        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 27, 2010 Session

              STATE OF TENNESSEE v. BOBBY DALE PARRIS

             Direct Appeal from the Criminal Court for Bradley County
                       No. M-04-844     Carroll Ross, Judge




                 No. E2009-01992-CCA-R3-CD Filed October 8, 2010


In 2006, the defendant, Bobby Dale Parris, pled guilty to the second degree murder of his
wife, who died on September 16, 2004. The trial court sentenced him, under the 2005
amendments to the 1989 Sentencing Act, as a violent offender to twenty years at 100% in the
Tennessee Department of Correction. On direct appeal, this court vacated the defendant’s
sentence and remanded for resentencing under the 1989 Sentencing Act after concluding that
the trial court erred in sentencing the defendant under the 2005 amendments because the
defendant had not waived his ex post facto rights. Upon remand, the trial court again
sentenced him to twenty years, opining that the defendant’s sentence was the same under
either the pre-2005 or post-2005 sentencing statutes. The defendant appeals his sentence,
arguing that the trial court did not consider mitigating factors as required by Tennessee Code
Annotated section 40-35-210. Following our review of the parties’ briefs, the record on
appeal, and the applicable law, we vacate the trial court’s sentencing order and remand for
a new sentencing hearing in accordance with the 2005 Sentencing Act.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Vacated
                                  and Remanded

J.C. M CL IN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J. and
J AMES C URWOOD W ITT, J R., J., joined.

James F. Logan, Jr., Cleveland, Tennessee, for the appellant, Bobby Dale Parris.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Jerry N. Estes, District Attorney General; and Kristie Luffman, Drew Robinson, and
John Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
          On January 9, 2006, the defendant, Bobby Dale Parris, entered an open plea to second
degree murder. At the guilty plea hearing, the state submitted that, had the matter gone to
trial, it would have proven that the defendant shot his wife in their home on September 13,
2004. The trial court held a sentencing hearing on April 10, 2006. In our opinion on the
defendant’s first appeal, this court summarized the sentencing hearing as follows:

       [T]he State and the defendant stipulated to the defendant’s pretrial confessions
       and to certain information in the presentence report, including the defendant’s
       prior misdemeanor criminal history for various drug and alcohol related
       convictions.

              The victim’s sister, Sharlene Mikel, testified that her sister’s murder
       devastated her family. She further testified that the defendant “was always
       drunk” when she saw him. On the night of the murder, Ms. Mikel spoke with
       the victim at about 8:15 p.m. During the conversation, the victim asked for a
       second phone number where Ms. Mikel could be reached in case of necessity.

              The victim’s other sister, [Darlene] Pippinger, also testified that on the
       night of the shooting, September 13, 2004, she was admitted to Erlanger
       Hospital for surgery on her two broken feet. She refused the surgery to stay
       with the victim, who had arrived at the hospital via Life Force due to the
       gunshot wound to her head. Ms. Pippinger stayed with the victim until her
       death on September 16, 2004.

              The victim’s sister-in-law, Connie Mikel, testified that she had known
       the victim for 21 years. She testified that the defendant had physically and
       verbally abused the victim in the past. Ms. Mikel also testified that due to the
       victim’s death, Ms. Mikel’s daughter has had to move back into her house, her
       daughter suffers from nightmares, and Ms. Mikel’s husband “tears . . . up”
       everyday.

              The victim’s youngest son, Tommy Hesson, testified that his mother
       and the defendant married when he was six years old. He testified that he was
       “extremely close” to his mother because she was both a father and a mother to
       him. Mr. Hesson also testified that he developed a bond with the defendant
       over the years and that he cared about the defendant. He testified that the
       victim and the defendant argued frequently, and several weeks prior to the
       shooting they argued about getting a divorce.




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             On the night of the shooting, Mr. Hesson was visiting the victim, and
      the defendant arrived home intoxicated. The victim and the defendant began
      arguing, and the victim informed Mr. Hesson that she did not need him to stay
      with her and said that “it was the same old thing.” Thus, he left the house, but
      shortly after he left, he passed police cars driving toward the victim’s house.
      Mr. Hesson testified that everyday he regretted leaving the house because if he
      had not left, he possibly could have intervened and prevented the shooting.

             Mr. Hesson also testified that he forgave the defendant for what he did,
      but that no amount of jail time could replace his mother.

             The defendant’s brother, Steve Parris, testified on the defendant’s
      behalf that the defendant had a drinking problem at the time of the shooting.
      After the shooting and while on bond, the defendant lived with Mr. Parris. Mr.
      Parris testified that the defendant worked, helped with expenses, stopped
      drinking alcohol and smoking marijuana, and expressed remorse for what he
      had done.

             The defendant testified that he pleaded guilty to second degree murder
      even though defense counsel informed him that it was reasonable that he could
      be found guilty of a lesser included offense. He testified that he never blamed
      anyone else for his wife’s murder but claimed that his drinking alcohol played
      “a big role in it.”

