        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 27, 2010

        STATE OF TENNESSEE v. DONALD EUGENE O’NEAL, JR.
                 Appeal from the Montgomery County Circuit Court
                      No. 40600422 Michael R. Jones, Judge



            No. M2010-00191-CCA-R3-CD          - Filed September 28, 2010


The Defendant, Donald Eugene O’Neal, Jr., was sentenced as a Range I, standard offender
to twelve years’ confinement for attempted especially aggravated robbery, a Class B felony;
to four years’ confinement for reckless homicide, a Class D felony; and to three years’
confinement for delivery of a schedule II drug, a Class C felony; all to be served
consecutively for an effective sentence of nineteen years. On appeal, the Defendant contends
that the sentences are excessive. The judgments of the trial court are affirmed.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Debra A. Wall, Clarksville, Tennessee, for the appellant, Donald Eugene O’Neal, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; John
Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

       This is an appeal of a resentencing. The Defendant was convicted by a Montgomery
County jury, and the trial court sentenced him to twelve years’ confinement for attempted
especially aggravated robbery, to six years’ confinement for reckless homicide, and to four
years’ confinement for delivery of a schedule II drug, all to be served consecutively for an
effective sentence of twenty-two years. On appeal, this court affirmed the finding of guilt
and the imposition of consecutive sentencing but held that the trial court improperly applied
two enhancement factors. This court remanded the case to the trial court for resentencing.
See State of Tennessee v. Donald E. O’Neal Jr., No. M2008-00146-CCA-R3-CD,
Montgomery County, slip op. at 8-9 (Tenn. Crim. App. Sept. 15, 2009).

        At the resentencing hearing, the trial court found enhancement factor (4), a victim of
the offense was particularly vulnerable because of physical disability, applicable to the
convictions for attempted especially aggravated robbery and reckless homicide because the
victim was obese and incapable of readily moving from his seated position at the time of the
shooting. See T.C.A. § 40-35-114 (2006) (amended 2007). The court found enhancement
factor (9), the Defendant employed a firearm during the commission of the offense,
applicable to the conviction for reckless homicide because the evidence showed that an
assault rifle was used to kill the victim. See id. The trial court did not find that any
enhancement factors applied to the conviction for delivery of a schedule II drug. The court
found mitigating factor (13), the Defendant completed a drug course while in the State
Penitentiary, applicable to all convictions. See T.C.A. § 40-35-113(13) (2006). The
Defendant was sentenced to twelve years’ confinement for attempted especially aggravated
robbery, to four years’ confinement for reckless homicide, and to three years’ confinement
for delivery of a schedule II drug, all to be served consecutively for an effective sentence of
nineteen years.

       The Defendant contends that his sentences for attempted especially aggravated
robbery and reckless homicide are excessive because the trial court imposed the maximum
sentence despite the presence of a mitigating factor. The State contends that the trial court
properly sentenced the Defendant after considering the sentencing principles and all relevant
facts and circumstances. We agree with the State.

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court's determinations are correct. T.C.A. §§ 40-35-401(d) and -402(d) (2006). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing 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, we 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).

        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. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the

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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); see
T.C.A. § 40-35-210(e) (2006).


        Also, in conducting a de novo review, we must consider (1) any evidence 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) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2006); see
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).


       In imposing a sentence within the appropriate range of punishment for the defendant:
              [T]he court shall consider, but is not bound by, the following
              advisory sentencing guidelines:

              (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.

T.C.A. § 40-35-210. From this, “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 (quoting T.C.A. § 40-35-
210(d)).




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        The weighing of enhancement and mitigating factors is within the sole discretion of
the trial court. See Carter, 254 S.W.3d at 345. Thus,


              even if a trial court recognizes and enunciates several applicable
              enhancement factors, it does not abuse its discretion if it does
              not increase the sentence beyond the minimum on the basis of
              those factors. Similarly, if the trial court recognizes and
              enunciates several applicable mitigating factors, it does not
              abuse its discretion if it does not reduce the sentence from the
              maximum on the basis of those factors.


Id.


       As this court stated when considering the Defendant’s first appeal:


              Given that the victim was morbidly obese and unable to defend
              himself against two men with guns while he sat on the floor, the
              trial court was justified in finding that the victim was
              particularly vulnerable because of a physical disability. T.C.A.
              § 40-35-114(4).


              Given that the defendant used a gun during the crimes, the
              application of the enhancement factor for employing a firearm
              in the commission of the offense was proper. T.C.A. § 40-35-
              114(9).


Donald E. O’Neal Jr., slip op. at 8.


       At the resentencing, the trial court stated:


              The court is required, of course, to consider the evidence. . .
              received at trial, at the first sentencing hearing, as well as this
              sentencing hearing . . . [the] presentence report, the principles of
              sentencing and arguments as to sentencing alternatives, the
              nature and characteristics of the criminal conduct involved, the

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              evidence and information offered by the parties on the
              mitigating factors, any statistical information . . . as to
              sentencing practices . . . [and] the statement made by the
              Defendant . . . .


The trial court made findings with regard to the presence of enhancement and
mitigating factors, and then stated:


              [L]et’s talk a little bit about . . . this case. The victim . . . was a
              very large man, obese is probably a kind word. He was sitting
              on the floor in a room at the time he was shot . . . . The
              vulnerability based on the facts of this particular case are just
              overwhelming and it greatly outweighs the mitigating factor.


        The Defendant has not shown that these sentences are improper. The record reflects
that the trial court made findings of fact that are adequately supported in the record. The trial
court stated on the record its consideration of the principles of the Sentencing Act and
arguments as to sentencing alternatives, its consideration of all evidence, and its
consideration of all enhancement and mitigating factors. We hold that the trial court properly
sentenced the Defendant after considering the sentencing principles and all relevant facts and
circumstances.

       In consideration of the foregoing and the record as a whole, the judgements of the trial
court are affirmed.


                                                 ____________________________________
                                                 JOSEPH M. TIPTON, PRESIDING JUDGE




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