State of Tennessee v. Jeffrey Allen McNew ( 2021 )


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  •                                                                                            09/22/2021
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs July 13, 2021
    STATE OF TENNESSEE v. JEFFREY ALLEN MCNEW
    Appeal from the Criminal Court for Davidson County
    No. 2018-A-9       Cheryl A. Blackburn, Judge
    ___________________________________
    No. M2020-01227-CCA-R3-CD
    ___________________________________
    Jeffrey Allen McNew, Defendant, entered a negotiated guilty plea to one count of
    aggravated burglary, one count of being a felon in possession of a firearm, two counts of
    aggravated robbery, one count of aggravated kidnapping, one count of carjacking, and four
    counts of aggravated assault. Pursuant to the plea agreement, Defendant was sentenced as
    a Range III, Persistent Offender, and the trial court determined the length and alignment of
    the sentences. Following a sentencing hearing, the trial court imposed an effective sentence
    of 135 years. After a thorough review of the record and applicable law, we determine that
    the trial court did not abuse its discretion in sentencing Defendant and affirm the judgments
    of the trial court. However, we remand for entry of corrected judgments merging the
    aggravated assault conviction in Count 7 into the aggravated robbery conviction in Count
    3 and merging the aggravated assault conviction in Count 8 into the aggravated robbery
    conviction in Count 4.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
    ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which TIMOTHY L.
    EASTER and J. ROSS DYER, JJ., joined.
    Martesha L. Johnson, District Public Defender, Jeffrey A. DeVasher, Assistant Public
    Defender (on appeal), Jonathan Wing, Assistant Public Defender (at hearings), for the
    appellant, Jeffrey Allen McNew.
    Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
    Attorney General; Glenn R. Funk, District Attorney General; and Jordan F. Hoffman,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    Factual Background
    The prosecution summarized the facts of this case at the plea submission hearing
    as follows:
    [O]n September 17 of 2017 at approximately 7:30 in the morning,
    [Defendant] and Sadie Arnold [(“Co-defendant”)] entered [J.C. II and
    M.C.’s]1 residence [] through a kitchen window. The two suspects went into
    the bedroom of [J.C. II] and [M.C.], produced a handgun and a stun gun.
    [Defendant] was, at that point, in possession of the handgun, and [Co-
    defendant] was in possession of the stun gun, and [they] demanded money
    and valuables. When they realized there was a fourteen-year-old in the
    house, [J.C. III], and also his best friend was spending the night, [B.C.], age
    fourteen, they demanded . . . that the children join the adults in [J.C. II and
    M.C.’s] bedroom; and then all four of them were held at gunpoint by
    [Defendant] and [Co-defendant]. While [Defendant] stayed with the victims,
    [Co-defendant] ransacked the house, taking 13 [items of] jewelry, change
    and other valuables from the home. They looked for prescription medicine
    and demanded cash. When they became unsatisfied by the lack of cash in
    the home, [Defendant] and [Co-defendant] forced [J.C. II] to drive them in
    his car to a Bank of America ATM where he made two withdrawals at the
    max of $200 each before he was locked out of the system. [Defendant] and
    [Co-defendant] then forced him to drive back to the house. At that point,
    [Defendant] and [Co-defendant] chose one of [J.C. II and M.C.’s] cars to
    take. They then stole that car, all the other items that they stole from the
    [victims] and fled the scene.
    Sentencing Hearing
    The prosecution announced that Defendant was on parole at the time he committed
    the offenses and that any sentence imposed by the trial court would be mandatorily
    consecutive to the sentence for which he was paroled. The prosecution then entered the
    presentence report as Exhibit 1 and the victim impact statement as Exhibit 2 and rested.
    Defendant called Amanda Marie Ward, Defendant’s half-sister who lived in
    Michigan. She said that their mother was an alcoholic and that her mother’s boyfriends
    1
    It is the policy of this court to protect the identity of minors. To do so, we will use initials of the
    adult and minor victims or “victims.”
    -2-
    were abusive. She said that the minor children were removed from their mother’s home.
