IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 29, 2013 Session
STATE OF TENNESSEE v. SOMER M. BULLARD
Appeal from the Criminal Court for Knox County
No. 95106 Jon Kerry Blackwood, Judge
No. E2012-00466-CCA-R3-CD - Filed May 7, 2013
Appellant, Somer M. Bullard, was convicted of six counts of aggravated robbery representing
two alternate theories of three separate offenses. The trial court merged the two convictions
for each offense and sentenced appellant to concurrent sentences of eleven years for each of
the three convictions, to be served in the Tennessee Department of Correction. Appellant
raises the following issues in this direct appeal: (1) whether the trial court violated her right
to a speedy trial; and (2) whether the trial court erred in sentencing her to an eleven-year
effective sentence. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY
S. B IVINS, JJ., joined.
Mark Stephens, District Public Defender, and Robert C. Edwards, Assistant District Public
Defender, Knoxville, Tennessee, for the appellant, Somer M. Bullard.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Randall E. Nichols, District Attorney General, and Ta Kisha Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
This matter arises from appellant’s participation in the aggravated robberies of three
pharmacies in Knox County, Tennessee, in May of 2010. The State indicted appellant for
eighteen counts of aggravated robbery, consisting of six alternate theories for three separate
offenses. Prior to trial, the State dismissed twelve of the counts and proceeded to trial on six
counts.
I. Facts
The State’s first witness at trial was Spencer Cowart, a pharmacist at Walgreens in
Knox County. Mr. Cowart testified that on May 10, 2010, he was working the overnight shift
when appellant approached the counter, produced a note, and directed him to read the note.
The note instructed him to give appellant OxyContin and oxycodone and indicated that
appellant was “serious.” Appellant pulled up her shirt to reveal a gun in the waistband of her
pants. Mr. Cowart testified that when he saw the gun, he wanted to get appellant what she
wanted as quickly as possible so she would leave the store.
Mr. Cowart acknowledged that the store was equipped with surveillance cameras and
that some of the robbery was captured on video. In viewing the video, Mr. Cowart identified
appellant and narrated as appellant directed him to read the note, get the medications, and
place the drugs on the counter. He also pointed out appellant’s showing him the gun. Mr.
Cowart identified Exhibit 1 as a copy of the note appellant handed him. In the note, appellant
demanded all of the twenty and thirty milligram OxyContin and Roxicodone. The note
further indicated that appellant did not want anyone to be hurt, that she “had people inside
and outside,” and that she was not “f****** playing.” In proclaiming that she was serious,
appellant also referenced her waist, at which she concealed a weapon.
Mr. Cowart also verified Exhibit 2 as the photograph array shown to him on May 19,
2010, from which he identified appellant as the person who displayed the gun and robbed
him.
The State then called April Robertson, who testified that she attended school with
appellant in grades six through twelve. Ms. Robertson was working as a pharmacy
technician at CVS on May 14, 2010, when appellant robbed the pharmacy. She recalled
appellant’s instructions, stating,
[S]he instructed me to come from my side of the counter out to her, and so I
did. She let me know that she had been in the store and that she had a gun and
that she would harm me and some children up front if I didn’t give her all of
our high milligram OxyContin and oxycodone. And then she pulled up her
sweatshirt and showed me that she had a gun, and so I walked her back around
to my side of the counter, to the pharmacist, told him what had happened.
Ms. Robertson testified that she believed appellant to be armed and stated, “I was afraid for
my life and for the children that she was threatening up front in the store.” Ms. Robertson
confirmed the presence of numerous surveillance cameras throughout the store, as well as
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outside of the store. From the video that captured the exterior of the store, she identified
appellant as appellant approached the front door of the store.
On cross-examination, Ms. Robertson admitted that during the incident, she only
observed the handle and the grip on the handle of the pistol and agreed that it looked more
like a BB pistol. However, upon redirect examination, Ms. Robertson stated, “I believed it
to be a real gun.” She reiterated, “[Appellant] threatened my life and some other lives of
customers in my store. I had no reason to believe it wasn’t a real gun. She was threatening
to use it. So I was in fear for my life.”
