State v. Robert D. Merritt, Jr. ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
May 13, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9709-CR-00396
Appellee, )
) Davidson County
V. )
) Honorable Thomas H. Shriver, Judge
)
ROBERT D. MERRITT, JR., ) (Especially Aggravated Robbery)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX WALKUP
Washington Square Two, Suite 418 Attorney General & Reporter
222 Second Avenue North
Nashville, TN 37201 KIM R. HELPER
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III
District Attorney General
NICHOLAS BAILEY
Assistant District Attorney General
200 Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Robert D. Merritt, pleaded guilty to especially aggravated
robbery, a Class A felony. The trial court sentenced him as a range I offender to
twenty-four years’ confinement, to be served at one hundred percent. See Tenn.
Code Ann. § 40-35-501(I)(1), (2)(E). The sole question presented for our review
is whether this sentence is excessive. We affirm the judgment of the trial court.
BACKGROUND
On the night of August 25, 1995, the defendant and an accomplice, Seria
Ward, drove to the parking lot of First Union Bank in Nashville, Tennessee.
About that time, the victim, Donald Bonds, parked his car near the bank’s
automated teller machine and got out to make a withdrawal. The defendant got
out of his car and directed Ward to take the driver’s seat and pick him up after he
robbed Bonds. Bonds withdrew forty dollars, put the money in his wallet, and
turned back toward his car. At that point, the defendant approached Bonds and,
brandishing a gun, demanded his wallet. Although Bonds relinquished his wallet
without resistance, the defendant shot him in the chest, narrowly missing Bond’s
heart. Ward, who had been waiting in the defendant’s car, immediately drove to
the defendant, picked him up, and the two left the area. Bonds was seriously
injured but managed to call for help on his cell phone and survived.
The defendant and Ward were indicted for especially aggravated robbery.
After Ward was convicted in a jury trial, the defendant pleaded guilty. At the
defendant’s sentencing hearing, the trial court found applicable one
enhancement factor–that the defendant was a leader in the commission of the
offense–and no mitigating factors. Based on these findings, the trial court
enhanced the defendant’s sentence from the presumptive term of twenty years,
see Tenn. Code Ann. §§ 39-13-403; 40-35-112(a)(1), to twenty-four years.
The defendant contests this sentence.
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STANDARD OF REVIEW
Appellate review of a challenge to the length or manner of service of a
sentence is de novo on 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). This presumption “is conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If our review reflects that the trial court properly considered all relevant
factors and its findings of fact are adequately supported in the record, then this
Court may not disturb the sentence even if we would have preferred a different
result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
The appellant carries the burden of showing that his sentence is improper. See
Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,
929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
In conducting our review, this Court we must consider (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) any statutory
mitigating or enhancement factors; (6) any statement made by the accused in his
own behalf; and (7) the potential or lack of potential for rehabilitation or
treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735
S.W.2d 859, 863 (Tenn. Crim. App. 1987).
ANALYSIS
The defendant first contends that the trial court erred in applying
enhancement factor (2)–that the defendant “was a leader in the commission of
an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-
114(2). We disagree. Relative to this enhancement, the trial court found that
that the defendant supplied both the car and the weapon used in the offense,
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directed Ward to drive the car, and told him where to wait for the defendant
during the offense. In addition, the defendant was the one who shot the victim.
These facts sufficiently support the trial court’s finding that the defendant was a
leader. This issue is without merit.
Next, the defendant argues that the trial court erred in failing to find three
mitigating factors: The defendant lacked substantial judgment due to youth, see
Tenn. Code Ann. § 40-35-113(6); the defendant has no prior criminal convictions
as an adult; and the defendant voluntarily entered a plea of guilty and truthfully
stated the facts of his offense. We find that the trial court was within its
discretion in rejecting each of these proposed mitigating factors.
In considering whether a defendant lacked substantial judgment because
of his youth, chronological age alone is not determinative. See State v. Antonio
D. Mason, No. 01C01-9607-CC-00315 (Tenn. Crim. App. filed Oct. 24, 1997, at
Nashville). Rather, we are directed to “consider the concept of youth in context,
i.e., the defendant’s age, education, maturity, experience, mental capacity or
development, and any other pertinent circumstance tending to demonstrate the
defendant’s ability or inability to appreciate the nature of his conduct.” State v.
Adams, 864 S.W.2d 31, 33 (Tenn. 1993).
At the time of his offense, the defendant was twenty years of age and in
good mental and physical health. As noted in Adams, a twenty-year old is “an
adult under Tennessee law.” Id. Other than his age, the defendant’s only proof
in support of this factor is the testimony of his mother who stated that he had
been diagnosed as learning disabled in 1978 or 1979, when the defendant would
have been three or four years’ old. While such a diagnosis might suggest some
lessened academic capacity, we do not think it demonstrates a lack of
“substantial” judgment as to the instant offense. Moreover, to the extent such
evidence might suggest any lack of capacity, it would not be, as the statute
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requires, “because of youth.” Furthermore, the defendant has a prior criminal
history involving the possession of a weapon. This history and the defendant’s
leadership role in planning the offense suggest a full appreciation for the
seriousness of his actions. Under these circumstances, we cannot conclude
that the evidence preponderates against the trial court’s decision. This issue is
without merit.
The defendant next proposes that his lack of an adult criminal history
should have been accorded some weight in mitigation. The defendant’s mother,
however, testified that he had been arrested for taking a gun to school as a
juvenile. In Adams, the Tennessee Supreme Court concluded that juvenile
criminal conduct “may be taken into account in fashioning an appropriate
sentence.” Id. at 34. Accordingly, in State v. Carter, 908 S.W.2d 410, 413
(Tenn. Crim. App. 1995), this Court refused to mitigate an offender’s sentence
for lack of criminal history based on the offender’s juvenile history of criminal
behavior. We likewise find that the defendant’s juvenile history of criminal
behavior, while probably insufficient to support enhancement of the defendant’s
sentence, is sufficient to preclude mitigating his sentence for lack of a criminal
history.
We find no merit in the defendant’s remaining proposed mitigating
circumstances.
CONCLUSION
Based on the above, we find no error in the trial court’s decisions
regarding enhancement or mitigating factors. The judgment of the trial court is,
therefore, AFFIRMED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
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CONCUR:
_____________________________
DAVID H. WELLES, Judge
_____________________________
JOE G. RILEY, Judge
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