State of Tennessee v. Cody Lee Compton

11/05/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 18, 2026 Session STATE OF TENNESSEE v. CODY LEE COMPTON Appeal from the Criminal Court for Sullivan County No. S74,180 James F. Goodwin, Jr., Judge ___________________________________ No. E2025-00993-CCA-R3-CD ___________________________________ A Sullivan County jury convicted Cody Lee Compton, Defendant, of especially aggravated robbery of Franklin Kiser, Jr. (the victim), and possession of a prohibited weapon. On appeal, Defendant argues that (1) the trial court violated his confrontation rights by admitting the victim’s preliminary hearing testimony; (2) conducting the preliminary hearing via Zoom violated his confrontation rights; (3) the jury instruction that especially aggravated robbery could be committed by “violence or fear,” without an election between those theories, violated his right to a unanimous verdict; (4) the cumulative effect of the alleged errors deprived him of a fair trial; (5) the evidence was insufficient to support his conviction for especially aggravated robbery; and (6) the trial court erred by imposing a twenty-four-year sentence. Defendant’s motion for new trial and notice of appeal were both untimely filed. Based on the record and the parties’ briefs, we conclude that the interest of justice does not warrant waiver of the notice of appeal deadline. Accordingly, the appeal is dismissed. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN and TOM GREENHOLTZ, JJ., joined. Cameron L. Hyder (on appeal), Johnson City, Tennessee; Joseph O. McAfee (at motion for new trial), Greeneville, Tennessee; and Samuel E. White (at trial and sentencing), Kingsport, Tennessee, for the appellant, Cody Lee Compton. Jonathan Skrmetti, Attorney General and Reporter; Courtney R. Orr, Deputy Attorney General; Barry Staubus, District Attorney General; and Matthew W. Darby, Assistant District Attorney General, for the appellee, State of Tennessee.  OPINION Factual and Procedural Background The victim testified via Zoom at the preliminary hearing but died before trial. The State introduced a copy of his death certificate and moved to admit his preliminary hearing testimony under Tennessee Rule of Evidence 804(b)(1). The trial court found that the victim was unavailable, had testified under oath at the preliminary hearing, and had been subject to cross-examination. The court granted the State’s motion. At the jury trial, Glenda Travis, the victim’s grandmother, testified that, in the early evening of Easter Sunday 2020, she drove the victim and his son to Dorothy Street so that the victim could purchase a chainsaw from a man named Scott.1 The victim exited the vehicle while Ms. Travis and the victim’s son remained inside. Scott arrived and parked his truck behind Ms. Travis’s vehicle. While the victim and Scott were examining the chainsaw, a black Ford sport utility vehicle (SUV) and a gold Acura SUV pulled into a nearby side street. Six men, three from each SUV, got out and walked past Ms. Travis’s vehicle. The SUVs then backed out, drove past her vehicle, and stopped beside Scott’s truck. One of the men approached the victim and struck him in the face, knocking him to the ground. The six men then punched and kicked the victim. Ms. Travis screamed that she “had called the law,” and the men returned to the SUVs and left. Ms. Travis identified Defendant as the person who first struck the victim in the face. She said the victim “was bloody, his lip was cut open, some of his teeth were out, he was a mess.” The victim’s wallet, which contained the money he planned to use to purchase the chainsaw, was missing and was never found. Ms. Travis drove the victim to Indian Path Medical Center for treatment. Ms. Travis said the victim lived with her after the assault until his death. She testified that he could not afford the $30,000 to $35,000 cost of repairing his teeth and that he suffered infections from his injuries. The victim’s preliminary hearing testimony was read to the jury. On direct examination, the victim testified that he was on Dorothy Street when Defendant arrived with a group of people. The victim identified Defendant as the person who struck him in the face with brass knuckles and knocked him to the ground. Defendant and five other men struck and kicked the victim as he lay on the ground. The group fled after the victim’s grandmother shouted that the police were coming. The victim’s wallet, which contained 1 “Scott” is not further identified in the record. -2- approximately $250 and other items, was missing after the assault and was never recovered. The victim sustained significant injuries to his face, mouth, nose, and teeth. On cross-examination, the victim acknowledged that he could not name most of the other men who beat him, although he said he could identify some by appearance. He testified that the drivers of a black Ford Expedition and a gold Acura SUV remained with the vehicles. He could not identify the person who struck him while he was on the ground because he was trying to protect his face. Greta Robinette, a critical care