The State’s next witness was Jack Johnson, a pharmacist for CVS on Middlebrook
Pike in Knox County. He testified that he was filling prescriptions on May 22, 2010, at the
noon hour. The store was busy that Saturday, and Ryan, a new employee who had been
working at the store for approximately two days, handed him a note that read, “Give me all
your OxyContins 40, 60, and 80 milligram. Don’t turn a robbery into a homicide.”
Mr. Johnson recalled that he first saw the weapon when appellant said, “I’m not
playing,” and pulled up her shirt to reveal the gun in the waistband of her sweatpants. He
then assured appellant that he would not give her any trouble and proceeded to the back of
the store where the narcotics were locked in a safe. Mr. Johnson placed several bottles of the
requested narcotics in a CVS plastic bag and gave them to appellant. He watched appellant
leave his line of sight and immediately called 9-1-1. He confirmed his identification of
appellant from the Federal Bureau of Investigation’s (“FBI”) photograph lineup.
The State’s next witness was Donald Searle. Mr. Searle testified that on the afternoon
of May 22, 2010, he was standing in the parking lot of First Tennessee Bank, which is
adjacent to the CVS parking lot, waiting for a friend. He observed a young lady with a small
bag in her hand, possibly something in each hand, run from the store and enter a car. He
watched as the driver and young lady sped away in a reckless manner. Mr. Searle completed
his banking business, and upon exiting the bank, he noticed several police cars at CVS. He
went over to the store, spoke with a police officer, and described the scene he observed from
the bank’s parking lot.
On cross-examination, Mr. Searle recalled that he saw that the driver’s side car
window was down and that he observed a young man driving the vehicle. He stated the
young man appeared to be waiting for the woman to exit the store because they immediately
drove away.
Jeff Day, a violent crimes investigator with the Knoxville Police Department, testified
that he was acquainted with appellant because she and her family lived across the street from
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him from 1999 through 2004 or 2005. Investigator Day explained that because Ms.
Robertson knew and identified appellant at one of the crime scenes, he and his partner
checked the local motels near the scene, one of which was the Motel 6 on Merchants Center
Boulevard. When he showed appellant’s photograph to the desk clerk, the clerk recognized
appellant and indicated that she was staying in a room upstairs. Upon checking the
designated room, a male occupant came to the door and stated that appellant and her
boyfriend had taken his car, a white Scion, and had not returned. Investigator Day and his
partner waited in an empty room down the hall for appellant and her boyfriend to return.
They soon observed the white vehicle approach, and when the suspects appeared, the officers
“jumped out” on the suspects, chased them, and apprehended them. Investigator Day
grabbed appellant and his partner restrained the male suspect. At trial, Investigator Day
identified numerous photographs as exhibits that the State moved into evidence, among
which was a photograph of a black BB gun.
After leaving the motel, Investigator Day interviewed appellant at the Knoxville
Police Department. He read appellant a rights waiver, which they both signed. Investigator
Day summarized his interview with appellant, stating that she “was very cooperative [and]
seemed to be very honest with [him] about what happened. She . . . admitted to [him] that
she had committed each of the robberies in question.” When Investigator Day questioned
appellant about weapons used in the robberies, she said “that she did have that BB gun for
each robbery.”
On cross-examination, Investigator Day acknowledged that appellant’s family
formerly lived across the street from his family, and appellant occasionally babysat his
children. He stated that he had not seen appellant from the time he moved from the
neighborhood until the robbery incident. He acknowledged that appellant was arrested at the
motel about twenty to thirty minutes after the robbery and that when he caught appellant, she
had a mouthful of pills. He ordered appellant to spit out the pills, and she complied.
Investigator Day disagreed that appellant seemed “buzzed” during the lengthy interview. He
stated, “She seemed fairly coherent. Almost like she was coming off more than – her
scratchy throat and almost like a dry mouth – but yeah, she seemed fairly coherent, actually,
considering.” The State rested its case-in-chief.
