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State v. Willis6/30/2003
sentence after giving due consideration and proper weight to the factors and principles set out under sentencing law, and the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. Fletcher, 805 S.W.2d at 789.
Application
The sentencing range for a Range I offender, Class A felony, is between 15 and 25 years. Tenn. Code Ann. § 40-35-112(a)(1). The presumptive sentence for a Class A felony shall be the midpoint of the range. Id. § 40-35-210(c). To determine the specific sentence, the court then considers, inter alia, mitigating and enhancement factors presented by the parties. Id. § 40-35-210(b)(5). The trial court made the following findings and found the following enhancement factors as set out in Tennessee Code Annotated section 40-35-114:
(1) The defendant had a previous history of criminal history in addition to those necessary to establish the appropriate range. The court found that the presentence report established prior convictions for aggravated assault and assault.
(5) The defendant treated the victim with exceptional cruelty. The trial court found this to the extent there were multiple stab wounds.
(8) The defendant had a previous history of unwillingness to comply with the conditions of a sentence involving release into the community. The court found that the defendant was placed on probation for his aggravated assault conviction and that he violated that probation based on a DUI conviction.
(9) The defendant possessed a deadly weapon during the commission of the offense. The court found that second degree murder could be committed without a deadly weapon, yet found in this case a deadly weapon was used. The court found that a Torx screwdriver was used, and therefore applied this enhancement factor.
(11) The felony resulted in death or bodily injury and the defendant had previously been convicted of a felony that resulted in death or bodily injury. The court found this based on the prior aggravated assault conviction.
(13) The felony was committed while the defendant was on probation. This homicide occurred while the defendant was on probation from his aggravated assault conviction.
The trial court found no mitigating factors. The defendant argues that the trial court abused its discretion in rejecting any mitigating actors and then weighing the enhancement factors as to sentence the defendant to the maximum sentence within the range. He claims the trial court "summarily rejected" the evidence offered for mitigation, to wit; the defendant's consistent work history, strong family support, length of incarceration, and ability to be rehabilitated. However, the defendant does not offer an argument to indicate why the trial court's rejection of any mitigating factors was an abuse of discretion. The burden is on the defendant to show that sentencing was improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments. Having failed to offer anything more than the bare boned argument that the trial court abused its discretion by rejecting any mitigating factors, the defendant has not met his burden.
We conclude that enhancement factor (5), the defendant treated the victim with exceptional cruelty, should not apply. All murders have an inherent cruelness to them, and the only evidence the trial court mentioned in its findings as to this factor was that there were "multiple stab wounds." Due to the inherently cruel nature of all murders, we cannot conclude that a finding of "multiple stab wounds," standing alone, is adequate to satisfy this factor. Nonetheless, despite the
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