         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 29, 2009

            STATE OF TENNESSEE v. JONATHAN SCOTT LEMAY

                     Appeal from the Criminal Court for Sullivan County
                        No. S53874 Robert H. Montgomery, Judge



                   No. E2008-01761-CCA-R3-CD - Filed November 2, 2009


The defendant, Jonathan Scott Lemay, entered best interest pleas to robbery and aggravated assault,
Class C felonies, in Sullivan County Criminal Court. The trial court imposed two concurrent five-
year sentences to be served in the custody of the Department of Correction. In this appeal as of right,
the defendant contends that the trial court erred in denying him alternative sentencing and by
imposing sentences beyond the statutory minimum. Following our 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.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and
NORMA MCGEE OGLE , J., joined.

C. Brad Sproles, Kingsport, Tennessee, attorney for appellant, Jonathan Scott Lemay.

Robert E. Cooper, Jr., Attorney General & Reporter; Deshea Dulany Faughn, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant Attorney
General, attorneys for appellee, State of Tennessee.

                                             OPINION

        The record reflects that the defendant was indicted for the June 7, 2007 aggravated robbery
of Brandon Jodon during which he obtained the victim’s cell phone at knifepoint. The indictment
also alleges that the defendant committed an aggravated assault on Tra Jones by the use of a knife.
The judgments reflect that the defendant entered best interest pleas without any recommendation as
to sentences to the lesser offense of robbery in count one and aggravated assault in count two. The
presentence report, reflect that the victims, boys ages fifteen and fourteen, were walking down the
street at approximately 1:35 in the morning when the defendant and codefendant drove up to the
boys, exited their car, and told the victims that “It’s time to do a pocket check.” The codefendant
approached the fifteen-year-old boy, Mr. Jodon, and demanded money from him; Mr. Jodon gave
him his cell phone. The defendant put a knife to the throat of the fourteen-year-old boy, Mr. Jones.
Based upon a description of the men and the car, the authorities later found the defendant and
codefendant parked at a McDonald’s restaurant. The cell phone was found in the vehicle, and the
knife was found in the defendant’s front pocket.

        The twenty-one-year-old defendant testified at the sentencing hearing that he would be able
to live with his mother, step-father, and siblings if sentenced to an alternative sentence or diversion.
Regarding the offenses, the defendant explained that it was wrong for him to get out of the car with
the knife, but he really believed the entire incident was an argument between his codefendant and
one of the victims. Later, he admitted that he and his codefendant did not know either victim. The
defendant also denied approaching the boys with a knife, but he did acknowledge that, at 6 foot 6
inches tall, he was about twelve inches taller than the victims. He stated “we had no business being
there [and] we [were] in the wrong for what we [did].” The defendant testified that he “wanted to
just get on with my life and find a good job and go to college to further my education.”

        The defendant acknowledged his lengthy juvenile history but explained that he had “anger
issues” stemming from his “very abusive father.” His juvenile record began at the age of nine when
he assaulted his step-father with a butcher knife. His behavior escalated until he was ultimately
placed in a juvenile detention facility as a teenager. The defendant admitted that he pled guilty to
an aggravated assault which reportedly involved forcing another juvenile at the detention facility to
perform oral sex, but the defendant attributed this adjudication to “hazing” and “bad legal advice.”
The defendant testified that he attended anger management classes as a juvenile. After his release
from detention, the defendant admitted that he re-offended while on probation, but he explained that
he was protecting himself. Throughout his testimony, the defendant attempted to mitigate his
responsibility for the offenses for which he had been adjudicated delinquent by claiming that he was
“in the wrong place at the wrong time” and “around the wrong people.” The defendant admitted at
the sentencing hearing that he smoked marijuana regularly, explaining that marijuana worked better
than the prescribed medicine for his Attention-Deficit Hyperactivity Disorder.