Appellant testified that she met Aaron Keisler at sixteen years of age. She began
using OxyContin, dropped out of high school in the eleventh grade, and ran away from home.
She explained that she and Mr. Keisler lived with his father until his father was arrested and
taken to jail. Afterward, they lived in hotel rooms, and she worked as a stripper and
prostitute to support their drug habit. Mr. Keisler did not work.
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Appellant stated she met Rebecca Gann and Whitney Soard when she purchased crack
cocaine at a crack house. Appellant testified that Ms. Soard first mentioned the idea of
robbery to her and stated, “They pretty much came to me with the idea that they needed
someone new.” She recalled that this conversation occurred on May 11, 2010,1 because it
was the same day she committed the first robbery. In summarizing the first robbery,
appellant testified that she believed it was a CVS, and she carried a note written by Ms.
Gann, who was waiting in the car, and a BB gun that belonged to Ms. Gann’s son. Appellant
stated that before each robbery, Ms. Gann would bring pills along with her, and they would
“[get] high” together. Consequently, appellant did not remember much about the robberies.
Appellant remembered more of the May 22, 2010 robbery, when Mr. Keisler was waiting in
the car, because it was the day she was arrested. She recalled that when Investigator Day
chased her, she swallowed some pills because she knew she was about to be arrested.
However, she had too many pills in her mouth, so she had to “spit some out.”
Appellant claimed that she was “high” during the interview with Investigator Day.
She testified that it was not until she was arrested that she first learned how long this group
of people had been committing robberies. She stated, “I just knew that they said they had
done some that they had gotten away with.” Appellant stated that the eleven days between
her first and last robbery were the only times she was involved in a robbery in any capacity,
and she never intended to harm anyone.
On cross-examination, appellant explained in detail the events leading up to each
robbery and how the robberies progressed. She thought that she did not adequately convey
to the victims her seriousness about her intent to commit the robberies, and thus, she resorted
to exposing the perceived weapon in her waistband out of desperation. Appellant admitted
that she contradicted Mr. Keisler’s request that the robberies be committed outside of Knox
County and instead listened to others in the group because she “wanted to get high.”
Appellant recalled her interview with Investigator Day and stated, “I was on a high milligram
of OxyContin during my interview. . . You can hear as the interview progresses that I’m
mumbly, the – I mean, it’s – you can tell that I’m high in that video.”
On redirect examination, appellant expressed remorse for her actions and apologized
to each victim.
Appellant’s mother, Gena Michelle Burnette, was called as the next witness. Ms.
Burnette testified that appellant was a good student in middle school and responded well to
parenting. Ms. Burnette recalled the day preceding appellant’s arrest, which was May 21,
1
There is some discrepancy between whether the offense occurred on May 10 or May 11, 2010,
because Mr. Cowart was working an overnight shift that spanned both dates.
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2010, Mother’s Day. Appellant spent the day with her daughter and Ms. Burnette. During
the day, Mr. Keisler called appellant’s cellular telephone approximately one hundred times,
asking appellant to return to the hotel. Ms. Burnette stated that from her experience with Mr.
Keisler, this type of behavior was typical.
On cross-examination, Ms. Burnette testified that she returned appellant to the hotel
at the close of their Mother’s Day visit. She stated that she had no knowledge of appellant’s
visiting another pharmacy after their visit.
Following deliberations, the jury found appellant guilty of six counts of aggravated
robbery. At the sentencing hearing, the trial court found that appellant had a prior history of
criminal behavior, that she had previously been unwilling to comply with the conditions of
sentence involving release into the community, and that she was on probation when she
committed the instant offenses. Tenn. Code Ann. § 40-35-114(1), (8), (13)(C) (2010).
Because the convictions involved two alternate theories of three criminal offenses, the trial
court merged three of the convictions and sentenced appellant to three concurrent sentences
of eleven years each, to be served in the Tennessee Department of Correction. This appeal
follows.
