            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE             FILED
                             OCTOBER 1997 SESSION
                                                            January 8, 1998

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,             *    C.C.A. # 03C01-9701-CR-00002

             Appellee,          *    KNOX COUNTY

VS.                             *    Hon. Mary Beth Leibowitz, Judge

LADANIEL RAY WILLIAMS,          *    (Aggravated Robbery)

             Appellant.         *




For Appellant:                       For Appellee:

D'Artagnan H. (Chip) Perry           John Knox Walkup
Attorney                             Attorney General and Reporter
1910 First Tennessee Plaza
800 South Gay Street                 Marvin E. Clements, Jr.
Knoxville, TN 37902                  Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     Randall E. Nichols
                                     District Attorney General

                                     Fred Bright and Willie Harper
                                     Asst. District Attorneys General
                                     City-County Building
                                     Knoxville, TN 37902



OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                          OPINION

              The defendant, LaDaniel Ray Williams, entered a plea of guilt to

aggravated robbery. The trial court imposed a Range I sentence of eight years.

The single issue presented for our review is whether the trial court erred by denying

the defendant's request to be classified as an especially mitigated offender. We

affirm the judgment of the trial court.



              On August 6, 1995, the victim, Melissa Lynn Sexton, had a flat tire at

the intersection of Ailor Avenue and Twenty-first Street in Knoxville. The defendant,

another male, and a female stopped their vehicle nearby and informed the victim

that they would return to help. A little later, the defendant and a co-defendant, Eric

Carter, returned in a different vehicle. The men offered to help find a replacement

tire, placed the damaged tire in the back of their car, and drove away with the victim.

Shortly thereafter, the defendant pulled out a weapon and robbed the victim of her

jewelry and her money. The defendant then talked with the co-defendant about

killing the victim before allowing her to get out of the car in the downtown Knoxville

area. The victim obtained the license plate number and reported the description of

the car to the police. The automobile was registered in the name of Kimberly

Rheins, the girlfriend of the co-defendant. The victim selected the defendant from a

photographic lineup.



              Trial courts may classify a defendant as an especially mitigated

offender under the following conditions:

              (a) (1) The defendant has no prior felony convictions;
              and

                 (2) The court finds mitigating, but not enhancement
              factors.

              (b) If the court finds the defendant an especially
              mitigated offender, the court shall reduce the defendant's

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              statutory Range I minimum sentence by ten percent
              (10%), or reduce the release eligibility date to twenty
              percent (20%) of the sentence, or both reductions. If the
              court employs both reductions, the calculation for release
              eligibility shall be made by first reducing the sentence
              and then reducing the release eligibility to twenty percent
              (20%).

                                          ***

              (d) The finding that a defendant is or is not an especially
              mitigated offender is appealable by either party.

Tenn. Code Ann. § 40-35-109 (emphasis added).



              While acknowledging that the defendant had turned himself in to

police, blamed his actions on his addiction to crack cocaine, and had worked very

hard to turn his life around, the trial court declined to classify the defendant as an

especially mitigated offender, concluding that there were three enhancement

factors:

              (1) the defendant had a previous history of criminal
              convictions, i.e., a 1992 DUI offense. Tenn. Code Ann.
              § 40-35-114(1);

              (2) that the defendant was a leader in the commission of
              the robbery involving a second robber. Tenn. Code Ann.
              § 40-35-114(2); and

              (3) that the defendant treated or allowed the victim to be
              treated with exceptional cruelty. Tenn. Code Ann. § 40-
              35-114(5).



              The defendant, thirty-one years of age, had been incarcerated almost

a year by the time sentence was imposed. A 1985 graduate of Rule High School in

Knoxville, the defendant has a son, LaDaniel, Jr., and a daughter, Talisha. He has

maintained a twelve-year relationship with their mother, Alisha Neely. He has a

sporadic employment history and reported no permanent address. During his period

of pretrial incarceration, the defendant was befriended by Reverend Thomas Cook,

who has served as chaplain at the Knox County Jail for over ten years. Reverend

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Cook described the defendant as sincere and "very apologetic" for his crime.

Reverend Cook's contact with the defendant began at the time of his incarceration

and extended on a weekly basis until the time of his sentencing hearing.



              Initially, the question of whether a defendant should be sentenced as

an especially mitigated offender is discretionary with the trial court. State v. Braden,

867 S.W.2d 750, 762 (Tenn. Crim. App. 1993). The presence of an enhancement

factor disqualifies a defendant from treatment as an especially mitigated offender.

State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). A prior misdemeanor

record, as opposed to a felony, may constitute a prior criminal history but does not

disqualify a defendant from consideration. See Sentencing Commission Comments

to Tenn. Code Ann. § 40-35-109.



              The primary argument of the defendant is that he did not treat or allow

the victim "to be treated with exceptional cruelty during the commission of the

offense." Tenn. Code Ann. § 40-35-114(5). While acknowledging that his

statement, "We ought to kill this bitch," frightened the victim, he argues that it was

not exceptionally cruel because the elements of robbery involve "the intentional or

knowing theft of property from the person of another by violence or putting the

person in fear." Tenn. Code Ann. § 39-13-401(a). The defendant cites Manning v.

State, 883 S.W.2d 635 (Tenn. Crim. App. 1994), in support of his argument. In

Manning, the defendant pled guilty to four counts of aggravated rape, armed

robbery, and aggravated kidnapping. While noting that other enhancement factors

had been correctly applied, this court ruled that an abduction "in broad daylight" by

an armed defendant did not support the application of the exceptional cruelty

enhancement factor:

              While there is no doubt that the actions of the appellant
              were cruel, most of the facts relied upon in applying this

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              enhancement factor to the appellant are the very facts
              which made these crimes aggravated under the law.

Id. at 639. A lengthy sentence, including the imposition of consecutive sentencing,

was ordered in Manning. Id. at 641.



              While these circumstances are similar with regard to the application of

the exceptional cruelty enhancement factor, the defendant here still would not

qualify as an especially mitigated offender. Clearly, he was a leader in the

commission of the offense. That alone would disqualify the defendant from

consideration. Moreover, his prior criminal history included not only a conviction for

driving under the influence but also a time interval during which he was addicted to

crack cocaine, an illegal substance; either "criminal convictions or criminal behavior"

would support the application of this enhancement factor. Tenn. Code Ann. § 40-

35-114(1). In our view, the trial court did not abuse its discretion by refusing to

classify the defendant as an especially mitigated offender.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Jerry L. Smith, Judge




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