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State v. Cutshaw11/23/1999
iew of a sentence, the court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § § 40-35-102, -103, & -210. See State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). In felony cases, the presumption of correctness 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).
The sentencing range for a Class A felony in Range I is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1) (1997). The presumptive sentence is the midpoint of the range, or twenty years, subject to increase and/or reduction by any applicable enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210 (c), (d) & (e) (Supp. 1998). In the case sub judice, the trial court found the existence of three enhancement factors listed in Tenn. Code Ann. § 40-35-114 (1997):
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; and,
(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense.
The trial court found no applicable mitigating factors.
Because the record reflects the trial court's consideration of the proper sentencing principles and all relevant facts and circumstances, the presumption of correctness applies. The defendant does not challenge the applicability of the above enhancement factors, only the weight given to each factor. Enhancement and mitigating factors have no assigned weight, however. The weight given to each factor is left to the sound discretion of the trial court. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), perm. app. denied (Tenn. 1993). We find no error in the application of the three enhancement factors.
The defendant also argues the trial court should have found the following mitigating factors to be applicable:
(2) The defendant acted under strong provocation;
(3) Substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;
(10) The defendant assisted the authorities in locating or recovering any property or person involved in the crime;
(11) The defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct; and,
(13) Any other factor consistent with the purposes of this chapter.
Tenn. Code Ann. § 40-35-113 (1997).
After reviewing the record, we find the trial court considered the above mitigating factors and properly found them not to apply. This assignment is without merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
ALAN E. GLENN, JUDGE
CONCUR: JOSEPH M. TIPTON, JUDGE JOHN EVERETT WILLIAMS, JUDGE
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