II. Analysis
Appellant raises two issues for our review: whether the trial court erroneously violated
her right to a speedy trial; and whether the trial court erred in ordering eleven-year sentences.
A. Right to a Speedy Trial
The Sixth Amendment to the United States Constitution states that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const.
amend. VI. This provision was made applicable to the states through the Fourteenth
Amendment to the United States Constitution. State v. Simmons, 54 S.W.3d 755, 758 n.4
(2001) (citing Klopfer v. North Carolina, 386 U.S. 213 (1967)). Likewise, the Tennessee
Constitution provides the same guarantee for criminal defendants. See Tenn. Const. art. I,
§ 9. “The speedy trial guarantee is designed to protect the accused from oppressive pre-trial
incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that
the accused’s defense will be impaired by dimming memories or lost evidence.” Simmons,
54 S.W.3d at 758. The right to a speedy trial is triggered when an accused is arrested or
when a grand jury issues a formal accusation or indictment. State v. Hudgins, 188 S.W.3d
663, 667 (Tenn. Crim. App. 2005) (citing State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997)).
We review a trial court’s determination of whether a defendant’s right to a speedy trial was
violated under an abuse of discretion standard. Hudgins, 188 S.W.3d at 667.
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In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court set forth four
factors to be considered when reviewing an alleged violation of an accused’s right to a
speedy trial, including the “[l]ength of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” See Simmons, 54 S.W.3d at 759. Our
supreme court has cited with approval the application of the Barker analysis in Tennessee.
Simmons, 54 S.W.3d at 759 (citing State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977)). If,
after applying the Barker balancing test, a court determines that an accused’s right to a
speedy trial has been violated, “the remedy is reversal of the conviction and dismissal of the
criminal charges.” Id.2
Considering first the length of the delay, we note that unless “there is some delay
[that] is presumptively prejudicial, it is not necessary to inquire into the other balancing
factors of the speedy trial analysis.” Id. (citing Barker, 407 U.S. at 530; State v. Wood, 924
S.W.2d 342, 346 (Tenn. 1996)). A delay following a formal accusation must “generally” be
one year or longer to trigger a speedy trial analysis. Id. If this threshold is crossed, a
reviewing court must employ a balancing test to determine the merits of the speedy trial
issue. State v. Bates, 313 S.W.3d 265, 270 (Tenn. Crim. App. 2009). In doing so, we must
inquire as to the reasons for the delay. Reasons for delay fall within four identifiable
categories: “(1) intentional delay to gain a tactical advantage over the defense or delay
designed to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay
necessary to the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense.” State v. Vickers, 985 S.W.2d 1, 5-6 (Tenn. Crim. App. 1997)
(citing Wood, 924 S.W.2d at 346-47). While the reasonableness of the length of the delay
is commensurate to the complexity and nature of the case, the presumptive prejudice inherent
in the delay intensifies over time. Simmons, 54 S.W.3d at 759 (citing Doggett v. United
States, 505 U.S. 647, 652 (1992); Utley, 956 S.W.2d at 492; Wood, 924 S.W.2d at 346).
Appellant’s cases were bound over to the grand jury following a June 4, 2010
preliminary hearing.3 She was indicted in federal court on June 15, 2010, and the FBI lodged
a detainer against her on June 16, 2010, prior to her July 20, 2010 state indictments. At a
September 7, 2010 state court hearing, the record reflected that appellant was not present
because she was in federal custody. On June 24, 2011, appellant entered guilty pleas in
federal court to three counts of aiding and abetting a pharmacy robbery. She was thereafter
2
Appellant states that because the opportunity to obtain concurrent sentencing has passed, she
requests relief in the form of a new trial and a “drastic reduction in her bond,” neither of which is a remedy
for a speedy trial violation.
3
From the record, it appears that appellant was arrested between May 22, 2010, the date of her last
robbery, and June 4, 2010, the date of her preliminary hearing. However, the date of her arrest is not
contained in the record on appeal.
