                                                                                          09/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2018

                  STATE OF TENNESSEE v. DALVIN SMITH

                 Appeal from the Criminal Court for Shelby County
                    No. 15-06293       W. Mark Ward, Judge
                     ___________________________________

                           No. W2017-01915-CCA-R3-CD
                       ___________________________________


After a jury trial, Defendant, Dalvin Smith, was convicted of two counts of reckless
homicide, facilitation of especially aggravated robbery, two counts of attempted
aggravated robbery, aggravated burglary, and employment of a firearm during the
commission of a dangerous felony. Defendant received a total effective sentence of
thirty-seven years in the Tennessee Department of Correction. On appeal, Defendant
argues that the trial court abused its discretion by ordering an excessive sentence. After a
thorough review of the facts and applicable case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. JAMES CURWOOD WITT, JR., J. filed a separate concurring
opinion.

Dewun R. Settle, Memphis, Tennessee, for the appellant, Dalvin Smith.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas S. Bolduc, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                        I. Factual and Procedural Background
       On December 10, 2015, Defendant and Co-defendant Jamaal Austin, Defendant’s
cousin, were indicted on the following charges:

 Count            Offense                                                Offense Classification
 Count One        First degree felony murder
 Count Two        First degree premeditated murder
 Count Three      Especially aggravated robbery                          Class A
 Count Four       Attempted aggravated robbery                           Class C
 Count Five       Attempted aggravated robbery                           Class C
 Count Six        Aggravated burglary                                    Class C
 Count Seven      Employing a firearm during the commission              Class C
                  of a dangerous felony

       The following facts relating to the offenses were summarized in Defendant’s
presentence report:1

              On August 16, 2015, [Defendant] and [Mr. Austin] did unlawfully
       and with intent to commit robbery kill Hilvar Giovani Lopez in the
       perpetration of or attempt to perpetrate robbery[.] [Defendant] and [Mr.
       Austin] did unlawfully, intentionally, and with pre-meditation kill Hilvar
       Giovani Lopez[.]        [Defendant] and [Mr. Austin] did unlawfully,
       intentionally, or knowingly, take from Hilvar Giovani Lopez’s person a
       sum of money, of value by violence or by putting Hilvar Giovani Lopez in
       fear, said taking accomplished with a deadly weapon and Hilvar Giovani
       Lopez suffered serious bodily injury[.] [Defendant] and [Mr. Austin] did
       unlawfully attempt to commit the offense of aggravated robbery, in that
       they did unlawfully, intentionally, or knowingly, attempt to take from
       Eladio Elias Sales’ person a sum of money, of value by violence or by
       putting Eladio Elias Sales in fear, by use of a deadly weapon or by display
       of any article used or fashioned to lead Eladio Elias Sales to reasonably
       believe the article to be a deadly weapon[.] [Defendant] and [Mr. Austin]
       did unlawfully, intentionally or knowingly, attempt to take from Elmar
       Perez’s person a sum of money, of value by violence or by putting Elmar
       Perez in fear, by use of a deadly weapon or by display of any article used or
       fashioned to lead Elmar Perez to reasonably believe the article to be a
       deadly weapon[.] [Defendant] did unlawfully and knowingly enter the
       habitation of Hilvar Giovani Lopez, Eladio Elias Sales and Elmar Perez,
       not open to the public, without effective consent, with intent to commit

       1
          We have gleaned the facts of this case from the presentence report because Defendant did not
include the transcripts from trial in the appellate record.
                                                -2-
      theft[.] [Defendant] and [Mr. Austin] did unlawfully and knowingly
      employ a firearm during the commission of or attempt to commit
      aggravated burglary, an offense.

        Defendant and Mr. Austin proceeded to trial, and the jury found Defendant guilty
of the following:

 Count          Conviction Offense                          Offense
                                                            Classification
 Count One   Reckless homicide                              Class D
 Count Two Reckless homicide                                Class D
 Count Three Facilitation of especially aggravated robbery  Class B
 Count Four Attempted aggravated robbery                    Class C
 Count Five  Attempted aggravated robbery                   Class C
 Count Six   Aggravated burglary                            Class C
 Count Seven Employing a firearm during the commission of a Class C
             dangerous felony

       At the sentencing hearing, Defendant testified that he took responsibility for his
actions and apologized for his conduct. Defendant stated that he fled from the scene of
the offenses because he was shocked and panicked. After Defendant calmed down, he
gave a statement to law enforcement because “[he] was afraid and it . . . bother[ed] [him]
all day.” Defendant stated that he graduated high school and that he was twenty-one
years old when he committed the offenses. Regarding his prior employment history,
Defendant stated that he worked in construction with his grandfather and also worked as
a butcher at Ledbetter Foods for a couple of months. Defendant testified that he had no
prior criminal record as a juvenile or as an adult. Defendant had not been diagnosed with
a mental illness and was not taking any medications.

