State of Tennessee v. Calvin Louis Hill

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2004

STATE OF TENNESSEE v. CALVIN LOUIS HILL

Direct Appeal from the Circuit Court for Marshall County
No. 15728 Charles Lee, Judge

No. M2004-00597-CCA-R3-CD - Filed March 8, 2005

A Marshall County jury convicted the Defendant, Calvin Louis Hill, of carjacking, theft of property
valued over $1000.00, and three counts of forgery. The trial court sentenced the Defendant, as a
Range II offender, to an effective sentence of eighteen years. On appeal, the Defendant contends
that: (1) the evidence is insufficient to sustain his convictions for carjacking and forgery; and (2) his
sentence was excessive. Finding no reversible error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, J.,
joined, and THOMAS T. WOODALL, J., concurred in result only.

Gregory D. Smith (on appeal), Clarksville, Tennessee, and Michael J. Collins (at trial and on appeal),
Shelbyville, Tennessee, for the appellant, Calvin Louis Hill.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William Michael McCown, District Attorney General; Weakely E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION
I. Facts

This case arises from crimes committed against Maysene Henson that occurred in Marshall
County on May 29, 2003. A jury convicted the Defendant of carjacking, theft of property valued
over $1000.00, and three counts of forgery. The trial court merged the carjacking and theft of
property convictions and sentenced the Defendant, as a Range II offender, to eighteen years in prison.
The trial court also merged all three forgery convictions and sentenced the Defendant, again as a
Range II offender, to four years in prison, to run concurrently with his other sentence.
 A. Facts Presented at Trial

The following evidence was presented at the Defendant’s trial: Maysene Henson testified
that, on May 29, 2003, she had a checking account at First Farmers & Merchants Bank. She said that
she had a checkbook for that account that she kept in a purse in her car. Henson testified that, on
May 29, 2003, she was driving her 1992 Chrysler New Yorker, worth between $1200.00 and
$1500.00, attempting to find cardboard boxes in order to help her son move some items. She said
that she went to Tietgens Super Rama Market (“Market”) around 1 p.m. to look for boxes, and she
pulled off the side of the road behind the store. Henson said that she left her car running when she
got out of her car and gathered some boxes, and, as she was getting into her car, she was “shoved”
aside by someone behind her. She said that, after she was pushed out of the way, someone got into
her car, slammed the door, and drove away “real, real fast.” Henson said that she suffered bruises
as a result of being pushed away from her car. She identified the person who took her car as a “black
slender male with short hair,” and she said he was “about 5'5" tall.” Henson said that her purse and
billfold, which contained her checkbook and $1.60 in cash, were in her car when it was taken.

Henson testified that, shortly after the car was taken, a man she knew named Tommy Allen
stopped his car at a nearby stop sign and asked her what had happened. She told him that her car had
been taken, and he followed her car through the Market’s parking lot and out of her sight. Henson
testified that the Market’s manager called the police. Henson testified that, shortly after the car was
taken, she received a call from an employee of her bank named Shannon Barker inquiring about
some checks, and she told Barker what had happened and not to cash any checks on her account.
She said that the police located her car, and, when they returned it to her the following day, the front
seat was “a little messy.” Henson said that when her billfold was returned to her there was $1.60 in
cash and six checks, numbers 1434 to 1439, missing. One of the checks, number 1434, was “wadded
up,” laying on the floor of her car. She said that check number 1439 was filled out, dated May 29,
2003, and made payable to “Calvin Hill” in the amount of $230.00. The check stated that it was “for
car work.” Henson said that she did not fill out or sign this check, and she did not know anyone
named Calvin Hill prior to this incident. Further, she did not owe anyone named Calvin Hill any
money for car work. Henson testified that, on the back of the check was Calvin L. Hill’s signature,
and she said that the Defendant’s name was Calvin L. Hill. On cross-examination, Henson testified
that she never saw the man who took her car.

