        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 9, 2012

               STATE OF TENNESSEE v. LAWRENCE BROWN

                  Appeal from the Davidson County Criminal Court
                    No. 2009-B-1858     Monte Watkins, Judge


                 No. M2011-01156-CCA-R3-CD - Filed July 13, 2012


Lawrence Brown (“the Defendant”) was convicted of two counts of aggravated robbery, a
Class B felony. The trial court sentenced the Defendant as a Range I standard offender to
twelve years’ incarceration. In doing so, the trial court enhanced the Defendant’s sentence
based upon the following factors: (1) the Defendant has a previous history of criminal
convictions or criminal behavior; (2) the offense involved more than one victim; and (3) the
Defendant had no hesitation about committing a crime when the risk to human life was high.
The Defendant argues on appeal that the trial court erred when it enhanced his sentence
based upon his prior convictions, which were misdemeanor traffic offenses. Because we are
not permitted to assess the weight given by the trial court to enhancement factors, we
conclude that the Defendant is not entitled to relief on this issue. However, because we also
determine that the trial court erred in its application of the other two enhancement factors,
under the particular facts of this case, we conclude that it is necessary to vacate the
judgments of the trial court and remand for resentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Vacated
                                 and Remanded.

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Lawrence Brown.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Debbie Housel and Leticia
Alexander, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

                               Background Facts & Procedure

       A Davidson County Grand Jury indicted the Defendant on two counts of aggravated
robbery. He was tried before a jury November 1-5, 2010, alongside two co-defendants. The
evidence at trial showed that on April 19, 2009, the Defendant and his co-defendants robbed
at gunpoint Sharaya McDonald and Tahnee Brown (“the victims”). The victims were
walking along Fourth Avenue South when they encountered the Defendant and a female
co-defendant blocking their path. The Defendant and female co-defendant approached the
victims and demanded their purses. The victims initially refused but relented after the
Defendant pressed a gun into Brown’s stomach. After obtaining the victims’ purses, the
Defendant and co-defendant ran and got into a car driven by a third co-defendant.

       The victims called 911, and the police arrived quickly. The victims gave police a
description of the suspects, the getaway vehicle, and their path of escape. Police soon
spotted the suspects’ vehicle and conducted a stop. The victims were brought to the scene,
where they identified the Defendant as the man who held the gun during the robbery. Both
victims also identified the Defendant at trial. Based upon this evidence, the jury convicted
the Defendant of two counts of aggravated robbery.

       On January 20, 2011, the trial court held a sentencing hearing for the Defendant, along
with his co-defendants. The State entered the Defendant’s presentence report into evidence.
The prosecutor also read a victim impact statement that had been prepared by Brown.

       The Defendant testified that on the night of the robbery, he was at his house with the
co-defendants. He said that they were “relaxing” and that he had ingested cocaine and
smoked marijuana. The three left the house and drove around, and according to the
Defendant, he “just decided to randomly rob somebody.” The Defendant claimed that it was
his idea to the rob the victims. He said that he was gainfully employed but “was robbing just
to have extra money.” The Defendant relayed that he previously had gone with his
co-defendants to get a gun “[f]rom somebody else’s house.” He testified that he “liked
having a gun” and had been carrying a gun for about “a year or something . . . [b]efore this
incident.”

       At the conclusion of the proof at the sentencing hearing, the court found the
Defendant to be a Range I standard offender. Thus, the applicable sentencing range for each
aggravated robbery conviction was between eight and twelve years. Regarding enhancement
factors, the trial court initially found that the offenses involved more than one victim and that
the Defendant had no hesitation about committing a crime when the risk to human life was

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high. On the basis of these enhancement factors, the trial court preliminarily sentenced the
Defendant to serve ten years’ concurrently for each conviction.

        As the trial court began to sentence one of the co-defendants, it became clear that the
court had not considered the Defendant’s criminal history. The court then noted that the
Defendant had a series of misdemeanor traffic offenses. On the basis of these convictions,
the trial court applied as an additional enhancement factor that the Defendant had a previous
history of criminal activity or criminal behavior. The trial court then pronounced its final
sentence of twelve years’ incarceration on each conviction to run concurrently. The trial
court also reviewed the applicable sentencing principles and found that confinement was
necessary to avoid depreciating the seriousness of the offenses and that confinement was
particularly suited to provide an effective deterrent for others likely to commit a similar
offense.

       The Defendant appeals, arguing that the trial court erred when it increased his
sentence from ten years to twelve years on the basis of his misdemeanor convictions.

                                     Standard of Review

        When a defendant challenges the length, range, or manner of service of a sentence,
the applicable standard of review is de novo on the record with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d) (2006). 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. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If the trial court did not do so, then the presumption fails, and this Court’s review is
de novo with no presumption of correctness. State v. Pierce, 138 S.W.3d 820, 827 (Tenn.
2004). If the trial court considered the statutory criteria, imposed a lawful but not excessive
sentence, stated its reasons for the sentence on the record, and its findings are supported by
the record, then this Court is bound by the trial court’s decision. State v. Carter, 254 S.W.3d
335, 346 (Tenn. 2008). On appeal, the party challenging the sentence has the burden of
demonstrating that it is improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.;
Carter, 254 S.W.3d at 344.

      As we will explain, we conclude that the trial court erred in its application of certain
enhancement factors. Therefore, our review is de novo with no presumption of correctness.




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                                          Analysis

        In conducting a de novo review, this Court must consider the following: (a) any
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments of counsel regarding sentencing alternatives; (d) the
nature and characteristics of the criminal conduct; (e) any enhancement or mitigating factors
as provided 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 made by the defendant on his
or her own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2006); see also
Carter, 254 S.W.3d at 343.

