        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 21, 2010

           STATE OF TENNESSEE v. PATRICK RICO EDWARDS

            Direct Appeal from the Criminal Court for Davidson County
                     No. 2007-A-176    Monte Watkins, Judge


               No. M2009-01277-CCA-R3-CD - Filed February 11, 2011


Defendant, Patrick Rico Edwards, was indicted by the Davidson County Grand Jury for
murder in the perpetration of a theft and first-degree premeditated murder, both in violation
of Tenn. Code Ann. § 39-13-202. After a jury trial began on August 21, 2008, the trial court
granted a mistrial. On March 19, 2009, Defendant pleaded guilty to the lesser-included
offense of second degree murder. Following a sentencing hearing on May 12, 2009,
Defendant was sentenced to serve 21 years in confinement at 100 percent. In this appeal,
Defendant challenges the length of his sentence. After a thorough review of the record, we
conclude that Defendant’s sentence is not excessive and affirm the judgment of the trial
court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender;
and Jonathan Augusta, Assistant Public Defender, Nashville, Tennessee, for the appellant,
Patrick Rico Edwards.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; Deborah Housel, Assistant
District Attorney General; and Roger Moore, Assistant District Attorney General, for the
appellee, the State of Tennessee.
                                         OPINION

                                    Guilty Plea Hearing

        At the plea hearing, the State gave the following factual basis for Defendant’s guilty
plea:

         As Your Honor recalls from the case that was tried in August, on October
         6th , 2006, Jessica Toombs, Joey York, Brandon Morrison, and Keith
         Casselberry, and Christopher Hudson went to Nashboro Village to buy
         ecstasy from Patrick Rico Edwards and Ryan Scott Lewis. When they
         arrived at the scene Christopher Hudson went over to the car that was
         driven by the defendant Patrick Edwards. As you heard from witnesses that
         were on the scene, Judge – like Ms. Laquita Weaver and, also, Eric Richey
         – Mr. Hudson leaned into the car and saw Mr. Edwards’ gun, became
         frightened and started running back behind the car. Patrick Rico Edwards
         got the gun and shot Christopher Hudson in the back as he was running.
         Mr. Hudson tried to crawl to the sidewalk, and as Your Honor remembers,
         if you’ll recall the testimony, Mr. Edwards got out of the car and went over
         to where Mr. Hudson was lying. Had this case proceeded to trial the State
         would have called Mr. Edwards co-defendant, Ryan Scott Lewis, who
         would have testified that they intended to rob Christopher Hudson, that Mr.
         Edwards did take over a hundred dollars from the body of Christopher
         Hudson, that they then went back to the apartment and when they got back
         to the apartment they divided the proceedings [sic]. Your Honor, also,
         recalls that the police were taken to the apartment where Ryan Scott Lewis
         and Patrick Edwards were, and that, then, they were taken by a man by the
         name of Corey Ashley to David Barnett’s home where they retrieved the
         murder weapon. And as you, also, will recall, Judge, TBI Agent Don
         Carman testified in August that there was a match between the murder
         weapon and the bullet and casing that were found at the scene.

         Judge, the victim’s family is here today. They do approve of this
         disposition. That would have been the State’s proof had the case proceeded
         to trial on Monday. And based upon these facts the State recommends the
         disposition.