        On cross-examination, Defendant explained that he only worked for two months
because he graduated from high school when he was twenty-one and was attending
school at Vatterott College but stopped attending school when he became employed.
Defendant explained that he spent the remainder of his time at his girlfriend’s house.
Defendant explained that he was riding with Mr. Austin prior to the offenses because Mr.
Austin and Mr. Austin’s girlfriend were dropping Defendant off at his house. When Mr.
Austin stopped at an apartment complex, Mr. Austin exited the vehicle. After a few
minutes, Defendant left the vehicle to check on Mr. Austin when he observed Mr. Austin
running from the victims. Defendant asserted that, during the offenses, he did not throw
a tire at the victims. Instead, he “picked [the tire] up and pumped it at [the victims] and
set it down” because he believed he was going to be attacked. Defendant ran back
toward the vehicle and heard a gunshot. Defendant denied that he shot a gun out of the
                                            -3-
vehicle’s window as he and Mr. Austin left the offense scene. Defendant denied that he
had previously been arrested for aggravated robbery on September 23, 2015.2 Defendant
acknowledged that, at the time of the offenses, he was aware that Mr. Austin was a gang
member and a drug dealer.

       Tarcia Smith testified that she was Defendant’s mother and that Defendant was
never in trouble at school or arrested as a juvenile. Ms. Smith testified that Defendant
was a hard worker who was employed after he graduated high school.

        The trial court determined that Defendant was a Range I standard offender. The
trial court considered “the evidence presented at trial and at the sentencing hearing, the
presentence report, and the principles of sentencing established by the 1989 [A]ct and
arguments relative to that sentence.” The trial court also considered “the nature and
characteristics of the criminal conduct involved, any enhancement and mitigating factors
[that] appl[ied] to the case, any statistical information provided by the Administrative
Office of the Courts, and any statement the defendant [made] on his behalf.” The trial
court noted that it was bound by the advisory sentencing guidelines: that the “the
minimum sentence within the range is the sentence which should be imposed”; that the
sentence length within the range should be adjusted as appropriate by the presence or
absence of mitigating and enhancement factors”; and that “the sentence length within the
range should be consistent with the general purposes and principles of the sentencing act
of 1989.”

       Regarding enhancement factors, the trial court noted that none of the enhancement
factors applied to Defendant’s offenses because almost all of the enhancement factors
were inherent to Defendant’s convictions. The trial court also found that no mitigating
factors applied to Defendant’s conduct. The trial court noted that Defendant “basically
committed a felony murder” because the jury convicted Defendant of aggravated robbery
and aggravated burglary “and a death ensued in the commission of those [offenses].”
The trial court stated that Defendant “actually should be serving life in prison.” The trial
court merged the judgments of counts one and two and ordered Defendant to serve the
following sentences:




       2
         The presentence report reflects that this charge was dismissed for lack of probable cause on
October 16, 2015.
                                                -4-
             Count             Sentence Length        Release Eligibility Percentage
             Count One         Four years             30%
             Count Two         Four years             30%
             Count Three       Twelve years           30%
             Count Four        Five years             30%
             Count Five        Five years             30%
             Count Six         Five years             30%
             Count Seven       Six years              100%

       The trial court found that Defendant was “a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation about committing a crime to
which the risk to human life is high.” The trial court also found that “the circumstances
of the offense were aggravated in that [Defendant] participated in essentially a home
invasion in which someone got killed needlessly.” The trial court found that the offenses
were aggravated because Defendant’s participation in the offenses was “much greater
than what he was discussing here in court today.” The trial court concluded that
“confinement for an extended period of time is necessary to protect society from . . .
[D]efendant’s unwillingness to lead a productive life and . . . [D]efendant’s resort to
criminal activity in furtherance of an anti-societal lifestyle” and that “the aggregate length
of the sentences . . . was reasonably relate[d] to the offense for which [Defendant] stands
convicted.” The trial court noted that Defendant was treated less harshly than Mr. Austin
based on the jury’s verdicts. Thus, the trial court ordered the remaining counts to be
served consecutively to each other for a total effective sentence of thirty-seven years.

