State v. Allen R. Jordan

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 30, 1999
• Docket: 01C01-9807-CC-00315
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE June 30, 1999 APRIL 1999 SESSION Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9807-CC-00315 ) vs. ) Williamson County ) ALLEN R. JORDAN, ) Hon. Donald P. Harris, Judge ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN H. HENDERSON PAUL G. SUMMERS District Public Defender Attorney General & Reporter

LARRY DROLSUM GEORGIA BLYTHE FELNER Assistant Public Defender Assistant Attorney General P.O. Box 68 425 Fifth Ave. N., 2d Floor Franklin, TN 37065-0068 Nashville, TN 37243-0493

JOSEPH D. BAUGH, JR. District Attorney General

DEREK K. SMITH Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE OPINION

The defendant, Allen R. Jordan, appeals from his sentence imposed

for especially aggravated robbery, 1 a Class A felony, in the Williamson County

Circuit Court. After the defendant pleaded guilty, the trial court imposed a sentence

of 24 ½ years in the Tennessee Department of Correction. In this direct appeal, the

defendant challenges the length of the sentence imposed. After a review of the

record, the briefs of the parties, and the applicable law, we affirm the sentence.

The evidence of the circumstances of the offense was presented at

the sentencing hearing. The defendant, the two codefendants in this case, and

another individual went to the Cool Springs Galleria Mall in Williamson County on

August 31, 1997. As they were driving into the parking lot, one of them noticed the

victim’s vehicle and pointed it out to the others. According to all the defendants,

they did not discuss stealing the victim’s car at any time. As the others walked

toward the mall, the defendant returned to the car to retrieve a .38 handgun. The

defendant ran to the victim’s car, pointed the gun at the victim, and told the victim

to get out of the car. The victim did not comply with the defendant’s command and

a struggle ensued. The defendant testified that the victim kicked his arm causing

the gun to discharge. The victim testified that the gun was approximately a foot

away from his chest when it discharged into his chest area. After shooting the

victim, the defendant grabbed the victim, pulling him out of the car. The defendant

and one of the codefendants drove away in the victim’s car, but as they were

leaving the mall, the defendant wrecked the car.

The two codefendants were sentenced at the same sentencing

1 Tenn. Code Ann. § 39-13-403 (1997).

2 hearing. Codefendant Akins testified when he saw the defendant grab a gun from

the car, he went back to the car and retrieved a shotgun. He never pointed the

shotgun at the victim, and he was surprised when the defendant shot the victim. He

sold the gun used in the shooting to the defendant. He got into the victim’s car with

the defendant after the victim was shot. Codefendant Grooms owned the car in

which they arrived at the mall. As the incident was occurring, he drove away in his

car because he “wanted no part of it.”

At the time of sentencing, the nineteen-year old defendant had neither

completed high school nor obtained a GED. He quit high school and entered a Job

Corps program where he received training as an auto body technician and obtained

a glass and insulation certification. The defendant had a scarce employment

history. The presentence report reveals a juvenile criminal offense, but no adult

criminal offenses. However, there were pending charges in Davidson County for

theft of property, auto burglary and evading arrest.

The defendant contends that the court erred in denying mitigating

factors and in weighing the factors. When there is a challenge to the length, range,

or manner of service of a sentence, it is the duty of this court to conduct a de novo

review of the record with a presumption that the determinations made by the trial

court are correct. Tenn. Code Ann. §40-35-401(d) (1997). This presumption is

“conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that

the sentence is improper is upon the appellant.” Id. In the event the record fails to

demonstrate the required consideration by the trial court, review of the sentence is

purely de novo. Id. If appellate review reflects the trial court properly considered

all relevant factors and its findings of fact are adequately supported by the record,

3 this court must affirm the sentence, “even if we would have preferred a different

result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the

conclusion of the sentencing hearing, determines the range of sentence and then

determines the specific sentence and the propriety of sentencing alternatives by

considering (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 the enhancement

and mitigating factors, (6) any statements the defendant wishes to make in the

defendant’s behalf about sentencing, and (7) the potential for rehabilitation or

treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35-

103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the present case, the trial court’s sentencing determination is

entitled to the presumption of correctness because the record reflects that it

considered the relevant sentencing principles. In determining the sentence, the trial

court found the defendant was a leader in the commission of this offense because

he initiated the assault. See Tenn. Code Ann. § 40-35-114(2) (1997). The trial

court found that the defendant caused serious bodily injury to the victim and the

amount of damage to the victim’s car was particularly great. See Tenn. Code Ann.

