        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                October 23, 2012 Session

               STATE OF TENNESSEE v. GREGORY N. BROWN

             Direct Appeal from the Criminal Court for Hamilton County
                      No. 281186     Barry A. Steelman, Judge




               No. E2012-01044-CCA-R3-CD - Filed December 21, 2012


Defendant, Gregory N. Brown, was charged in a two-count indictment with domestic
aggravated assault and cruelty to animals. Defendant pled guilty to domestic aggravated
assault, a Class C felony, and the cruelty to animals charge was dismissed. Following a
sentencing hearing, the trial court sentenced Defendant to serve six years as a Range I
standard offender in the Tennessee Department of Correction (TDOC). Defendant appeals
his sentence and argues that the trial court erred by imposing the maximum sentence within
the applicable range. Following our review of the record, we affirm the judgment of the trial
court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M.T IPTON, P.J.,
and D. K ELLY T HOMAS, J R., J., joined.

Andrew S. Basler, Chattanooga, Tennessee, for the appellant, Gregory N. Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; William H. Cox, III, District Attorney General; and David Schmidt, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

Sentencing hearing

       Prior to the April 17, 2012, sentencing hearing, the State filed its notice of intent to
seek enhanced punishment and of intent to impeach by use of Defendant’s prior convictions.
At the sentencing hearing, the trial court admitted into evidence judgments for the following
prior convictions: 1) petit larceny in 1985; 2) misdemeanor theft in 1994; 3) possession of
drug paraphernalia in 2001; 4) unlawful possession of a weapon in 2000; 5) criminal trespass
and attempt to commit theft in Walker County, Georgia in 2008; and 6) failure to appear in
2011.

        LaVerne Brundidge testified that she and Defendant had “been together for eight
years.” On July 4, 2011, Defendant gave her five dollars and told her to buy marijuana.
After she returned with the marijuana, Defendant “rolled [her] a joint” and went into “the
living room where [she] was watching television, and all of a sudden, he kissed [her] right
there and [her] leg went up, [her] right leg, and [she] kicked him in the groins, and evidently,
[she] had glass, broken glass on [her] tennis shoes, and [she] cut [Defendant].” An
altercation ensued between Defendant and Ms. Brundidge. Defendant hit Ms. Brundidge in
the face with an open hand. Ms. Brundidge was taken by ambulance to the hospital and
required stitches.

        Ms. Brundidge’s sister, Gwendolyn Shorter, testified that she had been caring for Ms.
Brundidge since Ms. Brundidge was 17 years old. Ms. Brundidge had been diagnosed with
schizophrenia and received a disability check, which “[t]hese men of hers smoke it up in
cocaine.” Ms. Shorter testified that Ms. Brundidge called her when she left the hospital and
told her that Defendant “jumped on” her. Ms. Shorter testified that Ms. Brundidge’s “face
was just big, stitches all up [there]” and her hair “was just full of blood.” Ms. Shorter
testified that Ms. Brundidge’s eyes were closed and that it “[t]ook them two days to start
opening. They was [sic] bloodshot red.” Ms. Shorter testified that Ms. Brundidge “was beat
to death almost by [Defendant]. He tried to kill her.”

        Detective Kevin Willoughby was called to investigate the incident. He responded first
to the hospital where Ms. Brundidge was treated. He took photographs of Ms. Brundidge’s
injuries. He testified that “both of [Ms. Brundidge’s] eyes were swollen shut.” Detective
Willoughby also took photographs at Ms. Brundidge’s home. He testified that there was “a
large pool of blood” on the floor. Detective Willoughby interviewed Defendant, and
Defendant stated that he and Ms. Brundidge “got into a mutual physical altercation. [Ms.
Brundidge] was punching . . . and kicking [Defendant] in the groin, and [Defendant] was
striking her back, hitting her in the head.” Detective Willoughby testified that Defendant did
not appear to be intoxicated.

       Stephanie Anders, a board of probation and parole officer, prepared a presentence
report. She interviewed Defendant, and Defendant stated that he and Ms. Brundidge had
been in a relationship since 2003 and that Ms. Brundidge was bipolar, manic depressive, and
had wild mood swings and that Defendant “basically acted as her caretaker the whole time
he was with her, helping her with appointments and medications and things like that.”