       Regarding the manner of service, the trial court noted that Defendant did not
request an alternative sentence. The trial court also noted that it “may look behind any
plea bargain or jury verdict and consider the true nature of the offenses actually
committed.” The trial court ordered Defendant to serve his sentences in the Tennessee
Department of Correction because “he actually committed a felony murder and should be
sentenced to life imprisonment.” Defendant now timely appeals the trial court’s
judgments.3

                                             II. Analysis

       Defendant’s only issue on appeal is that the trial court abused its discretion by
ordering an excessive sentence that ignored Defendant’s potential for rehabilitation.
Defendant notes that he had no prior criminal record before he committed the current

        3
           We note that Defendant untimely filed his motion for new trial as well as his notice of appeal.
On October 17, 2017, this court granted Defendant’s motion to late-file a notice of appeal in the interest
of justice. Defendant filed a notice of appeal on November 2, 2017.
                                                  -5-
offenses, he graduated high school, he was employed, he voluntarily gave a statement to
law enforcement, and that, based on its verdict, the jury concluded that Defendant played
a less culpable role in the offenses than Mr. Austin. The State notes that Defendant failed
to include transcripts from the jury trial, “which deprives [this court] from examining the
complete factual bases of the trial court’s ruling” and asserts that Defendant therefore
waived review of the trial court’s imposition of consecutive sentences. Additionally, the
State asserts that the trial court properly sentenced Defendant within its discretion.

         While the State is correct in asserting that Defendant failed to include transcripts
from the jury trial in the appellate record, we conclude that the record is sufficient to
review Defendant’s sentence. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012)
(“If . . . the record is adequate for a meaningful review, the appellate court may review
the merits of the sentencing decision with a presumption that the missing transcript would
support the ruling of the trial court.”); see also State v. Lisa B. Fulcher, No. M2007-
02160-CCA-R3-CD, 2009 WL 130190, at *3 (Tenn. Crim. App. Jan. 20, 2009)
(concluding that the evidence introduced at the sentencing hearing provided an adequate
record to review in the absence of the transcript of the guilty plea hearing), no perm. app.
filed. When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (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)).

                                     Sentence length

        In determining the proper sentence, 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 defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210(b)(1)-(7) (2017); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court 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 (2017).
                                            -6-
        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2017), Sentencing Comm’n Cmts.

       Here, the trial court sentenced Defendant to in-range sentences for each count.
Defendant does not contest the trial court’s finding that he was a Range I offender.
Defendant was convicted of reckless homicide, a Class D felony, in counts one and two,
and a Range I sentence for a Class D felony is three to six years. See Tenn. Code Ann. §
39-13-215(b) (2015) (reckless homicide is a Class D felony); see also Tenn. Code Ann. §
40-35-112(a)(4) (2017) (a Range I sentence for a Class D felony is two to four years).
Thus, Defendant’s four-year sentence for counts one and two was within the applicable
range. Defendant was convicted of facilitation of especially aggravated robbery, a Class
B felony, in count three, and a Range I sentence for a Class B felony is eight to twelve
years. See Tenn. Code Ann. § 39-13-403(b) (2015) (especially aggravated robbery is a
Class A felony); Tenn. Code Ann. § 39-11-403(b) (2015) (“The facilitation of the
commission of a felony is an offense of the class next below the felony facilitated by the
person so charged.”); see also Tenn. Code Ann. § 40-35-112(a)(2) (2017) (a Range I
sentence for a Class B felony is eight to twelve years). Defendant’s twelve-year sentence
for count three was within the applicable range.

        Defendant was convicted of attempted aggravated robbery, a Class C felony, in
counts four and five, and a Range I sentence for a Class C felony is three to six years.
See Tenn. Code Ann. § 39-13-402(b) (2015) (aggravated robbery is a Class B felony);
Tenn. Code Ann. § 39-12-107(a) (2015) (“[c]riminal attempt is an offense one (1)
classification lower than the most serious crime attempted”); see also Tenn. Code Ann. §
40-35-112(a)(3) (2017) (a Range I sentence for a Class C felony is three to six years).
Defendant’s sentences of five years for counts four and five were within the applicable
range. In count six, Defendant was convicted of aggravated burglary, a Class C felony.
See Tenn. Code Ann. § 39-14-403(b) (2015) (aggravated burglary is a Class C felony);
see also Tenn. Code Ann. § 40-35-112(a)(3) (2017) (a Range I sentence for a Class C
felony is three to six years). Therefore, Defendant’s sentence of five years in count six
was within the applicable range.

      Lastly, Defendant was convicted of employing a firearm during the commission of
a dangerous felony, a Class C felony, in count seven. See Tenn. Code Ann. § 39-17-
1324(h)(1) (2015) (employment of a firearm during the commission of a dangerous
                                            -7-
felony is a Class C felony with a mandatory minimum six-year sentence); see also Tenn.
Code Ann. § 40-35-112(a)(3) (2017) (a Range I sentence for a Class C felony is three to
six years). Defendant’s sentence of six years for count seven was also within the
applicable range. Because the trial court ordered within-range sentences, the trial court’s
decisions receive a presumption of reasonableness, and we will not reverse absent an
abuse of discretion. Defendant asserts that the trial court should have considered his lack
of a prior criminal record, his employment, and other factors in mitigation. However, the
trial court is not bound by the advisory mitigating and enhancement factors. See Tenn.
Code Ann. § 40-15-114 (Supp. 2015); see also Bise, 380 S.W.3d at 699 n.33, 704; State
v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The trial court found that no enhancement
or mitigating factors applied to Defendant’s sentences and instead focused on the
circumstances of Defendant’s offenses, as was within the trial court’s discretion.
Defendant is not entitled to relief on this ground.