Tommy Allen testified that on May 29, 2003, he was near the Market around 1:00 p.m., and
he saw Henson, whom he had known for approximately thirty years. He said that he was in his car,
stopped at a stop sign, when he noticed Henson and “a black guy” near the dumpster where the
Market kept their discarded cardboard boxes. As Henson looked like she was getting into her car,
he noticed the man “shove” her “back a little bit” and jump into her car and drive away. He said that
Henson called to him and said “Tommy, follow that car and bring my car back.” Allen testified that
he followed the car for some distance, but then he lost sight of the car. He said that he then went
back to the Market where the police were waiting for him. On cross-examination, Allen testified that
he was approximately twelve to fifteen feet away from Henson when the man pushed her, and he was
unable to identify the man because he never saw his face.

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 Barry Hargrove, a sergeant with the City of Lewisburg Police Department, testified that he
located a car belonging to Henson on May 29, 2003, at around 2:50 p.m., after looking for it for
approximately one hour. He said that, when he located the car, which was approximately one mile
from the Market, the front passenger seat was in “disarray,” and the keys were on the floorboard.

Daryl Birdsong, an officer with the City of Lewisburg Police Department, testified that on
May 29, 2003, he responded to a call about a carjacking behind the Market at around 1:02 p.m. He
said that he interviewed both Henson and Allen and alerted police to watch for Henson’s car. He
said that later that same day, at around 2:30 p.m., he responded to a call at the First Farmers &
Merchants Bank, where he arrested the Defendant. Mike Nance, an officer with the City of
Lewisburg Police Department, testified that, on May 29, 2003, he responded to a call at the First
Farmers & Merchants Bank, and he assisted in the Defendant’s arrest.

Shannon Barker testified that she was an employee of First Farmers & Merchants National
Bank on May 29, 2003, where she was working as a teller at around 1:30 p.m., when the Defendant
came to cash a check on Maysene Henson’s account. Barker testified that the legal line of the check
contained misspellings and was not written out correctly, so she told the Defendant that she could
not cash this check. She said that, a couple of minutes later, the Defendant came to her teller station
again with a different check attempting to cash it on Henson’s account. She said that the check was
still not written out properly. Barker testified that, at this time, she began thinking that something
was wrong, so she attempted unsuccessfully to call Henson while the Defendant was standing there.
She told the Defendant that she could not cash his check, and he left. Barker said that, because she
still suspected that something was “amiss,” she again called Henson, and, after reaching her, she
learned about the circumstances leading up to the Defendant’s arrival at the bank. She said that she
then called and emailed the other branches of her bank to tell them not to cash any checks on
Henson’s account, and she told them to watch for a black male attempting to cash a check on this
account. Barker identified the bank surveillance videotape recording, which showed the Defendant
entering the bank, standing at her teller station, leaving, and then returning a short time later. Barker
testified that check number 1439, which was admitted into evidence, was not the same as either of
the checks that the Defendant presented to her. On cross-examination, Barker testified that she never
saw who filled out these checks, and she could not be sure that the Defendant filled out the checks.

Shirley Bledsoe, an employee with First Farmers & Merchants Bank who works at a different
branch from Barker, testified that she was working as a teller on May 29, 2003, when, at around 2:30
p.m., she received information from Barker to watch for a black male attempting to cash a check on
Henson’s account. She said that, a short time later, the Defendant came in and attempted to cash
check number 1439, which was written out correctly in the amount of $230.00, on Henson’s account.
Bledsoe said that, at that time, she did not assume that the Defendant was the man who took
Henson’s checks, and she handed the check to her supervisor and told the Defendant that her
supervisor would have to call Henson. Bledsoe testified that, during this time, another employee was
calling the police, and the Defendant stood at her teller station until the police arrived and placed him
under arrest. Bledsoe identified the bank’s surveillance videotape recording that showed the
Defendant entering the bank and coming to her teller station. On cross-examination, Bledsoe

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testified that she did not see who filled out the check that the Defendant attempted to cash.