              On the night of September 13, 2004, he testified that he and his wife
      argued and struggled. He then left the room, retrieved one of his guns, and
      shot his wife in the head. After the shooting, he called 9-1-1. The defendant
      testified that he did not intentionally hurt his wife that night, and he denied
      physically and verbally abusing her prior to September 13.

             At the sentencing hearing, the defendant apologized to the victim’s
      family. He further testified that he has suffered every night for what he did.

             On cross-examination, the defendant admitted that he had been
      convicted of several alcohol and drug related misdemeanor offenses. He
      admitted that he continued to commit these type of offenses even after being
      convicted.

State v. Bobby Dale Parris, No. E2006-00893-CCA-R3-CD, 2007 WL 1498466, at *1-2
(Tenn. Crim. App., at Knoxville, May 23, 2007) (“Parris I”). The defendant argued that the

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court should consider as mitigating factors that he was remorseful, had accepted
responsibility for the offense, and no longer used alcohol or marijuana. Id. at *3. The trial
court determined that no mitigating factors were present and that two enhancement factors
applied: (1) the defendant employed a firearm in the commission of the offense
(“enhancement factor 9”), and (2) the defendant had a prior criminal history beyond that
necessary to establish the range (“enhancement factor 2”). Id. The court sentenced him as
a violent offender to twenty years at 100% in the Tennessee Department of Correction.

        The defendant appealed his sentence to this court, arguing that his sentence was
excessive. Inter alia, he argued that “the trial court improperly failed to find any mitigating
factors.” Parris I, at *3. This court, however, did not reach that issue because it concluded
that the trial court erred by sentencing him under the 2005 amendments to the 1989
Sentencing Act when the defendant had not executed a proper waiver of his ex post facto
rights, which the law required because the crime occurred prior to the effective date of the
statute while the sentencing occurred afterwards. This court vacated the defendant’s
sentence and remanded to the trial court “for resentencing under the 1989 Sentencing Act.”
Id.

       The trial court held a resentencing hearing on August 13, 2007. The defendant
submitted that he had, by that time, properly filed a waiver of his ex post facto rights and
elected that the court sentence him under the 2005 amendments to the 1989 Sentencing Act.
The state contended that this court’s opinion required the trial court to apply the 1989
Sentencing Act and, in accordance with Parris I, at *4, withdrew enhancement factor 9 from
the court’s consideration. The defense presented several documents as evidence in support
of mitigation: the report from the Cleveland Bradley Communications Center detailing the
defendant’s 9-1-1 call and documents purporting to be a “time-line of the statements that [the
defendant] gave to . . . law enforcement.” The defense further submitted, without
documentation or testimony, that he was enrolled in the drug and alcohol rehabilitation
program at the penitentiary and had completed an anger management course, which took
place after his initial sentencing. The defendant argued that the court should consider as
mitigating factors that “there was an immediate cooperation with law enforcement[;] . . .
there was an initial, immediate acceptance of responsibility[;] . . . [and] that he embarked
upon a course of conduct for rehabilitation from his drug and alcohol problem.” The trial
court took the matter under consideration. On January 14, 2008, the court “ratified and
affirmed in all respects” the defendant’s original sentence of twenty years, opining that “the
defendant should receive a sentence of twenty years in the Department of Correction[]
regardless of whether the defendant is sentenced under the Criminal Sentencing Reform Act
of 1989 or the Criminal Sentencing Reform Act of 2005.”




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         According to the defendant, he filed a petition for post-conviction relief after learning
that his counsel did not file a notice to appeal the trial court’s January 14 sentencing order.
The petition is not in the record before this court. The post-conviction court’s judgment,
however, reveals that the post-conviction court heard the matter on August 10, 2009, and
subsequently found the defendant’s allegations in the petition to be true. The post-conviction
court granted the petition and vacated the January 14, 2008, sentencing order. The court then
“ratified, affirmed and reinstituted” the “original Sentencing Order hereinbefore imposed in
this cause” as of the date the court entered the post-conviction judgment. The court further
“reinstituted” its opinion “that the Defendant should receive a sentence of twenty years in the
Department of Correction[] regardless of whether the Defendant is sentenced under the
Criminal Sentencing Reform Act of 1989 or the Criminal Sentencing Reform Act of 2005
. . . .” The defendant filed a notice of appeal of the trial court’s original sentencing order on
September 23, 2009.

                                            Analysis

       On appeal, the defendant contends that he properly elected for the court to sentence
him under the 2005 amendments. He argues that the trial court erred in sentencing him to
twenty years under the 2005 Sentencing Act because of the state’s withdrawal of
enhancement factor 9 and the trial court’s failure to consider mitigating factors. The state
agrees that the defendant executed a waiver of his ex post facto rights after this court
remanded the case to the trial court. However, the state submits that it did not withdraw
enhancement factor 9 and that the trial court properly sentenced the defendant.

        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. Pettus, 986 S.W.2d
540, 543 (Tenn. 1999). 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 Tennessee Code Annotated section 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

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              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.