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returned to state custody, and her trial began on August 30, 2011. Although the delay
between indictment and trial was approximately thirteen months in duration, appellant was
unavailable for state prosecution for the approximately ten months she was in federal
custody. See State v. Ronnie DeWayne Graham, Sullivan County No. 754, 1987 WL 18384,
at *4 (Tenn. Crim. App. Oct. 14, 1987). Thus, the delay in trying appellant’s case does not
trigger a speedy trial inquiry.
Having found that the delay does not necessitate a speedy trial analysis, we are not
obligated to conduct a full balancing test with regard to the remaining Barker factors. We
nonetheless note that the reason for the delay was appellant’s transfer to federal custody to
stand trial for accompanying criminal offenses. We conclude that any delay falls within the
category of “delay necessary to the fair and effective prosecution of the case.” Vickers, 985
S.W.2d at 5-6. The cases on which appellant was tried in federal court stemmed from the
same transactions that gave rise to her state court cases. Disposing of all of appellant’s
related cases within the same period of time promoted judicial economy. The reason for the
delay does not weigh in appellant’s favor.
The record clearly indicates that appellant asserted her right to a speedy trial at several
junctures during the proceedings. Assertion of the right to a speedy trial weighs heavily in
appellant’s favor. Barker, 407 U.S. 531-32.
Finally, we consider the final and most important factor in the inquiry: whether
appellant suffered any prejudice. Simmons, 54 S.W.3d at 760. While a criminal defendant
has an interest in securing concurrent sentences, our supreme court has rejected the
proposition that “the lost possibility of concurrent sentencing is enough in and of itself to
require dismissal on speedy trial grounds.” Id. at 761. Relevant to this inquiry is the federal
“doctrine of primary custody.”
In Ponzi v. Fessenden, 258 U.S. 254, 260-262 (1922), the Supreme
Court first recognized the doctrine of primary jurisdiction, to provide an
orderly method of prosecuting an individual who has violated the law of more
than one sovereign. Pursuant to this doctrine, the sovereign that first arrests
an individual has primary control or custody over him; its claim over him has
priority over all other sovereigns that subsequently arrest him; it is entitled to
have him serve a sentence that it imposes, before he serves any sentence
imposed by another sovereign; and it retains this priority, unless and until it
has relinquished its jurisdiction to some other sovereign. Id.; see also United
States v. Cole, 416 F.3d 894, 897 (8th Cir. 2005); United States v. Collier, 31
F. App’x 161, 162 (6th Cir. 2002); In re Liberatore, 574 F.2d 78, 88-89 (2nd
Cir. 1978); Rambo v. Hogsten, No. 10-116-ART, 2010 WL 4791970 at *4
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(E.D. Ky. 2010) (“When a defendant violates the laws of two different
sovereigns, the rule is that the sovereign which first arrests him acquires the
right to prior and exclusive jurisdiction over him.”) (internal quotations
omitted).
Additionally, this primary jurisdiction continues until the first sovereign
has relinquished it in some way. Typically, a sovereign may only relinquish
primary jurisdiction in four ways: release on bail, dismissal of the charges,
release on parole, or expiration of the sentence. Cole, 416 F.3d at 897.
Moreover, critical to the circumstances presented here, federal courts have
uniformly held that the sovereign that first arrests a prisoner maintains primary
custody, even when the prisoner is taken to federal court under a writ of habeas
corpus ad prosequendum; in such instances, the prisoner is merely “on loan”
to the federal sovereign. Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir.
