to
      say they were dropped off by Mr. Murray near the ATM, and
      [the appellant] and Mr. Alcorn proceeded to hide behind the
      bushes by the Bank of America ATM. [The appellant] says he
      knew Mr. Alcorn had a gun and, in fact, [the appellant] had
      handled the gun prior to giving it to Mr. Alcorn.

              Further on in his statement[, the appellant] says he – he
      came out, the dude. We were going to pick any random person,
      you know what I’m sayin, [sic] no matter who it was. And
      that’s the [appellant’s] statement.

             Overall this ordeal [the victim] went through was about
      a[n] hour and fifteen minutes in the vehicle after being robbed,
      and also trying to be taking money out as he was directed and
      forced and, we would consider, confined and removed
      substantially. And those are the facts and circumstances.

At the sentencing hearing, the State advised the trial court that the appellant’s

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codefendant had pled guilty; therefore, pursuant to the plea agreement, the appellant’s
sentences should be served concurrently. The court noted that the appellant was a Range I,
standard offender and was subject to a sentence between eight to twelve years for each
offense.

        The victim, Anthony Steward, testified that he had been in the military for fifteen
years, was married, and had two minor children. On the evening of June 14, 2011, he went
to a Bank of America ATM to withdraw $400. During the transaction, a man, who was later
identified as the codefendant Alcorn, walked up behind the victim and demanded his money
and vehicle. The victim considered trying to defend himself until he realized Alcorn was
holding a pistol.

        The victim said that he stepped away from the machine. Alcorn took the money from
the ATM but did not take the victim’s wallet. Alcorn tried to withdraw more money, but the
request was declined. Alcorn then ordered the victim to return to his truck. Another man,
later identified as the appellant, was sitting in the driver’s seat. The victim was placed in the
back seat with Alcorn. The perpetrators discussed what they wanted to do then proceeded
to a Regions Bank. They made the victim attempt to withdraw money from the ATM, but
the transaction was again declined.

        The victim said that they left Regions Bank and drove to a housing area off of
Peacher’s Mill. At that point, the perpetrators made the victim drive. They said they would
kill him if he did not cooperate. During the ordeal, the men forced the victim to drive to
several other ATMs. He was able to withdraw $100 from one ATM, but his attempts at the
others were unsuccessful. After the last transaction, the perpetrators directed the victim to
a location where they got out of the truck and walked away. The victim estimated that the
encounter lasted approximately one hour and twenty minutes to one hour and forty minutes.

       The victim said that throughout the ordeal, he “made it clear to them that I was
cooperating . . . because I wanted to make it home to my family and my kids. That’s all I was
thinking about; at that point[,] I didn’t even care about the money.” The victim stated that
the perpetrators told him, “If I try to be Superman or anything out of the ordinary that they
would kill me.”

       The victim was certain that the person who initially approached him had a pistol. He
never saw the other person with a gun; however, he said that when he was driving, he felt
something cold being pressed to the back of his head and thought it was a gun.

      The victim said that after the men left, he drove home. He was scared, frustrated, and
wanted revenge. He tried to tell his wife what had occurred, but he “was nowhere near

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talking clear or anything.” Since the incident, he rarely used ATMs.

       On cross-examination, the victim acknowledged that he suffered no physical injuries
and that the perpetrators voluntarily released him. Some items, including one that listed his
address, were taken from his vehicle.

       The twenty-five-year-old appellant testified that Alcorn was the individual who
approached the victim at the ATM. Alcorn had a firearm, but the appellant did not. The
appellant stated that the robbery was the idea of Alcorn and Alcorn’s cousin, Victor Murray.
The appellant said that he, Alcorn, and Murray had been drinking that night. Murray needed
money to pay for a truck he had just bought and decided they should rob someone. Murray
dropped off the appellant and Alcorn at an ATM and told them to call him when they
finished. The appellant said that the alcohol he drank impaired his judgment and that he felt
coerced to participate in the robbery. He explained that he was from Arkansas and that he
and Alcorn came to Tennessee to visit Murray, who was on leave from the Army. Murray
spent all of his money on a truck, leaving the appellant no way to get home. The appellant
said that he was scheduled to appear in court in Arkansas and wanted to return home to avoid
being charged with failure to appear.

