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State v. Sikes9/6/2001
fendant's sentence for aggravated assault to four years, six months. Factor (16), however, may not be applied when the "proof that the potential for bodily injury was great would also prove an essential element of the offense charged." Jones, 883 S.W.2d at 603. We agree with the defendant that the trial court's application of enhancement factor (16) in this case was error, since the factor was inherent in his offense of aggravated assault.
The trial court applied enhancement factor (1) based on the defendant's 1987 misdemeanor conviction for DUI. The trial court apparently gave this factor substantial weight, expressing its concern that the defendant's prior conviction, similar to his present offenses, also involved the abuse of alcohol. The defendant argues that the trial court erred in assuming facts about his prior conviction that were not in the record. We disagree. The transcript of the sentencing hearing reveals that the trial court merely noted, appropriately, that the defendant's previous conviction for DUI also involved his consumption of alcohol and driving. We find no error in the trial court's application of this factor, or in the heavy weight to which it was apparently assigned.
The defendant argues that the trial court erred in failing to give greater weight to the mitigating factor of his long history of steady employment and good work ethic. The trial court noted the defendant's "pretty good work history," but obviously gave it little weight. We find no error in this determination. At the time of his sentencing hearing, the defendant was employed at a furniture store. According to defendant's counsel, he was self-employed from 1995 to 1999. His presentence report shows that from 1993 to 1995 he worked as a deputy jailer with the Carroll County Sheriff's Department, and from 1989 until 1993, as a guard at the Madison County Penal Farm. In our view, the defendant's work history was entitled to very little, if any, weight in mitigation.
In sum, we conclude that although enhancement factor (16) was inappropriately applied to the defendant's sentence for aggravated assault, enhancement factor (1) was applicable and entitled to great weight. We further conclude that the defendant's history of employment was entitled to very little, if any, weight in mitigation. The applicability of enhancement factor (1), combined with the absence of any strong factors in mitigation, justifies the enhanced sentence of four years, six months.
The defendant also argues that the trial court abused its discretion in ordering that he be placed on intensive probation following his release from confinement, and asks that this court modify his sentence to "ordinary supervised probation." As part of the conditions of his probation, the trial court ordered, inter alia, that the defendant attend an alcohol counseling and treatment program; participate in an anger management class; and be subject to a 6:00 p.m. to 6:00 a.m. curfew. The record reflects that the trial court considered the facts and circumstances of the case and the defendant's history, including his prior alcohol-related conviction, in ordering the special conditions and terms of his probation. The trial court is granted broad discretion in its imposition of conditions of probation. See Tenn. Code Ann. § 40-35-303(d) (1997); Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974). Under the circumstances of this case, we find no abuse of discretion by the trial court, and therefore decline to modify the conditions of the defendant's probation.
CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.
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