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Defendant and Ms. Brundidge had been involved in domestic altercations on two prior
occasions. On October 16, 2003, and on June 10, 2011, Defendant pled guilty to domestic
assault against Ms. Brundidge. In both cases, Defendant was sentenced to 11 months and 29
days to be suspended on probation. Defendant also had a prior conviction for failure to
appear. Defendant was also on probation for offenses committed in Georgia, and his
probation had been transferred to Hamilton County. While on probation, Defendant failed
to report and failed two drug screens, testing positive for cocaine and marijuana. Defendant
also “failed to follow officer instructions and he failed to pay probation supervision fees.”


        Defendant reported to Ms. Anders that he had attended drug counseling on three
separate occasions. Ms. Anders received records indicating that Defendant attended
treatment in May, 2007, for cocaine use and was “discharged at staff request” after eight
days. Defendant told Ms. Anders that Reverend Moore was the preacher at the church where
Defendant reported he was “an active member.” Ms. Anders contacted Reverend Moore,
who stated that he had not spoken to Defendant since his arrest, but that Defendant “had sent
a letter to him stating along the lines of, you know, devoting his life to God and things like
that.” Reverend Moore also told Ms. Anders that “he was very upset with [Defendant]
because, on the date this offense occurred, [Defendant] had been in church and had stood up
in church and preached about the good Lord and His word and His will, and then left church
that night and then beat Ms. Brundidge.”

       Defendant testified that when he met Ms. Brundidge “approximately eight and a half,
nine years ago[,] [s]he was being abused by her sister, who was also involved in drugs.”
Defendant testified, “[t]hrough the goodness of [his] compassionate heart, [his] daughter and
[he] . . . took her in when she was rejected from her own residence because of an
involvement in drugs that her sister had at that time.” Defendant testified that he served in
the United States Navy for two years and was honorably discharged. He later obtained his
GED, and he had worked as a freelance carpenter and landscaper for the eight years that he
was with Ms. Brundidge. He had enrolled in an online business school at the time of this
incident. Defendant testified that he was “active in church since [he] was nine years old.”

        Defendant acknowledged that he had previously violated the conditions of probation
by failing to pay his fine, testing positive for drugs, and failing to report, but he testified that
he “wouldn’t violate” if the court imposed a sentence of probation for this offense. When
asked “how can the Court trust your word on that?” Defendant answered, “[t]hat’s a good
question.” Defendant acknowledged that he had used cocaine for 22 years, but he testified
that he had stopped using it in order “to further [his] college education and to better
[him]self.” Defendant testified that he “regret[ted] that incident in its entirety. It was
unmitigated.” He testified, “there were incidents that led to that situation.”

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       At the conclusion of the sentencing hearing, the trial court considered the testimony
and the presentence report and determined that Defendant’s criminal history was
“significant” and that Defendant had “apparently eleven convictions for various offenses that
go back to 1985.” The trial court concluded that Defendant possessed a criminal history
evincing a clear disregard for the laws and morals of society. The court also concluded that
Defendant had “failed in past efforts at rehabilitation in that he failed to comply with the
conditions of probation pursuant to this conviction in 2008 and his absconding.” The trial
court therefore determined that Defendant was not a favorable candidate for alternative
sentencing.

        The trial court found, based on Defendant’s prior convictions, that a sentence
involving confinement was necessary to protect society. Based on the testimony and
photographs of Ms. Brundidge’s injuries, the trial court found that confinement was
necessary to avoid depreciating the seriousness of the offense. The court noted, “[t]he old
ancient proverb that a picture is worth a thousand words certainly is true here in that those
photographs illustrate very clearly that this was a very serious offense, and the Court finds
that to order anything less than confinement under these circumstances would depreciate the
seriousness of the offense.” The court found that measures less restrictive than confinement
had recently been applied unsuccessfully to Defendant, “therefore calling for his confinement
in this case.” Considering “the nature and characteristics of the criminal conduct involved,”
the court accredited the testimony of Ms. Shorter and found:

                The lady who is the victim here has some challenges mentally and
        psychologically. Ms. Shorter just said what she’s observed over the years,
        and that is, that the defendant used Ms. Brundidge for her, for her pay – for
        her disability check, and she said it but I saw it in the pictures. . . .
        [Defendant] brutally beat Ms. Brundidge, a slight woman, who the Court
        has observed here. There is no excuse for that under any set of
        circumstances, at least any set of circumstances that have been presented
        here, a kick or no kick, glass or no glass.