                                              -2-
                                     Sentencing Hearing

       At the sentencing hearing, Detective Robert Swisher testified that on the night of the
offense, which occurred on October 6, 2006, he went to Nashboro Village, where the offense
occurred and spoke to two individuals at the scene, Joey York and Brian Keith Casselberry.
He then went to an apartment at Dover Glen, approximately one and a half or two miles
away. When he entered the apartment, he saw Defendant “jump from the bedroom into the
hallway with no shirt and then jump back into the bedroom.” Defendant appeared to be
“quite nervous.” Detective Swisher took Defendant and his co-defendant, Ryan Lewis, into
custody. Detective Swisher later interviewed Defendant. During that interview, Defendant
told detectives that he had completed the eighth grade and that he lived in Nashville. He told
detectives that his co-defendant, Ryan Lewis, had gotten a phone call from the victim asking
for drugs. Defendant drove himself and Mr. Lewis to meet the victim. Defendant stated that
the victim, who was standing at the driver’s side window of the vehicle, tried to grab the
drugs from Mr. Lewis, who was reaching across Defendant. The victim then swung a stick
at them and grabbed Defendant’s jacket. Defendant pulled out a gun, and the victim started
running. Defendant told detectives that he fired the gun “to scare him off.” Defendant hit
another car as he drove away. Defendant told detectives that he had purchased the gun from
a man on the street for one hundred dollars. Detective Swisher also testified that Defendant’s
fingerprint was found on a box of ammunition.

       Ryan Lewis testified that he knew Defendant through Defendant’s cousin, Corey
Ashley. He testified that he knew the victim in this case, Christopher Hudson, because he
had sold drugs to him before at Dover Glen Apartments. On the evening of the crime, Mr.
Hudson called Mr. Lewis, while Mr. Lewis was with Defendant and Mr. Ashley, and had
requested to purchase some ecstasy pills. Mr. Lewis initially told Mr. Hudson that he did not
have any pills, but in another conversation later that evening, he told Mr. Hudson that
Defendant and Mr. Ashley had drugs to sell.

        Mr. Lewis testified that Defendant, Mr. Ashley, and he discussed a plan to rob Mr.
Hudson. Defendant and Mr. Lewis drove to Nashboro Village and pulled in facing Mr.
Hudson’s vehicle. Mr. Ashley drove another vehicle and his role in the robbery was to be
the “lookout.” Mr. Hudson walked to the driver’s side window of the vehicle where
Defendant was, and leaned into the car. Mr. Lewis testified that Defendant pulled out the
pistol and demanded the money. Mr. Hudson turned to run away, and Defendant shot him.
Mr. Lewis opened the passenger’s side door to run, and Defendant pointed the pistol at him
and told him to get back in the car. Defendant got out of the car to retrieve the drugs and the
money that fell on the ground. Mr. Lewis did not see that the victim had any kind of weapon;
however, he testified, someone threw something “like a stick, or a bat, or something” at the
car as they drove away. As they left Nashboro Village, Mr. Lewis saw Corey Ashley speed

                                              -3-
away in his vehicle. Defendant and Mr. Lewis returned to Dover Glen Apartments. On the
way there, Defendant told Mr. Lewis to change his cell phone number, which he did. When
they arrived back at the apartments, Mr. Ashley was there. Mr. Ashley made a phone call to
get rid of the gun. The three men divided up the money. The police arrived about two hours
later. Mr. Lewis testified that he initially lied to police.

      Brian Keith Casselberry, a friend of the victim, and Wendy Hudson, the victim’s
mother, testified as to how the loss of the victim has affected their lives and asked the court
to impose the maximum sentence.

        Pamela Rooks, Defendant’s mother, testified that Defendant was nineteen or twenty
years old at the time of his arrest. He had not been living with her for a few months before
his arrest because Defendant “was doing some things that [she] didn’t approve of.” She
testified that Defendant had dropped out of school after the seventh or eighth grade. Mrs.
Rooks testified that Defendant’s father left home when Defendant was about one-year old.
Defendant’s father was not consistently involved with Defendant. Defendant went to live
with his father for one year when Defendant was thirteen years old. Mrs. Rooks knew that
Defendant had smoked marijuana, but she denied knowledge of any other drug use. She
testified that when her son was about eighteen years old, he had attempted suicide by taking
pills and was hospitalized for about one week. Several of Defendant’s family members
prepared letters in support of Defendant, which were admitted into evidence.