registered nurse, testified as a medical expert. She said that, on April 12, 2020, she was working as an “emergency nurse” at Indian Path Medical Center and that she had treated traumatic facial injuries hundreds of times. She said the victim “had extensive bruising and bleeding from his nose, around his face, and leaking out both nostrils and also, a cut above his lip.” She said the victim’s teeth were fractured, that his face was swollen, and that a physician sutured his lip. Defendant called Kingsport Police Department Sergeant Justin Fleenor, who was assigned to investigate the assault. Sergeant Fleenor met with the victim at the hospital, interviewed Ms. Travis, took photographs, and “tried to run down some other leads” concerning the other people at the scene. He prepared a photographic lineup from which the victim identified Defendant. Sergeant Fleenor said Defendant was the only assailant whom the victim knew. On March 25, 2024, the jury convicted Defendant as charged. At the June 6, 2024 sentencing hearing, the victim’s mother, Kiwanna Kiser, described the lasting effects of the assault on her son. She testified that several of his teeth were knocked out and that his lips and gums were severely injured. For nearly four years, he endured pain, difficulty eating, embarrassment, and humiliation. He grew a beard and mustache to conceal his scars. Ms. Kiser asked the trial court to impose the maximum sentence. The victim’s sister, Ashley Kiser, testified that her brother became depressed after the assault. Unable to afford dental repairs, he suffered mouth infections for the rest of his life. At the conclusion of the hearing, the trial court imposed consecutive sentences of twenty-four years for especially aggravated robbery and eleven months and twenty-nine days for possession of a prohibited weapon. The judgments of conviction were filed with the Sullivan County Circuit Court Clerk on June 17, 2024. -3-  On August 22, 2024, Defendant’s trial counsel, Samuel E. White, filed an untimely motion for new trial and a motion to withdraw stating that he was “currently subject to the outcome of discipline proceedings with the Tennessee Board of Professional Responsibility” and had “been advised by relevant parties that [a] one year suspension will occur soon.” He did not explain why he failed to file the motion for new trial on or before the July 17, 2024 filing deadline. On August 23, the trial court relieved Mr. White and appointed Kenneth Hill to represent Defendant. On December 6, 2024, the trial court entered an order finding “Defendant indigent for the purpose of preparation of the trial transcript.” On May 30, 2025, Joseph O. McAfee filed an amended motion for new trial.2 Following a hearing on June 5, 2025, the trial court denied the motion. Mr. McAfee filed a notice of appeal on July 2, 2025. This court subsequently granted Mr. McAfee’s motion to withdraw and appointed Cameron L. Hyder to represent Defendant on appeal. ANALYSIS Defendant raises six issues on appeal. He contends that (1) the trial court violated his confrontation rights by admitting the victim’s preliminary hearing testimony; (2) conducting the preliminary hearing via Zoom violated his confrontation rights; (3) the jury instruction that especially aggravated robbery could be committed by “violence or fear,” without an election between those theories, violated his right to a unanimous verdict; (4) the cumulative effect of the alleged errors deprived him of a fair trial; (5) the evidence was insufficient to support his conviction for especially aggravated robbery; and (6) the trial court erred by imposing a twenty-four-year sentence. The State argues that the appeal should be dismissed because Defendant filed his notice of appeal approximately one year after the filing deadline. The State also contends that Defendant waived his confrontation, jury unanimity, and cumulative error claims by failing to request plain error review in his initial brief. Alternatively, the State argues that Defendant cannot satisfy the requirements for plain error relief. In his reply brief, Defendant asks this court to waive the untimely filing of the notice of appeal in the interest of justice so that this court can review his confrontation, jury unanimity, and cumulative error claims for plain error and his sufficiency and sentencing claims on their merits. 2 The record does not contain an order appointing Mr. McAfee. The order allowing Mr. Hill to withdraw as counsel was not entered until July 31, 2025. -4-  In a case tried by a jury, a motion for new trial must be filed “within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). The deadline is mandatory and cannot be extended. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); Tenn. R. Crim. P. 45(b). Failure to file a timely motion for new trial waives plenary appellate review of issues that must be raised in a motion for new trial. State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). These include errors involving the admission or exclusion of evidence; jury instructions; misconduct of jurors, parties, or counsel; another action committed or occurring during the trial of the case; or “other ground upon which a new trial is sought.” Tenn. R. App. P. 3(e). Challenges to the sufficiency of the evidence and sentencing remain available for plenary review despite an untimely motion for new trial. State v. Henderson, No. W2024-01284-CCA-R3-CD, 2025 WL 1530570, at *1 (Tenn. Crim. App. May 29, 2025), perm. app. denied (Tenn. Sept. 11, 2025). A notice of appeal must be filed “within 30 days after the date of entry of the judgment appealed from.” Tenn. R. App. P. 4(a). An untimely motion for new trial does not toll the time for filing a notice of appeal. State v. Manning, No. E2022-01715-CCA- R3-CD, 2023 WL 7439203, at *3 (Tenn. Crim. App. Nov. 9, 2023), perm. app. denied (Tenn. May 16, 2024). In a criminal case, the notice of appeal is not jurisdictional, and this court may waive the filing deadline in “the interest of justice.” Tenn. R. App. P. 4(a); State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007). “If this court were to summarily grant a waiver whenever confronted with untimely notices, the thirty-day requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal fiction.” Rockwell, 280 S.W.3d at 214. When determining whether a waiver of an untimely notice of appeal is appropriate, this court considers “the nature of the issues presented for review, the reasons for and the length of the delay in seeking relief, and any other relevant factors presented in the particular case.” Manning, 2023 WL 7439203, at *3 (quoting Rockwell, 280 S.W.3d at 214 (internal citation and quotation marks omitted)). “Other relevant factors may include the merits of the appeal.” State v. Murray, No. M2020-00168-CCA-R3-CD, 2021 WL 2156932, at *3 (Tenn. Crim. App. May 27, 2021), no perm. app. filed. The appellant bears the burden to demonstrate that the interest of justice merits waiver of an untimely filed notice of appeal. State v. Jones, No. M2011-00878-CCA-R3-CD, 2011 WL 5573579, at *1 (Tenn. Crim. App. Nov. 15, 2011), perm. app. denied (Tenn. Apr. 11, 2012). Waiving the notice of appeal deadline would permit plenary appellate review of Defendant’s sufficiency and sentencing claims, but it would not restore plenary appellate review of issues waived by the untimely motion for new trial. State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997) (discussing that an untimely motion for new -5- trial waives the right to appeal all issues raised in the motion except sufficiency of the evidence and sentencing). Those issues would remain subject to this court’s discretionary plain error review. See Manning, 2023 WL 7439203, at *4 (discussing in the context of an untimely notice of appeal that the defendant’s expert witness issue failed to rise to the level of plain error because the defendant failed to object at trial and had not requested plain error review). The judgments of conviction were entered on June 17, 2024, and the notice of appeal was due on July 17, 2024. Because the untimely motion for new trial did not toll the filing period, the notice of appeal, filed on July 2, 2025, was 350 days late. The length of the delay weighs against waiver. Regarding the reasons for the delay, in his motion to withdraw, trial counsel stated that he was “currently subject to the outcome of discipline proceedings with the Tennessee Board of Professional Responsibility” and had “been advised by relevant parties that [a] one[-]year suspension will occur soon.” The motion did not explain why counsel failed to file a timely motion for new trial. The failure to explain the reasons for the delay weighs against waiver. To determine whether the interest of justice warrants waiver of the untimely notice of appeal, we will consider the nature and potential merits3 of the six issues Defendant presents. We consider those issues as part of the waiver inquiry, not as an exercise of plenary appellate review. 1. Admission of preliminary hearing testimony. Defendant contends that the victim’s preliminary hearing testimony was inadmissible hearsay because it did not satisfy Tennessee Rule of Evidence 804(b)(1), governing former testimony by an unavailable declarant. Apart from the requirements of the hearsay rules, the confrontation rights guaranteed by the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution generally bar admission of testimonial hearsay from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). The trial court found that the victim was unavailable, had testified under oath at the preliminary hearing, and had been subject to cross-examination. The court further found 3 We note that, relative to the issues waived for failure to raise them in a timely motion for new trial, plain error analysis requires finding that a clear and unequivocal rule of law was breached. State v. Adkisson, 899 S.W.2d 626, 640-41 (Tenn. Crim. App. 1994). -6- that Defendant had a similar motive to develop the victim’s testimony at the preliminary hearing. A trial court’s factual findings and credibility determinations concerning hearsay are binding on appeal unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). Whether the testimony