               I’m not even sure that that occurred. I believe Ms. Brundidge is
        attempting to mitigate this for [Defendant]. But even if that had occurred,
        that doesn’t justify the injuries that I observed and that were testified to.

       The trial court determined that the nature and characteristics of the criminal conduct
involved were “severe” and “brutal.” The court considered as mitigating factors that
Defendant had “acknowledged his guilt [and] shown genuine remorse” and that Defendant
was active in his church. The court stated, however, that it did not “give nearly as much
weight to those factors as the Court [gave] to the enhancement factors[.]” The court applied

                                             -4-
the following enhancement factors to Defendant’s sentence. First, the court found hat
Defendant had a previous history of criminal behavior in addition to those necessary to
establish the appropriate range. The court noted that “[o]ne of those convictions involves an
assault on the same victim within 30 days. So the Court gives that tremendous weight.”

        The court also found that the victim of the offense was particularly vulnerable because
of her mental disability. The court noted, “[t]here is testimony in the record that the
defendant took advantage of the victim by virtue of the fact that she was disabled, and I find
that she was particularly vulnerable because of that mental disability.” The court found that
the personal injuries inflicted upon the victim were particularly great, that Defendant had
failed to comply with the conditions of a sentence involving release into the community, and
that Defendant was on probation at the time the offense in this case was committed. The
court gave those enhancement factors “very significant weight.” The trial court sentenced
Defendant as a Range I standard offender to serve six years in the TDOC.

Analysis

       On appeal, Defendant does not challenge the trial court’s decision regarding the
manner of service of his sentence. Rather, Defendant challenges only the length of his
sentence, asserting that the trial court erred by imposing the maximum sentence within the
applicable range.

       The State responds that Defendant has waived the issue by failing to include in the
record on appeal a transcript of the guilty plea hearing. The State argues that Defendant has
failed to provide an adequate record for review and we are therefore precluded from
considering the issue. See Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560-61
(Tenn. 1993) (“Where the record is incomplete and does not contain a transcript of the
proceedings relevant to an issue presented for review, or portions of the record upon which
the party relies, an appellate court is precluded from considering the issue.”). The State
asserts that although some of the facts underlying Defendant’s conviction can be derived
from the transcript of the sentencing hearing, the guilty plea hearing transcript is significant
because:

        [f]or those defendants who plead guilty, the guilty plea hearing is the
        equivalent of trial, in that it allows the State the opportunity to present the
        facts underlying the offense. For this reason, a transcript of the guilty plea
        hearing is often (if not always) needed in order to conduct a proper review
        of the sentence imposed.




                                              -5-
State v. Jerry Wayne Watson, Jr., No. M2009-01415-CCA-R3-CD, 2010 WL 2812564 at *1
(Tenn. Crim. App. July 13, 2010) (quoting State v. Keen, 996 S.W.2d 842, 843-44 (Tenn.
Crim. App. 1999) (citations omitted).

       Nevertheless, in this case the evidence presented at the sentencing hearing and the trial
court’s detailed findings of fact on the record are sufficient to review the court’s sentencing
determination. See State v. Caudle, ___ S.W.3d ___, 2012 WL 5907374 (Tenn. 2012). In
Caudle, our supreme court held,

              We further hold that when a record does not include a transcript of
        the hearing on a guilty plea, the Court of Criminal Appeals should
        determine on a case-by-case basis whether the record is sufficient for a
        meaningful review under the standard adopted in Bise.

        ....

        If . . . the record is adequate for a meaningful review, the appellate court
        may review the merits of the sentencing decision with a presumption that
        the missing transcript would support the ruling of the trial court.

Id. at *6 (citations omitted).

       Previously, our review of a defendant’s challenge to the length, range, or manner of
service of a sentence was de novo with a presumption of correctness. However, our supreme
court recently adopted a new standard of review for sentencing in light of the 2005 changes
in Tennessee sentencing law. State v. Bise, 380 S.W.3d 682 (Tenn. 2012). In Bise, the Court
concluded:

        In summary, the 2005 amendments to the 1989 Act were intended to bring
        our sentencing scheme in line with the decisions of the United States
        Supreme Court in this area. Accordingly, when the 2005 amendments
        vested the trial court with broad discretionary authority in the imposition of
        sentences, de novo appellate review and the “presumption of correctness”
        ceased to be relevant. Instead, 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.”