    She and her brother Dale went to live with their older sister, and Defendant went to live
    with his father. She said that she and all of her siblings struggled with drugs. Dale died of
    a heroin overdose, and Defendant was addicted to heroin. She had been able to get
    Defendant sober six or seven times previously, but each time, he relapsed. She said that
    Defendant’s substance abuse problem was a primary contributor to his legal problems.
    Defendant’s father, Jeffrey Ray McNew, testified that he lived in Michigan and was
    employed by General Motors. He said that he divorced Defendant’s mother in 1993 due
    to her alcoholism. In 1999, Defendant came to live with him after a court took all of the
    children away from Defendant’s mother. He said that Defendant was a drug addict and
    asked the court to send him to rehabilitation.
    Defendant testified that he was thirty-two years of age. He admitted that he
    committed the offenses and knew that occupants could be home on Sunday morning when
    he broke into the house. He agreed that he could have left when he found the adults at
    home or when he learned that children were present. He claimed that he was high on
    Klonopin when he committed the offenses.
    Defendant said that his mother was an alcoholic, that she had a “couple of
    boyfriends” that were abusive to her, and that he would sometimes step in and defend her.
    He dropped out of school after the ninth grade and later earned a GED. He began drinking
    alcohol and smoking marijuana around the age of nine and started taking cocaine at the age
    of fourteen or fifteen. He started using heroin in 2010. He admitted that he had twelve
    prior felony convictions. He said that during his prior incarceration, he was attacked,
    “stomped out,” and stabbed.
    The trial court questioned Defendant about the dangers associated with the offenses
    as follows:
    THE COURT: And the reason for that is people have guns in their
    house, people have dogs in their house. So why on earth would you
    go into a house at seven o’clock on a Sunday morning? Why would
    you do that?
    DEFENDANT: To be honest, I truly believed that all those pills I had
    taken throughout the night --
    THE COURT: So you’re blaming it on the pills?
    -3-
    DEFENDANT: I don’t want to blame it on the pills because that’s
    not an excuse but, at the same time, a Klonopin pill --
    THE COURT: You took a gun in there with you, did you not?
    DEFENDANT: Yes, I did carry a gun.
    THE COURT: So why did you take the gun in?
    DEFENDANT: I always carried a gun.
    Findings of the Trial Court
    Following argument of counsel, the trial court pronounced sentence. The court
    stated that it had considered the purposes of sentencing outlined at Tennessee Code
    Annotated section 40-35-102 and the sentencing factors found at section 40-35-210(b),
    including the evidence at the sentencing hearing, the presentence report, the principles of
    sentencing, the nature and characteristics of the criminal conduct, the statistical information
    provided by the Administrative Office of the Courts, Defendant’s testimony at the hearing
    and his statement in the presentence report, the victim impact statements, and the needs
    assessment attached to his presentence report.
    Concerning the needs assessment, the court stated:
    I find it not valid, quite honestly, and I have a real hard time with some of
    the recommendations that they made, especially when they make something
    like this in terms of his assessment of aggression. It says “there is no history
    of threatening, aggressive or violent behaviors in his lifetime, and there’s no
    indication that the subject ever threatened or injured anyone with a weapon.”
    To make that statement, given the facts of this case, I’m not going to rely on
    the needs assessment provided by the Department of Corrections. I don’t
    find it valid or in any way related to this case.
    The trial court found that enhancement factors 1, 2, 8, and 13 applied. The court
    found that Defendant had “a previous history of criminal convictions or behavior in
    addition to those necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-
    114(1) (2020). The court noted that Defendant had twelve prior aggravated burglary
    convictions,2 that only “six of them are needed to get the persistent offender
    2
    Based on the presentence report, Defendant had eleven prior aggravated burglary convictions and
    one attempted aggravated burglary conviction.
    -4-
    [classification,]” and that Defendant was actually a career offender. The court found that
    he also had nineteen prior misdemeanor convictions. The court found that Defendant “was
    a leader in the commission of an offense involving two (2) or more criminal actors,” that
    “before trial or sentencing, [Defendant] failed to comply with the conditions of a sentence
    involving release into the community,” and that Defendant was released on parole “[a]t the
    time the felony was committed.” Tenn. Code Ann. §§ 40-35-114 (2), (8), and (13) (2020).