falls within a hearsay exception is a question of law reviewed de novo. Id. Whether its admission violated Defendant’s confrontation rights is likewise a question of law reviewed de novo. State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015) (citations omitted). The victim’s death established his unavailability. See Tenn. R. Evid. 804(a)(4). Defendant also cross-examined the victim at the preliminary hearing. Although a preliminary hearing and a trial involve different burdens of proof, the similar-motive inquiry focuses on the issues addressed by the testimony and the party’s motive to develop it. State v. Howell, 868 S.W.2d 238, 251-52 (Tenn. 1993). “Complete identity of the issues is unnecessary.” Id. Here, the victim’s preliminary hearing testimony concerned Defendant’s participation in the assault and the disappearance of the victim’s wallet—the same matters at issue at trial. The victim identified Defendant as the person who struck him in the face with brass knuckles and knocked him to the ground. He testified that Defendant and five other men struck and kicked him as he lay on the ground. His wallet, which contained approximately $250 and other items, was missing after the assault and was never recovered. Defendant’s preliminary hearing counsel extensively cross-examined the victim about the assault and the missing wallet. Nothing in the appellate record indicates that the general sessions court limited or restricted that examination. Defendant therefore had both an opportunity and a similar motive to challenge the victim’s account of the charged offenses. For purposes of the waiver inquiry, the record provides no apparent basis for relief on Defendant’s claim that he lacked an opportunity or a similar motive to cross-examine the victim. The nature and potential merits of this claim do not weigh in favor of waiving the notice of appeal deadline. 2. Confrontation and the remote preliminary hearing. Defendant contends that conducting the preliminary hearing via Zoom violated his rights under the Sixth Amendment to the United States Constitution and article I, section 9 of the Tennessee Constitution. -7-  The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Article I, section 9 of the Tennessee Constitution guarantees an accused the right “to meet the witnesses face to face.” Tenn. Const. art. I, § 9. In March 2020, the Tennessee Supreme Court declared a judicial emergency, suspended most in-person proceedings, and authorized courts to conduct proceedings by telephone, teleconferencing, videoconferencing, email, or other means that avoided in- person contact. In re COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 13, 2020) (order). In April 2020, the court directed lower courts to continue and increase their use of remote proceedings “with appropriate safeguards.” In re COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Apr. 24, 2020) (order). Authorization to conduct remote proceedings, however, does not by itself resolve whether a particular procedure satisfies constitutional confrontation requirements. In Maryland v. Craig, 497 U.S. 836, 850-51 (1990), the United States Supreme Court held that physical, face-to-face confrontation may be dispensed with only when necessary to further an important public policy and when the reliability of the testimony is otherwise assured. The Court identified the oath, cross-examination, and observation of the witness’s demeanor as safeguards supporting reliability. Id. at 851. The necessity determination must be case-specific. Id. at 855-58. This court applied case-specific necessity to two-way video testimony in State v. Seale, No. M2019-01913-CCA-R9-CD, 2020 WL 4045227, at *8-9 (Tenn. Crim. App. July 20, 2020), no perm. app. filed. Before permitting such testimony, a trial court must make a case-specific and witness-specific determination that dispensing with physical confrontation is necessary to further an important public policy interest and must take steps to assure the reliability of the testimony. Id. In State v. Bowers, No. M2022-00949-CCA-R3-CD, 2023 WL 6211909, at *4-9 (Tenn. Crim. App. Sept. 25, 2023), perm. app. denied (Tenn. May 17, 2024), this court applied Craig and rejected federal and state constitutional challenges to a COVID-positive witness’s trial testimony by two-way videoconferencing. Under the circumstances presented, this court concluded that remote testimony was necessary to protect the health and safety of those in the courtroom and that the oath, cross-examination, and the jury’s ability to observe the witness’s demeanor sufficiently assured reliability. Id. at *6-7. In this case, the relevant record consists of the State’s motion in limine, the parties’ arguments concerning the motion, the victim’s death certificate, and the portion of the -8- preliminary hearing transcript read to the jury. Although the record establishes that the victim testified remotely, it does not disclose whether the general sessions court made findings concerning the necessity for remote testimony or what procedures governed that testimony. Thus, even assuming that the requirements discussed in Craig, Seale, and Bowers apply to the preliminary hearing under these circumstances, the record does not permit us to determine whether those requirements were satisfied. Defendant bears the burden of preparing a record sufficient for review of his claims. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). That obligation includes providing a transcript sufficient to convey a fair, accurate, and complete account of the proceedings relevant to the issues on appeal. Tenn. R. App. P. 24(b). When the record omits the proceedings necessary to evaluate an alleged error, this court cannot review the claim and must presume the trial court’s ruling was correct. Ballard, 855 S.W.2d at 560-61; State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Defendant’s untimely motion for new trial waived plenary appellate review of this claim, although this court retains discretion to grant relief for plain error. Tenn. R. App. P. 3(e), 36(b). Plain error relief, however, requires that the record clearly establish what occurred in the trial court. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). The incomplete record prevents Defendant from satisfying that requirement. Because Defendant’s notice of appeal was also untimely, we consider these limitations in determining whether the interest of justice warrants waiver of the filing deadline. Tenn. R. App. P. 4(a). On the record provided, Defendant has not demonstrated that this confrontation claim presents a basis for waiver. We therefore conclude that this issue does not weigh in favor of waiving the notice of appeal deadline. 3. Jury unanimity. Defendant contends that the jury instruction permitting a finding that the robbery was committed by “violence or fear,” without an election between those theories, violated his right to a unanimous verdict. When the evidence establishes multiple offenses against a victim, the State must elect the particular offense upon which it seeks a conviction. State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999). But when the evidence establishes a single offense arising from one criminal occurrence, the jury need not unanimously agree on the theory of guilt. State v. Lemacks, 996 S.W.2d 166, 170-71 (Tenn. 1999). Here, the evidence established a single robbery, and violence and fear were alternative means of committing that offense. The State therefore was not required to elect between those theories, and the jury instruction did not violate Defendant’s right to a -9- unanimous verdict. Accordingly, this issue lacks potential merit and does not support waiver of the notice of appeal filing deadline. 4. Cumulative error. The cumulative error doctrine addresses “multiple errors committed in trial proceedings, each of which in isolation constitutes mere harmless error, but which when aggregated, have a cumulative effect on the proceedings so great as to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010). On the record before us, Defendant has not established multiple errors that warrant cumulative error relief. The nature and lack of potential merits of Defendant’s cumulative error claim do not support waiver of the notice of appeal filing deadline. 5. Sufficiency of the evidence—especially aggravated robbery. Although Defendant’s untimely motion for new trial does not waive plenary appellate review of his sufficiency claim, he must still demonstrate that the interest of justice warrants waiver of the notice of appeal filing deadline. Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). We afford the State the strongest legitimate view of the evidence and all reasonable inferences drawn from it. State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). Questions concerning witness credibility, the weight of the evidence, and factual disputes are resolved by the jury, and this court does not reweigh the evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The same standard applies to convictions based on direct evidence, circumstantial evidence, or both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Robbery is “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2020). Theft occurs when a person, intending to deprive the owner of property, knowingly obtains or exercises control over the property without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a) (2020). Especially aggravated robbery requires that the robbery be accomplished with a deadly weapon and that the victim suffer serious bodily injury. Tenn. Code Ann. § 39-13-403(a) (2020). A deadly weapon includes anything designed to inflict death or serious bodily injury or anything capable of causing death or serious bodily injury in the manner of its use or intended use. Tenn. Code Ann. § 39-11-106 (2020). - 10 -  Viewed in the light most favorable to the State, the evidence established that Defendant struck the victim while wearing brass knuckles, knocking him to the ground. Defendant and other men then continued to punch and kick the victim. After the assault, the victim’s wallet, which contained $250 intended for the purchase of a chainsaw, was missing. The victim suffered extensive injuries to his face, mouth, nose, and teeth. From these circumstances, the jury could reasonably infer that the wallet was taken during the attack with the intent to deprive the victim of his property and without his effective consent. The jury could also find that the brass knuckles, as used to strike the victim, constituted a deadly weapon that caused serious bodily injury to the victim. The nature and potential merits of Defendant’s sufficiency claim do not weigh in favor of waiving the notice of appeal filing deadline. 