        Prior to 2005, the Sentencing Act set forth a “presumptive sentence” to be imposed
within the applicable range: the minimum sentence for all felonies other than Class A
felonies, and the midpoint sentence for Class A felonies. Id. § 40-35-210(c) (2003).
Pursuant to the 2005 amendments, our Sentencing Act has abandoned the statutory minimum
sentence and renders enhancement and mitigating factors advisory only. See id. §§
40-35-114, -35-210(c). The 2005 amendments set forth certain “advisory sentencing
guidelines” which the trial court is required to consider but is not bound by. See id. §
40-35-210(c). Although the application of factors is advisory, a court shall consider
“[e]vidence and information offered by the parties on the mitigating and enhancement factors
in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court is also required to
place on the record “what enhancement or mitigating factors were considered, if any, as well
as the reasons for the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(d).

       If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles set out under sentencing law, and the trial court’s findings of fact are adequately
supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        In this case, the defendant was entitled to execute a waiver of his ex post facto rights
and elect to be sentenced under the 2005 sentencing act. See State v. Quincy Bryan Banks,
No. M2007-00545CCA-R3-CD, 2008 WL 1699440, at *7 (Tenn. Crim. App., at Nashville,
April 11, 2008) (Banks I). The record reveals that the defendant properly waived his ex post
facto rights. At the resentencing hearing, however, the state contended that this court’s
opinion in Parris I required the trial court to sentence the defendant under the pre-2005
sentencing act. The state further argued that the court should not allow the defendant to put
on new proof regarding mitigating factors. The defense submitted that it could show that the
defendant engaged in a course of conduct to rehabilitate himself by participating in a drug
and alcohol rehabilitation program and an anger management program at the penitentiary.
On January 14, 2008, the trial court ordered the defendant to serve twenty years, without
determining which sentencing act applied and without placing on the record its reasons for
reaching its decision. After the defendant’s successful post-conviction proceeding, however,
the trial court vacated the January 14 order and reinstated its original sentencing order, which
this court had vacated on direct appeal.

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       Our review of the defendant’s sentence is de novo with no presumption of correctness
because, at the resentencing hearing, the defendant presented new facts in support of
mitigation, but the record is void of any consideration of that proof by the trial court. Upon
remand, the trial court should have held a sentencing hearing that met the requirements of
Tennessee Code Annotated section 40-35-209, which provides that “the court shall afford
the parties the opportunity to be heard and present evidence relevant to the sentencing of the
defendant” and that the record of the hearing “shall include specific findings of fact upon
which application of the sentencing principles was based.” The parties were not limited to
the proof presented at the original sentencing hearing. See Banks I, at *7 (“At the
re-sentencing hearing, neither the State nor the Appellant is confined to the proof at the prior
hearing and may introduce additional proof as relevant to the hearing and as authorized by
the applicable sentencing law.”) Because the trial court failed to comply with the statutory
directives, there is no presumption of correctness and our review is de novo. Poole, 945
S.W.2d at 96 (Tenn. 1997).

       We have considered the defendant’s request to modify his sentence based upon our
review of the record, despite the trial court’s lack of findings. We cannot do so in this case
because “[a]n appellate court cannot review either the length or method of serving a sentence
unless the findings of the trial court are contained in the record.” State v. Ervin, 939 S.W.2d
581, 584 (Tenn. Crim. App. 1996). We decline to consider the trial court’s original
sentencing order as a record of the trial court’s findings because this court vacated that
sentencing order in Parris I and because the trial court did not conduct a new sentencing
hearing in compliance with that opinion and the sentencing act. Therefore, we remand this
matter to the trial court to conduct a new sentencing hearing in compliance with the 2005
Sentencing Act and to make appropriate findings regarding its sentencing decision. Upon
remand, the trial court may consider the evidence presented in the original sentencing
hearing, but “neither the [s]tate nor the [defendant] is confined to the proof at the prior
hearing and may introduce additional proof as relevant to the hearing and as authorized by
the applicable sentencing law.” See Banks, at *7.

        Because of our holding, we do not reach the defendant’s issue of whether the trial
court erred by failing to consider mitigating factors. However, in the interest of future
review, we conclude that the state did not withdraw enhancement factor 9 from the court’s
consideration. At the resentencing hearing, the state’s position was that the trial court should
sentence the defendant under the 1989 Sentencing Act, which would have required a jury
trial on the issue of whether the defendant used a firearm in the commission of the offense
in order for the court to apply enhancement factor 9. However, because the defendant elected
to be sentenced under the 2005 amendments, which rendered the enhancement factors



                                              -7-
advisory only, the state’s position was moot, as was its proposal to withdraw the
enhancement factor.

                                         Conclusion

       Based on the foregoing reasons, we vacate the trial court’s sentencing order and
remand for new sentencing hearing in accordance with the 2005 Sentencing Act. Upon
remand, the trial court may consider evidence from the original hearing and any additional
proof presented by the parties that is relevant to the hearing and authorized by the applicable
sentencing law.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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