        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 10, 2009

                   STATE OF TENNESSEE v. ANTONIO HILL

              Direct Appeal from the Criminal Court for Shelby County
                        No. 08-00829    Chris Craft, Judge




                No. W2009-00280-CCA-R3-CD - Filed March 24, 2010


The defendant, Antonio Hill, was convicted by a Shelby County jury of robbery, a Class C
felony, and attempted robbery, a Class D felony, as lesser included offenses of the indicted
offenses of aggravated robbery and attempted aggravated robbery. The trial court
subsequently sentenced the defendant to concurrent sentences of five years and three and
one-half years for the respective convictions. On appeal, the defendant raises the single issue
of whether his sentence is excessive. Specifically, he contends that the trial court erred in
considering the enhancement factor that the defendant possessed or employed a firearm
during the commission of the offenses based upon the jury’s rejection of the greater offenses,
which included possession of a firearm as elements of the offense. Following review of the
record and applicable sentencing law, we affirm the sentences as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and J.C. M CL IN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Antonio Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Pamela Fleming,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       The case against the defendant, along with three co-defendants, arose from their
actions of robbing and attempting to rob Daryl Woods and James Brown in a Shelby County
park. The evidence adduced at trial was that Woods was in contact with a girl, whom he
knew as “Renee,” over the internet and that the two agreed to meet. After multiple
conversations on the phone, a meeting was arranged. Woods asked Brown to accompany
him, and the two proceeded to a gas station in the neighborhood. Another phone call was
made to “Renee,” who then informed the two men that she and her cousin were in a nearby
park. At this point, Woods and Brown proceeded to the park in Brown’s truck.

        Upon arrival, Woods and Brown observed two women standing near the basketball
court in the park. Woods called out, asking which one was “Renee.” The women refused
to approach the truck so Woods exited and proceeded toward them. Brown remained in the
truck. As Woods approached, a man with a gun “came up out of nowhere and he had the gun
in [Woods] face” and demanded money. Woods began backing up toward the truck, yelling
that he had no money in an attempt to alert Brown to the robbery. As Woods approached the
truck, the man, later identified as Demetrius Smith, told him to hand over the money or he
would “start shoot[ing].” Upon seeing what was occurring, Brown emerged from the truck,
taking with him his Glock .357 caliber pistol. During the ensuing seconds, Woods dropped
to the ground and crawled to the rear of the truck, leaving Smith and Brown near the front.
Woods then proceeded to run to a nearby gas station. As he ran, Woods saw a second male
approaching Brown and Smith, and he heard gunshots as he fled. Upon reaching the store,
Woods called the police.

        Brown, still at the truck, gave Smith his wallet. At that point, a second man, later
identified as the defendant, approached and said that they should take Brown’s truck.
Thereafter, Brown and Smith attempted to jump inside the passenger side of the truck at the
same time, and a weapon discharged. Brown acknowledged firing his weapon twice before
falling out of the truck. Smith then drove away in Brown’s truck. As Brown ran after the
truck, he heard shots from behind him where he knew the defendant was. Brown ran to a
friend’s home and phoned the police.

       Shortly thereafter, Officer Robert Strickland of the Memphis Police Department
responded to a “man down” call and found Smith bleeding from a gunshot wound to the
groin area. Paramedics were called, and Smith was transported to a local hospital. On the
scene, Officer Strickland followed a visible blood trail, which led to a red F-150 truck in
which there was “a lot of blood.” Moments later, Officer Strickland was informed of a car
jacking which had occurred down the street. He then drove to the store where Woods was,
and they returned to the scene. Additionally, Brown was picked up at his friend’s home and
surrendered his gun to police. Officer Strickland obtained a description of the robbers from
the two victims.




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       At the same time, Sergeant Hardaway was dispatched to the hospital where Smith had
been transported. Prior to his arrival, he had been informed of the robbery. Upon arrival,
he was approached by three people matching the descriptions given of the two females and
the second robber. They approached the officer and inquired as to the condition of their
friend Smith, acknowledging that they had been with him earlier in the evening when he had
been shot. The three were detained for questioning.

       The Crime Scene Unit later processed Brown’s truck. A bullet hole was found in the
driver’s door, a bullet fragment in the floor, and a bullet strike mark on the tailgate. A bullet
fragment was also found in the tailgate of the truck.

        Upon being questioned, the defendant admitted his presence at the robbery but denied
any involvement. He claimed that he went to the park with the two females in order to meet
a man “to get some money for . . . rent[.]” He further asserted that he and the two females ran
when one of the men they were supposed to meet attempted to pull one of the females into
the truck. One of the females, co-defendant Sherelle Clark, admitted that she was involved
in the robbery.

       Based upon the foregoing, the defendant was indicted by a Shelby County jury for
aggravated robbery and attempted aggravated robbery. Following a jury trial, he was
convicted of the lesser offenses of robbery and attempted robbery. At a later sentencing
hearing, co-defendant Smith testified regarding the facts of the case, including the fact that
he gave the defendant a gun prior to their going to the park. The defendant was subsequently
sentenced to concurrent sentences of five years and three years and six months. Following
the denial of his motion for new trial, the defendant filed the instant timely appeal.

