Tennessee § 40-35-114 - Enhancement factors.

§ 40-35-114. Enhancement factors.

If appropriate for the offense and if not already an essential element of the offense, the court shall consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant's sentence: The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range; The defendant was a leader in the commission of an offense involving two (2) or more criminal actors; The offense involved more than one (1) victim; A victim of the offense was particularly vulnerable because of age or physical or mental disability; The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense; The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim was particularly great; The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement; The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community; The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense; The defendant had no hesitation about committing a crime when the risk to human life was high; The felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury, to another person, and the defendant has previously been convicted of a felony that resulted in death or serious bodily injury; During the commission of the felony, the defendant intentionally inflicted serious bodily injury upon another person, or the actions of the defendant resulted in the death of, or serious bodily injury to, a victim or a person other than the intended victim; At the time the felony was committed, one (1) of the following classifications was applicable to the defendant: Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony; Released on parole; Released on probation; On work release; On community corrections; On some form of judicially ordered release; On any other type of release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government; On escape status; or Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction; The defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense; The defendant committed the offense on the grounds or facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private institution of learning when minors were present; The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult; The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone; The offense was an act of terrorism or was related to an act of terrorism; If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-102, the victim of the aggravated assault was a law enforcement officer, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security guard/officer, an employee of the department of correction or the department of children's services, a uniformed member of the armed forces or national guard, an emergency medical or rescue worker, emergency medical technician or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing an official duty and the defendant knew or should have known that the victim was such an officer or employee; If the defendant is convicted of the offenses of rape pursuant to § 39-13-503, sexual battery pursuant to § 39-13-505 or rape of a child pursuant to § 39-13-522, the defendant caused the victim to be mentally incapacitated or physically helpless by use of a controlled substance or controlled substance analogue; If the defendant is convicted of the offenses of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, rape of a child pursuant to § 39-13-522 or statutory rape pursuant to § 39-13-506, the defendant knew or should have known that, at the time of the offense, the defendant was HIV positive; If the defendant is convicted of the offenses of aggravated arson pursuant to § 39-14-302 or vandalism pursuant to § 39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the defendant knew or should have known that it was a place of worship; As used in subdivision (22)(A), “place of worship” means any structure that is: Approved, or qualified to be approved, by the state board of equalization for property tax exemption pursuant to § 67-5-212, based on ownership and use of the structure by a religious institution; and Utilized on a regular basis by a religious institution as the site of congregational services, rites or activities communally undertaken for the purpose of worship; The defendant is an adult and sells to or gives or exchanges a controlled substance, controlled substance analogue or other illegal drug with a minor; The offense involved the theft of property and, as a result of the manner in which the offense was committed, the victim suffered significant damage to other property belonging to the victim or for which the victim was responsible; The defendant commits an offense: During the time period between the first occurrence of events or conduct that later results in a declaration of a state of emergency by a county, the governor, or the president of the United States and the time the county, governor, or the president of the United States terminates the state of emergency, as provided in § 58-2-107; Within the area or areas threatened by the emergency, as established by the county's, governor's, or president's declaration of a state of emergency; and Knowing of the existence of the emergency; As used in this subdivision (25): “Emergency” means an occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, that results or may result in substantial injury or harm to the population, or substantial damage to or loss of property; provided, that natural threats may include disease outbreaks and epidemics; and “Offense” means the defendant is convicted of a violation of § 39-14-103, § 39-14-104, § 39-14-408, or any other offense involving theft or vandalism that is graded by value pursuant to § 39-14-105, and the value of the property or service taken or property damaged is no greater than the value provided in § 39-14-105 for a Class E felony; The defendant committed the offense of robbery pursuant to § 39-13-401, aggravated robbery pursuant to § 39-13-402, or especially aggravated robbery pursuant to § 39-13-403, on the premises of a licensed pharmacy in an effort to unlawfully obtain, sell, give, or exchange a controlled substance, controlled substance analogue, or other illegal drug; The defendant commits a violent offense, as classified in § 40-35-120(b), against a uniformed law enforcement officer or uniformed member of the armed forces or national guard; and the defendant intentionally selected the person against whom the crime was committed, in whole or in part, because of the person's status as a law enforcement officer or member of the armed forces or national guard; and At the time the instant offense was committed, the defendant was illegally or unlawfully in the United States. Acts 1989, ch. 591, § 6; 1992, ch. 837, § 1; 1994, ch. 821, § 1; 1994, ch. 978, § 5; 1995, ch. 302, § 1; 1995, ch. 322, § 2; 1995, ch. 515, § 2; 1997, ch. 437, § 3; 1997, ch. 547, § 3; 2000, ch. 896, § 1; 2002, ch. 849, § 2c; 2005, ch. 353, § 5; 2007, ch. 173, § 1; 2008, ch. 690, § 2; 2012, ch. 848, § 33; 2015, ch. 443, § 1; 2016, ch. 934, § 1; 2016, ch. 1025, § 1; 2017, ch. 265, §§ 1, 2; 2017, ch. 492, § 1; 2020, ch. 580, § 18. Sentencing Commission Comments. Under § 40-35-210(b)(5) , the trial judge must consider enhancement factors in sentencing determinations. The enhancement factors are set forth herein to identify those situations which justify a departure from the minimum penalties for each offense. The various enhancement factors are similar to several provisions of prior law. In all instances the enhancement factors can be utilized by the trial judge if those factors are “not themselves essential elements of the offense as charged in the indictment.” This follows prior law which prohibits enhancement for a matter which is already an element of the offense. See State v. Lambert, 741 S.W.2d 127 (Tenn. Crim. App. 1987). Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal offenses committed on or after June 7, 2005. Offenses committed prior to June 7, 2005, shall be governed by prior law, which shall apply in all respects. However, for defendants who are sentenced after June 7, 2005, for offenses committed on or after July 1, 1982, the defendant may elect to be sentenced under the provisions of the act by executing a waiver of such defendant's ex post facto protections. Upon executing such a waiver, all provisions of the act shall apply to the defendant. Acts 2005, ch. 353, § 19 provided that the act shall have no application to sentencing for persons convicted of murder in the first degree, which shall be governed by the provisions of §§ 39-13-202 — 39-13-208 . Acts 2005, ch. 353, § 20(b) provided that the Tennessee Code commission is requested to insert a cross reference in §§ 39-13-102 , 39-13-502 , 39-13-503 , 39-13-505 , 39-13-506 , 39-13-522 , 39-14-302 and 39-14-408 to § 40-35-114 stating that the enhancement factor formerly found in each such section was moved to § 40-35-114 so that all enhancement factors are located in one (1) section. For the Preamble to the act concerning robberies involving drugs, see Acts 2016, ch. 1025. Amendments. The 2020 amendment substituted “a state registered security guard/officer” for “a state registered security officer/guard” in (19). Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020. Cross-References. Arson, § 39-14-301 . Penalty for Class E felony, § 40-35-111 . Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Victim impact statement to be considered evidence in determining whether factors in § 40-35-113 and this section apply, § 40-38-207 . Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 501.4. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 45, 49; 18 Tenn. Juris., Malicious Mischief, § 4; 21 Tenn. Juris., Rape, § 8. Law Reviews. Judicial Discretion Under the New Tennessee Criminal Sentencing Reform Act of 1982 (Thomas A. Wiseman, Jr.), 18 No. 4 Tenn. B.J. 13 (1982). Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004). The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993). Attorney General Opinions. If a defendant selects the person against whom the defendant commits a crime because the person is transgender, a court may enhance the defendant’s sentence under T.C.A. § 40-35-114(17) . A defendant who targets a person for a crime because that person is transgender has targeted the person because of the person’s gender within the meaning of the statute. OAG 19-01, 2019 Tenn. AG LEXIS 1 (2/8/2019).