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State v. Rhyan1/27/2003
had applied enhancement factor (1) because the defendant had been convicted of armed robbery and had been "in trouble over a period of time." As to factors (10) and (16), the trial court did not state at either hearing any specific facts that supported their application. In addition, the trial court did not indicate the weight given to the three factors. We believe this does not satisfy the requirements of § 40-35-210(f). Therefore, we review the defendant's sentence de novo without a presumption of correctness.
In conducting our de novo review, we must consider (1) the evidence, if any, received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-37.
The defendant claims that the trial court erroneously applied enhancement factors (10), that he had no hesitation about committing a crime when the risk to human life was high, and (16), that the circumstances of the offense presented great potential for bodily injury to the victim, to his sentence because those factors are inherent in second degree murder. In addition, he contends that the provocation in this case was sufficient to warrant applying mitigating factors (2), (3), and (11). The state agrees that the trial court misapplied enhancement factors (10) and (16). However, it contends that the defendant's twenty-two-year sentence is justified because in addition to enhancement factor (1), that the defendant has a previous history of criminal convictions, factor (9), that the defendant employed a firearm during the commission of the offense, also applies.
As a Range I offender convicted of a Class A felony, the defendant's presumptive sentence is twenty-years. See Tenn. Code Ann. §§ 40-35-112(a)(1), -210(c). The defendant does not contest the trial court's application of enhancement factor (1). Moreover, we agree with the state that factor (9) is applicable because there is no question that the defendant committed the crime with a firearm. In light of these two enhancement factors, we believe that a twenty-two-year sentence is proper. In addition, we believe that if the defendant is entitled to any mitigation based upon his being provoked or the circumstances of the crime, it would not reduce the defendant's sentence in this case. We affirm the defendant's twenty-two-year sentence.
Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.
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