        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                        APRIL SESSION, 1998          September 15, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,          )   C.C.A. NO. 03C01-9705-CR-00166
                             )
      Appellee,              )
                             )
                             )   POLK COUNTY
VS.                          )
                             )   HON. MAYO MASHBURN
MICHAEL SCOTT FARNER,        )   JUDGE
                             )
      Appe llant.            )   (Delayed Appea l)




FOR THE APPELLANT:               FOR THE APPELLEE:

JERRY H. SUMMERS                 JOHN KNOX WALKUP
500 Lindsay Street               Attorney General and Reporter
Chattanooga, TN 37402-1490
                                 MICH AEL J . FAHE Y, II
TIMOTHY W. JONES                 Assistant Attorney General
Ogle & Wa llace                  425 Fifth Avenu e North
Court Place, Suite 1             Nashville, TN 37243
121 Court Avenue
Sevierville, TN 37862            JERRY N. ESTES
                                 District Attorney General

                                 SHARI TAYLOE
                                 Assistant District Attorney
                                 P. O. Box 1351
                                 Cleveland, TN 37364-1351



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


      On March 31, 1988, Appellant, Michael Scott Farner, pled guilty to second

degree murde r, assault w ith intent to commit first degree murder, and second

degree burglary. After a sentencing hearing, Appellant was sentenced as a

standard Range I offender to 35 years for the second degree murder conviction,

32 years fo r the as sault w ith inten t to com mit murder, and 9 years for the second

degree burglary. All sentences were ordered to run consecutively. Appellant

waived his right to appeal, and Appellant’s court-appointed counsel was relieved

from further representation of Appellant. On May 29, 1992, Appellant filed a pro

se Petition for a Writ of Habeas Corpus in the United States District Court for the

Eastern District of Tennessee. Counsel an d a Guard ian Ad Litem were

appointed. On September 25, 1996, Appellant’s petition for Habeas Corpus was

dismissed for failure to exhaust state remedies. On February 10, 1997, Appellant

filed a motion for a delayed appeal to this Court. On M ay 28, 1997 , this Court

granted the motion for a delayed appeal. Appellant appeals from the trial court’s

imposition of an effective sentence of 72 years incarceration, raising two issues:



      1)     whether Appellant should receive less than the maximum sentence
             in the range upon conviction of an offense when no enhancing
             factors may be properly applied and w here two m itigating factors
             should be applied; and
      2)     whether Appellant should be sentenced to concurrent prison terms
             when the record indicates that his confinement is not necessary for
             the protection of the pub lic, when h e may b e ame nable to
             rehabilitation, and when he canno t be properly labeled as a
             “dangerou s offender”.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.




                                         -2-
                                       FACTS




      Appellant in this case was 20 years old at the time of the offense. He

suffers from bo th physical and mental handicaps in that since birth he has been

unab le to hea r or spe ak. His intellige nce le vel is only slightly above mental

retardation, and he is functionally illiterate. Proof was presented in the pre-

sentence report that, as a youth, Appellant suffered severe physical abuse at the

hands of his grandparents.



      On July 21 , 1987 , Appe llant entered the home of Andrew and Agnes

Danisewicz without permission. He forced Ms. Danisewicz into the bathroom with

a hunting knife, where he then stabbed her four times. Mr. Danisewicz returned

home and interrupted the attack upon Ms. Danisewicz; Appellant turne d on Mr.

Danisewicz, enabling Ms. Danisewicz to flee for help. Appe llant stabbed M r.

Danisewicz 17 times, killing him.



      After his arrest on July 22, 1987, Appellant gave a statement to the police

through the means of an interpreter. Appellant stated that he was mad on the day

of the murde r, becau se his m other ha d mad e him lea ve hom e. He w ent to a pool

hall, got two six-pac ks of b eer, an d dran k all 12. He then went to the victims’

home with the intent to kill them, because he felt that they always looked at him

like they were mad at him.



      Appellant was in dicted for first de gree m urder , assa ult with intent to c omm it

first degree murder, and second degree burglary. He pled to a reduced charge

of second degree murder, and to the other charges.