§ 40-35-114(6) (1997). Regarding the defendant’s prior criminal history, the trial

court found the enhancement factor for a previous history of criminal behavior

applied because the defendant admitted drug use and testified that he shot at

someone on the interstate two hours prior to shooting the victim. See Tenn. Code

Ann. § 40-35-114(1) (1997). The trial court applied enhancement factor (20)

because the defendant had a juvenile adjudication for theft of property over $500,

4 which would be a felony if committed by an adult. See Tenn. Code Ann. § 40-35-

114(20) (1997).

Although the defendant does not challenge the enhancement factors,

we find that enhancing the defendant’s conviction because the victim suffered

serious bodily injuries is erroneous. An essential element of especially aggravated

robbery is “[w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-

13-403(a)(2) (1997). “[P]roof of serious bodily injury will always constitute proof of

particularly great injury.” State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). This

enhancement factor is inapplicable to a conviction for especially aggravated robbery

when applied because the victim suffered serious bodily injury. See State v. Gerald

Leander Henry, No. 01C01-9505-CR-00161, slip op. at 58 (Tenn. Crim. App.,

Nashville, Feb. 25, 1999); State v. Mark W. Rawlings, No. 02C01-9612-CR-00475,

slip op. at 8 (Tenn. Crim. App., Jackson, Feb. 10, 1998); State v. Nix, 922 S.W.2d

894, 903 (Tenn. Crim. App. 1995). However, this factor is applicable for the

property damage suffered by a victim. See State v. George Blake Kelly, No. 01C01-

9610-CC-00448, slip. op. at 22-23 (Tenn. Crim. App., Nashville, Oct. 13, 1998).

Accordingly, we find enhancement factor (6) applied for the particularly great

property damage, but not for the serious bodily injury.

The defendant submitted a Sentencing Memorandum to the trial court

which listed several mitigating factors. The mitigating factors contained in the

Sentencing Memorandum are (1) no prior criminal record, (2) show of remorse,

(3) good reputation in the community, (4) potential for rehabilitation, (5) assisted

authorities by testifying against codefendants, (6) no likelihood of committing

another offense, (7) strong possibility of return to normal life, (8) capacity to adjust

to law abiding behavior, (9) successful treatment and compliance with terms of

probation, (10) acknowledgment of guilt and assumption of responsibility. The trial

5 court applied one mitigating factor, the defendant lacked substantial judgment in

committing the offense because of his youth. See Tenn. Code Ann. § 40-35-113(6)

(1997).

The defendant contends that the trial court should not have

disregarded three mitigating factors presented by the defendant. The defendant

argues the proof supported mitigation for the defendant’s show of remorse, potential

for rehabilitation, and acknowledgment of guilt and assumption of responsibility.

These are important factors which the record reflects the trial judge considered.

Once the applicable enhancement and mitigating factors are determined, the trial

court possesses the discretion to assess the weight of each factor “so long as the

trial court complies with the purposes and principles of the Tennessee Criminal

Sentencing Reform Act of 1989 and its findings are supported by the record.” State

v. Leggs, 955 S.W.2d 845, 855 (Tenn. Crim. App. 1997); see also Tenn. Code Ann.

§ 40-35-210, Sentencing Comm’n Comments (1997).

The trial judge stated that the defendant seemed to have rehabilitative

value, but he found the defendant was not truthful during the sentencing hearing.

A lack of truthfulness is an indication of a defendant’s potential for rehabilitation.

State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); State v. Bunch, 646 S.W.2d 158,

160 (Tenn. 1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996);

State v. Williamson, 919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); State v. Dowdy,

894 S.W.2d 301, 305-06 (Tenn. Crim. App. 1994). The trial judge is in the best

position to assess a defendant’s credibility and potential for rehabilitation. A

defendant’s potential for rehabilitation “should be considered in determining the

sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-

103(5) (1997). Finding the defendant to be untruthful, the trial court inherently

found the defendant lacked credibility. The defendant’s lack of credibility

6 undermines his show of remorse, potential for rehabilitation, and acknowledgment

of guilt and assumption of responsibility. We find no error in the trial court’s

determination that these mitigating factors were inapplicable.

The presumptive sentence for a Class A felony is the midpoint of the

range. See Tenn. Code Ann. § 40-35-210(c) (1997). In this case, the midpoint of

the range is 20 years. See Tenn. Code Ann. § 40-35-112(1) (1997). Because the

trial court found four enhancement factors applied and only one mitigating factor,

the defendant’s sentence of 24 ½ years was appropriate. Accordingly, we affirm the

sentence imposed by the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ JOHN H. PEAY, JUDGE

_______________________________ DAVID H. WELLES, JUDGE