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State v. Blackstock8/27/2001
dily injury to a victim was great. See Tenn. Code Ann. § 40-35-114.
The trial court also applied enhancement factor (4), that the victim was particularly vulnerable because of age or physical or mental disability, to the aggravated kidnapping offense.
The trial court applied three mitigating factors: that the defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offenses; that the defendant cooperated with law enforcement; and that the defendant was a victim of child abuse himself. See Tenn. Code Ann. § 40-35-113(8), (13).
The trial court sentenced the defendant to the maximum 25-year term for each offense:
tarting with the fact that the presumptive sentence in this case is 20 years, I believe that the enhancing factors outweigh the mitigating factors so greatly that the proper sentence would be 25 years in each of the child rape cases, and the kidnapping case, aggravated kidnapping.
The trial court ordered consecutive sentencing, concluding that the defendant was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life. The trial court also determined that the defendant had been convicted of two or more statutory offenses involving sexual abuse of a minor, observing that " he nature and scope of the sexual acts are, and the extent of the residual mental damage is particularly great, so I will order the sentences to be served consecutively." See Tenn. Code Ann. § 40-35-115(b)(4) - (5).
I.
The defendant initially challenges the length of each of his sentences. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Because the trial court failed to make adequate findings of fact, our review is de novo.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for a Class A felony conviction, the presumptive sentence is the midpoint within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement factors but no mitigating factors, the trial court shall set the sentence at or above the midpoint. Tenn. Code Ann. § 40- 35-210(d). If there are mitigating factors but no enhancement factors, the trial court shall set the sentence
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