    The court stated that it was not giving much weight to factor (8).
    The court found the fact that Defendant entered a plea of guilty and thereby avoided
    putting the victims through a trial to be a mitigating factor.
    Alignment of Sentences
    In considering consecutive sentencing, the trial court found that “[D]efendant is an
    offender whose record of criminal activity is extensive[.]” Tenn. Code Ann. § 40-35-
    115(b)(2) (2020). The court noted that Defendant had twelve prior aggravated burglary
    convictions and nineteen prior misdemeanors convictions.
    The trial court found that “[D]efendant is a dangerous offender whose behavior
    indicates little or no regard for human life and no hesitation about committing a crime in
    which the risk to human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4) (2020). In
    support of this criterion, the court stated:
    I find that given the circumstances of this case and the description of going
    into someone’s home while they’re asleep, in broad daylight, where they pull
    the children out of bed, and I’m just reading from the victim impact
    [statement], and while they ransacked the home. According to this, he was
    condescending, explaining that he was berating us for not having enough
    cash or desirable weapons, and they had a gun and a taser. All that going
    into somebody in their house, and taking the father away to get money out of
    the ATM.
    So besides that, though, I need to go further and look at the State v. Wilkerson
    [
    905 S.W.2d 933
     (Tenn. 1995)] factors, and that is I must find that [(1)] the
    aggregate term reasonably relates to the severity of the offenses, and (2) it is
    necessary in order to protect the public from further serious criminal conduct
    by [D]efendant. And I find, that based on the facts of this case and the fact
    that he has twelve prior convictions for aggravated burglary, which is a home
    invasion type of crime, is that he needs to be taken out of society to protect
    the public from further serious conduct. So[,] I do find that there is a
    necessity of some consecutive sentencing.
    -5-
    Sentences
    The chart below shows the length of the sentences, the release eligibility date
    (“RED”), and the alignment of the sentences imposed the trial court:
    Count      Offense of Conviction            Sentence RED            Alignment
    1          Aggravated Burglary              15 years 45%            Concurrent with Counts 2,
    7, 8, 9, and 10.
    Consecutive 3, 4, 5, and 6.
    2          Convicted Felon in               6 years      45%        Concurrent with Counts 1,
    Possession of a Weapon                                   7, 8, 9, and 10.
    Consecutive 3, 4, 5, and 6.
    3          Aggravated Robbery               30 years     85%        Consecutive to all Counts.
    4          Aggravated Robbery               30 years     85%        Consecutive to all Counts.
    5          Aggravated Kidnapping            30 years     100%       Consecutive to all Counts.
    6          Carjacking                       30 years     75%        Consecutive to all Counts.
    7          Aggravated Assault               15 years     45%        Concurrent with Counts 1,
    2, 8, 9, and 10.
    Consecutive 3, 4, 5, and 6.
    8          Aggravated Assault               15 years     45%        Concurrent with Counts 1,
    2, 7, 9, and 10.
    Consecutive 3, 4, 5, and 6.
    9          Aggravated Assault               15 years     45%        Concurrent with Counts 1,
    2, 7, 8, and 10.
    Consecutive 3, 4, 5, and 6.
    10         Aggravated Assault               15 years     45%        Concurrent with Counts 1,
    2, 7, 8, and 9.
    Consecutive 3, 4, 5, and 6.
    The total effective sentence was 135 years with 30 years at 100%, 60 years at 85%,
    30 years at 75%, and 15 years at 45%. As mandated by Tennessee Rule of Criminal
    Procedure 32(c)(3)(A), the court ordered the 135-year sentence to be served consecutively
    to the felony sentence for which Defendant was on parole at the time he committed the
    offenses in this case.3
    Following sentencing, Defendant filed his notice of appeal.
    3
    Defendant testified that, at the time of the sentencing hearing, he was serving the remainder of the
    twelve-year sentence for which he was on parole at the time he committed the offenses in this case. He
    stated that he had been in custody since September 2017 and that he expected to be released in February
    2022.
