Tennessee § 40-35-210 - Imposition of sentence — Evidence to be considered — Presumptive sentence — Sentence explanation.

§ 40-35-210. Imposition of sentence — Evidence to be considered — Presumptive sentence — Sentence explanation.

At the conclusion of the sentencing hearing, the court shall first determine the appropriate range of sentence. To determine the specific sentence and the appropriate combination of sentencing alternatives that shall be imposed on the defendant, the court shall consider the following: The evidence, if any, received at the trial and the sentencing hearing; The presentence report; The principles of sentencing and arguments as to sentencing alternatives; The nature and characteristics of the criminal conduct involved; Evidence and information offered by the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114; Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; Any statement the defendant wishes to make on the defendant's own behalf about sentencing; and The result of the validated risk and needs assessment conducted by the department and contained in the presentence report. The court shall impose a sentence within the range of punishment, determined by whether the defendant is a mitigated, standard, persistent, career or repeat violent offender. In imposing a specific sentence within the range of punishment, the court shall consider, but is not bound by, the following advisory sentencing guidelines: The minimum sentence within the range of punishment is the sentence that should be imposed, because the general assembly set the minimum length of sentence for each felony class to reflect the relative seriousness of each criminal offense in the felony classifications; and The sentence length within the range should be adjusted, as appropriate, by the presence or absence of mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114. The sentence length within the range should be consistent with the purposes and principles of this chapter. When the court imposes a sentence, it shall place on the record, either orally or in writing, what enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair and consistent sentencing. A sentence must be based on evidence in the record of the trial, the sentencing hearing, the presentence report, the validated risk and needs assessment, and the record of prior felony convictions filed by the district attorney general with the court, as required by § 40-35-202(a). Acts 1989, ch. 591, § 6; 1995, ch. 493, § 1; 1998, ch. 914, § 1; 2000, ch. 800, § 2; 2005, ch. 353, § 6; 2016, ch. 906, §§ 9, 10. Sentencing Commission Comments. This section sets forth the manner in which the trial judge is to determine the appropriate sentence and the manner in which that sentence is to be satisfied. The first determination is to ascertain the appropriate range of the sentence for the class of conviction in the case of a felony. A defendant may be sentenced within Range I, Range II, or Range III depending on the number and types of prior convictions. The comments to the standard, multiple, persistent and career offender provisions address how those convictions are to be considered in making the appropriate range determination. A defendant who is convicted of a Class C felony and has two prior Class C convictions would be sentenced as a Range II offender which carries a sentence of between six and ten years. See also, the sentencing grid accompanying the comments to § 40-35-101 . Having determined the potential span of years available, the court must then impose a specific determinate sentence and, in most instances, ascertain whether a defendant should be incarcerated or whether the defendant should receive full or partial probation. Except for the most serious felonies and, in the case of enhanced punishment based on prior felony convictions, the trial judge has numerous sentencing options. The court must begin the sentencing determination at the statutory minimum which is called the “presumptive sentence” under subsection (c). If there are no enhancement or mitigating factors, then the court must impose the minimum sentence within the appropriate range. Pursuant to subsection (d), if the court finds enhancing factors but no mitigating factors, then the court may set the sentence above the minimum but still within the appropriate range. Subsection (e) requires a weighing process based on the merits of the various enhancement and mitigating factors. The sentencing commission specifically did not designate any particular numeric value for the enhancement and mitigating factors. Other jurisdictions have given these factors numeric values but this removes the judicial discretion necessary to make individualized sentencing determinations. The provisions of this section which require that the judge begin a sentencing determination at the statutory minimum will promote a uniform sentencing procedure. There may be instances where there are no enhancement factors but there are several mitigating factors. If the defendant has no prior felony convictions, the trial judge should designate the defendant as an especially mitigated offender with the sentencing options as provided in § 40-35-109 . Because the enhancement and mitigating factors are of great importance in sentencing determinations, subsection (f) requires that factual findings concerning the presence or absence of such factors must be made on a record either orally or in writing. The provisions of subsection (b) require the court to consider all of the proof at the trial, the presentence report, the principles of sentencing, the nature and characteristics of the criminal conduct involved, evidence and information offered by the parties on the mitigating and enhancement factors, and any statement that the defendant desires to make in his own behalf about sentencing. This subsection permits the court the greatest latitude in considering all available information in imposing the appropriate sentence and sentence alternative. Lastly, subsection (g) restates that the sentence must be based on evidence in the record, the sentencing hearing, the presentence report, and the record of any prior felony convictions filed by the district attorney general as required by § 40-35-202(a) . Implicit within this subsection (b) is that the judge may not consider matters other than those factors presented in open court. Compiler's Notes. Former chapter 35, §§ 40-35-101 — 40-35-112 , 40-35-201 — 40-35-214 , 40-35-301 — 40-35-316 , 40-35-401 — 40-35-403 , 40-35-501 — 40-35-504 (Acts 1982, ch. 868, § 1; T.C.A., §§ 40-35-108 , 40-43-101 — 40-43-104 , 40-43-106 , 40-43-107 , 40-43-109 — 40-43-112 , 40-43-201 — 40-43-205 , 40-43-207 — 40-43-212 , 40-43-214 , 40-43-301 — 40-43-304 , 40-43-306 — 40-43-309 , 40-43-311 — 40-43-315 , 40-43-401 — 40-43-403 , 40-43-501 — 40-43-504 ), concerning the Tennessee Criminal Sentencing Reform Act of 1982, was repealed by Acts 1989, ch. 591, § 6. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation. Acts 2000, ch. 800, § 1 provided that § 2 of the act, which added former subsection (h), shall be known and may be cited as the “Criminal Sentence Explanation Act of 2000.” Acts 2005, ch. 353, § 18 provided that the act, which rewrote this section, 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, which rewrote this section, 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 2016, ch. 906, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Public Safety Act of 2016.” Cross-References. Alternative sentences, title 40, ch. 36. Classification of offenses, § 40-35-110 . Enhancement factors, § 40-35-114 . Execution of judgment, title 40, ch. 23. Mitigating factors, § 40-35-113 . Penalties for felonies and misdemeanors, § 40-35-111 . Presentence report, § 40-35-207 . Repeat violent offenders, § 40-35-120 . Sentence ranges, § 40-35-112 . Sentencing provisions applicable to persons committing crimes prior to July 1, 1982, title 40, ch. 20. Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 32.80, 32.91, 32.121, 32.128, 32.160, 32.163, 32.165, 32.190, 32.221, 32.222, 33.11. Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 40, 45, 47, 49; 10 Tenn. Juris., 10 Double Jeopardy, § 3. Law Reviews. Alternatives to Revocation of Judicial Diversion, 49 Tenn. B.J. 19 (2013). Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment (Paul H. Robinson, Sean E. Jackowitz, and Daniel M. Bartels), 65 Vand. L. Rev. 737 (2012). Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing (Eang Ngov), 76 Tenn. L. Rev. 235 (2009). Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines (Andrew Tunnard), 66 Vand. L. Rev. 1309 (2013). Sentencing Lockdown: What Is the Impact of Blakely on Sentencing in Tennessee? (David L. Raybin), 40 No. 8 Tenn. B.J. 12 (2004). The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 9 Tenn. B.J. 18 (2001). The Unfairness of the Fair Sentencing Act of 2010 (Tyler B. Parks) , 42 U. Mem. L. Rev. 1105 (2012).