1992); see also Huffman v. Perez, 230 F.3d 1358 (6th Cir. 2000) (unpublished
table decision); United States v. Evans, 159 F.3d 908, 911 (4th Cir. 1998);
Easley v. Steep, 5 F. App’x 541 (7th Cir. 2001); Roche v. Sizer, 675 F.2d 507,
509 (2nd Cir. 1982); Silva-Rodriguez v. O’Brien, No. 7:09-CV-00497, 2010
WL 2326539, at *3 (W.D. Va. 2010) (“Lending an inmate via a writ of habeas
corpus ad prosequendum to another jurisdiction does not relinquish a
sovereign’s primary jurisdiction.”); Pease v. Cauley, No. 08-CV-144-HRW,
2009 WL 1505734, at *3 (E.D. Ky.2009) (“The well-established rationale is
that the second sovereign has only ‘borrowed’ him and the State retains
primary jurisdiction over him.”). Moreover, this principle is equally true even
when the “loan” to the second sovereign is a lengthy one. See, e.g., Huffman,
230 F.3d 1358 at 2; Rios v. Wiley, 201 F.3d 257, 271-74 (3rd Cir. 2000); Banks
v. Wilson, No. 6:09-CV-350-GFVT, 2009 WL 5125282, at *3 (E.D. Ky. 2009).
Jason H. Williams v. Erin D. Wilson, No. 6:10-CV-275-GFVT, 2011 WL 2560274, at *1-2
(E.D. Ky. 2011).
Because Tennessee arrested appellant before she was arrested for violation of federal
laws, the State of Tennessee maintained “primary custody” of her. This raised two concerns
at the trial level: (1) the federal court could not impose its sentence to run concurrently with
the state sentence because the state sentence was not yet in effect, see United States v.
Quintero, 157 F.3d 1038, 1039 (6th Cir. 1998); and (2) the federal court sentence would not
begin to run until the state had relinquished custody of appellant, see Jason H. Williams v.
Erin D. Wilson, 2011 WL 2560274, at *2.
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Moreover, the applicable federal sentencing guideline states that “[m]ultiple terms of
imprisonment imposed at different times run consecutively unless the court orders that the
terms are to run concurrently.” 18 U.S.C. § 3584(a). Thus, had the federal indictment been
resolved subsequent to the state charges, appellant would have had to overcome the federal
statutory presumption in favor of consecutive sentencing. Appellant’s federal defense
attorney testified in a jury-out hearing that the federal court noted on the record, “[I]f it were
up to the court, he would run the sentence[s] concurrent [to the state sentences].” However,
the court was not called upon to make such a determination because by operation of law, the
federal sentence could not be ordered to run concurrently with a nonexistent state court
sentence. To rely on the federal court’s remarks would be to engage in supposition. Had
sentence alignment been a viable issue for argument in federal court, the court would likely
have heard far more evidence pertaining to appellant, including her prior criminal activity
and her violation of both judicial diversion and probation. We will not consider the federal
court’s statement in isolation to establish that appellant has demonstrated that she would have
received concurrent sentence alignment in federal court had the state court charges been
resolved first. Because appellant has not demonstrated that she would have received
concurrent sentences if her state cases had been resolved prior to her federal cases or that the
State acted intentionally to deprive appellant of the opportunity for concurrent sentences, she
has thus failed to establish that she suffered prejudice as a result of the delay in resolution
of her state court charges.
Appellant also asserts that the State failed to act diligently in bringing her case before
the court and that the State is guilty of “official negligence” or “bad faith.” The State
extended a plea offer at the preliminary hearing, anticipating that appellant would be subject
to a federal indictment. Appellant and trial counsel opted against entering into a hasty plea
agreement before they could review the State’s discovery. Appellant was indicted in federal
court less than two weeks later. The State represented to appellant that it could not influence
the progression of appellant’s federal case. On the facts presented, we discern no proof of
bad faith or negligence on the part of the State.
With regard to appellant’s complaint that the trial court erred in refusing to
significantly reduce her bond or grant her release on her own recognizance, we note that the
trial court had before it an accused who had allegedly committed several felony robberies
while armed with a toy pistol. However, the fact that the “weapon” was a toy was not known
to the employees of the drug stores that she victimized. Appellant was charged with
committing the string of robberies while on probation. Thus, the trial court properly declined
to reduce appellant’s bond pending trial.
