         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs October 17, 2001

        STATE OF TENNESSEE v. LENTONIO MARCEL SWANSON

                Direct Appeal from the Criminal Court for Davidson County
                       No. 98-C-2357    J. Randall Wyatt, Jr., Judge



                   No. M2000-02899-CCA-R3-CD - Filed October 25, 2001



The defendant appeals his consecutive sentences totaling 29 years for two counts of aggravated
robbery and one count of aggravated assault. He contends the trial court erred in setting the length
of each sentence and in ordering the sentences to be served consecutively. After a thorough review
of the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH,
JJ., joined.

Monte D. Watkins, Nashville, Tennessee, for the appellant, Lentonio Marcel Swanson.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Bret Thomas Gunn and Ana Lucia Escobar,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

         On the morning of June 15, 1998, the defendant robbed Anthony Long at gunpoint as Long
walked to work. A few minutes later, the defendant also robbed Thomas Bell at gunpoint while Bell
was using a pay telephone. Bell was pursuing the defendant to get his license number when the
defendant fired a gun at Bell. A Davidson County jury convicted the defendant on two counts of
aggravated robbery, a Class B felony, and one count of aggravated assault, a Class C felony. The
trial court sentenced the defendant, a Range I standard offender, to twelve years for each aggravated
robbery conviction and five years for the aggravated assault conviction. The trial court ordered that
the sentences be served consecutively to each other and to a prior conviction. The only issue in this
appeal is sentencing.
                                     STANDARD OF REVIEW

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge 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 fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d) Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:

        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

        If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence for these offenses shall be the minimum sentence
within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the range for
enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn.
Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the
weight given to each factor is left to the discretion of the trial court as long as the trial court complies
with the purposes and principles of the sentencing act and its findings are supported by the record.
State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim.
App. 2000); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless,
should there be no mitigating factors, but enhancement factors are present, a trial court may set the
sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967
S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).


                                     LENGTH OF SENTENCES

        At sentencing, the trial court found four enhancement factors should be applied to each of
the defendant’s sentences. They are factor 1 (the defendant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range),
factor 8 (the defendant has a previous history of unwillingness to comply with the conditions of a
sentence involving release into the community), factor 10 (the defendant had no hesitation about


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committing a crime when the risk to human life was high), and factor 16 (the crime was committed
under circumstances under which the potential for bodily injury to the victim was great). See Tenn.
Code Ann. § 40-35-114(1), (8), (10), (16). The state concedes, and we agree, that factors 10 and 16
are not applicable. If an enhancement factor is an essential element of the offense for which the
defendant is convicted, it cannot be used to enhance the sentence. Tenn. Code Ann. § 40-35-114.
Risk to human life and potential for bodily injury are inherent in the crimes of aggravated robbery
and aggravated assault by using a deadly weapon. See State v. Nix, 922 S.W.2d 894, 903 (Tenn.
Crim. App. 1995); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). We will, therefore,
determine the sentence without a presumption of correctness.

       The record supports the application of factors 1 and 8. Defendant had ten prior misdemeanor
convictions, including convictions for weapons possession, drugs, evading arrest and assault.. He
also had a prior felony conviction for the sale of cocaine. He previously violated two different
probations. The application of these two enhancement factors weighs heavily. The defendant does
not argue the trial court erred in failing to apply the mitigating factors submitted by him at
sentencing, and we find that no mitigating factors are applicable. We conclude the sentences
imposed by the trial court are justified based upon these two enhancement factors.


                                CONSECUTIVE SENTENCES

       The defendant contends the trial court’s imposition of consecutive sentences did not
reasonably relate to the severity of the offenses. We disagree.

        Specific findings that an extended sentence is necessary to protect society and is reasonably
related to the severity of the offenses are prerequisites to consecutive sentencing under the
“dangerous offender” category in Tenn. Code Ann. § 40-35-115(b)(4). State v. Wilkerson, 905
S.W.2d 933, 939 (Tenn. 1995). However, such specific factual findings are not required for the other
categories of Tenn. Code Ann. § 40-35-115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
Nevertheless, the general principles of sentencing require that the length of sentence be “justly
deserved in relation to the seriousness of the offense” and “be no greater than that deserved for the
offense committed.” Id. at 460 (citing Tenn. Code Ann. §§ 40-35-102(1) and -103(2)).

        The trial court found two factors justifying the imposition of consecutive sentences: (1) the
defendant is a professional criminal who had knowingly devoted his life to criminal acts as a major
source of livelihood, and (2) the defendant has an extensive record of criminal activity. See Tenn.
Code Ann. § 40-35-115(b)(1), (2). The presentence report states, and trial court noted, that the
defendant, who was 25 years old at the time of sentencing, has never held a job. Regardless of the
applicability of this factor, however, the defendant’s criminal record is extensive. This alone is a
sufficient basis for the imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224,
231 (Tenn. Crim. App. 1997).




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        We conclude the trial court did not err in ordering the sentences to be served consecutively.
The aggregate sentence was justly deserved in relation to the seriousness of the offenses and was no
greater than that deserved. This issue is without merit.


                                         CONCLUSION

       Accordingly, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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