Id. Accordingly, we now review a defendant’s challenge to the sentence imposed by the trial
court under an abuse of discretion standard with a “presumption of reasonableness.” Id.



                                              -6-
       Tennessee’s Sentencing Act provides:

        (c) The court shall impose a sentence within the range of punishment,
        determined by whether the defendant is a mitigated, standard, persistent,
        career, or repeat violent offender. In imposing a specific sentence within
        the range of punishment, the court shall consider, but is not bound by, the
        following advisory sentencing 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.

T.C.A. § 40-35-210(c)(1)-(2) (emphasis added).

        In conducting a 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 arguments as to 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); see also State v. Carter, 254 S.W.3d 335, 343; State v. Imfeld, 70 S.W.3d 698,
704 (Tenn. 2002).

         A trial court is mandated by the Sentencing Act to “impose a sentence within the
range of punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required
to begin with a presumptive sentence subject to increase and decrease on the basis of
enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate
court is “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.

      A trial court’s “fail[ure] to appropriately adjust” a sentence in light of applicable, but
merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for

                                              -7-
appellate review. Id., 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007) (noting that “[t]he 2005
amendment [to the Sentencing Act] deleted appellate review of the weighing of the
enhancement and mitigating factors, as it rendered the enhancement and mitigating factors
merely advisory, not binding, on the trial courts”). In Bise the Court concluded:

        We hold, therefore, that a trial court’s misapplication of an enhancement or
        mitigating factor does not invalidate the sentence imposed unless the trial
        court wholly departed from the 1989 Act, as amended in 2005. So long as
        there are other reasons consistent with the purposes and principles of
        sentencing, as provided by statute, a sentence imposed by the trial court
        within the appropriate range should be upheld.

Bise, 380 S.W.3d at 706.

        Defendant argues that the trial court’s application of enhancement factor (6), that the
personal injuries inflicted upon the victim were particularly great, was improper because it
is an element of the offense of aggravated assault. See Tenn. Code Ann. § 39-13-102
(aggravated assault requires proof that a defendant did intentionally or knowingly cause the
victim serious bodily injury). Although Defendant has not cited any authority for this
argument, we recognize that our supreme court has held that application of an enhancement
factor which is contained in the elements of the offense is error. State v. Imfeld, 70 S.W.3d
698, 706 -707 (Tenn. 2002) (“In effect, elements of an aggravated assault against a specific,
named victim are reflected in the statutory language of the enhancement factor, thus rendering
its application to enhance the sentence inappropriate.”). Moreover, Tennessee Code
Annotated section 40-35-114 provides, “[i]f appropriate for the offense and if not already an
essential element of the offense, the court shall consider, but is not bound by, [the statutory
enhancement factors].” Tenn. Code Ann. § 40-35-114 (emphasis added). As noted above,
unless a trial court “wholly depart[s] from the 1989 Act, as amended in 2005[,]”
misapplication of enhancement or mitigating factors does not invalidate a sentence. Thus, a
maximum sentence within the appropriate range, in the total absence of any applicable
enhancement factors, and even with the existence of applicable mitigating factors, should be
upheld as long as there are reasons consistent with the statutory purposes and principles of
sentencing. Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345-46 (“Similarly, if the trial
court recognizes and enunciates several applicable mitigating factors, it does not abuse its
discretion if it does not reduce the sentence from the maximum on the basis of those factors.”)
In this case, the trial court sentenced Defendant to six years for his conviction for aggravated
assault, a sentence consistent with the purposes and principles of sentencing and within the
appropriate range.



                                              -8-
        The record clearly shows, and Defendant concedes, that the trial court stated with
specificity its reasons for imposing the maximum sentence. The record also shows that the
trial court followed the statutory sentencing procedure, made findings of fact that are
adequately supported in the record, and gave due consideration to the principles that are
relevant to sentencing. Based on our review, we conclude that the trial court did not abuse
its discretion by imposing a sentence of six years for Defendant’s aggravated assault
conviction.

                                     CONCLUSION

      The judgment of the trial court is affirmed.


                                                  _________________________________
                                                  THOMAS T. WOODALL, JUDGE




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