State v. Jones

• Decision Date: 29 August 1994
• Citation: 883 S.W.2d 597
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Efrem Zimbulist JONES, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 597

883 S.W.2d 597

STATE of Tennessee, Plaintiff-Appellee, v. Efrem Zimbulist JONES, Defendant-Appellant.

Supreme Court of Tennessee at Nashville.

Aug. 29, 1994.

Jeffrey A. DeVasher, Sr. Asst. Public Defender (on appeal), Ralph W. Newman, Asst. Public Defender (at hearing and on appeal), Nashville, for defendant-appellant.

Charles W. Burson, Atty. Gen. and Reporter, Merrilyn Feirman, Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., Dan A. Hamm, Asst. Dist. Atty. Gen., Nashville, for plaintiff-appellee.

OPINION

REID, Chief Justice.

This case presents an appeal from the judgment of the Court of Criminal Appeals affirming the imposition of a six-year, range I sentence upon the defendant's conviction for aggravated assault causing serious bodily injury. Permission to appeal was granted in order to decide if certain enhancement factors, set forth in T.C.A. § 40-35-114(6), (10), (16) (1990), were "essential elements of the offense charged" and thus proscribed by T.C.A. § 40-35-114 from use as enhancement factors.

The proof in the case is meager. According to the presentence report, on April 28, 1991, the victim, Cynthia Stroupe, and a companion were walking along 21st Avenue in Nashville, when the defendant came from behind them and grabbed Stroupe's purse. When she resisted, the defendant pushed her to the ground and continued to pull at the purse. The victim's companion then grabbed the purse and they continued to resist, whereupon the defendant released his hold on the purse and ran from the scene. The victim experienced severe inner-cranial bleeding and was hospitalized for ten days. As the result of the injury, she lost her short term memory and her senses of smell and taste, and suffered some impairment of verbal skills. In addition, her front teeth were damaged, and her equilibrium was affected. The record does not otherwise reflect the extent or expected duration of the victim's injuries.

The defendant was charged with attempted robbery and aggravated assault causing serious bodily injury. T.C.A. §§ 39-13-401 (1991), 39-13-102(a)(1)(A) (1991). He entered into a plea agreement with the State, whereby the State agreed to dismiss the attempted robbery charge and further agreed to recommend the minimum sentence of three years as a range I standard offender on the charge of aggravated assault. At the sentencing hearing, the trial court refused to approve the minimum sentence; nevertheless, the defendant did not withdraw his guilty plea, and he waived his right to a hearing. The court sentenced the defendant to the maximum range I sentence of six years.

Contrary to the provisions of T.C.A. § 40-35-209(c) (1990) and T.C.A. § 40-35-210(f) (1990), the trial court did not articulate the enhancement or mitigating factors upon which it relied in sentencing the defendant. It stated only: "As to the reasons for the term of the years, [they are] the same reasons that I previously stated as being the reasons for rejecting the recommended sentence that [is] part of the plea agreement." In rejecting the original plea agreement, the court had stated:

[B]ased on your conduct toward the presentence report officer, which is documented in the memorandum which is an exhibit to this hearing and based on the contents of the presentence report, including the nature and circumstances of the offense and various aspects of your past, including your criminal history, your education, your health information, your work history and the entirety of the contents of the presentence report, I have determined that I am not going to accept the recommended sentence....

The probation officer had filed a memorandum with the court stating that the defendant had appeared at her office angry with her over the content of the presentence report, and that the defendant's attitude towards her during this visit had frightened her. The report showed that the defendant had one prior arrest for robbery in November 1989 and one prior arrest for theft in February 1990. The defendant had quit high school six weeks prior to graduation and had made no effort to obtain his graduate equivalency diploma. He admitted having used both cocaine and marijuana while this case was pending. His work history consisted of a succession of jobs held at five different Nashville restaurants over the course of the seven years preceding the sentencing hearing in this case.

The Court of Criminal Appeals found four enhancement factors applicable to the case: § 40-35-114(1), the defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; § 40-35-114(6), the personal injuries inflicted upon the victim were particularly great; § 40-35-114(10), the defendant had no hesitation about committing a crime when the risk to human life was high; and § 40-35-114(16), the crime was committed under circumstances under which the potential for bodily injury to a victim was great.

The defendant does not challenge enhancement factor § 40-35-114(1), that he has a history of criminal behavior in addition to that necessary to establish the appropriate range of punishment. However, he asserts that T.C.A. § 40-35-114 prohibits the use of factors (6), (10), and (16) to enhance his sentence for a conviction of aggravated assault causing serious bodily injury.

This Court's review of a sentence is controlled by the Tennessee Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-117 (1990). To facilitate meaningful appellate review, the Act provides that the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990). Since T.C.A. § 40-35-114 specifically prohibits the use of enhancement factors that are essential elements of the offense, the trial court must identify the specific elements of the offense charged and the proof that established the offense before applying an enhancement factor. Where the trial court has complied with these provisions of the statute, the sentence is reviewed de novo with a presumption of correctness. T.C.A. § 40-35-401(d) (1990).

However, the presumption of correctness which accompanies the trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the [statutory principles of sentencing] and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991). Where, as in this case, the trial court failed to state the mitigating and enhancement factors relied upon, there is no presumption of correctness on appeal. Accordingly, our review is de novo upon the record.

Included in the Tennessee Criminal Sentencing Reform Act of 1989 is the structure for imposing punishment on felony offenders. The Act divides felonies into five classifications according to the seriousness of the offenses; it separates offenders into five classifications according to the number of prior convictions; it assigns a span or range of years for each class of crime committed by each class of offenders; and it employs enhancement and mitigating factors to assess the definite sentence within each range. T.C.A. §§ 40-35-105, 40-35-114 (1990 & Supp.1993). This sentencing plan was developed by the Sentencing Commission, in response to a mandate by the legislature, "for use by a sentencing court in determining the appropriate sentence to be imposed in a criminal case." T.C.A. § 40-37-203(a) (1990).

Under the Act's sentencing plan, the trial court is required to consider the following in assessing a sentence:

(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 ...; and

(6) Any statement the defendant wishes to make in his own behalf about sentencing.

T.C.A. § 40-35-210(b) (1990); State v. Ashby, 823 S.W.2d 166, 168 (Tenn.1991). The sentencing alternatives available to the trial court are: the imposition of a fine, confinement, probation, restitution, work release and community corrections. T.C.A. § 40-35-104 (1990). In selecting the sentence to be imposed, principles which must be applied include the following:

(1) Sentences involving confinement should be based on the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant;

(2) The sentence imposed should be no greater than that deserved for the offense committed;

(3) Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;

(4) The sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is imposed;

(5) The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed....

(6) Trial judges are encouraged to use alternatives to incarceration that include requirements of reparation, victim compensation and/or community service.

T.C.A. § 40-35-103 (1990). Finally, the appropriate sentence is one which is "justly deserved in relation to the seriousness of the offense," is ...