Danny Kirbo, a corrections officer at the Marshall County Jail, testified that he took the
Defendant’s palm prints on May 30, 2003, at Detective Whitsett’s request, and those prints were
admitted into evidence. Don Lombardy, a corrections officer with the Marshall County Sheriff’s
Office, testified that he took the Defendant’s fingerprints. On cross-examination, both officers
testified that it was standard procedure for them to take the prints, but they did not know why the
prints were requested.

James Whitsett, a detective with the Lewisburg City Police Department, testified that, as part
of his investigations, he has been trained to, and does “lift” fingerprints from items. The detective
testified that he was advised where Henson’s car was located, and, after the car was taken to the
police station, he photographed the car, “lifted” fingerprints, and looked for other evidence in the
car. The detective said that he attempted, but was unable, to obtain fingerprints from Henson’s car.
Detective Whisett testified that he found Henson’s billfold in her car, and he processed it for
fingerprints. He said that he found fingerprints on the checkbook register, the checkbook cover, and
check number 1434, which was on the floor of the car, and on the car itself. Detective Whitsett said
that he found some prints that were too large to be fingerprints on some of these items, so he asked
Officer Kirbo to take the Defendant’s palm prints. The detective sent the fingerprints found in the
car, along with the Defendant’s fingerprints, to the Tennessee Bureau of Investigation (“TBI”) crime
lab for analysis. On cross-examination, the detective testified that he did not send Henson’s
fingerprints to the TBI crime lab to be compared to those fingerprints he found on the items in her
car.

David Hoover, a fingerprint examination expert with the TBI, testified that he was only able
to find one identifiable fingerprint from all of the items sent by Detective Whitsett. He said that he
identified the Defendant’s fingerprint on check number 1434, and he identified the Defendant’s left
palm print on the checkbook cover. On cross-examination, Agent Hoover testified that he did not
find any other fingerprints on the checkbook cover, other than the palm print.

The Defendant testified that on May 29, 2003, at around 1:00 p.m. he was at his apartment.
He said that he was sitting in front of his apartment, waiting for his mailman to deliver his
unemployment check, when a friend came down the street. He said that his friend presented a check
to him for $230.00 and told him that, if he could get it cashed, he would get $200.00 and his friend
would keep $30.00. The Defendant admitted, “I am guilty of trying to pass a forged instrument,”
but denied that he “carjacked a woman.” The Defendant reiterated that he was not at the Market on
the day of this incident.

On cross-examination, the Defendant said that his apartment was a thirty-five to forty minute
walk from the Market, and he said that he did not own or have access to a car. The Defendant
conceded that the videotape recording from the bank showed him entering the bank at 1:27 p.m. He
said that he and the man who presented him with the check walked to the bank together, but the other
man did not enter the bank with him, and, therefore, the other man was not on the bank’s videotape

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recording. The Defendant testified that the check for $230.00 was the only check that he had ever
seen, so Barker must have been mistaken when she testified that he attempted to cash two other
checks. The Defendant testified that he had never seen the man who presented him with the check
prior to this incident, but he was a “black man.” He said that he attempted to give a description of
this man to the detective, but the detective was angry and would not allow him to provide a
description. The Defendant said that he was 5'5" tall, which matched Henson’s description of him.
The Defendant said that, when the man approached him with the check, all he saw was the check,
he never saw the checkbook or the checkbook register, and he said that he never touched either of
them. The Defendant asserted that the police planted his palm print on the checkbook register. The
Defendant conceded that, when he was arrested he had a folded one dollar bill and eighty-four cents
in his pockets. He said that he remembered Henson testifying that she had a folded one dollar bill
and two quarters in her billfold when her car was taken.

Based upon this evidence, the jury convicted the Defendant of carjacking, theft of property
valued over $1000.00, and forgery.

B. Facts Presented at Sentencing Hearing

At the sentencing hearing, the Defendant’s presentence report was admitted into evidence.
The State noted that it was seeking to enhance the Defendant’s sentence based upon two prior felony
convictions for the sale of cocaine. Further, the State asserted that the Defendant was convicted for
one of these felony convictions while he was on probation for the other felony conviction, and his
probation was, therefore, revoked as indicated by the judgment form. Beth Ladner, a probation and
parole officer, testified that she prepared the Defendant’s presentence report. She said that she ran
the Defendant’s criminal history and she noted that, in addition to his prior convictions, his probation
had been revoked on two different occasions.