        At the conclusion of the defendant’s testimony, the State asked the court to deny the
defendant’s request for judicial diversion. The State acknowledged that the defendant was
technically eligible for diversion but asserted that his juvenile history of assaultive behavior should
preclude the trial court’s finding of suitability. The State noted that the defendant had failed at
rehabilitative measures, particularly noting that “apparently the anger management classes did not
help” the defendant. The defendant asked the trial court to grant his request for judicial diversion
or some form of alternative sentencing.

        The record reveals that the trial court gave appropriate consideration to the factors analyzed
in determining the defendant’s suitability for judicial diversion. Ultimately, the trial court denied
judicial diversion and cited several considerations as a basis for the denial: the defendant’s failed
attempts at rehabilitation, persistent assaultive behavior, criminal history of smoking marijuana
while on bond for these offenses, mental health problems as evidenced by substance abuse and
impulse control issues, and that granting diversion would not serve the interest of the public in
consideration of the escalation of the defendant’s assaultive behavior.

       In arriving at the length of the defendant’s sentence, the trial court gave a “great deal of
weight” to the defendant’s history of criminal behavior as evidenced by his juvenile history, his

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admitted illegal drug use, and his underage use of alcohol. Tenn. Code Ann. § 40-35-114(1). The
trial court also found that the defendant was a leader in the commission of the offenses, that the
offenses involved more than one victim, that the victims were vulnerable due to their youth, that the
defendant failed to comply with conditions involving release, and that the defendant had a history
of juvenile adjudications that would qualify as felonies if committed by an adult. Tenn. Code Ann.
§ 40-35-114(2), (3), (4), (8), and (16). The trial court found none of the statutory mitigating factors
applicable. As to the defendant’s proposed non-statutory mitigating factors, the trial court found
none of them applicable, rejecting the defendant’s claims that he had no criminal history, had
expressed remorse, had an excellent work history, and had made efforts at self-rehabilitation.
Specifically, the trial court noted that the defendant “perhaps underst[ood] that there are
consequences for the decisions [he] made . . . [but] [r]emorse is understanding the impact that a
crime that [he] committed has on other people.” Based upon these findings, the trial court imposed
five-year sentences for each conviction, to be served concurrently.

       As to alternative sentencing, the trial court found that community corrections was not
appropriate for the defendant because he was convicted of violent offenses involving a deadly
weapon. The trial court noted the defendant’s history of assaultive behavior:

       An aggravated assault in 2001, assault in 2002, aggravated sexual battery but [the
       defendant] said it’s aggravated assault in 2003, another domestic assault in 2006.
       And then just a year — and he’s discharged from juvenile probation on May 30, 2006
       simply because he turned 18 years of age and then less than just a little over a year
       later he commits this offense. In my opinion he has what I consider to be a long
       history of criminal conduct and frankly, I think confinement is necessary to protect
       society by restraining him because of that long history.

The trial court also noted that measures less restrictive than confinement had been unsuccessfully
applied to the defendant in the past. Based upon these findings, the trial court denied all other forms
of alternative sentencing.

        On appeal the defendant contends that the trial court erred in imposing a sentence beyond
the statutory minimum and by denying alternative sentencing. The defendant no longer takes issue
with the trial court’s denial of judicial diversion. The State contends that the trial court imposed a
proper sentence in length and manner of service.

                                            ANALYSIS

                                         Length of Sentence

        An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, on appeal the burden is on the defendant to show that
the sentence is improper. This means that if the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately supported in the record, and gave due


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consideration and proper weight to the factors and principles that are relevant to sentencing under
the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action 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). In this respect, for the purpose of meaningful appellate review,

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found, state the
       specific facts supporting each enhancement factor found, and articulate how the
       mitigating and enhancement factors have been evaluated and balanced in determining
       the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann. § 40-35-
210(e).

       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.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

        The weight to be afforded an enhancement or mitigating factor is left to the trial court’s
discretion so long as its use complies with the purposes and principles of the 1989 Sentencing Act
and the court’s findings are adequately supported by the record. Id. § (d)-(f); State v. Carter, 254
S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore 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 . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly,



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on appeal we may only review whether the enhancement and mitigating factors were supported by
the record and their application was not otherwise barred by statute. See id.