                                 Consecutive sentencing

        In State v. Pollard, the Tennessee Supreme Court expanded its holding in Bise to a
trial court’s decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d
851, 859 (Tenn. 2013). Tennessee Code Annotated section 40-35-115 sets forth seven
different situations in which a trial court may impose consecutive sentencing, including
when “[t]he defendant is a dangerous offender whose behavior indicates little or no
regard for human life and no hesitation about committing a crime in which the risk to
human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4) (2017); see State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995). Before a trial court may impose consecutive
sentences on the basis that a defendant is a dangerous offender, the trial court must also
find “that an extended sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences . . . reasonably relate to the
severity of the offenses committed.” Wilkerson, 905 S.W.2d at 939. In order to limit the
use of the “dangerous offender” category to cases where it is warranted, our supreme
court has stated that the trial court must make specific findings about “particular facts”
which show that the Wilkerson factors apply to the defendant. State v. Lane, 3 S.W.3d
456, 461 (Tenn. 1999).

       Here, the trial court found that Defendant was “a dangerous offender whose
behavior indicates little or no regard for human life and no hesitation about committing a
crime to which the risk to human life is high.” The trial court also found that “the
circumstances of the offense were aggravated in that [Defendant] participated in
essentially a home invasion in which someone got killed needlessly.” The trial court
found that the offenses were aggravated because Defendant’s participation in the offenses
was “much greater than what he was discussing here in court today.” The trial court
concluded that “confinement for an extended period of time is necessary to protect
                                           -8-
society from . . . [D]efendant’s unwillingness to lead a productive life and . . .
[D]efendant’s resort to criminal activity in furtherance of an anti-societal lifestyle” and
that “the aggregate length of the sentences . . . [were] reasonably relate[d] to the offense
for which [Defendant] stands convicted.”

        We conclude that the trial court properly exercised its discretion in ordering
consecutive sentences in Defendant’s case. The trial court made the findings required
under Wilkerson and cited specific facts from Defendant’s case to support the imposition
of consecutive sentences. Defendant was involved in a series of serious criminal offenses
that resulted in the death of one of the victims. Defendant is not entitled to relief on this
ground.

                             Denial of alternative sentencing

       The abuse of discretion with a presumption of reasonableness standard of review
set by our supreme court in Bise also applies to a trial court’s decision to grant or deny
probation. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (citing Bise, 380 S.W.
3d at 708). Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should 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)(A) (2017).

       Tennessee Code Annotated section 40-35-303(a) states that:

              [a] defendant shall be eligible for probation under this chapter if the
       sentence actually imposed upon the defendant is ten (10) years or less;
       however, no defendant shall be eligible for probation under this chapter if
       convicted of a violation of § 39-13-213(a)(2), § 39-13-304, § 39-13-402, §
       39-13-504, § 39-13-532, § 39-15-402, § 39-17-417(b) or (i), § 39-17-1003,
       § 39-17-1004 or § 39-17-1005. A defendant shall also be eligible for
       probation pursuant to § 40-36-106(e)(3).

Tenn. Code Ann. § 40-35-303(a)(2017). A defendant has the burden of establishing that
he is suitable for probation and “demonstrating that probation will ‘subserve the ends of
justice and the best interest of both the public and the defendant.’” Carter, 254 S.W.3d at
347 (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)).



                                            -9-
      Under Tennessee Code Annotated section 40-35-103, the trial court should look to
the following considerations to determine whether a sentence of confinement is
appropriate:

             (A) Confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the seriousness
       of the offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1) (2017).

        In the current case, the trial court noted that Defendant did not request alternative
sentences. In any event, the trial court stated that it “may look behind any plea bargain or
jury verdict and consider the true nature of the offenses actually committed” and ordered
Defendant to serve his sentences in the Department of Correction because “he actually
committed a felony murder and should be sentenced to life imprisonment.” “When
determining whether probation is appropriate it is proper ‘to look behind the plea bargain
and consider the true nature of the offenses committed.’” State v. Pierce, 138 S.W.3d
820, 828 (Tenn. 2004) (quoting State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn.
1983)). We conclude that the trial court did not abuse its discretion by ordering
Defendant to serve his sentences in confinement. Defendant is not entitled to relief on
this ground.

                                      III. Conclusion

       After a thorough review of the facts and applicable case law, we affirm the trial
court’s judgments.


                                              ____________________________________
                                               ROBERT L. HOLLOWAY, JR., JUDGE




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