    -6-
    Analysis
    On appeal, Defendant claims that the trial court erred in imposing the maximum
    sentence for each conviction, erred in imposing partially consecutive sentences, erred in
    failing to impose the least severe measure necessary to achieve the purposes for which the
    sentences were imposed, and erred in failing to merge the aggravated assault conviction in
    Count 7 into his conviction for aggravated robbery in Count 3 and the aggravated assault
    conviction in Count 8 into his conviction for aggravated robbery in Count 4.
    The State claims that the trial court did not abuse its discretion by sentencing
    Defendant within the applicable range after finding multiple enhancement factors or by
    imposing partially consecutive sentences after finding Defendant had an extensive criminal
    record and was a dangerous offender. The State claims that the record is inadequate to
    conclude merger is required and that Defendant abandoned this issue below.
    Standard of Review
    When a trial court provides on the record its reasons for imposing a within-range
    sentence and those reasons are in accordance with the purposes and principles of
    sentencing, the trial court sentencing decisions are reviewed under an abuse of discretion
    standard, accompanied by a presumption of reasonableness. State v. Bise, 
    380 S.W.3d 682
    ,
    707 (Tenn. 2012). When the trial court provides reasons on the record establishing by a
    preponderance of the evidence that at least one of the seven criteria listed in Tennessee
    Code Annotated section 40-35-115(b), the trial court’s consecutive alignment of sentences
    “will be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” State
    v. Pollard, 
    432 S.W.3d 851
    , 861 (Tenn. 2013).
    Minimum and Maximum Sentences
    Defendant was convicted as a Range III, Persistent Offender of four Class B
    felonies, five Class C felonies, and one Class E felony. Tennessee Code Annotated section
    40-35-112(c), which provides the minimum and maximum sentences for a Range III
    offender, provides in pertinent part:
    (2) For a Class B felony, not less than twenty (20) nor more than thirty (30)
    years;
    (3) For a Class C felony, not less than ten (10) nor more than fifteen (15)
    years;
    ....
    -7-
    (5) For a Class E felony, not less than four (4) nor more than six (6) years.
    Tenn. Code Ann. §§ 40-35-112(c)(2), (3), and (5) (2020).
    Length of Sentences
    The trial court stated that it considered the evidence at the sentencing hearing, the
    presentence report, the principles of sentencing, the nature and characteristics of the
    criminal conduct, the evidence on mitigating and enhancement factors, the statistical
    information provided by the Administrative Office of the Courts, Defendant’s testimony at
    the hearing and his statement in the presentence report, and the victim impact statement
    and the needs assessment attached to his presentence report.
    The court found four enhancement factors:
    (1) The defendant has a previous history of criminal convictions or
    criminal behavior, in addition to those necessary to establish the appropriate
    range;
    (2) The defendant was a leader in the commission of an offense
    involving two (2) or more criminal actors;
    (8) The defendant, before trial or sentencing, failed to comply with
    the conditions of a sentence involving release into the community;
    (13) At the time the felony was committed, one (1) of the following
    classifications was applicable to the defendant:
    (B) Released on parole[.]
    Tenn. Code Ann. §§ 40-35-114(b)(1), (2), (8), and (13) (2020).
    Defendant’s eleven prior Class C felony convictions for aggravated burglary and
    one prior conviction for Class D felony conviction for attempted aggravated burglary were
    well in excess of the convictions necessary to establish that Defendant was a Range III
    offender and clearly support the trial court’s application of factor (1).
    Defendant’s admission that he was released on parole at the time the offenses in this
    case were committed support the trial court’s application of factor (13).
    -8-
    The trial court found that Defendant “was a leader in the commission of an offense
    involving two (2) or more criminal actors.” Although, we find no evidence in the record
    to show that Defendant was the sole leader in the offenses, enhancement factor (2) does
    not require a leader in the commission of an offense to “be the leader but only that he be a
    leader.” State v. James Teague, No. 03CO1-9102-CR-00060, 
    1992 WL 28468
     (Tenn.
    Crim. App. Feb. 19, 1992) (emphasis in original), perm. app. denied (Tenn. May 18, 1992);
    see also State v. Hicks, 
    868 S.W.2d 729
    , 731 (Tenn. Crim. App. 1993) (the defendant and
    co-defendant both found to be a leader). The trial court’s finding that Defendant was a
    leader is supported by the evidence in this case.