        In imposing a sentence, the trial court may only consider enhancement factors that are
“appropriate for the offense” and “not already . . . essential element[s] of the offense.” Tenn. Code
Ann. § 40-35-114. These limitations exclude enhancement factors “based on facts which are used
to prove the offense” or “[f]acts which establish the elements of the offense charged.” Jones, 883
S.W.2d at 601. Our supreme court has stated that “[t]he purpose of the limitations is to avoid
enhancing the length of sentences based on factors the legislature took into consideration when
establishing the range of punishment for the offense.” State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997); Jones, 883 S.W.2d at 601.

        In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, (7) the defendant’s potential for rehabilitation or treatment, and
(8) any statistical information provided by the Administrative Office of the Courts as to sentencing
practices for similar offenses in Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

        We initially note, as the State correctly points out, that the defendant’s challenge to the trial
court’s increase of sentence beyond the statutory minimum is misplaced. Because the offenses were
committed exactly two years after the 2005 amendment to the Sentencing Act, the defendant’s
allegation that the trial court’s imposition of sentence violates Blakely v. Washington, 542 U.S. 296
(2004), is without merit. Furthermore, the record reflects that trial court followed the applicable
sentencing principles and appropriately found the existence of applicable enhancement factors. The
record shows that the trial court gave proper consideration, but no weight, to any proposed mitigating
factors. Under the revised sentencing act, this court may not review the weight afforded the
enhancing and mitigating factors provided the trial court followed the principles of sentencing.
Given that the enhancement factors were supported by the record and the trial court considered the
mitigating factors as required, we conclude that the trial court followed the appropriate sentencing
principles in this case. We therefore affirm the defendant’s five-year sentences for robbery and
aggravated assault.

                                  Denial of Alternative Sentencing

        In determining whether the petitioner should have received an alternative sentence, the trial
court was obliged to consider (1) the evidence, if any, received at the guilty plea and sentencing
hearings, (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 the enhancement and mitigating factors, (6) any statistical
information provided by the administrative office of the courts as to sentencing practices for similar


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offenses in Tennessee, (7) any statements the defendant made in his behalf about sentencing, and (8)
the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210 (b); -103(5)(2006); State
v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

         The defendant is a “standard offender convicted of a Class C, D, or E felony, [who] should
be considered as a favorable candidate for alternative sentencing options in the absence of evidence
to the contrary.” Tenn. Code Ann. § 40-30-102(6)(2006). Furthermore, a defendant is eligible for
probation “if the sentence actually imposed upon the defendant is ten (10) years or less,” and the trial
court is required to automatically consider probation as a sentencing option. Tenn. Code Ann. § 40-
35-303(a), (b)(2006). A defendant’s potential for rehabilitation or lack thereof should be examined
when determining if an alternative sentence is appropriate. Tenn. Code Ann. § 40-35-103(5). A
defendant seeking full probation bears the burden of showing that probation will “‘subserve the ends
of justice and the best interest of both the public and the defendant.’” State v. Dykes, 803 S.W.2d
250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors
applicable to probation consideration are the circumstances of the offense; the defendant’s criminal
record, social history, and present condition; the deterrent effect upon the defendant; and the best
interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

        The record reflects that the trial court gave consideration to the factors applicable to
determination of alternative sentencing. In denying alternative sentencing, the trial court stressed
the escalating pattern of the defendant’s assaultive behavior and his past failed attempts at
rehabilitation. The defendant admitted to continued criminal behavior while on bond for the present
offenses through his continued use of marijuana and stated that if asked to pass a drug screen on the
day of sentencing, he would fail it. Under these circumstances, we conclude that the trial court
correctly denied alternative sentencing in this case.

                                           CONCLUSION

       In consideration of the foregoing, the judgments of the trial court are affirmed.


                                                        ___________________________________
                                                        D. KELLY THOMAS, JR., JUDGE




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