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State v. Williams4/17/2002
Tenn. Code Ann. § 40-35-209(c). The record should also include any enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of recording the court's reasoning is to guarantee the preparation of a proper record for appellate review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that 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." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d at 169.
A. PRESUMPTIVE SENTENCE
The Defendant first complains that the trial court sentenced him according to current sentencing guidelines, rather than those in effect at the time that his crime was committed. Specifically, he complains that the trial court began sentencing at the midpoint of the appropriate sentencing range. Although the current presumptive sentence for a felony is the midpoint of the range, see Tenn. Code Ann. § 40-35-210(c) (2001), the Defendant points out that his crime was committed prior to 1995, when the current sentencing guidelines went into effect. He thus argues that the trial court should have begun sentencing at the minimum sentence within the range.
To calculate the appropriate sentence for felony convictions committed before July 1, 1995, a trial court should begin the sentence at the minimum sentence within the range when no enhancement or mitigating factors are present. Id. § 40-35-210(c) (1989). If enhancement factors but no mitigating factors are present, the trial court may set the sentence above the minimum, as long as the sentence is within the range. Id. § 40-35-210(d) (1989). However, if enhancement and mitigating factors are present, the trial court should start at the minimum sentence within the range; enhance the sentence within the range as appropriate for the enhancement factors; and then reduce the sentence within the range as appropriate for the mitigating factors. Id. § 40-35-210(e) (1989). The weight to be given a factor is within the trial court's discretion, provided that the trial court complies with the purposes and principles of the Sentencing Act and that its findings are adequately supported by the record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995).
We agree that because the offense in this case was committed in 1991, the trial court erred by sentencing the Defendant using current sentencing guidelines. Our review of the Defendant's sentence is thus de novo with no presumption of correctness. See Shelton, 854 S.W.2d at 123. We conclude that one enhancement factor was improperly applied. In light of this and the fact that the trial court erred by applying the incorrect presumptive sentence, a reversal of the sentence and remand for a new sentencing hearing is appropriate.
B. ENHANCEMENT FACTORS
The trial court applied the following three enhancement factors in sentencing the Defendant:
(5) The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of t
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