    Although the presentence report does not specifically show that Defendant, “before
    trial or sentencing, failed to comply with the conditions of a sentence involving release into
    the community,” the disposition dates and sentences of several convictions show that
    Defendant was arrested and convicted of subsequent offenses before the prior sentence
    could have expired. In any event, the trial court stated that it did not give much weight to
    factor (8), and even if the trial court misapplied factor (8), that “does not invalidate the
    sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
    2005.” Bise, 380 S.W.3d at 706. The trial court did not depart from the 1989 Act, as
    amended in 2005.
    “A sentence should be upheld 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. The sentences imposed by the trial court were
    all within the appropriate range. The trial court articulated the reasons for the sentences in
    accordance with the purposes and principles of sentencing. We determine that the trial
    court did not abuse its discretion in sentencing Defendant to the maximum within-range
    sentence on each count.
    Alignment of Sentences
    The Tennessee Supreme Court expanded its holding in Bise to a trial courts’
    decisions regarding consecutive sentencing. Pollard, 432 S.W.3d at 859. A trial court has
    discretionary authority to impose consecutive sentences if it has provided reasons on the
    record establishing at least one of the seven grounds listed in Tennessee Code Annotated
    section 40-35-115(b). Id. at 861.
    The trial court found that Defendant’s “record of criminal activity is extensive[.]”
    Tenn. Code Ann. § 40-35-115(b)(2) (2020). The court found that Defendant had twelve
    prior aggravated burglary convictions (actually eleven aggravated burglary and one
    attempted aggravated burglary) and nineteen prior misdemeanor convictions. Based on the
    presentence report, the misdemeanor convictions include one domestic assault with bodily
    -9-
    injury, two weapon offenses, and five drug offenses. Tennessee Code Annotated section
    40-35-115(b)(2) has been interpreted “to apply to offenders who have an extensive history
    of criminal convictions and activities, not just to a consideration of the offenses before the
    sentencing court.” State v. Palmer, 
    10 S.W.3d 638
    , 647-49 (Tenn. Crim. App. 1999).
    Additionally, “an extensive record of criminal activity may include criminal behavior
    which does not result in a conviction.” State v. Koffman, 
    207 S.W.3d 309
    , 324 (Tenn.
    Crim. App. 2006). The presentence report shows that Defendant has a long history of
    illegal usage of marijuana, cocaine, heroin, Klonopin, Oxycontin, Xanax, and
    oxymorphone.
    The trial court found that Defendant was “a dangerous offender whose behavior
    indicates little or no regard for human life and no hesitation about committing a crime in
    which the risk to human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4). The court
    stated that the Wilkerson factors applied to Defendant, finding “that the aggregate sentence
    reasonably relates to the severity of the offenses,” and that an extended sentence “is
    necessary in order to protect the public from further serious criminal conduct by
    [D]efendant.” See Wilkerson, 
    905 S.W.2d at 939
    . The court found “based on the facts of
    this case and the fact that [Defendant] has twelve prior convictions for aggravated burglary,
    which is a home invasion type of crime, [] that he needs to be taken out of society to protect
    the public from further serious conduct[.]” The proof established that Defendant and Co-
    defendant broke into the victims’ home on a Sunday morning and that Defendant was
    armed with a gun.
    “The power of a trial judge to impose consecutive sentences ensures that defendants
    committing separate and distinct violations of the law receive separate and distinct
    punishments. Otherwise[,] defendants would escape the full impact of punishment for one
    of their offenses.” State v. Robinson, 
    930 S.W.2d 78
    , 85 (Tenn. Crim. App. 1995) perm
    app. denied (Tenn. June 3, 1996). We determine that the trial court did not err in finding
    that Defendant was a dangerous offender. The trial court did not abuse its discretion by
    imposing partial consecutive sentences.
    Purpose and Principles of Sentencing
    The purposes of sentencing are codified at Tennessee Code Annotated section 40-
    35-102. The foremost purpose of sentencing is to promote justice. 
    Id.
