        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 12, 2014

        STATE OF TENNESSEE v. ATOSHA DOMINIQUE MOORE

             Direct Appeal from the Criminal Court for Davidson County
            Nos. 2012-D-3219, 2012-D3245     Cheryl A. Blackburn, Judge


              No. M2013-02662-CCA-R3-CD - Filed November 18, 2014


The appellant, Atosha Dominique Moore, pled guilty in the Davidson County Criminal Court
to two counts of aggravated robbery, and the trial court imposed a total effective sentence of
ten years in the Tennessee Department of Correction. On appeal, he challenges the length
of the sentences imposed by the trial court. Upon review, we affirm the judgments of the
trial court.

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

N ORMA M CG EE O GLE, 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.

James O. Martin, III (on appeal), and Stacey Angello (at trial), Nashville, Tennessee, for the
appellant, Atosha Dominique Moore.

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The Davidson County Grand Jury returned two separate indictments against the
appellant, each charging him with a single count of aggravated robbery. On September 20,
2013, the appellant entered best interest guilty pleas to the charged offenses.1 At the plea
hearing, the State recited the following factual basis for the pleas:

                 [In case number] 2012-D-3219, if that had gone to trial, the
                 State’s proof would be that July 8th, 2012, Ms. Gennyfer Coss[,]
                 who is employed by Pizza Hut[,] got a call to make a delivery at
                 829 West Mc[K]ennie Avenue. When she showed up there, she
                 was approached by some subjects who[,] instead of purchasing
                 the pizza[,] displayed guns and demanded money. They took
                 cash, the pizza, a cell phone, and fled the scene. The phone
                 number that was used to order that pizza was tracked back to a
                 lady named Woody Arondale (phonetic). Ms. Arondale said that
                 the [appellant], Keith Woods, and Ronnie Woods had stopped
                 by her residence where [the appellant] used her phone and then
                 they left. Ms. Arondale claimed that she didn’t know there was
                 going to be a robbery, but she did identify the three people that
                 stopped by her house and used her phone. [The appellant] was
                 put in a photo lineup and identified by Ms. Coss. When he was
                 interviewed, he admitted that he, Keith Woods, and Ronnie
                 Woods had all participated in this robbery. This was here in
                 Davidson County obviously.

                        [In case number] 2012-D-3245, . . . the proof would be
                 on September the 2nd of 2012 at the Pharmacy restaurant – or
                 just outside the Pharmacy restaurant at 731 Mc[F]errin Avenue
                 a Ms. Rachel Newton and her boyfriend Vincent Lokes
                 (phonetic) were approached by a person who turned out to be
                 the [appellant]. He pointed a gun at them and at Ms. Newton
                 and demanded her money and her iPhone. He took her iPhone
                 and $12 cash. They were able to trace the iPhone immediately
                 when the officer got there to 1012 Apex Street. They
                 surrounded that residence, they went in, they found the phone
                 there. The police talked to [the appellant], who claimed that he
                 had the phone, but he said that he had seen the two people[,] and
                 the lady put her phone down on a wall[,] and he had picked up


        1
           An accused who wishes to plead guilty yet assert his innocence may enter what is known as a “best
interest” guilty plea. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). A trial court may accept such
a plea if the court is satisfied that there is a factual basis for the plea. See Dortch v. State, 705 S.W.2d 687,
689 (Tenn. Crim. App. 1985).

                                                      -2-
              the phone and made off with it without there being any physical
              violence or threats or guns. And that’s in Davidson County as
              well.

The plea agreement provided that the trial court would determine the length of the sentences.

       At the sentencing hearing, Gennyfer Coss testified that on July 8, 2012, she was an
employee of Pizza Hut. That night, it was raining, and Coss was making deliveries. After
10:00 p.m., Coss delivered pizza and “hot wings” to West McKennie in east Nashville. When
she arrived at her destination, she exited the car and went to the porch. She heard a car door
then saw the appellant; she assumed he got out of a car. The appellant walked onto the porch
and said, “[T]hat’s for me.” The appellant began rummaging through his pockets, then he
told her that he could not find his wallet. Coss said that the appellant seemed nervous. Coss
told him that he could call the store if he found his wallet, then she stepped off the porch.
Another man, Keith Woods, came from an alley beside the house. Coss walked toward her
car, and Keith Woods walked up to her, pointed a gun in her face, and said, “[G]ive me your
money.” She took her money from her back pocket and handed it to the man. He also took
the bag of pizzas from her. A man came up behind her; although she did not see his face, she
assumed it was the appellant. He pointed a gun to the back of her head. Coss began to cry
and begged, “[P]lease, don’t do this because I have children at home.” Keith Woods said
“foul things” and told her to be quiet. Thereafter, Keith Woods asked her for the location of
her cellular telephone. She responded that the telephone was in her car. The men walked
her over to her car. She began to fear “that even if they don’t mean to kill me they might
accidentally pull the trigger while we were walking.” Her knees got weak, and the man she
thought was the appellant “sort of carried” her and pushed her into her car. Once inside, she
handed Keith Woods her cellular telephone. He saw her purse on the front seat and
demanded all of the money in the purse. She pulled out the pockets of the purse to show him
that there was no money inside, but he kept demanding, “[G]ive me your money.” Coss
handed Keith Woods the purse and gave him the change that she kept in the ashtray in her
car. Keith Woods warned her, “[D]on’t ever be seen in the neighborhood again.” After the
men left, Coss drove away to a nearby Shell station and called the police.

