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State v. Bussell8/23/2005
tion 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). "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. Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and 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. Id. §§ 40-35-102, -103, and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
As a Range I standard offender, Defendant is subject to a sentence of between two and four years for his Class D felony conviction, and between one and two years for his Class E felony conviction. Id. §* 40-35-112(a)(4) and (5). In calculating the sentence for Defendant's convictions, the presumptive sentence is the minimum in the range if there are no enhancement or mitigating factors. Id. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence above the minimum, but still within the range. Id. 40-35-201(d). If both enhancing and mitigating factors are present, the trial court must start at the presumptive minimum, enhance the sentence within the range as appropriate for the enhancing factors, and then reduce the sentence as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e).
We initially note that Defendant argues that the trial court's determinations both as to the length of his sentences as well as the manner of serving his sentences violate his Sixth Amendment right to trial by jury as outlined in Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531 (2004). Our Supreme Court, however, has recently determined that Blakely does not impact the validity of Tennessee's sentencing scheme. State v. Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD, - S.W.3d -, 2005 WL 856848, at *22 (Tenn. April 15, 2005), petition to rehear denied (Tenn. May 18, 2005). Defendant, thus, is not entitled to relief based on his Blakely issues.
A. Length of Sentences
Defendant argues that the trial court misapplied enhancement factors (2) and (10) to both of his sentences, and enhancement factor (7) in determining the length of his attempted robbery sentence. Defendant does not challenge the application of enhancement factor (11) to his attempted robbery sentence. He contends that no weight should have been given to his previous criminal history because his convictions resulted from misdemeanor offenses rather than felonies. See Tenn. Code Ann. * 40-35-114(2). Misdemeanor convictions alone may support application of enhancement factor (2). See, e.g., State v. Richard Warren, No. M2001-02139-CCA-R3-CD, 2003 WL 354505 (Tenn. Crim. App., at Nashville, Feb. 14, 2003), no perm. to appeal filed (the defendant's three prior misdemeanor convictions support application of enhancement factor (2)). We agree, however, with the trial court's assessment that enhancement factor (2) should be given little weight in the sentencing determinations.
Defendant contends that the trial
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