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State v. Payne11/20/2002
e offense, (f) any mitigating or enhancement factors, (g) any statements made by the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987).
The party challenging the sentences imposed by the trial court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentences imposed by the trial court are erroneous.
A. Enhancement Factor (16)
The defendant first contends that the trial court erroneously applied enhancement factor (16), " he crime was committed under circumstances under which the potential for bodily injury to a victim was great," Tenn. Code Ann. § 40-35-114(16) (1997 & Supp. 2002), to enhance his sentence for attempted especially aggravated robbery. He argues that the factor was inappropriate because a potential for bodily injury is inherent in the offense. The State responds that the trial court appropriately applied enhancement factor (16) based on the risk of bodily injury to individuals, other than the victim, who were on the porch at the time of the offense. The State further argues that, even if enhancement factor (16) was erroneously applied, the remaining enhancement factors found applicable by the trial court support the enhanced sentence.
Enhancement factors may be applied "only when the factors are `appropriate for the offense' and `not themselves essential elements of the offense.'" State v. Lewis, 44 S.W.3d 501, 504 (Tenn. 2001) (quoting State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997)). Since serious bodily injury is an essential element of especially aggravated robbery, enhancement factor (16) may not be applied on the basis of the great potential for bodily injury to the victim of the offense. See State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Here, the trial court applied enhancement factor (16) based not on the risk of bodily injury to the victim, but on the risk of injury to the several individuals present on the porch at the time the defendant committed the offense. However, our supreme court has recently held that enhancement factor (16) may not be based on the risk of injury to individuals other than the victim of the crime. State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002). Therefore, the trial court erred by applying this enhancement factor to the defendant's sentence for attempted especially aggravated robbery.
Nonetheless, we agree with the State that the other enhancement factors applied by the trial court, combined with the absence of mitigating factors, justify the maximum sentence that was imposed for the offense. In addition to enhancement factor (16), the trial court found the following enhancement factors applicable to this offense:
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(5) The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; (10) The defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (5), (8), (10) (1997).
In addition, the trial court found enhancement factor (9), the defendant possessed or employed a firearm during the commission of the offense, see Tenn.
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