The Defendant testified that he previously worked for “ICP, Intercity” for approximately one
year, and his last day of work was December 28, 2002. He said that, prior to that, he worked for Sav-
A-Lot food store starting in January of 2001. The Defendant testified that, immediately preceding
his incarceration for this offense, he worked for Fancy Free Farms, which was not reflected in his
presentence report. The Defendant said that he felt remorse for passing a forged check, but he
insinuated that the only reason that he forged the check was because the Lewisburg Police detectives
were illegally taking money from him. The Defendant said that he was innocent of the carjacking
charge. He asserted that the State did not prove at trial that he intentionally and knowingly used
force to take Henson’s car. He asked the court to consider his remorse for passing the forged check.
On cross-examination, the Defendant again asserted that the police planted his palm print on
Henson’s checkbook register, and said that the TBI agent gave false testimony. He said that the
police wrongfully took $230.00 from him. The Defendant testified that, prior to this incident, he had
lived in multiple motels, and he had asked local churches to help him pay his motel bills.

On redirect examination, the Defendant testified that he was in the military for five years, and
he was honorably discharged.

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 Based upon this evidence the trial court, after merging the theft conviction with the
carjacking conviction and merging the three forgery convictions, sentenced the Defendant to eighteen
years in prison.

II. Analysis

On appeal, the Defendant contends that: (1) the evidence was insufficient to sustain his
convictions for carjacking and forgery; and (2) his sentence was excessive.

A. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, an appellate court’s standard
of review is whether, after considering the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Carter, 121
S.W.3d 579, 588 (Tenn. 2003); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both
direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). This Court may
not substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

A conviction may be based entirely on circumstantial evidence where the facts are “‘so
clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and
the Defendant alone.’” State v. Reid, 91 S.W.3d 247, 277 (quoting State v. Smith, 868 S.W.2d 561,
569 (Tenn. 1993)). The jury decides the weight to be given to circumstantial evidence and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State,
203 Tenn. 440, 313 S.W.2d 451, 457 (1958) (citations omitted). While single facts, considered
alone, may count for little weight, when all of the facts and circumstances are taken together, they
can point the finger of guilt at the Defendant beyond a reasonable doubt. State v. Williams, 657

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S.W.2d 405, 410 (Tenn. 1983). Further, “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence are
questions . . . for the jury.” Marable, 203 Tenn. 440, 313 S.W.2d at 457; see also State v. Gregory,
862 S.W.2d 574, 577 (Tenn. Crim. App. 1993).

1. Carjacking

The Defendant contends that the evidence is insufficient to support his conviction for
carjacking because no one saw the face of the man who carjacked Henson and the Defendant’s
fingerprints were not found inside Henson’s car. Carjacking is “the intentional or knowing taking
of a motor vehicle from the possession of another by use of . . . force or intimidation.” Tenn. Code
Ann. § 39-13-404(2) (2003). We conclude that the circumstantial evidence presented in this case
is sufficient to sustain the Defendant’s carjacking conviction. Henson testified that a 5'5" “black
male” pushed her away from her car, leaving her bruised, and then jumped in her car and drove
away. A short time later, the Defendant attempted to cash three separate checks from Henson’s
checkbook at two different bank branches. The Defendant’s palm print was found on Henson’s
checkbook register, which was located inside her car at the time of the Defendant’s arrest. The
Defendant contended that a friend gave him the check that he attempted to cash, that the bank teller
was mistaken, and that the police must have planted his palm print on the checkbook register. The
jury rejected the Defendant’s assertions. The circumstantial evidence, viewed in the light most
favorable to the State, is sufficient to sustain the Defendant’s carjacking conviction.