                                          -3-
                             I. Length of Sentence




      Appellant argues that the trial court erred in imposing the maximum

sentence within the applicable ra nges, conte nding that non e of the statutory

enhancement factors may properly be applied and that two m itigating factors

shou ld have been applie d. Bec ause both A ppella nt’s crime and his trial occurred

prior to the 1989 Sentencing Reform act, the 1982 sentencing act applies. Under

the holding o f State v. Poo le, 845 S.W.2d 171 (Tenn. 1992) and Sills v. State ,

884 S.W.2d 139 (Tenn. Crim. App. 1994), when a sentence is merely readjusted

or when the individual components of the sentence are reviewed, but the

sentence is not set aside on substantive or procedural flaw or due to a lack of

jurisdiction, the same statute applies to the re-sentencing as did in the original

sentence. Here, had Appellant’s appeal not been an out of time appeal, the 1982

act would have applied. We see no reason to stray from the rule of State v.

Poole .



          When a defendant, convicted under the law applicable in this case,

complains of his or her sentence, we must conduct a de novo review of the

sentence. Tenn. Code Ann. § 40-35-401(d)(S upp. 1988 )(repealed by Criminal

Sentencing Reform Act of 1989, Acts 1989, ch 591, §6). This review is without

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)(Supp.

1988)(repealed by Criminal Sentencing Reform Act of 1989, Acts 1989, ch 591,

§6); State v. Boling, 806 S.W .2d 202 (Te nn. Crim. Ap p. 1990).



      The Sentencing Reform Act of 1982 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code

                                        -4-
Annotated § 40-35-21 0 (1982)(repealed by Criminal Sentencing Reform Act of

1989, Acts 1989, ch 591, §6), mandated the court’s consideration of the

following:



      (1) The eviden ce, if any, received at the trial and the
      sentencing hearing; (2) [t]he presen tence re port; (3) [t]he
      principles of sentencing and arguments as to sentencing
      alternatives; (4) [t]he nature and c harac teristics of the
      criminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n
      offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
      statement the defendant wishes to make in his ow n beh alf
      about sentencing.


Tenn. Code Ann. § 40-35-210.



      Under the 198 2 Sente ncing A ct, there is no presumption that a defendant

will be sentenced to the minimum sentence in the applicable range as there is

under current law. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). After

determining the appropriate range for sentencing, the court was then to weigh the

enhancing and m itigating factors found in Tennessee Code Annotated §§ 40-35-

110 and 40-35-111 to arrive at a sentence which was “the least severe me asure

necessa ry to achieve the purposes for which the sentence is imposed.” Tenn.

Code Ann. § 40-3 5-103(4)(Su pp. 1988)(repealed by Crim inal Sentencin g Reform

Act of 1989, A cts 1989, ch 5 91, §6).



      The 1982 Sente ncing Refo rm A ct also provid ed tha t the trial c ourt sh all

place on the record either orally or in writing what enhancement or mitigating

factors it found, if any. These findings are crucial for appellate review of the trial

court’s decision. In the matter sub judice, the trial court found two mitigating



                                         -5-
factors: under T ennes see Co de Ann otated § 40-35-1 10 (7), the defend ant,

because of his yo uth, lac ked s ubsta ntial jud gme nt in committing the offense, and

under Tennessee Code Annotated § 40-35-110(9) the defendant was suffering

from a mental or physical condition that significantly reduced his culpability for the

offense. The trial court also found several enhancement factors, namely: under

Tennessee Code Annotated § 40-35-111(1) that the defendant had a previous

history of criminal behavior; under Tennessee Code Annotated § 40-35-111(3)

the offense involved more than one victim; under Tennessee Code Annotated §

40-35-111(4) the victim was p articula rly vulne rable because of age or physical

or mental disability; under Tennessee Code Annotated § 40-35-111(5) the

defendant treated the victim with “almost unbelievable cruelty” during the

commission of the offense; under Tennessee Code Annotated § 40-35-111(6) the

injury inflicted upon the victims was particularly great; under Tennessee Code

Annotated § 40-35-111(9) the defendant possesse d and emp loyed a dead ly

weapon in the commission of the offense; under Tennessee Code Annotated §

40-35-111(10) the defendant had no hesitation about comm itting a crime whe re

the risk to hum an life was high. In its brief, the State concedes that Tennessee

Code Annotated § 40-35-111(3) and                     (10) were misapp lied to Ap pellan t’s

sentence.1




        1
         The State concedes that Tennessee Code Annotated § 40-35-111(10) does not apply to either
the second degree murder conviction or to the assault with intent to commit second degree murder, but
argues that it properly applies to the burglary conviction.