     To implement the
    purposes of sentencing, certain principles are listed in Tennessee Code Annotated section
    40-35-103. Defendant argues that the 135-year aggregate sentence violates two of the
    principles of sentencing because the sentence is “greater than that deserved for the offenses
    committed” and is not “the least severe measure necessary to achieve the purposes for
    which the sentences were imposed.” See Tenn. Code Ann. § 40-35-103(2), (4) (2020).
    - 10 -
    In Pollard, our supreme court stated: “The underlying principle, of course, is that
    the trial court must be afforded broad discretion in its sentencing decisions and the
    presumption of reasonableness will apply unless the trial court fails to address on the record
    the principles and purposes of our Sentencing Act.” Pollard, 432 S.W.3d at 861. “So long
    as a trial court properly articulates reasons for [its sentencing decisions], thereby providing
    a basis for meaningful appellate review, the sentences will be presumed reasonable and,
    absent an abuse of discretion, upheld on appeal.” Id. at 862.
    The trial court articulated its reasons for the sentences imposed, including the need
    to protect society from further dangerous conduct by Defendant, who had an extensive
    criminal record including eleven convictions for aggravated burglary and one conviction
    for attempted aggravated burglary; who, at the time he committed the offenses, was
    released on parole from a twelve-year sentence for prior aggravated burglaries; and who,
    armed with a handgun, broke into the victims’ home on a Sunday morning, when he knew
    that the occupants might be home, and committed a number of dangerous felonies. “A trial
    court’s sentencing determinations are fashioned to the individual offender.” State v. Jamie
    Paul Click, E2015-01769-CCA-R3-CD, 
    2017 WL 1189750
    , at *22 (Tenn. Crim. App.
    March 30, 2017), abrogated on other grounds by State v. Patterson, 
    564 S.W.3d 423
     (Tenn.
    2018), perm. app. denied (Tenn. Aug. 16, 2017). The trial court fashioned the 135-year
    sentence based on the facts of the case and Defendant’s criminal history. We previously
    determined that the trial court did not abuse its discretion by sentencing Defendant to the
    maximum within-range sentence on each count. Based on the reasons articulated by the
    trial court and the record, we determine the sentence imposed on each count was not greater
    than that deserved for the offense committed.
    We also determine that the trial court did not abuse its discretion by imposing
    partially consecutive sentences. It was this partially consecutive alignment that resulted in
    the aggregate sentence being 135 years, and that is the basis for Defendant’s argument that
    the sentence is not “the least severe measure necessary to achieve the purposes for which
    the sentences were imposed.” The “least severe measure” argument made by Defendant is
    sometimes raised in cases in which a defendant is sentenced to life or life without parole
    and the trial court aligns the sentence for another offense committed by the defendant
    consecutive to the life or life without parole sentence. In one such case, this court stated:
    With regard to the [consecutive sentencing] factor of protecting society from
    further criminal acts by the offender, it has been posited that there can be no
    necessity to further protect society from an offender sentenced to life
    imprisonment without parole, and that consecutive sentencing would
    therefore never satisfy this criteria in such a case. While this argument
    certainly bears logic, we note that our supreme court has declined to give the
    claim merit, denying permission to appeal in several cases in which an
    - 11 -
    additional sentence has been ordered served consecutive to a sentence of life
    imprisonment without parole. See, e.g., State v. Robinson, 
    930 S.W.2d 78
    ,
    75 (Tenn. Crim. App. 1995), perm. [app.] denied (Tenn. 1996); State v. Leon
    Barnett Collier, No. 03C01-9602-CR-00072, 
    1997 WL 9722
     (Tenn. Crim.
    App. [], Jan. 13, 1997), perm. [app.] denied (Tenn. [Nov. 3,] 1997); State v.
    Sammie Lee Taylor, No. 02C01-9501-CR-00029, 
    1996 WL 580997
     (Tenn.
    Crim. App. []Oct. 10, 1996), perm. [app.] denied (Tenn. [Mar. 3,] 1997).
    Furthermore, the supreme court has upheld running a sentence consecutive
    to a sentence of death. State v. Black, 
    815 S.W.2d 166
    , 191 (Tenn. 1991).