2. Forgery

The Defendant contends that the evidence is insufficient to support a conviction for forgery.
The Defendant provides no argument as to why the evidence is insufficient to sustain his forgery
convictions. “Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b).
Accordingly, the Defendant has waived this issue. Even had this issue not been waived, we conclude
that it is without merit. The Defendant stated at trial “I am guilty of trying to pass a forged
instrument.” This evidence, along with the circumstantial evidence against the Defendant, is
sufficient to support his conviction for forgery. This issue is without merit.

B. Sentencing

The Defendant contends that the trial court erred when it sentenced him because it did not
consider his military service as a mitigating factor. In the Defendant’s reply brief, he asserts for the
first time that the trial court improperly applied two enhancement factors, and the Defendant cited
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) to support this contention. When a
defendant challenges the length 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
court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (2003). This
presumption is “‘conditioned upon the affirmative showing in the record that the trial court

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considered the sentencing principles and all relevant facts and circumstances.’” State v. Ross, 49
S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377
(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v.
Smith 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence,
we must consider: (a) any evidence received at the trial and/or sentencing hearing; (b) the
presentence report; (c) the principles of sentencing; (d) the arguments of counsel relative to
sentencing alternatives; (e) the nature and characteristics of the offense; (f) any mitigating or
statutory enhancement factors; (g) any statements made by the defendant on his or her own behalf;
and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party
challenging a sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts.

In the case under submission, we conclude that there is ample evidence that the trial court
considered the sentencing principles and all relevant facts and circumstances. Therefore, we review
its decision de novo with a presumption of correctness. Accordingly, so long as the trial court
complied with the purposes and procedures of the 1989 Sentencing Act and its findings are
supported by the factual record, this Court may not disturb this sentence even if we would have
preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the
burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.; Ashby, 823 S.W.2d at 169.

When sentencing the Defendant, the trial court stated:

The Defendant is a Range 2 Offender. That is not in dispute. Consequently, he is
looking on the carjacking case at a range of not less than 12[,] nor more than 20
years. On the forgery case, not less than two, nor more than four years.

Now a couple of preliminary matters addressing itself to the indictment.

Count 2 of the indictment merges with Count 1. That is the State pursued a
theory of theft, which was the subject matter of the carjacking.

Counts 3, 4, and 5 are different theories of the same offense. And,
consequently, they each merge into one count.

....

[The Court] do[es] not find that any mitigating factors apply. . . . [The

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Defendant’s counsel] argues the Court should take into consideration that the
Defendant is a veteran. That is admirable. . . . But in the Court’s mind, before the
Court applies the so-called catchall factor . . . you must show me something above
and beyond what you would normally expect. . . . I have seen discussion in some of
the cases that the defendant had a stable work history. Well, that is what you expect.
I can see where there would be exemplary work histories. I can see where there
would be exemplary completion of military service. . . . It is the exemplary
participation in normal life expectancies that I feel that the mitigating factor – the
catchall mitigating factor is reserved for, not just, Judge we feel the Defendant does
[not have] a criminal history. Therefore, you should apply that as a mitigating factor.
You expect people not to have a criminal history. . . . So, I have considered [the
Defendant’s counsel’s] argument, but I reject it; because the proof in the record is
that there was nothing exemplary about it.

The Court does find the Defendant has a history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range.
. . . The Court notes that the Defendant has in his history, aside from those crimes
necessary to establish the appropriate range, that he has crimes of violence.

As a matter of fact, when considering the weight to be applied to this
enhancing factor, the Court places considerable weight upon the fact that the
Defendant was on probation for a crime of violence at the time of the commission of
this offense. The record reveals the Defendant was placed on probation in the
General Sessions court for the offense of assault on 12-17-2002. This offense was
committed on May 29, 2003. So it was committed while the Defendant was on
probation. . . . That is a matter which the Court takes note of and places great weight
on. In addition to that, the Defendant has a domestic violence, I think. . . . Yes, . . .
two [other] assault cases in the year 2000.

....