                                                -6-
Enhance ment Facto rs




       In the matter sub judice, we find that the trial court correctly enhanced each

sentence with respect to Tennessee Code Annotated § 40-35-111(1).                   The

presentence report contains ample undisputed evidence of previous violence,

drug abus e, and illegal destruction of property.           All sentences were also

appropriately enhanced with Tennessee Code Ann otated § 40-35-111(9) since

it is clear Appellant used a deadly weapon, i.e., a hunting knife to commit his

crime. In addition the trial court properly enhanced all three sentences pursuant

to Tennessee C ode Ann otated § 40-3 5-111(5). Ap pellant chose to attack Mr.

and Mrs. Danisewicz in a particularly vicious m anner, i.e., b y using a k nife to

inflict multiple stab and slash wounds, rather than quickly accomplishing his gris ly

mission. Mrs. Danisewicz was stabbed four (4) times as she pleaded for her life

and escaped only because Appellant turned his wrath onto Mr. Danisewicz

wounding him se vente en (17 ) times eventu ally killing him as he too pleaded for

his life. By his own a dmis sion, A ppella nt burg led the Danis ewicz ’s hom e with h is

knife in han d for the exclusive purpose of killing the couple.           Under these

circumstances we have n o troub le conclud ing that the victims we re treated with

exceptional cruelty. In addition to the above , we ho ld that the trial cou rt prop erly

applied Tenn essee Code Annota ted § 40 -35-111 (6) to Appellant’s conviction for

aggravated burglary. The injury to b oth Mr. and Mrs. Danisewicz during the

burglary was very g reat. In addition as a resu lt of her husband ’s death, Mr.

Danisewicz lost con sidera ble fina ncial support. Application of this factor to the

burglary sentence was appropriate.




                                           -7-
        Appe llant’s burglary sentence was also properly enhanced with Tennessee

Code Annotated § 40-35-111(10), no hesitation about committing a crime where

risk to human life is high. Clearly a home invasion burglary for the express

purpose of killing the occupants is s uch a crim e. See, State v. Edwards, 868

S.W .2d 682, 702 (Tenn. Crim . App. 1993 ).



        However, there was some misapplication of enhancement factors. The

State concedes and we agree that Tennessee Code Annotated § 40-35-11 1(3),

the crime involved more than one victim, does not apply to any of the convictions

in this case. See, State v. Clabo, 905 S.W.2d 197 (Tenn. Crim. App. 1995)

(holding separa te convictions with respect to each victim in a case precludes use

of this aggra vating facto r).             The State also concedes and we agree that

Tennessee Code Annotated § 40-35-111(10), no hesitation about committing a

crime where risk to human life is high, was inapplicable to the murder and

attempted murde r conviction s. See, State v. Sim s, 909 S.W .2d 46, 50 (Tenn.

Crim. App. 19 95); State v. Makoka, 885, S.W.2d 366 (Tenn. Crim. App. 1994).

Also the ag e of the victim without proof of special vulnerability as a result thereof

is insufficient to warrant application of Tennessee Code Annotated § 40-35-111

(4). State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993)2




        2
         Although State v. Adams deals with the Sentencing Reform Act of 1989, its reasoning should be
equally applicable to the identical provision of the 1982 Act, i.e., it is particular vulnerability rather than age
above which is the focus of § 40-35-111(4). Any other citations in this opinion to cases arising after the
adoption of the 198 9 Sente ncing A ct are m ade in the belief that su ch holdin gs are e qually applica ble to
analogo us prov isions of th e 1982 Senten cing Ac t.

                                                     -8-
Mitigating Factors




      The State does not contest the applicability of mitigating factors found at

Tennessee Code Annotated §§ 40-35-110(7) and (9).              These factors deal

respe ctively with a lack of judgment because of youth and reduced culpability due

to a mental or physical conditions.       The trial judge however, as was his

prerogative gave little weight to these factors in view of the circumstances of

Appe llant’s crime and the gravity of the num erous enh ancem ent factors

applicable in this case.



Length of Sentence




      As stated earlier there is no presumptive minimum sentence with respect

to sentences under the 1982 Sente ncing Act. In th is case which falls under the

provisions of that act three (3) enhancement factors are applicable to the murder

sentence, four (4) such fac tors are ap plicable to th e assa ult with the inte nt to

com mit murder, and five (5) enhancers properly pertain to the burglary sentence.