    State v. Delivetrick D. Blocker, No. 03C01-9803-CR-00120, 
    1999 WL 124223
    , at *10
    (Tenn. Crim. App. Mar. 10, 1999) perm. app. denied (Tenn. Oct. 4, 1999).
    Here, the trial court addressed on the record the principles and purposes of our
    Sentencing Act. The 135-year sentence is therefore presumed reasonable and, absent an
    abuse of discretion, will be upheld on appeal. We find that the trial court did not abuse the
    “broad discretion” afforded to a trial court’s sentencing decisions. Pollard, 432 S.W.3d at
    861.
    Merger of Convictions
    Defendant claims that the trial court erred in failing to merge the conviction for
    aggravated assault in Count 7 with the conviction for aggravated robbery in Count 3 (victim
    for both was J.C. II) and the conviction for aggravated assault in Count 8 with the
    conviction for aggravated robbery in Count 4 (victim for both was M.C.).
    The State argues that the record is not sufficient for this court to conclude that
    merger was required, that Defendant abandoned the issue, and that Defendant is not entitled
    to plain error relief.
    Waiver or Abandonment
    The State argues that Defendant waived and abandoned the double jeopardy claim.
    Entry of a guilty plea does not “automatically constitute a waiver” of a double jeopardy
    claim “when the claim was apparent from the face of the record.” State v. Rhodes, 
    917 S.W.2d 709
    , 711 (Tenn. Crim. App. 1995). In the sentencing memorandum admitted as
    Exhibit 3 to the sentencing hearing, Defendant argued that the trial court should merge his
    conviction for aggravated assault in Count 7 into his conviction for aggravated robbery in
    Count 3 and his conviction for aggravated assault in Count 8 into his conviction for
    aggravated robbery in Count 4. Defense counsel also orally argued for merger of these
    offenses at the sentencing hearing. The double jeopardy claim is not waived or abandoned.
    - 12 -
    Double Jeopardy
    Whether multiple convictions violate double jeopardy is a mixed question of law
    and fact, which we review de novo without any presumption of correctness. State v.
    Watkins, 
    362 S.W.3d 530
    , 539 (Tenn. 2012). The Fifth Amendment of the United States
    Constitution and Article I, section 10 of the Tennessee Constitution guarantee that no
    person shall “be twice put in jeopardy of life or limb” for the same offense and protect
    against: (1) “a second prosecution for the same offense after acquittal,” (2) “a second
    prosecution for the same offense after conviction,” and (3) “multiple punishments for the
    same offense.” North Carolina v. Pearce, 
    395 U.S. 711
    , 717 (1969); Watkins, 
    362 S.W.3d at 548
    . The claim in this appeal involves the third type of protection—multiple
    punishments for the same offense. Multiple punishment claims in a single prosecution,
    ordinarily fall into one of two categories: a “unit-of-prosecution” claim or a “multiple
    description” claim. Watkins, 362 S.W.3d. at 543. A unit of prosecution claim can arise
    when a defendant is convicted of multiple violations of the same statute. 
    Id.
     A multiple
    description claim can arise when a defendant is convicted of multiple criminal offenses
    under different statutes that punish the same act or transaction. 
    Id. at 544
    . This appeal
    involves a multiple description claim.
    “The applicable rule is that, where the same act or transaction constitutes a violation
    of two distinct statutory provisions, the test to be applied to determine whether there are
    two offenses or only one, is whether each provision requires proof of a fact which the other
    does not.” Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932).4 The Blockburger test,
    also called the same elements test, “requires an examination of the statutory elements in
    the abstract, without regard to the proof offered at trial in support of the offenses.” Watkins,
    
    362 S.W.3d at 544
    . “The Blockburger test involves a two-step process.” Id at 545. The
    first step is to determine “whether the alleged statutory violations arise from the same act
    or transaction.” 
    Id.
     (internal quotation marks omitted). If the alleged violations did not
    arise from the same act or transaction, then there is no double jeopardy violation. 
    Id.
