        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 18, 2014

            STATE OF TENNESSEE v. JOSHUA LEE STEELE

              Direct Appeal from the Criminal Court for Monroe County
                        No. 12-137      Amy A. Reedy, Judge




                No. E2014-00321-CCA-R3-CD - Filed December 4, 2014


The Defendant, Joshua Lee Steele, pleaded guilty to second degree murder, agreeing to allow
the trial court to determine his sentence. The trial court sentenced him to serve twenty-five
years in the Tennessee Department of Correction. On appeal, the Defendant contends that
the trial court erred when it sentenced him because it did not properly consider the mitigating
factor that the Defendant assisted authorities in detecting or apprehending other persons who
had committed the offenses. After a thorough review of the record and the applicable
authorities, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and T IMOTHY L. E ASTER, JJ., joined.

Jeanne L. Wiggins, Madisonville, Tennessee, for the appellant, Joshua Lee Steele.

Herbert H. Slatery, III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Steven Bebb, District Attorney General; and A. Wayne Carter, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

       This case arises from the Defendant and three co-defendants, Lorenz Freeman, Coty
Smith, and Jessica Payne, robbing, binding, and beating the victim, Mr. Vineyard. The
victim died from his injuries. For these offenses, a Monroe County grand jury indicted the
Defendant for one count of aggravated robbery, one count of conspiracy to commit
aggravated robbery, and one count of first degree felony murder.
       The Defendant pleaded guilty to second degree murder and agreed that the trial court
would determine his sentence.1 At the guilty plea submission hearing, the State offered the
following recitation of the facts in support of the trial court’s acceptance of the guilty plea:

                 [The State] would prove that on March the 4, 2012, that Mr. Freeman
        and Mr. Smith and Ms. Payne had an attempt to go and rob the victim in this
        case . . . . That they went to [the victim’s] place of residence, that [] Ms. Payne
        stayed in the vehicle and [Mr. Freeman and Mr. Smith] get out. That they
        approached [the victim’s] residence when another vehicle shows up and they
        get spooked and leave and so there’s no event that happens at that point. They
        go to a residence where they get hold of [the Defendant]. At that point,
        sometime later on, and Ms. Payne does not return with them, but Mr. Freeman,
        Mr. Smith and [the Defendant] go back to [the victim’s] residence, and at that
        point they go in and it is Mr. Freeman and [the Defendant] who are the ones
        that hold on to the victim [] and he’s hit in the head with a piece of iron, a
        piece of wrought iron, and he eventually dies . . . .

               . . . Mr. Smith was present, Mr. Smith was involved in the planning, Mr.
        Smith goes through the house, the house is ransacked looking for what we
        expect [was] cash, there were some rumors going around that the victim [] had
        large amount of cash that was there. After this happens, they leave, go back,
        and there’s some other conversations that goes on. . . . . [T]he defendants that
        went into [the victim’s] residence all put on masks . . . . [T]he detectives and
        the agents advised me that at least, [the Defendant] and Mr. Freeman were
        very cooperative in their statements and forthcoming . . . .

       At the sentencing hearing, the parties presented the following evidence: The State
offered the presentence report, which the trial court admitted into evidence. Doug Brannon,
chief detective for the Monroe County Sheriff’s Department, testified that he was the lead
investigator for this homicide case. He stated that in March of 2012, law enforcement
responded to a call from the victim’s neighbor. The neighbor reported that he had found the
victim dead in the victim’s home. Detective Brannon stated that law enforcement
investigated the crime scene, a “log cabin type home[.]” He stated that the victim’s home
had been “ransacked” and that the interior walls were “ripped apart, furniture overturned,
mattresses shredded, sheetrock busted through.” Detective Brannon testified that it was clear
“someone had been searching for something.”


        1
         The three co-defendants also entered guilty pleas to various charges, none of which are the
subject of this appeal.

                                                    2
        Detective Brannon testified that investigators found the victim on the floor with his
wrists bound by “flexible handcuffs.” The victim had a visible injury to his head. Detective
Brannon stated that he later learned the victim had died from a head wound and that the
victim had been struck on the head and body with a hard object. Detective Brannon stated
that investigators interviewed neighbors and witnesses who provided “direct information”
that led to the Defendant and the co-defendants.