       The principles of sentencing reflect that a sentence of confinement should be based
upon the following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2006); see also Carter, 254 S.W.3d at 347. Additionally,
the principles of sentencing reflect that the sentence should be no greater than that deserved
for the offense committed and should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed. Id. § 40-35-103(2), (4). A defendant’s potential
for rehabilitation or lack thereof is also a consideration when determining the length of
sentence. Id. § 40-35-103(5).

      In imposing a sentence within the appropriate range of punishment, a trial 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



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       (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) (2006). From this, “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].’” Carter, 254 S.W.3d at 343
(quoting Tenn. Code Ann. § 40-35-210(d)).

      Of relevance to this case, the trial court considered the following factors to enhance
the Defendant’s sentence:

       (1) The defendant has a previous history of criminal convictions or criminal
       behavior, in addition to those necessary to establish the appropriate range;

       (3) The offense involved more than one (1) victim; [and]

       (10) The defendant had no hesitation about committing a crime when the risk
       to human life was high.

Tenn. Code Ann. § 40-35-114 (1), (3), (10) (Supp. 2008). In order to apply, enhancement
factors must always be “appropriate for the offense” and “not already an essential element
of the offense.” Id.

       As noted above, the trial court found the Defendant to be a Range I standard offender,
which carries a sentencing range on a Class B felony of between eight and twelve years.
Tenn. Code Ann. §§ 40-35-105(b) (2006); 40-35-112(a)(2) (2006). In reaching its
sentencing determination, the trial court applied the three enhancement factors cited above.
However, due to some confusion at the sentencing hearing, the trial court initially sentenced
the Defendant to ten years applying only factors (3) and (10). A few moments later, the court
then revised its sentence to twelve years after finding factor (1) applied due to the
Defendant’s misdemeanor traffic offenses.

        The Defendant argues on appeal that the trial court abused its discretion by increasing
his sentence from ten years to twelve years based upon misdemeanor criminal convictions.
However, as noted by the State, the Defendant’s argument is essentially that the trial court
improperly weighed the enhancement factors. As discussed by our supreme court in Carter,
“the 2005 amendments [to the Sentencing Act] deleted as grounds for appeal a claim that the
trial court did not weigh properly the enhancement and mitigating factors.” Carter, 254
S.W.3d at 344. Consequently, while the manner in which the trial court pronounced its

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sentence provides insight into the weight it gave the respective enhancement factors, the
Defendant, nevertheless, is not entitled to relief on his claim that the trial court assigned too
much weight to his criminal history.

        Under the facts of this case, however, we must go further with our analysis. Although
not raised as an issue by the Defendant, the State concedes in its brief that the trial court erred
in its application of enhancement factors (3) and (10). We agree.

       First, enhancement factor three applies when “[t]he offense involved more than one
(1) victim.” Tenn. Code Ann. § 40-35-114(3). However, this factor may not be applied
when a defendant is convicted of separate offenses against each victim. State v. Imfeld, 70
S.W.3d 698, 706 (Tenn. 2002) (“[T]here cannot be multiple victims for any one offense . .
. committed against a specific, named victim.”); see also State v. Williamson, 919 S.W.2d
69, 82 (Tenn. Crim. App. 1995) (“This Court has held that this factor may not be applied to
enhance a sentence when the appellant is separately convicted of the offenses committed
against each victim.”). In this case, the aggravated robbery charges were for separate
offenses against specific, individual victims, i.e., Brown and McDonald. Therefore, the trial
court should not have applied enhancement factor (3).

        Likewise, the trial court should not have applied enhancement factor (10), which
applies when “[t]he defendant had no hesitation about committing a crime when the risk to
human life was high.” Tenn. Code Ann. § 40-35-114(10). The Defendant’s convictions for
aggravated robbery were based upon his using or displaying a deadly weapon. This Court
has held that “there is necessarily a high risk to human life . . . whenever a deadly weapon
is used.” State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Thus, we have held
that enhancement factor (10) is inherent in the crime of aggravated robbery and should not
be applied absent proof that the Defendant created a high risk to the life of a person other
than the victim. See State v. Monoleto D. Green, No. M2003-02774-CCA-R3-CD, 2005 WL
1046800, at *13 (Tenn. Crim. App. May 5, 2005). No such proof exists in this case.
Accordingly, we conclude that the trial court also should not have applied enhancement
factor (10).

        The State counters that the trial court’s overall sentencing determination is nonetheless
supported by the record because of the Defendant’s prior criminal activity and behavior. The
State notes that, in addition to his misdemeanor convictions, the Defendant admitted to using
illegal drugs and to carrying guns for approximately one year before the instant offenses. We
agree that this criminal behavior supports the trial court’s application of enhancement factor
(1) and, standing alone, potentially could support the imposition of a twelve-year sentence.
The trial court, however, indicated that it only intended to impose a sentence of ten years
based upon the two enhancement factors that were applied incorrectly. Only after applying

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the additional factor of the Defendant’s prior criminal record and criminal behavior did the
trial court decide to impose the maximum sentence of twelve years. Under these specific
circumstances, we cannot be certain that the trial court would choose to sentence the
Defendant at the maximum end of the sentencing range based upon this factor alone.
Therefore, we conclude that we must vacate the sentence imposed and remand for
resentencing.

                                     CONCLUSION

      For the reasons stated above, we vacate the trial court’s twelve-year sentence and
remand for further proceedings consistent with this opinion.




                                                  _________________________
                                                  JEFFREY S. BIVINS, JUDGE




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