6. Sentencing. Defendant contends that the trial court erred by imposing a twenty- four-year sentence for especially aggravated robbery. He argues that the court improperly found that he showed “no remorse” because he declined to provide a statement for the presentence report and declined to testify at the sentencing hearing. He also argues that the court overemphasized his criminal history and unproven conduct, improperly found that he was a leader in the offense, failed to consider mitigating factors, and imposed a sentence greater than necessary to achieve the purposes of sentencing. Especially aggravated robbery is a Class A felony. Tenn. Code Ann. § 39-13-403(b). The range of punishment for a standard offender convicted of a Class A felony is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). The trial court imposed a within- range sentence of twenty-four years. In determining the length of a sentence within the applicable range, the trial court should consider, but is not bound by, the advisory guidelines in Tennessee Code Annotated section 40-35-210(c), including the presence or absence of applicable enhancement and mitigating factors. The court must also state on the record the factors it considered and its reasons for the sentence imposed to facilitate meaningful appellate review. Tenn. Code Ann. § 40-35-210(e) (2021); State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). A within-range sentence that reflects a proper application of the purposes and principles of the Sentencing Act is reviewed for an abuse of discretion with a presumption of reasonableness. Id. at 707. The party challenging the sentence bears the burden of establishing that it was improper. Tenn. Code Ann. § 40-35-401 (2021), Sentencing Comm’n Cmts. Enhancement and mitigating factors are advisory, and the weight assigned to them rests within the trial court’s discretion. Bise, 380 S.W.3d at 701; State v. Carter, 254 - 11 - S.W.3d 335, 345 (Tenn. 2008). Misapplication of an enhancement or mitigating factor does not necessarily invalidate a sentence that is otherwise consistent with the purposes and principles of the Sentencing Act. Bise, 380 S.W.3d at 706. A sentencing court may not draw adverse factual inferences about the circumstances of the offense from a defendant’s silence. Mitchell v. United States, 526 U.S. 314, 327-28 (1999). This court, however, has distinguished those inferences from consideration of silence in assessing remorse and potential for rehabilitation. State v. Bonilla, No. M2019- 01193-CCA-R3-CD, 2020 WL 3791677, at *14-15 (Tenn. Crim. App. July 7, 2020); see also State v. Majors, No. M2023-01182-CCA-R3-CD, 2025 WL 25897, at *19 (Tenn. Crim. App. Jan. 3, 2025), perm. app. denied (Tenn. May 22, 2025). The application of the enhancement factors presents a separate question. Because serious bodily injury is an essential element of especially aggravated robbery, the injuries establishing that element cannot also support enhancement factor (6). Likewise, factor (10) cannot rest solely on the danger to the victim inherent in the armed robbery. A leadership finding requires evidence supporting Defendant’s role as a leader, beyond the participation of multiple attackers. We need not resolve those disputed factors. Even assuming their misapplication, other reasons consistent with the purposes and principles of sentencing support the within- range sentence. See Bise, 380 S.W.3d at 706. The trial court emphasized Defendant’s twenty prior misdemeanor convictions and repeated probation violations, which support enhancement factors (1) and (8). Those established convictions and violations provide a basis for the sentence independent of the challenged unproven conduct. The court also considered Defendant’s efforts to obtain mental health and substance abuse treatment, contrary to his assertion that it failed to consider mitigation. The weight assigned to his criminal history and mitigating evidence rested within the court’s discretion. See Carter, 254 S.W.3d at 345. In light of these considerations and the applicable standard of review, the nature and potential merits of Defendant’s sentencing claim do not support waiver of the notice of appeal filing deadline. - 12 -  Conclusion After considering the length of and reasons for the delay, the nature and potential merits of the issues presented, and the other relevant circumstances, we conclude that the interest of justice does not warrant waiver of the notice of appeal filing deadline. Accordingly, the appeal is dismissed. s/Robert L. Holloway, Jr. ROBERT L. HOLLOWAY, JR., JUDGE - 13 -