        Coss said that after the offense, she quit her job because she was afraid to deliver
pizzas, insufficient hours were available for her to work in the store as a cashier, and she was
afraid to work the night shift. She had not been able to find a job making as much money as
she had at Pizza Hut. She continued to refuse to work at night.

       Coss said that until recently, she had lived in the same neighborhood where the
offense happened. She had five children, three of whom lived at home. For approximately
one year, the offense “had a major psychological and emotional effect” on Coss and her

                                              -3-
children. She said that she did not explicitly tell her children about the incident but that they
noticed her fear. Even after her assailants were arrested, she feared what they might do to
prevent her from testifying. Coss underwent counseling and had improved.

       Bettie Hoard, the appellant’s great aunt, testified that the appellant had two brothers.
His mother was “not settled” and was “from pillar to post.” His mother decided that her sons
“were unruly” and that “she did not want to be bothered anymore.” Hoard and the
appellant’s aunt, who was his mother’s sister, tried to help with the boys. However,
whenever the boys experienced some stability, their mother would return and take them
away. Eventually, in order to receive child support payments from the boys’ mother, the
boys’ father offered to raise the children. The boys’ father mistreated them and did not
supply sufficient clothes or food. Thereafter, the appellant went to live with one of Hoard’s
daughters, “which was still not a good situation. The abuse was still coming from the – he
was always looking for food, always asking.” The appellant expressed a desire to enter the
Job Corps, and Hoard helped him achieve that goal. She said that “during the process some
things happened there, and he wound up coming back home.” He went from his aunt’s house
to Hoard’s daughter’s house. Hoard’s daughter “would just get mad and talk ugly to him,
put him out, wouldn’t let him eat, you know, just wouldn’t do anything for him.” The
appellant’s aunt asked the appellant to follow the rules of her house, but he was unable to
comply. The appellant’s mother “just got mad one day and got a U-Haul truck, packed up
everything in the house, and left.” No one knew where she went.

       Hoard said that if the appellant had come to her after he left Job Corps, “he wouldn’t
have gotten involved in this.” However, she had previously told him, “[I]f you fail out of the
Job Corps, you know, don’t call me because I’m not going to help.” She said that she “really
didn’t mean it to heart” but that the appellant thought she meant what she said.

        The appellant, who was eighteen years old at the time of the offenses, testified that
his childhood was difficult, especially because his mother was gone and he had to travel from
house to house to find food. He said that he had been an angry person. He acknowledged
that Hoard loved him but said that “it hurt trying to wake up every day and you don’t know
where your mama is. I mean, you only got one mama.” He noted that it was “hard . . . when
you’re in a predicament and you really ain’t got no help.”

        The appellant said that he had been incarcerated since September. During his
incarceration, the appellant was baptized and obtained a high school diploma. He said that
he “gave [his] life to Christ” and was trying to stay away from “negativity” in order to change
his life. He asserted that he had matured while incarcerated. The appellant apologized,
stating that he was not an evil person. He said, “I thank God that I experienced this because
this is a wake up call.”

                                               -4-
        On cross-examination, the appellant said that during Coss’s testimony, he was
thinking “[t]hat I hurt a woman that’s a mother of kids. And . . . that was her job, and she
liked it. She had to put food on her kids’ table to feed them and take care of her utilities. And
I apologize for it.” The appellant acknowledged that he was the man who came up behind
Coss, that Keith Woods was the other man, and that Ronnie Woods acted as a lookout.
Further, the appellant was the person who called to order the pizza. He asserted that he was
willing to testify truthfully against Keith Woods. He acknowledged that in the other case,
which involved Newton and Lokes, he lied to the police when he said “that the lady had put
the phone down on a wall . . . and [he] picked the phone up.” He admitted that he robbed
Newton and that he used a real gun to accomplish the robbery. In 2009, the appellant was
adjudicated delinquent on charges of aggravated burglary and theft. He was put on probation
in juvenile court and performed well on probation.

