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State v. Troglin3/12/2002
" based on a finding that Defendant had lived a responsible life as a citizen "for the first 50 or so years of his life." Id. § 40-35-113(8), (13).
The trial court assigned significant weight to both mitigating factor (13) and enhancement factor (9), which it concluded effectively "offset" each other. The trial court assigned "some" weight to mitigating factor (8), and then enhanced Defendant's sentence three years based on the great significance it gave Defendant's previous history of criminal behavior, under enhancement factor (1). Although Defendant's prior criminal record reveals only two misdemeanor convictions for driving without a license, the trial court gave this factor considerable weight based on proof of additional criminal behavior, to wit: Defendant's attempt to shoot a witness in his case. The presentence report shows that in May 1999, Defendant was arrested for attempting to kill Mike Stafford with a handgun. Defendant was on bond for the instant offense at the time he allegedly shot Stafford, a State witness in his upcoming trial. Bond was revoked on June 16, 1999, and in July 1999, Defendant was indicted for attempt to commit first degree murder. At the conclusion of the hearing, the trial court announced that, if enhancement factor (1) should subsequently be determined inapplicable, the length of Defendant's sentence should be reduced to twenty years, the presumptive sentence in the range.
Defendant does not dispute the trial court's use of enhancement factor (9), and we find this factor was properly applied. We also find no error in the trial court's use of mitigating factors in this case. Thus, the sole sentencing issue before this Court is whether enhancement factor (1) was applicable, based on proof of criminal behavior which occurred subsequent to the offense for which Defendant was convicted and sentenced. Defendant asserts that pending charges may not be used as "criminal behavior" for purposes of enhancing punishment under Tennessee Code Annotated section 40-35-114(1). The State responds that a panel of this Court has previously decided that a sentencing court may consider proof of criminal behavior occurring prior to the sentencing hearing when determining whether to apply factor (1), regardless of whether the criminal behavior occurred before or after the commission of the instant offense. See State v. Chris Smith, No. 03C01-9807-CR-00259, 1999 Tenn. Crim. App. Lexis 838, McMinn County (Tenn. Crim. App., Knoxville, Aug. 17, 1999), perm. to app. denied (Tenn. 2000). The State concedes that a trial court is precluded from considering merely a defendant's prior arrests or pending charges, but argues that no per se rule in Tennessee prohibits a court from considering unadjudicated conduct. Rather, "the trial court is merely prohibited from relying upon a mere arrest record to enhance a defendant's sentence." State v. Robinson, 971 S.W.2d 30, 46 (Tenn. Crim. App. 1997).
Defendant cites State v. Buckmeir, 902 S.W.2d 418 (Tenn. Crim. App. 1995), to support his argument that the trial court is precluded from considering pending criminal charges to enhance his sentence. In Buckmeir, a panel of this Court determined that the trial judge improperly considered pending charges in sentencing the defendant. See id. at 424. Specifically, this Court noted that the record contained "no evidence" that the charges against the defendant "were anything more than charges." Because the defendant should be presumed innocent until convicted of those charges, our Court concluded that the trial judge should not have considered them. Id. The Buckmier opinion revealed no further details on the charges pending in that case. However, this Court cited State v. Miller, 674 S.W.2d 279, 284 (T
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