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State v. Davis5/25/2005
I. Factual Background
On April 20, 2004, the appellant pled guilty in the Cocke County Circuit Court to aggravated burglary, a Class C felony, and theft of property over $1,000, a Class D felony. At the guilty plea hearing, the state gave the following factual account of the crimes: On February 19, 2004, the appellant and another individual broke into a home in Parrottsville, Tennessee. They stole several guns and sold some of them.
No testimony was presented at the May 18, 2004, sentencing hearing, and the parties relied on the presentence report. According to the report, the then twenty-six-year-old appellant dropped out of high school after the eleventh grade but obtained his GED. The report shows that the appellant worked for Petosky Plastics from October 2001 to March 2002 and Accuforce Staffing Services from March 2003 to April 2003. Accuforce fired the appellant for poor job performance, and he has had no other employment. In the report, the appellant stated he had received treatment in November and December 2002 for abusing Oxycontin. He also stated that he had used marijuana, cocaine, and morphine regularly. He stated that the only reason he currently was not abusing drugs was because he was in jail. The report reveals that the appellant has committed many crimes since he was eighteen years old and has two convictions for possession of marijuana, two convictions for driving on a revoked license, and convictions for burglary, possession of cocaine, driving under the influence (DUI), disorderly conduct, reckless driving, and speeding. The report also shows that the appellant violated a probation sentence in 2002.
In denying his request for alternative sentencing, the trial court noted that the appellant had "a record that's not good," that he was addicted to illegal drugs, and that he had a poor work history. The trial court concluded that confinement in the Department of Correction (DOC) was needed to deter others addicted to drugs from committing burlgaries and to avoid depreciating the seriousness of the offenses. The trial court also concluded that confinement in the DOC was necessary in order for the appellant to obtain help for his drug problem.
II. Analysis
Appellate review of the length, range, or manner of service of a sentence is de novo. See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the following factors: (1) the evidence, if any, received at the trial and the 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 involved; (5) evidence and information offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his sentences. See Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately considered sentencing principles and all relevant facts and circumstances, this court will accord the trial court's determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.
A. Length of Sentence
The appellant claims the trial court improperly enhanced his sentences in light of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), in which the United States Supreme Court held that other than prior convictions, any facts not reflected in the jury's verdict and used to increa
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