The trial court, within the scop e of his discretion, gave little weight to the

applic able mitigating factors. U nder the circums tances we can not say th e length

of the sentenc es impos ed are imp roper.




                           II. Consecutive Sentencing




      Appellant conte nds th at the tria l court erred in impos ing consec utive

sentences, arguing that his confinement is not necessary for the protection of the

                                         -9-
public, that he may be amenable to rehabilitation, and that he cannot properly be

labeled as a “d ange rous o ffende r” or a “d ange rous, m entally abnormal person .”

We disagree.



       In Gray v. S tate, 538 S.W.2d 391 (Tenn. 1976), the Supreme Court set out

criteria by which a defendant is evaluated in deciding whe ther consec utive

senten cing is ap propriate :



       Types of offenders for which consecutive sentencing
       shou ld be reserved may be classified as follows: (1) the
       persistent offender, defined as one who ha s previo usly
       been convicted of two felonies or of one felony and two
       misdem eanors committed at different times when he was
       over eighteen (18) years of age; (2) the professional
       crimin al, one who has knowingly devoted him self to
       criminal acts as a major source of livelihood or who has
       substantial income or resources not shown to be derived
       from a source other than crimin al activity; (3) the m ultiple
       offender, one w hose record of crim inal ac tivity is
       extensive; (4) the dangerous mentally abnormal person,
       so declared by a competent psychiatrist who concludes as
       a result of a presentence investigation that the defen dant's
       crimin al conduct has been characterized by a pattern of
       repetitive or compulsive behavior or by persistent
       aggressive behavio r with hee dless ind ifference to
       consequences; and (5) the dangero us offender,
       hereinafter defined.

              The prior record of the p ersiste nt offen der will
       indicate that he is one not likely to be rehabilitated and
       shou ld be incarcerated under consecutive sentences for
       the protection of the public. The same may be said for the
       professional crimina l. The p rior record of th e mu ltiple
       offender may have been good, but the crimes for which he
       has been convicted indicate criminal ac tivity so extensive
       and contin uing for such a period of time as to warrant
       consecutive sentencing. See Sentencing Alternatives and
       Procedures, § 3.4, Comment C; Model Penal Code, §
       7.03. The object is to use consecutive s entencing, wh ere
       appropriate, to prote ct socie ty from those who are
       unwilling to lead a productive life and resort to criminal
       activity in furtherance of their anti-societal lifestyle.



                                    -10-
             A defendant may be classified as a dangerous
      offender if the crime s for which he is con victed indic ate
      that he has little or n o regard for hum an life, and no
      hesitation about committing a crime in which th e risk to
      human life is high . This does not mean that all defen dants
      convicted of several counts of a dangerous offense, such
      as armed robbery, should be consecutively sentenced.
      Even though arm ed robbery is a d angerous offense, there
      are increase d pena lties for that crim e. The d ecision to
      impose consecutive s entences w hen crime s inherently
      dangerous are involved should be based upon the
      presence of aggravating circumstances and not merely on
      the fact that two or more dangerous crimes were
      committed. Howeve r, this does not prec lude the trial court
      from imposing consecutive sentencing for the commission
      of dangerous offenses where no aggravatin g
      circumstances are present if evidence indicates that the
      defendant should be sentenced under one of the other
      classifications.


Gray v. State, 538 S.W .2d 391 , 393-39 4 (Ten n. 1976 ). In the matter sub judice,

the trial court sentenced Appellant to consecutive sentences upon finding that

Appellant was a dangerously mental abnormal person, but the record does not

reflect any evaluation b y a compe tent psychiatrist as requ ired under Gray.

Howeve r, based upon A ppellant’s past violen t behavior documented in the

presentence report, and his lack of hesitation in committing a home invasion w ith

a view toward killing the occupants because of how he thought they looked at

him, we believe that society must be protected from Ap pellant, and a ccord ingly

find that App ellant me ets the criteria set out in Gray to be classified as a

dangerous offend er. Th e trial co urt’s im positio n of co nsec utive se ntenc es is

affirmed.




                                        -11-
    For the aforementioned reasons, the judgment of the trial court is affirmed.



                              ____________________________________
                              JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
CURWOOD WITT, JR., JUDGE




                                    -12-
