        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 12, 2011

                 STATE OF TENNESSEE v. MONTEZ DUNCAN

               Direct Appeal from the Criminal Court for Shelby County
                        No. 08-05732    W. Mark Ward, Judge


              No. W2010-02263-CCA-R3-CD - Filed November 23, 2011


The appellant, Montez Duncan, pled guilty in the Shelby County Criminal Court to attempted
first degree murder, especially aggravated robbery, and especially aggravated kidnapping.
The trial court sentenced the appellant to a total effective sentence of twenty-five years in the
Tennessee Department of Correction. On appeal, the appellant challenges the length of 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 Criminal Court are
                                     Affirmed.

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.

Justin Gee (at trial) and Neil Umsted (on appeal), Memphis, Tennessee, for the appellant,
Montez Duncan.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Pam Fleming, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                   I. Factual Background

       The Shelby County Grand Jury indicted the appellant and his co-defendants for
attempted first degree murder, especially aggravated robbery, and especially aggravated
kidnapping. Ultimately, the appellant pled guilty to the charged offenses. At the guilty plea
hearing, the State recited the following factual basis for the pleas:
        Your Honor, the facts of this case would [have] been
[that] on or about January 21st of 2008, Mr. Brandon Noe [the
victim] had just gotten off work and was heading towards his
home. He was at a stop sign but prior to . . . arriving at that stop
sign, he saw a blue small four door car behind him that was
driving erratically[;] therefore, he paused longer at the stop sign
than necessary to allow this vehicle to go on and pass him.
Instead of passing him, it pulled up beside him, two individuals
jumped out with guns. They pulled the guns on [the victim].
They forced [the victim] out of his car. They put a sweater over
his head; they forced him into the back seat of his own HHR and
held a gun to his head while the other gunman drove the vehicle.

       The vehicle was then driven back to Memphis, Shelby
County at the Jackson Pitt area where [the victim] was taken out
of the vehicle. He was forced into a field at gunpoint and
though he begged for his life and offered them every monetary
thing that he owned . . . , the shooter instead pushed him off and
shot him in the back[,] leaving him for dead in that field.

       Fortunately[, the victim] did not die and was able to
crawl on his belly across the field, across the street and elicited
the help of a neighbor on the other side of the street. Police
were notified of the teal colored HHR that belonged to [the
victim] being taken in the carjacking. Officers observed this
vehicle a short while later at a gas station.

       When officers arrived on the scene, several . . . police
cars, both marked and unmarked[,] arrived, at which time a
Chevy Corsica which was associated by officers with this teal
HHR, took off[. A] police chase ensued[,] and Mr. Antonio
Turner and his girlfriend Valeria Jackson[] were apprehended.

       In their possession [were] credit cards and identifications
of [the victim]. These two individuals were taken back to the
scene where a third individual, a Shinika (phonetically) Sawyer
was located. She indicated that she was also with Mr. Turner
and Ms. Jackson and that a fourth individual, an A.J. or an
Anthony Hall, was also with them and that they had been
driving the blue Honda Civic that was also parked there.

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                      Mr. Turner gave a full statement in which he implicated
              [the appellant] as the shooter. [The appellant] was located
              approximately 24 to 48 hours after the shooting. He was riding
              in a car with his brother, an individual by the name of Julian
              Sanders, who indicated that Mr. Turner had called him from the
              jail and asked him to go tell [the appellant] that he was locked
              up on his charge.

                     [The appellant] gave a full statement[,] detailing not only
              everything that [the victim] had said about travelling [(sic)] with
              these three other individuals in the blue Honda to Southhaven
              and kidnapping and carjacking [the victim] and taking him out
              and shooting him in the field, but he also detailed his knowledge
              of what had happened to Mr. Turner and the two girls and Mr.
              Hall after they had left him when they took the Honda Civic and
              HHR with them.

       The plea agreement provided that the trial court was to determine the length of the
appellant’s sentences. At the sentencing hearing, the twenty-one-year-old appellant testified
that he had lived with his mother in California, Arizona, and Memphis. At the time of the
offenses, the appellant was living by himself and working at Walmart in Memphis. The
appellant said that he did not graduate from high school or obtain a general equivalency
diploma (GED). The appellant acknowledged that he had previous convictions for unlawful
possession of a weapon and for possession of marijuana.

       The appellant said that his co-defendant Turner was a childhood friend and that he met
his other co-defendants during his visits to Memphis. The appellant recalled that on the day
of the offense, the co-defendants were with him at his apartment. They left the apartment
and went to Christopher Taylor’s house to pick up shoes. When they left there, Hall said that
he needed money and asked the group if they wanted to rob someone.

