Assigned on Briefs August 05, 2014
Appeal from the Criminal Court for Shelby County No. 1203324 Lee V. Coffee, Judge
Juni S. Ganguli, Memphis, Tennessee, (on appeal); Stephen C. Bush, District Public Defender; Kathy Kent and Jane Sturdivant, Assistant Public Defenders, Memphis, Tennessee, (at trial), for the appellant, Alvin Upchurch.
Herbert H. Slatery, III, Attorney General and Reporter; Meredith DeVault, Senior Counsel; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
THOMAS T. WOODALL, JUDGE
On December 2, 2011, at approximately 5:00 p.m., Daniel Taylor, a student at LeMoyne-Owen College, met a friend in front of the school gym and purchased a "dime bag" of marijuana from him. Taylor began walking toward school when a man across the street yelled "Big Dude" to him. The man, whom Taylor later identified as Gerald Crawford, told Taylor to "'Come here.'" Taylor met him in the street, and Crawford asked him, "'Do you know where some weed at?'" Taylor responded, "[n]o, " and turned to walk away. Taylor testified, "that's when [Defendant] came out of nowhere and started questioning me like, 'Dude, I think you look like a dude who robbed me named Kenda." Taylor responded, "no, " and began to walk away. Defendant again asserted that Taylor looked like someone named Kenda who he alleged robbed him, and Taylor repeated that he was not. Defendant "started getting mad and asking the same question again[, ]" and Taylor showed him his identification. Crawford said, "That ain't the dude." Taylor turned around and when he looked back, Defendant pulled out a gun, cocked it, pointed it at Taylor's head and said, "Give me everything you got." Taylor described the gun as a silver .45 caliber pistol.
Taylor gave Defendant his money and the marijuana he had just purchased. Defendant took it and said, "Give me everything." Taylor told Defendant that he did not have anything else, and Defendant pushed Taylor to the ground. Taylor emptied his pockets. Defendant and Crawford took Taylor's phone, wallet, and $85 cash and walked away. Taylor subsequently identified Crawford and Defendant in photographic lineups.
Gerald Crawford, Defendant's co-defendant, testified that he saw Taylor buying marijuana in the street where the incident occurred. He and Defendant then followed Taylor. Crawford testified that it was Defendant's idea to rob Taylor. Crawford testified that he did not know Defendant had a gun. Crawford testified that he did not pick up any of the items Taylor emptied from his pockets but that Defendant held the gun in one hand and picked up the stolen items with his other hand. After the robbery, Crawford and Defendant met at the home of "Marco, " and Defendant gave the marijuana he took from Taylor to Marco and some of the money he took from Taylor to Crawford.
At the sentencing hearing, the State relied on the proof presented at trial as well as the presentence report. The only testimony offered by Defendant at the sentencing hearing was regarding his decision to reject a plea offer by the State with an agreed upon sentence.
At the conclusion of the sentencing hearing, the trial court found that Defendant had a previous history of criminal behavior consisting of juvenile adjudications for carrying a weapon on a school campus, disorderly conduct, unlawful possession of a weapon, assault, and gambling. The trial court found troubling that two of Defendant's prior juvenile offenses involved a gun. The trial court stated that it gave "great weight" to that finding. Although the trial court did not assign any weight to it, the court noted that Defendant also had a pending murder charge at the time of sentencing in this case. The court also found that Defendant was a leader in the commission of an offense involving two or more criminal actors based on the testimony of his co-defendant Crawford, and the court also gave great weight to that factor. The court found that Defendant was adjudicated to have committed acts as a juvenile that would constitute a felony if he had been an adult, and the trial court also gave great weight to that finding. The trial court declined to apply any mitigating factors and noted that Defendant "started at a young age of committing crimes [and] has continued to commit escalating crimes[.]" The trial court imposed the following sentence:
Having found that [Defendant] is a standard range one offender and having found the presence of those factors which are, in fact, enhancing under Tennessee Code Annotated 40-35-114 and not having found any mitigating factors, this Court will set [Defendant]'s punishment on this case at twelve years['] confinement in the Tennessee Department of Corrections. He is a standard range one offender[.] This is twelve years as a violent offender. This is an eighty-five percent (85%) release eligibility for which there is no possibility of parole on this case. He can earn a fifteen percent (15%) sentence reduction. This Court will not impose a fine on this case as [Defendant] was deemed to be indigent by this Court, and I do not find that the imposition of a fine in this case would be in the best interest of the administration of justice or anyone else to impose a fine, so the Court will ...