     If
    the convictions did arise from the same act or transaction, “the second step of the
    Blockburger test requires courts to examine the statutory elements of the offenses. If the
    elements of the offenses are the same, or one offense is a lesser included of the other, then
    [courts] will presume that multiple convictions are not intended by the General Assembly
    and that multiple convictions violate double jeopardy.” 
    Id. at 557
    .
    4
    The Tennessee Supreme Court in Watkins adopted the Blockburger same elements test. Watkins,
    
    362 S.W.3d at 556
    .
    - 13 -
    Same Act or Transaction
    Defendant is charged in Count 3 with aggravated robbery by intentionally or
    knowingly committing theft of money from the person of J.C. II accomplished by putting
    J.C. II in fear by displaying a deadly weapon. Defendant is charged in Count 7 with
    aggravated assault by intentionally or knowingly causing J.C. II to reasonably fear
    imminent bodily injury by displaying a deadly weapon. Defendant is charged in Count 4
    with aggravated robbery by intentionally or knowingly committing theft of cell phones and
    jewelry from the person of M.C. accomplished by putting M.C. in fear by displaying a
    deadly weapon. Defendant is charged in Count 8 with aggravated assault by intentionally
    or knowingly causing M.C. to reasonably fear imminent bodily injury by displaying a
    deadly weapon.
    We determine that the aggravated assault in Count 7 and the aggravated robbery in
    Count 3 arose from the same act committed against J.C. II. Likewise, we determine that
    the aggravated assault in Count 8 and the aggravated robbery in Count 4 arose from the
    same act committed against M.C.
    Lesser Included Offense
    As pertinent here, an offense is a lesser included offense if all of its statutory
    elements are included within the statutory elements of the offense charged. Tenn. Code
    Ann. § 40-18-110(f)(1) (2020). It is well settled in Tennessee that aggravated assault is a
    lesser included offense of aggravated robbery when the theft is accomplished by displaying
    a deadly weapon and by causing the victim to reasonably fear imminent bodily injury.
    State v. Franklin, 
    130 S.W.3d 789
    , 798 (Tenn. Crim. App. 2003); see also State v. Swift,
    
    308 S.W.3d 827
    , 832 n.6 (Tenn. 2010) (aggravated assault is a lesser included offense of
    aggravated robbery when the use of violence and fear occurred prior to or
    contemporaneously with the taking). “[M]erger is required when a jury returns verdicts of
    guilt on two offenses and one of the guilty verdicts is a lesser included offense of the other
    offense.” State v. Berry, 
    503 S.W.3d 360
    , 362 (Tenn. 2015). When a defendant pleads
    guilty to two offenses, one of which is a lesser included offense of the other, a double
    jeopardy claim is not waived as long as “it is apparent from the record that the claim was
    raised before the trial court.” State v. Rhodes, 
    917 S.W.2d 708
     (Tenn. Crim. App. 1995);
    see also State v. Walter Jude Dec, No. M2009-01141-CCA-R3-CD, 
    2010 WL 2977875
    , at
    *3 (Tenn. Crim. App. July 30, 2010) (double jeopardy issue not waived by guilty plea
    where the record was clear that the defendant raised his merger claim before the trial court),
    perm. app. denied (Tenn. Dec. 8, 2010).
    We conclude that dual convictions for aggravated robbery and aggravated assault in
    this case violate double jeopardy. See State v. Timothy Davale Martin, No. M2013-00569-
    - 14 -
    CCA-R3-CD, 
    2014 WL 1102010
    , at *12 (Tenn. Crim. App. Mar. 20, 2014) (concluding
    that the defendant’s “dual convictions for attempted aggravated robbery and aggravated
    assault violate double jeopardy protections” where the “essential elements of both offenses
    included the use of a deadly weapon and the victim’s fear.”) perm. app. denied (Tenn. Aug.
    26, 2014).
    Conclusion
    We affirm the sentences imposed by the trial court but remand for entry of corrected
    judgments merging the aggravated assault conviction in Count 7 into the aggravated
    robbery conviction in Count 3 and merging the aggravated assault conviction in Count 8
    into the aggravated robbery conviction in Count 4.
    ____________________________________
    ROBERT L. HOLLOWAY, JR., JUDGE
    - 15 -