       The appellant said that after the subject was broached, “we just rolled with the
punches.” They went to Southhaven where they saw the victim in his vehicle. They
followed him and eventually pulled up beside him. Hall and Taylor jumped out of the car,
pointed guns at the victim, and told him to get into the backseat of his vehicle. The victim
complied. Taylor got into the backseat with him, and Hall drove the victim’s vehicle. Turner
and the appellant, who was driving, followed in the Honda Civic. Both cars parked in front
of an abandoned house. Hall told the appellant that the victim was “trying to . . .
compromise” because he did not have anything to give the perpetrators.



                                              -3-
        The appellant said that Turner and the victim got out of the vehicle and that the victim
had something like a sweater or a towel over his head. Turner gave the appellant the gun and
told him to shoot the victim. The appellant said that the victim begged the appellant to not
kill him. The appellant acknowledged that he shot the victim but maintained that he did not
intend to kill him. Afterward, the appellant and his co-defendants left the scene and returned
to the appellant’s apartment. The appellant and Taylor went to sleep, and Hall and Turner
left.

       The appellant said that he regretted his actions and apologized to the victim and the
victim’s family. The appellant stated that his participation in the crimes was the result of
“wrong decisions.” He said that he was trying to redeem himself with a “Higher Power,” to
make “a fresh new start,” and to become a more productive member of society.

      The appellant said that at the time of the offenses he had a job, a home, and support
from his family. He acknowledged that he knew Hall and Taylor carried guns and had
committed robberies and carjackings. He also knew that the Honda Civic was stolen.

       On cross-examination, the appellant admitted that he had “been rolling around with
guns for a very long time.” He also acknowledged that he had been in trouble as a juvenile
for having a gun. He said that at the time he was arrested for the instant offenses, he had a
pending case regarding his possession of a gun. Additionally, the appellant said that his
brother was in the car with him when the appellant was arrested.

       At that point in the sentencing hearing, the following colloquy occurred:

              [The State:] What was in the car when you got arrested?

                      ....

              [The appellant:] It was a gun. It was a gun in the car and . . .
              some ziploc bags in the trunk.

                      ....

              [The court:] Is it illegal to have ziploc bags?

              [The appellant:] They said that was the paraphernalia.

              [The court:] How old were you when you got arrested?



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              [The appellant:] I was 18.

              [The court:] You were 18 and you had a gun?

              [The appellant:] Yes, sir. I didn’t – it was my – it was my
              brother’s gun. It was up under the driver’s seat of the car.

              [The court:] Well, you carry a gun, don’t you?

              [The appellant:] Yes, sir. I had got locked up with my gun.

              [The court:] But as an adult, do you carry a gun? At 18 you
              carry a gun?

              [The appellant:] Yes, sir.

              [The court:] How often do you carry a gun? . . . I’m talking as
              an adult. I don’t care about carrying a gun as a juvenile. Tell
              me about your adult carrying a gun.

              [The appellant:] I had that gun ever since I had came back to
              Memphis. . . .

              [The court:] Do you have a permit to carry the gun?

              [The appellant:] No, sir.

              [The court:] You understand that’s a violation of the law–

              [The appellant:] Yes, sir.

              [The court:] – to carry a gun? It’s a misdemeanor.

              [The appellant:] Yes, sir.

The appellant also acknowledged that he had smoked marijuana since he was eleven years
old.

        The appellant said that he pled guilty after the jury was seated for his trial. He said
that he waited to enter a guilty plea because he hoped the State would make a plea offer, but

                                              -5-
no offers were made.

        Regarding the appellant’s attempted first degree murder conviction, the trial court
applied enhancement factor (1), that the appellant had a previous history of criminal
behavior; enhancement factor (2), that the appellant was a leader in the offense; enhancement
factor (5), that he treated the victim with exceptional cruelty; and enhancement factor (9),
that the appellant employed a firearm during the offense. See Tenn. Code Ann. § 40-35-
114(1), (2), (5), and (9). Regarding the convictions for especially aggravated robbery and
especially aggravated kidnapping, the trial court found that the appellant had a previous
history of criminal behavior, that he was a leader in the offenses, and that he treated the
victim with exceptional cruelty. See Tenn. Code Ann. § 40-35-114(1), (2), and (5). In
mitigation, the trial court found that the appellant expressed remorse. Tenn. Code Ann. § 40-
35-113(13). The trial court imposed a sentence of twenty-five years for each of the
appellant’s three convictions and ordered that the sentences be served concurrently. On
appeal, the appellant argues that the length of his sentences is excessive.