       The appellant said that during his 441 days in jail awaiting the disposition of the case,
he thought a lot about the incident. He stated that he “was young and dumb.” He
acknowledged that what he did was wrong but explained that there was no excuse for his
behavior. He maintained that he was a good person but that sometimes “bad company
corrupt[s] good character.” He was around the wrong people, wanted to look “cool,” and
was not strong enough to refuse to participate. The appellant stated that his time in jail
helped him to learn that his choices had consequences. During the offense, he did not think
about the victim; he only thought about trying to get home so he would not get into trouble
with the court. He said, “[A]ll I did was get myself in more trouble for not using my head.”

       The appellant said that he cooperated with the police “because I already did too
much.” He agreed to testify against Alcorn but did not have to because Alcorn agreed to
plead guilty. The appellant said that he wanted to apologize to the victim and ask his
forgiveness. The appellant said that he was willing to “accept[] the consequences as a man
on what [he] did and [that he would] try to make it better by doing whatever [he could].”

       On cross-examination, the appellant acknowledged he told police that he, Alcorn, and
Murray were drinking and driving around when they began noticing vulnerable people at
ATMs. When Murray talked about “hitting a lick” at an ATM, the appellant agreed that “it
was a lick.” They returned to Murray’s house, drank more alcohol, and went out again. The
appellant agreed that he and Alcorn, who was armed with a gun, hid in bushes behind an

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ATM. Alcorn approached the victim, and the appellant got into the victim’s vehicle. At
first, the appellant drove, but he became nervous, and Alcorn instructed him to get into the
back of the vehicle. The victim then began driving, and Alcorn rode in the front passenger
seat. The appellant acknowledged that he received some of the money taken from the ATMs.

        At the conclusion of the hearing, the trial court considered the appellant’s voluntary
release of the victim as a mitigating factor. See Tenn. Code Ann. § 39-13-304(b)(2). The
trial court also considered as mitigation the appellant’s guilty pleas and his willingness to
testify against his codefendant. See Tenn. Code Ann. § 40-35-113(13).

       The trial court stated that it would apply enhancement factor (1) based upon the
appellant’s prior conviction of criminal contempt in Arkansas, which was a Class C
misdemeanor. See Tenn. Code Ann. § 40-35-114(1). The court also applied enhancement
factor (5), that the appellant treated, or allowed a victim to be treated, with exceptional
cruelty during the commission of the offense. Id. at (5). The court explained that the
appellant and his codefendant had treated the victim with cruelty beyond that necessary to
accomplish the offenses.

        The court sentenced the appellant to ten years for each conviction, with the sentences
to be served concurrently. The court said that the appellant was statutorily required to serve
one hundred percent of his aggravated kidnapping sentence and eighty-five percent of his
aggravated robbery sentence in confinement. See Tenn. Code Ann. § 40-35-501(2)(i)(1) and
(2) and (k)(1). On appeal, the appellant challenges the length of the sentences imposed,
specifically challenging the application of enhancement factors.

                                         II. Analysis

       The appellant contends that the trial court’s sentencing determinations should be
reviewed de novo. We acknowledge that 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. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Our supreme court has further explicitly
stated that “the abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). 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

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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. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       The appellant challenges the trial court’s application of the enhancement factors. First,
he contends that enhancement factor (1) should not have been applied because his only prior

                                               -7-
conviction was of criminal contempt, a Class C misdemeanor.1 See Tenn. Code Ann. § 40-
35-114(1). However, even a single, misdemeanor conviction may support the enhancement
of a sentence. See State v. Souder, 105 S.W.3d 602, 606 (Tenn. Crim. App. 2002); State v.
Rolly William Whitford, No. M2009-02525-CCA-R3-CD, 2011 WL 255310, at *5 (Tenn.
Crim. App. at Nashville, Jan. 20, 2011). Accordingly, the trial court did not abuse its
discretion by applying this enhancement factor.