The Court also notes that the Defendant, as the State has also proven to the
Court, . . . has a history of unwillingness to comply with offenses involving release
in the community. . . . I know there was at least three occasions when the Defendant
was on some form of release in the community and committed another or other
offenses.

This Court also notes that efforts less restrictive than confinement have
frequently been unsuccessfully applied to the Defendant.

....

The Court will sentence the Defendant to a term in the State penitentiary of

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 18 years. 18 years on the carjacking and 4 years on the forgery, running concurrently
one with the other.

1. Mitigating Factor

The Defendant first contends that the trial court erred when it refused to apply the
Defendant’s military service record as a mitigating factor. This mitigating factor is not among the
statutorily defined mitigating factors set out in Tennessee Code Annotated section 40-35-113, rather,
it is mitigating factor that has been recognized in other cases under a catchall subsection which
includes “[a]ny other factor consistent with the purposes of this chapter.” Tenn. Code Ann. § 40-35-
113(13). This Court has previously stated, “With respect to [a defendant’s] military service,
honorable military service may always be considered as a mitigating factor consistent with the
purposes of the 1989 Sentencing Act.” State v. Vincent Gerrard Overton, No. 02C019510-CC00303,
1997 WL 287665, at *3 (Tenn. Crim. App., at Jackson, June 2, 1997), perm. app. denied (Tenn. Mar.
16, 1998). This Court has also, however, held that a trial court’s refusal to mitigate a defendant’s
sentence based on past military service was not error. See State v. Charles W. Wellman, No. E2001-
03055-CCA-R3-CD, 2003 WL 724432, at *11 (Tenn. Crim. App., at Knoxville, Mar. 4, 2003), no
perm. app. filed. Accordingly, we find that the evidence does not preponderate against the trial
court’s refusal to mitigate the Defendant’s sentence based on the Defendant’s past military history.
This issue is without merit.

2. Blakely v. Washington

In the Defendant’s response brief, he argues for the first time that the trial court improperly
applied two enhancement factors: that he had a history of criminal convictions; and that he had a
history of unwillingness to comply with the conditions of a sentence involving release in the
community. See Tenn. Code Ann. § 40-35-114(2), (9). The trial court determined, and both parties
agree, that the Defendant is a Range II offender. Carjacking is a Class B felony, Tennessee Code
Annotated section 39-13-404(b), and forgery is a Class E felony, Tennessee Code Annotated section
39-14-114(c). Because the Defendant is a Range II offender, he is subject to a potential sentence of
twelve to twenty years for the carjacking and two to four years for the forgery. Tenn. Code Ann. §
40-35-112(b)(2), (5). The presumptive sentence for both convictions is the minimum sentence in
the range. Tenn. Code Ann. § 40-35-210(e). The trial court sentenced the Defendant to eighteen
years for the carjacking conviction and to four years for the forgery conviction, enhancing the
sentence based upon the two aforementioned enhancement factors.

First, we note that the rule in Blakely, does not apply to enhancement factor (2), that the
defendant has a history of criminal convictions. Blakely, 124 S. Ct. 2531, 2539. Further, the record
fully supports the trial court’s application of this factor. The rule in Blakely does apply to
enhancement factor number (9), concerning the Defendant’s prior unwillingness to comply with the
terms or conditions of probation or release, and, therefore, the trial court’s application of that factor
is error under Blakely. We conclude, however, that the error in the trial court’s application of
enhancement factor (9) was harmless beyond a reasonable doubt. This Court has held that Blakely

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violations are subject to a Constitutional harmless error analysis. State v. Chester Wayne Walters,
No. M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *19 (Tenn. Crim. App., at Nashville, Nov.
30, 2004). The record reflects that the Defendant in this case violated the terms or conditions of his
release on at least two occasions, a fact in the Defendant’s presentence report that the Defendant did
not contest or deny. Therefore, we hold that the trial court’s application of enhancement factor (9)
was harmless error beyond a reasonable doubt. Therefore, we affirm the Defendant’s sentence.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm all of the Defendant’s
convictions and sentences.

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ROBERT W. WEDEMEYER, JUDGE

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