                                         II. Analysis

       Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo 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.
§§ 40-35-102, -103, -210; 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 sentences. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial
court adequately considered sentencing principles and all relevant facts and circumstances,
this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.

      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

                                               -6-
              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; State
v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note 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 . . . [and 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 345-46.

        The trial court applied enhancement factor (1) based upon the appellant’s testimony
that he had used marijuana since he was eleven years old and that as an adult he had carried
a gun without a permit. See Tenn. Code Ann. § 40-35-114(1). On appeal, the appellant
acknowledges that he testified about carrying a gun without a permit. However, he maintains
that he made that acknowledgment as a result of the trial court’s questioning, which he
asserts “resulted in a break-down of the adversarial process in which the State bears the
burden of establishing enhancement.” The appellant contends that the only proof at the
sentencing hearing resulted from the trial court’s improper questioning regarding the
appellant’s actual or constructive possession of a gun. The State asserts that the trial court’s
questioning was proper.

        Our law and the record before us belie the appellant’s contentions. Tennessee Code
Annotated section 40-35-209(b) provides that the rules of evidence apply to sentencing
hearings. Rule 614(b) of the Tennessee Rules of Evidence provides that a trial court may
question witnesses. This court has previously explained that “[s]o long as the inquiry is
impartial, trial courts may ask questions to either clarify a point or to supply any omission.”
State v. Schiefelbein, 230 S.W.3d 88, 97 (Tenn. Crim. App. 2007). In the instant case, the
trial court’s questions were designed to clarify the appellant’s testimony regarding his arrest

                                              -7-
for possessing a gun. Therefore, we conclude that the trial court’s questions were
permissible. Regardless, the appellant also admitted that he had used marijuana since he was
eleven years old. The appellant’s admission of drug use was sufficient to justify the trial
court’s application of enhancement factor (1) to each of the appellant’s convictions.

       The trial court also applied enhancement factor (2), that the appellant was a leader in
the offense. Tenn. Code Ann. § 40-35-114(2). The trial court stated, “I find that based upon
he’s the actual person that walked this man out in the field and shot him. That alone.” The
appellant contends that the application of enhancement factor (2) for the especially
aggravated robbery and the especially aggravated kidnapping offenses was error. We
disagree. Our case law establishes that the “enhancement for being a leader in the
commission of an offense does not require that the [appellant] be the sole leader but only that
he be ‘a’ leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). This
enhancement factor is applicable to all of the appellant’s convictions.

       The trial court also found that the appellant “treated or allowed the victim to be treated
with exceptional cruelty during the commission of the offense.” Tenn. Code Ann. § 40-35-
114(5). The trial court explained that the victim

              was kidnapped, blindfolded, had a gun held to his head for at
              least 20 minutes while they drove him to another location. He
              was walked out into a field at that location, shot in the back and
              left to die, the whole time while he’s plea bargaining basically
              is the way he described it, plea bargaining for his life.

Enhancement factor (5) is generally applied to cases involving abuse or torture. State v.
Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995). Before a trial court may apply
enhancement factor (5), the facts of the case must support a “finding of cruelty under the
statute ‘over and above’ what is required to sustain a conviction for [the] offense.” State v.
Arnett, 49 S.W.3d 250, 258 (Tenn. 2001). We conclude that the trial court properly applied
this enhancement factor to each of the appellant’s convictions. See State v. Lonnie Lee
Owens, No. M2005-00362-CCA-R3-CD, 2005 WL 2653973, at **5-6 (Tenn. Crim. App. at
Nashville, Oct. 18, 2005).

       The trial court applied enhancement factor (9) to the appellant’s conviction for
attempted first degree murder because the appellant used a gun during the commission of the
offense. The trial court did not apply this factor to the appellant’s convictions for especially
aggravated robbery and especially aggravated kidnapping because the factor is inherent in
the offenses. See Tenn. Code Ann. § 40-35-114 (providing that enhancement factor may not
be applied if it is “already an essential element of the offense”). The appellant conceded that

                                               -8-
he used a gun to commit the attempted first degree murder. Ergo, the trial court did not err
in applying this factor to that offense.

                                      III. Conclusion

      In sum, we conclude that the trial court did not err in its application of the statutory
enhancement factors and the imposition of a twenty-five-year sentence for each offense.
Therefore, we affirm the judgments of the trial court.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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