         The court asked the appellant how his “horrible childhood” made it “okay to do that
to [the victim].” The appellant responded that “[i]t really wasn’t okay at all” and that he did
it for the money. At that point, the following colloquy occurred:

                     [Trial Court:] Just for the money. It was simply for the
              money, it didn’t matter. So why add the extra putting the – you
              know, you could have – she gave you the money she had at the
              house?

                      [The appellant:] Yes, ma’am.

                     [Trial Court:] So what was the point of terrifying her so
              much by putting the gun to her head and then I believe in the
              other case saying don’t make two murders out of this? What
              was the point of adding that if all you needed was the money?
              Do you see my question?

                      [The appellant:] Yes, ma’am.

                      [Trial Court:] Do you know an answer to that?

                      [The appellant:] No, ma’am.

       The court explicitly considered the purposes and principles of sentencing and the facts
and circumstances of the offenses. The court noted that as a Range I, standard offender, the
appellant was subject to a sentence of eight to twelve years for each Class B felony
conviction. Tenn. Code Ann. §§ 39-13-402(b); 40-35-112(a)(2). The court observed that

                                               -5-
the appellant acknowledged in his presentence report that he had a history of alcohol and
drug use, which constituted criminal behavior. Tenn. Code Ann. § 40-35-114(1).
Additionally, the appellant had juvenile adjudications that would have been felonies if
committed by an adult. Tenn. Code Ann. § 40-35-114(16). The court further found that in
the conviction involving Coss, the appellant was a leader in the commission of the offense.
Tenn. Code Ann. § 40-35-114(2). Finally, the court found that the appellant treated or
allowed Coss to be treated with exceptional cruelty. Tenn. Code Ann. § 40-35-114(5). The
court explained:

              [T]he case law is pretty clear that it must reflect cruelty over and
              above what is inherent in the execution [of] the crime. So one
              can commit aggravated robbery by pulling a weapon on
              somebody, taking their money, and walking away or letting them
              walk away. That’s not what happened here. And I think the
              emotion that was shown by Ms. Coss and her description and the
              terror that she felt in terms of they put the gun to her forehead
              was the first one. That would be Mr. Woods. And then as they
              walked her back to the car, demanding her money out of her car
              and her cell phone, he puts the gun to the back of her head. And
              she is so terrified that he has to practically carry her down there
              or hold her as she’s going and then her begging them. And her
              words were – because they were demanding about giving the
              money and the purse. Then they tell her to never come back
              again. All of that to me indicates factor number five has been
              made out in both cases.

       The court found that the appellant’s telling the truth about the offenses, his behavior
while in custody, and his remorse were mitigating factors. Tenn. Code Ann. § 40-35-
113(13). The court stated, however, that the appellant’s showing of remorse was “a little late
in terms of what it was.” The court ultimately imposed a sentence of ten years for each
conviction and ordered that the sentences be served concurrently. The court said that the
appellant was statutorily ineligible for probation because of the aggravated robbery
convictions.

       On appeal, the appellant contends that “an eight year sentence in this case is more
consistent with the principles of Tennessee’s sentencing structure and his sentence should
be so modified.”

                                         II. Analysis



                                              -6-
        Appellate review of the length, range, or manner of service of a sentence imposed by
the trial court are to be reviewed under an abuse of discretion standard with a presumption
of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard
to alternative sentencing). In conducting its review, this court considers the following
factors: (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 enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§
40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory 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.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“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].’” Id.

                                               -7-
at 343. Appellate courts are “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 sections -102 and -103 of the Sentencing Act.” Id. at 346.

       The appellant does not contend that the trial court erred by applying any of the
enhancement factors, and we conclude that the factors were not improperly applied. He does,
however, contend that “taking into consideration both his tremendously challenging
childhood and the strides he made by taking advantage of his time in jail prior to the
sentencing hearing (completing his high school education, etc.) that justice, in this case,
would be a sentence of eight years rather than ten.”

       The record reveals that the trial court considered the appellant’s difficult childhood
but rejected it as a mitigating factor, finding that it did not justify the appellant’s behavior.
The trial court also considered the appellant’s behavior while incarcerated. Accordingly, the
appellant’s true complaint concerns the weight the trial court attributed to the enhancing and
mitigating factors. As this court has repeatedly cautioned, however, “[m]ere disagreement
with how the trial court weighed enhancing and mitigating factors is not an adequate basis
for reversing a sentence.” State v. Banks, 271 S.W.3d 90, 146 (Tenn. 2008) (citing Carter,
254 S.W.3d at 345-46).

                                       III. Conclusion

       We conclude that the trial court did not err in sentencing the appellant. Accordingly,
we affirm the judgments of the trial court.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




                                               -8-