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This court is sympathetic to appellant’s plight. However, she has failed to
demonstrate that the trial court committed error or that her right to a speedy trial was
violated. She is not entitled to relief on this issue.
B. Sentencing
Appellant challenges the trial court’s imposition of three eleven-year sentences for her
convictions. The State answers that the trial court’s sentencing determination was proper.
We agree with the State.
In determining an appropriate sentence, a trial court must consider 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 mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -210(b) (2010); Tenn. Code Ann. § 40-35-114 (2010 & Supp. 2012). In
addition, “[t]he sentence imposed should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4) (2010 &
Supp. 2012).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. Tenn.
Code Ann. § 40-35-114 (2010 & Supp. 2012); Tenn. Code Ann. § 40-35-210(c) (2010). The
2005 amendments set forth certain “advisory sentencing guidelines” that are not binding on
the trial court; however, the trial court must nonetheless consider them. Tenn. Code Ann.
§ 40-35-210(c) (2010). Although the application of the factors is advisory, a court shall
consider “[e]vidence and information offered by the parties on the mitigating and
enhancement factors in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court
must also place on the record “what enhancement or mitigating factors were considered, if
any, as well as the reasons for the sentence, to ensure fair and consistent sentencing.” Id.
§ 40-35-210(e). The weighing of mitigating and enhancing factors is left to the sound
discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345 (2008). The burden of
proving applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-
9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial
court’s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v. Devin
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Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July
6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).
When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said
error will not remove the presumption of reasonableness from its sentencing determination.
Bise, 380 S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long
as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-10.
Moreover, under such circumstances, appellate courts may not disturb the sentence even if
we had preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging
the sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).
Following the sentencing hearing, the trial court found that appellant had garnered a
lengthy criminal history, had shown an unwillingness to comply with conditions of a sentence
involving release into the community, and had committed the offenses while on probation.
Tenn. Code Ann. § 40-35-114(1), (8), (13)(C) (2010 & Supp. 2012). The court did not find
any mitigating factors. The trial court further noted that while appellant’s probationary status
would allow for consecutive sentencing, it did not find that appellant was “deserving” of
consecutive sentences. Accordingly, the trial court sentenced her as a Range I, standard
offender to concurrent eleven-year sentences for each of the three convictions to be served
in state prison.
Appellant contends that the trial court erred in failing to consider several mitigating
factors: that her youth and inexperience substantially impaired her judgment in committing
the offenses; that she assisted authorities by providing information about the other
individuals involved in the robberies; and that she acted under duress or domination of Aaron
Keisler. Tenn. Code Ann. § 40-35-113(6), (9), (12) (2010). She also advances that the
catch-all provision of Tennessee Code Annotated section 40-35-113(13) should apply
because of her expressions of remorse and regret, her efforts at rehabilitation, and the support
of friends and family.
As noted above, the trial court did not find any mitigating factors. Because it found
none, it was not necessary for the court to expressly state on the record that the enhancement
factors outweighed the mitigating factors; that was implicit in the trial court’s ruling.
Nonetheless, the weighing of mitigating and enhancing factors is left to the sound discretion
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of the trial court and is not a grounds for reversal. Carter, 254 S.W.3d at 345 (citation
omitted).
Even if the trial court erred in declining to find any mitigating factors, a presumption
of reasonableness still attaches to its sentencing decision. Bise, 380 S.W.3d at 709. The
sentence imposed by the trial court was “within the appropriate range[,] and the record
demonstrates that the sentence is otherwise in compliance with the purposes and principles
listed by statute.” Id. at 709-10. Under such circumstances, we may not disturb the sentence
even if we had preferred a different result. See Carter, 254 S.W.3d at 346. Appellant has
failed to meet her burden of establishing that the sentence is erroneous. Tenn. Code Ann.
§ 40-35-401 (2010), Sentencing Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
CONCLUSION
Based on the foregoing, we affirm the judgments of the trial court.
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ROGER A. PAGE, JUDGE
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