                                           Analysis

       On appeal, the defendant raises the single issue of whether his sentence is excessive
because the “court erred in considering as an enhancement factor in sentencing the defendant
the fact that the defendant was the one who was in possession of a firearm.” Specifically,
he contends that the factor should not have been applied because the jury, by virtue of their
convicting the defendant of lesser included offenses which did not require a weapon in their
commission, rejected the fact that the defendant was in possession of a firearm. He further
argues, relying on Gomez v. State, that application of the factor violated his Sixth
Amendment right because it was based upon “judicially determined facts not otherwise
reflected by the jury’s verdict or admitted by the defendant.”

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. T.C.A. § 40-35-401 (2006), Sentencing


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Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. T.C.A. § 40-
35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial court
failed to consider the sentencing principles and all relevant facts and circumstances, then
review of the challenged sentence is purely de novo without the presumption of correctness.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.
In conducting a de novo review of a sentence, this court must consider: (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles
of sentencing and argument as to the sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b) (2006); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        Initially, we note that the defendant’s reliance upon State v. Gomez is misplaced. See
State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”). The defendant is correct
that under the law prior to the 2005 amendments to our sentencing act, our supreme court had
held that a trial court’s enhancement of a defendant’s sentence on the basis of judicially
determined facts other than a defendant’s prior convictions violated that defendant’s
constitutional rights under the Sixth Amendment to the United States Constitution. Id. at
740. However, the crimes for which the defendant stands convicted occurred in 2007, well
after the enactment of the amendments. See T.C.A. § 40-35-210 (2006), Compiler’s Notes.


       The amended statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d
at 343. As further explained by our supreme court in Carter,

       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].” . . . Those purposes and principles include “the
       imposition of a sentence justly deserved in relation to the seriousness of the
       offense,” . . . a punishment sufficient “to prevent crime and promote respect


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       for the law,” . . . and consideration of a defendant’s “potential or lack of
       potential for . . . rehabilitation[.]”

Id. (footnote and citations omitted).

        The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is, nonetheless, required to “consider” an advisory sentencing guideline
that is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentence. Id. at 344.

       To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the enhancing and
mitigating factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancing factors have been evaluated and balanced
in determining the sentence. Id. at 343. The trial court may apply enhancement factors so
long as they are “appropriate for the offense” and “not already an essential element of the
offense.” T.C.A. § 40-35-210(e). If our review reflects that the trial court applied
inappropriate mitigating and/or enhancement factors or otherwise failed to follow the
Sentencing Act, the presumption of correctness fails and our review is de novo. Carter, 254
S.W.3d at 345.

        In sentencing the defendant in this case, the trial court found three applicable
enhancement factors: (1) that the defendant was a leader in the commission of an offense that
involved two or more criminal actors; (2) that the defendant was adjudicated to have
committed offenses as a juvenile which would have been felonies if he had committed them
as an adult; and (3) that the defendant possessed or employed a firearm during the
commission of the offenses. See T.C.A. § 40-35-114(2), (9), & (16) (2006). As noted, the
defendant contests only the application of the factor regarding possession of a firearm.
Though review of the remaining factors is not necessary, we note that the record supports
their application.

       With regard to the possession of a firearm factor, the defendant contends that the
record does not support its application because the jury, by virtue of its verdict, finding the
defendant not guilty of the greater offense, which included possession of a weapon as an
element, determined that the defendant, in fact, was not in possession of a weapon. We


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disagree that the jury’s verdicts preclude application of the factor and conclude that the
records of the trial and sentencing hearings support application. See T.C.A. § 40-35-
210(b)(1), (5) (2007) (requiring trial court to consider any evidence from both the trial and
the sentencing hearing, as well as evidence and information offered by the parties on the
mitigating and enhancement factors, before imposing sentence). At trial, although he did not
see the defendant in possession of a gun, Brown noted that shots were fired from the
direction where the defendant was standing as Smith left the scene in the truck. Moreover,
investigators found both a bullet strike and a bullet fragment in the tailgate of the truck,
which, based upon Brown’s testimony, would have been fired from the direction of where
the defendant was standing. Additionally, at the sentencing hearing, co-defendant Smith
testified that he gave the defendant a gun prior to the robbery. Based upon this evidence, we
cannot conclude that the trial court erred in finding the presence of this factor.

        Finding no error in the court’s application of enhancement factors and that the trial
court made an affirmative showing of its consideration of the facts and circumstances, as
well as the purposes and principles of sentencing, we must afford the sentencing decision the
presumption of correctness. The defendant has failed to carry his burden of demonstrating
that the sentences are erroneous. As such, the sentences are affirmed as imposed.

                                     CONCLUSION

       Based upon the foregoing, the sentencing decision of the Shelby County Criminal
Court is affirmed.




                                                   ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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