        The appellant also argues that the trial court should not have applied enhancement
factor (5), that the appellant treated or allowed a victim to be treated with exceptional cruelty
during the commission of the offense. The appellant argues that “threats of serious bodily
harm by means of a deadly weapon are elements of both [a]ggravating [r]obbery and
[e]specially [a]ggravated [k]idnapping; so those facts cannot be used to enhance [the
appellant’s] sentence because they are ‘already an essential element of the offense.’”

       Initially, we note that the appellant did not plead guilty to the charged offense of
especially aggravated kidnapping; instead, he pled guilty to the lesser-included offense of
aggravated kidnapping. See Tenn. Code Ann. § 39-13-304. Generally, an enhancement
factor may be applied “[i]f appropriate for the offense and if not already an essential element
of the offense.” Tenn. Code Ann. § 40-35-114. This court has previously stated that
exceptional cruelty is not necessarily an element of the offenses of aggravated kidnapping
or aggravated robbery. See State v. Kern, 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993); State
v. Robert Morrow, No. E2000-02796-CCA-R3-CD, 2001 WL 1105371, at *4 (Tenn. Crim.
App. at Knoxville, Sept. 18, 2001). The factor is appropriate when the facts “evince a
finding of exceptional cruelty ‘separate and apart from the actions which constituted the
offense[s].’” State v. Arnett, 49 S.W.3d 250, (Tenn. 2001) (quoting State v. Poole, 945
S.W.2d 93, 99 (Tenn. 1997)).

       This court has previously stated that “‘[a] threat of the victim being shot is inherent
in the offense of an especially aggravated kidnapping that is committed by the use of a
firearm.’” State v. Turner, 41 S.W.3d 663, (Tenn. Crim. App. 2000) (quoting State v.
Quinton Cage, No. 01C01-9605-CC-00179, 1999 WL 30595, at *10 (Tenn. Crim. App. at
Nashville, Jan. 26, 1999)). The trial court acknowledged that fact but found that the
enhancement factor was applicable because:


        1
         While the appellant’s case was pending on appeal, our supreme court released State v. Tracy Rose
Baker, __ S.W.3d __, No. M2011-01381-SC-R11-PC, 2013 WL 4768309 (Tenn. at Nashville, Sept. 6, 2013).
In Rose, our supreme court held that “[a] finding of criminal contempt pursuant to Tennessee Code
Annotated section 29-9-102 is not a criminal conviction” for the purposes of post-conviction. Id. at *8.
However, in his brief, the appellant acknowledges that contempt of court is a Class C misdemeanor in
Arkansas. See Ark. Code Ann. § 16-10-108(b)(1).

                                                  -8-
              [T]he statute on kidnapping talks about the substantial
              interference with one’s liberty, or words to that [e]ffect. Under
              the new instructions it’s somewhat defined a little better. But
              it’s not an hour, an hour-and-a-half driving around with a gun
              stuck to your head or – so you – pointed at you, telling you that
              you’re not going to see your children again unless you
              cooperate, telling them that you’re going to be killed if you
              don’t cooperate. This is repeated comments of threats to kill to
              this victim. You know, that could well have been satisfied with
              the first robbery, but no, they wanted more money and continued
              with this kidnapping and drove – or had this victim drive around
              that end of Clarksville trying to get more money out of ATM
              machines with at least one gun pointed at him, perhaps another
              to the back of his head. To me that’s [exceptional] cruelty;
              much more th[a]n [what was] necessary to accomplish the act of
              aggravated kidnapping.

In other words, the trial court found that the appellant’s behavior during the offense went
beyond that necessary to commit the offenses. See Poole, 945 S.W.2d at 99. There is
nothing in the record to preponderate against this finding. Therefore, we conclude that the
trial court did not abuse its discretion in sentencing the appellant.

       Moreover, regardless of any alleged error in applying enhancement factors, the trial
court nevertheless correctly sentenced the appellant based upon the principles and purposes
of sentencing. See Bise, 380 S.W.3d at 702; Tenn. Code Ann. §§ 40-35-102(1), (3)(A); 40-
35-103(1)(B), (2), (4), (5).

                                     III. Conclusion

        In sum, we conclude that the trial court did not err in sentencing the appellant to
concurrent sentences of ten years for each offense. Accordingly, we affirm the judgments
of the trial court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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