        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 30, 2010

       STATE OF TENNESSEE v. MICHAEL ORLANDO FREEMAN

                 Appeal from the Criminal Court for Hamilton County
                       No. 268866 Barry A. Steelman, Judge




                  No. E2009-01758-CCA-R3-CD - Filed July 14, 2010



The Defendant, Michael Orlando Freeman, pled guilty to robbery, a Class C felony, in the
Criminal Court of Hamilton County with sentencing to be determined by the trial court. The
trial court sentenced the Defendant as a Range I, standard offender to five years’
incarceration. In this appeal as of right, the Defendant contends that the trial court erred in
its application of enhancement factors to his sentence and in its denial of alternative
sentencing. Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Daniel J. Ripper, Chattanooga, Tennessee, attorney for appellant, Michael Orlando Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Steve Smith, Assistant District
Attorney General, attorneys for appellee, State of Tennessee.

                                         OPINION

       The Defendant and a codefendant were indicted for the June 5, 2008 aggravated
robbery of a Kentucky Fried Chicken (KFC) employee, Barbara Ledet. In a separate count,
both were also indicted for unlawful possession of a weapon. On July 8, 2009, the Defendant
entered a guilty plea without any agreement as to sentence to the lesser offense of robbery.
The second count of the indictment was dismissed pursuant to the plea agreement.
        At the August 13, 2009 sentencing hearing, James Rox of the Tennessee Board of
Probation and Parole testified that the Defendant submitted a statement expressing remorse
for his involvement in the robbery. Mr. Rox also stated that the nineteen-year-old Defendant
had prior convictions of two separate instances of domestic assault and one count of
misdemeanor vandalism. Mr. Rox recalled that, according to the affidavit of complaint, the
Defendant did not possess a handgun during the offense and remained near the back door of
the restaurant while his codefendant committed the robbery. The affidavit of complaint also
indicated that four other employees were in the restaurant when the robbery occurred. The
presentence report reflects that the Defendant admitted to being a daily marijuana user since
age twelve. The Defendant also had a tumultuous family history following his parents’
incarceration for federal drug convictions when he was six years old. The Defendant’s sister
testified regarding their childhood as well and confirmed that she and her brother spent most
of their childhood moving from various family members’ homes, foster homes, and group
homes.

        The Defendant testified that he had intended to complete high school but was unable
to because of his arrest for the robbery. He acknowledged his responsibility for assisting in
the robbery since he had worked at KFC for almost two years and knew that the back door
to the restaurant did not lock properly, but the Defendant stated that it was his codefendant’s
idea to commit the offense. The Defendant also testified that he telephoned the KFC
manager, his former boss, and apologized to her for the robbery. At the joint sentencing
hearing, the codefendant testified on his own behalf and disputed that he planned the robbery.

        The trial court noted that the negotiated plea resulted from both defendants’
cooperation and willingness to admit their guilt but that the facts still clearly supported an
aggravated robbery conviction. Relative to the Defendant’s sentence, the trial court found
that the Defendant possessed a history of criminal convictions, the offense involved more
than one victim, and the Defendant had no hesitation about committing a crime when the risk
to human life was high. See Tenn. Code Ann. § 40-35-114(1),(3), and (10). The trial court
noted as mitigation the Defendant’s youth and troubled childhood. The trial court imposed
a sentence of five years based upon its weighing of these factors. The trial court denied
alternative sentencing based upon its findings that granting probation would depreciate the
seriousness of the offense. The trial court particularly noted that the Defendant had worked
for KFC for almost two years and had utilized knowledge gained from that employment
relationship to commit the offense.

                                         ANALYSIS

                                     Length of Sentence



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       The Defendant contends that the trial court improperly weighed the enhancement and
mitigating factors in arriving at his five year sentence. He argues that the enhancement factor
concerning lack of hesitation when the risk to human life was high should not be applied
because it is inherent in robbery. The State responds that the weight afforded any sentencing
factors cannot be disturbed on appeal and that the application of factor (10) was proper when
the Defendant’s conduct placed persons other than the victim at risk of harm.

        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 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); see also State v. Carter, 254 S.W.3d 335 (Tenn. 2008).

       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:




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              (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);
Carter, 254 S.W.3d at 342-43. “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. As explained by our supreme court in Carter, the 2005 amendments to the
Sentencing Act now afford the trial court such greater discretion that:

       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 (citing Tenn. Code Ann. § 40-35-210(d)). Accordingly, 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 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).

        Initially, we note that the trial court correctly considered that the Defendant had no
hesitation about committing a crime in which the risk to human life was high. This


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enhancement factor is not an essential element of robbery. State v. Lavender, 967 S.W.2d
803 (Tenn. 1998). Furthermore, the Defendant’s conduct placed four other employees other
than the victim at risk. State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). Accordingly,
with the previously discussed principles in mind, this court cannot disturb the weight
afforded mitigating and enhancement factors properly applied by the trial court. The record
reflects that the trial court considered the purposes and principles of sentencing in arriving
at its decision and the findings of the trial court comport with the principles of the Sentencing
Act. Therefore, we affirm the five-year sentence imposed by the trial court.

                              Denial of Alternative Sentencing

       The Defendant also argues that the trial court’s denial of alternative sentencing was
improper. Specifically, he claims that the trial court did not give proper consideration to his
amenability to correction in denying alternative sentencing. The State contends that the trial
court properly denied alternative sentencing based upon the need to avoid depreciating the
seriousness of the offense.

        The Defendant was convicted of a Class C felony. Therefore, he was to be
“considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6) (2006). However, this
consideration does not automatically entitle a defendant to alternative sentencing; rather,
sentencing issues must be determined by the facts and circumstances presented in each case.
See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing Moss, 727 S.W.2d
at 235). The defendant must establish his suitability for alternative sentencing. Tenn. Code
Ann. § 40-35-303(b). In determining a defendant’s suitability for alternative sentencing, the
trial court should consider whether (1) confinement is needed to protect society by restraining
a defendant who has a long history of criminal conduct, (2) confinement is needed to avoid
depreciating the seriousness of the offense or confinement is particularly suited to provide
an effective deterrence to people likely to commit similar offenses, or (3) less restrictive
measures than confinement have frequently or recently been applied unsuccessfully to the
defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. § 40-35-103(1)(A)-(C)). A
trial court should also consider a defendant's potential or lack of potential for rehabilitation
when determining if an alternative sentence would be appropriate. Tenn. Code. Ann. § 40-
35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

       In denying alternative sentencing, the trial court expressed great concern over the
Defendant’s conduct and position as an employee where the robbery occurred. The trial
court stated that




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               It takes a certain personality that is different from most people to cross
       the line necessary to go into a legitimate business with a firearm, order people
       around and take money by force.

              With regard to [the Defendant], it takes a certain kind of personality to
       do that with regard to somewhere where he’s worked and where he’s gained
       the advantage of knowing how to successfully complete that act as a result of
       having worked there.

       . . . . [A]nd something punitive should be done when individuals make the
       conscious decision and choice to load up, take a gun, go in by force and take
       money. They endanger themselves, they endanger the people working and
       they endanger the public at large. So confinement is certainly necessary to
       avoid depreciating the seriousness of th[is] offense[ ].

These concerns are supported by the record. We conclude that the trial court gave
appropriate consideration to the sentencing factors in arriving at its determination.
Accordingly, we conclude that the trial court properly denied alternative sentencing in this
case.

                                       CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                                    ___________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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