        Detective Brannon stated that he located the Defendant first and that, initially, the
Defendant denied any role in the crime. The Defendant later acknowledged his involvement.
The Defendant “expressed remorse” about the victim’s death. The Defendant explained to
the investigators that he was not part of the original plan devised by Mr. Freeman, Mr. Smith,
and Ms. Payne but that he “agreed to participate” in their plan. The Defendant stated that he,
Mr. Freeman, and Mr. Smith went to the victim’s residence and gained entry by kicking open
the door. The Defendant stated that the three men held down the victim and assaulted him
with a piece of “rebar” about two feet long. Detective Brannon explained that “rebar” is a
piece of steel “normally used to reinforce concrete” and is very sturdy. The Defendant
described the events “step by step,” including the assault, tearing apart the walls, and stated
that the three men were looking for narcotics and money because they believed the victim
had a lot of cash. The Defendant identified the co-participants, which led to investigators
locating them.

        Detective Brannon stated that, “[i]n total from what we learned from speaking to all
the parties, . . . it seemed that Mr. Smith [] had directed, initiated, was the man behind the
idea. . . .”

        On cross-examination, Detective Brannon stated that the Defendant was in possession
of the “rebar” inside the victim’s home and that the Defendant acknowledged using it to
strike the victim. Detective Brannon recalled that the autopsy showed that contributing to
the victim’s death were his injuries as well as “positional asphyxiation,” which Detective
Brannon stated he interpreted as the victim “drown[ing] in his own blood.” He stated that
the autopsy showed that the victim did not die immediately and remained alive for “some
time” after he was beaten.

       Detective Brannon agreed that the Defendant cooperated with the authorities and
acknowledged his participation in the crime. Detective Brannon recalled that the
Defendant’s remorse was sincere. He reiterated his statement that it was the Defendant who
struck the victim in the head.

       On redirect-examination, Detective Brannon recalled that the victim’s hands were
“cuffed” behind his back, and this restricted his movement and may have led to him not

                                              3
being able to breathe.

       Larry Vineyard testified that he was the victim’s brother. He testified that the victim
was a non-violent person who did not own a gun. He described arriving at the crime scene
and walking inside the victim’s house. He recalled that there was a “foot or foot and a half”
deep puddle of blood where the victim’s face had been. Mr. Vineyard testified that he and
his two sons cleaned up the victim’s house and boarded it up. He described the victim’s
generous and kind personality. Mr. Vineyard testified that he had spoken with the District
Attorney and agreed that the Defendant and his co-defendants should be offered a deal to
plead guilty to second degree murder.

       On behalf of the Defendant, Candy Clark, the Defendant’s sister, testified that the
Defendant did not know his father until he was eight years old and that the Defendant’s
mother was killed in a car wreck when he was eleven years old. Ms. Clark said the
Defendant had a wonderful relationship with his mother and that her death was very hard on
him. Ms. Clark testified that the Defendant was in the car wreck with his mother. Ms. Clark
and her sister “raised” the Defendant after his mother’s death. She described the Defendant
as angry and stated that he would get mad easily.

       Ms. Clark testified that, as an adult, the Defendant had a “big heart” but made a lot
of bad decisions. She described him as a “follower,” and she said he could be dared by
someone to do anything. She stated that she had never known him to be violent toward
anyone, but she reiterated that he had a temper. She stated that the Defendant was “very
remorseful” for the victim’s death.

       On cross-examination, Ms. Clark agreed that the Defendant had a prior criminal
history and that he had been convicted of multiple drug offenses and other crimes. She
agreed that he was on probation when this crime was committed.

      Amber Ratledge testified that she was the Defendant’s older sister and that life had
“been really hard” on the Defendant, Ms. Clark, and herself because they had lost their
mother. She stated that the Defendant had a drug problem but had never been a violent
person.

       After considering this evidence, the trial court stated that it had considered the
sentencing guidelines enumerated in Tennessee Code Annotated section 40-35-102. The trial
court stated that the Defendant was a Range I offender and had a prior criminal record
spanning from 2007 to 2011. The trial court acknowledged that the Defendant had a “very
sad background” and had suffered during his life. The trial court went on to say:



                                              4
               This is a case where considering enhancement factors we have two
       leaders. . . . . There are four people and two leaders and I find that [the
       Defendant] was a leader. He did strike the victim. Maybe he didn’t go there
       to kill, but you don’t hit a man in the head with a piece of rebar without
       advancing that quality of leadership in a criminal enterprise. When you take
       that step you have taken a leadership role and he did that. So I do find in this
       case that [the Defendant] was a leader in the commission of an offense
       involving two or more criminal actors. . . . . I also find that the [D]efendant
       treated or allowed a victim to be treated with exceptional cruelty during the
       commission of the offense, and in his case I also find that tying him up with
       those one time handcuffs, striking him and allowing him to lay there in a
       helpless position, and the proof is that he didn’t die immediately but that he
       bled what sounds like rather profusely based on the [] horrific cleanup efforts
       of the victim’s brother and his two sons . . . . So I find all that proof taken
       together is proof of that enhancement factor, that the [D]efendant treated or
       allowed a victim to be treated with exceptional cruelty during the commission
       of the offense. I do not find that the personal injuries inflicted upon or the
       amount of damage to property sustained by or taken from the victim was
       particularly great. That doesn’t mean it wasn’t great, that just means the Court
       is finding it’s part of second degree murder. . . . . So in this case I also do not
       find that any mitigation has been proven. There’s just not enough proof here
       that fits in with those mitigating factors. Sympathetic issues, sad stories, but
       not proof of mitigation in this crime. . . . . Having found those enhancement
       factors, having consider[ed] what the law requires that I consider, and that is
       that [the Defendant] shall be punished in relation to the seriousness of the
       offense, . . . to prevent crime based on the testimony we have had in the record
       today, and promote respect for the law which provides an effective general
       deterrent, and in that case I sentence [the Defendant] to 25 years in the
       Tennessee Department of Corrections.

       It is from this judgment that the Defendant now appeals.

                                          II. Analysis

        On appeal, the Defendant contends that the trial court erred when it sentenced him
because it failed to consider the mitigating factor that the Defendant “assisted the authorities”
in investigating this crime. See T.C.A. § 40-35-113(9) (2014). The Defendant argues that
the trial court erred when it found that no evidence was presented to establish this mitigating
factor. The State counters that the record supports the trial court’s sentencing

                                               5
determinations. We agree with the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “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.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The reviewing court should uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles of
the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.
The defendant bears “[t]he burden of demonstrating that the sentence is improper.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

      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 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) (2014). The trial court must consider: (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 the
mitigating and enhancement factors set out in Tennessee Code Annotated sections 40-35-113
and -114; (6) any statistical information provided by the administrative office of the courts
as to sentencing practices for similar offenses in Tennessee; and (7) any statement the

                                               6
defendant made in the defendant’s own behalf about sentencing. See T.C.A. § 40-35-210
(2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

        Section 40-35-113 contains a non-exclusive list of mitigating factors that a trial court
may apply to a defendant’s sentence “if appropriate for the offense.” T.C.A. § 40-35-113
(2014). We, however, recognize that a trial court’s weighing of applicable mitigating factors
is “left to the trial court’s sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008). “[T]he 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. The burden of proving applicable mitigating factors rests upon the
defendant. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6
(Tenn. Crim. App., at Knoxville, Sept. 18, 1995), perm. app. denied (Tenn. Feb. 5, 1996).
Moreover, the 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.” Bise, 380 S.W.3d at 706. “[Appellate Courts 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.” Carter, 254 S.W.3d at 346.

        The Defendant contends that the trial court erred by failing to consider the evidence
presented in support of mitigating factor (9), that the Defendant “assisted the authorities in
uncovering offenses committed by other persons or in detecting or apprehending other
persons who had committed the offenses[.]” T.C.A. § 40-35-113(9) (2014). The trial court
did consider whether there was any proof at the sentencing hearing of mitigating factors and
stated that it found that there was none. Our review of the record indicates that Detective
Brannon testified that the Defendant did give information to the authorities that aided them
in identifying other persons who had been involved in the crime.

        We agree that this is proof of mitigating factor (9), that the Defendant “assisted the
authorities in uncovering offenses committed by other persons or in detecting or
apprehending other persons who had committed the offenses[.]” Id. However, as previously
stated, enhancing and mitigating factors are advisory only. See T.C.A. § 40-35-114 (2014);
see also Bise, 380 S.W.3d at 699 n.33, 704; Carter, 254 S.W.3d at 343. This Court is “bound
by [the] 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.” Carter, 254 S.W.3d at 346. The trial court stated that it considered the
Defendant’s role in the crime, and the circumstances of the victim’s death, particularly that
the Defendant left the victim to die after beating him in the head with an iron pole.
Accordingly, the trial court applied two enhancement factors, that the Defendant was a leader
in the commission of an offense involving two or more criminal actors and that the

                                               7
Defendant treated the victim with exceptional cruelty during the commission of the offense.
T.C.A. § 40-35-114(2), (5) (2014). For these reasons, the trial court sentenced the Defendant
to a within range sentence of twenty-five years for second degree murder.

        We conclude that the Defendant’s within range sentence is consistent with the
purposes set out in the Sentencing Act and that it was within the trial court’s broad discretion
not to apply mitigating factor (9) when sentencing him. See State v. Pollard, 432 S.W.3d
851, 861 (Tenn. 2013) (citing Bise, 380 S.W.3d at 709-10). The Defendant is not entitled to
relief on this issue.

                                       III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s judgments.

                                                     ________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




                                               8