                                           Analysis

       When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2006). As the Sentencing Commission Comments to this section note,
the burden is on the appealing party to show that the sentencing is improper. Tenn. Code
Ann. § 40-35-401, Sentencing Comm'n Cmts (2006). This means that if the trial court
followed the statutory sentencing procedure, made findings of facts which are adequately
supported in the record, and gave due consideration to the factors and principles relevant to
sentencing under the Sentencing Act, Tennessee Code Annotated section 40-35-103 (2006),
the appellate court may not disturb the sentence even if a different result was preferred. State
v. Ross, 49 S.W.3d 833, 847 (Tenn.2001).

       In conducting a de novo review of a sentence, we 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

                                              -4-
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 4-35-113 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 defendant made in the defendant’s own behalf about sentencing. See Tenn.
Code Ann. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). We must also consider the potential or lack of potential for rehabilitation or treatment
of the defendant in determining the sentence alternative or length of a term to be imposed.
Tenn. Code Ann. § 40-35-103 (2006).

       At the conclusion of the sentencing hearing in this case, the trial court sentenced
Defendant, as a Range I standard offender to serve 21 years for his second degree murder
conviction, for which the possible sentence range is 15 to 25 years. The trial court first
considered mitigating factors: 1) that Defendant, because of his youth, lacked substantial
judgment in committing the offense; and 2) that Defendant admitted responsibility for the
offense. See Tenn. Code Ann. § 40-35-113(6). The trial court then found and applied the
following enhancement factors: 1) that Defendant has a previous history of criminal
behavior, including drug use; 2) that Defendant possessed or employed a firearm in the
commission of the offense; and 3) that Defendant had no hesitation about committing a crime
when the risk to human life was high. See Tenn. Code Ann. § 40-35-114(1), -(9), and -(10).

      Defendant appeals the trial court’s decision, arguing that his sentence is excessive.
The State responds that the trial court properly considered enhancement factors in
determining Defendant's sentence.

        Defendant contends that the trial court erred in applying enhancement factor (10), that
Defendant had no hesitation about committing a crime when the risk to human life was high.
The trial court noted that “anytime you fire a weapon someone can possibly be seriously
injured or killed, period, unless you’re at a shooting range. . . .” The trial court also found
that Defendant fired a gun in a residential neighborhood. Where a high risk to human life
is inherent in the underlying conviction, as is the case here, enhancement factor (10) applies
only if the defendant disregarded a high risk to the life of a person other than the victim.
State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The evidence at the
sentencing hearing also established that Defendant turned the gun on his co-defendant Mr.
Lewis after shooting the victim, and told Mr. Lewis to get back in the car when Mr. Lewis
tried to leave. While this action by Defendant might establish evidence of a separate assault
offense against Mr. Lewis, it was not part of the offense of second degree murder committed
by Defendant.

       Enhancement factor (10), by its language, as interpreted by case law, applies to the
crime for which Defendant is being sentenced. Speculation of where a bullet could possibly

                                              -5-
go does not constitute proof of facts to support application of this factor. See State v. Thomas
R. Baldwin, No. 01C01-9612-CR-00530, 1998 WL 426199 at *4, *8 (Tenn. Crim. App. at
Nashville, July 29, 1998), perm. app. denied (Tenn. Feb. 16, 1999). We agree with
Defendant that enhancement factor (10) does not apply. However, this does not result in
Defendant being entitled to a reduction in the sentence imposed by the trial court. See State
v. Winfield, 23 S.W.3d 279 (Tenn. 2000) (the wrongful application of one or more
enhancement factors by the trial court does not necessarily lead to a reduction in the length
of the sentence). Other than misapplication of one enhancement factor, the trial court’s
sentencing considerations and findings support the sentence imposed.

        The trial court found applicable two other enhancement factors supported by the
evidence that Defendant does not challenge on appeal. In our review of Defendant’s
sentence, we are “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.” State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008). This Court cannot review the weight placed on enhancement factors. Rather,
our review is limited to whether the enhancement factors are supported by the record and
appropriately applied. The Defendant is responsible for showing that the sentence is
excessive, and we conclude that he did not meet this burden. Defendant is not entitled to
relief in this appeal.

                                       CONCLUSION

       Based upon the foregoing, we affirm the judgment of the trial court.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                              -6-
