         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 20, 2002

            STATE OF TENNESSEE v. CLARK DOUGLAS LIVELY

                 Direct Appeal from the Circuit Court for Cheatham County
                           No. 13745    Allen W. Wallace, Judge



                   No. M2002-00666-CCA-R3-CD - Filed December 6, 2002


The defendant pled guilty to attempted second degree murder, and the trial court imposed a ten-year
sentence. He appeals his sentence, arguing he should have received the minimum sentence of eight
years with alternative sentencing. We affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H.WELLES and ALAN E. GLENN,
JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Clark Douglas Lively.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        On January 19, 2001, the defendant stabbed his live-in girlfriend twice in the stomach before
stabbing himself. He was indicted for attempted first degree murder and pled guilty to the reduced
charge of attempted second degree murder. Following a sentencing hearing, the trial court imposed
a ten-year sentence to be served in the Department of Correction. On appeal, the defendant asserts
his sentence is excessive, and he should have received the minimum sentence of eight years with
alternative sentencing.

                                 I. STANDARD OF REVIEW

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following
factors in sentencing:

                (1) [t]he evidence, if any, received at the trial and the sentencing
                hearing; (2) [t]he presentence report; (3) [t]he principles of
                sentencing and arguments as to sentencing alternatives; (4) [t]he
                nature and characteristics of the criminal conduct involved; (5)
                [e]vidence and information 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 the defendant’s own
                behalf about sentencing.

         The range of punishment for attempted second degree murder, a Class B felony, is from eight
to twelve years for a Range I standard offender. Tenn. Code Ann. § 40-35-112(a)(2). If no
mitigating or enhancement factors for sentencing are present, Tennessee Code Annotated section
40-35-210(c) provides that the presumptive sentence for a Class B felony shall be the minimum
sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State
v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial
court should enhance the minimum sentence within the range for enhancement factors and then
reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e);
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor is prescribed
by the statute, as the weight given to each factor is left to the discretion of the trial court as long as
the trial court complies with the purposes and principles of the sentencing act and its findings are
supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley, 34
S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments.

                                II. GUILTY PLEA TRANSCRIPT

        The record before this court does not contain a transcript of the guilty plea. In order to
conduct an effective appellate review of sentencing, a transcript of the guilty plea hearing is
necessary. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). The transcript of the
guilty plea is usually necessary in order for this court to ascertain the facts and circumstances
surrounding the offense. Indeed, the guilty plea hearing is the equivalent of a trial. Id. at 843. In
the absence of a transcript of a guilty plea, this court must generally conclude that the sentence
imposed by the trial court was correct. Id. at 844. In any event, the record before this court supports
the sentence imposed by the trial court.


                                  III. PROOF AT SENTENCING

        At sentencing, the victim testified that on the day of the offense she advised the defendant
by telephone he needed to move out of her house. She stated it was apparent the defendant had been

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drinking. She said she agreed to give him a ride and told him to be ready to leave her home in
fifteen or twenty minutes. The victim testified that when she arrived at her home, accompanied by
her teenage son and his girlfriend, the defendant was seated at the kitchen table with a knife in his
boot. According to the victim, the defendant said they needed to talk; when she replied they could
talk later, the defendant pushed her against the kitchen cabinet and stabbed her twice in the stomach.
The victim stated the defendant then grabbed her by the hair and threw her into the kitchen table,
into the wall, and onto the floor. She said the defendant then left the room.

        The victim testified she attempted to flee, but when the defendant returned to the room, he
grabbed her and threw her into a chair. She stated he then sat down facing her and began to berate
her while pointing the knife. She said she told the defendant she was in pain and needed medical
attention, but he replied she was not going to die. According to the victim, the defendant then stated
he was going to die; he then stabbed himself in the chest.

        The victim was hospitalized for six days and incurred over $40,000 in medical expenses as
a result of her injuries. The presentence report indicated she continued to have medical problems
due to her injuries and also suffered emotional problems as a result of the attack. At the hearing,
the victim said the defendant violated the conditions of his bond and an order of protection by
returning to her home following the offense. According to the presentence report, the victim stated
that prior to the offense, the defendant had assaulted her once, had become more controlling, and
often drank heavily.

        The defendant testified he did not remember the stabbing. In his statement contained in the
presentence report, the defendant reported he had been drinking prior to the offense, but denied
being drunk. According to the presentence report, the defendant attributed the incident to depression
and to the victim's “demanding” behavior. The defendant admitted he violated his bond conditions
and an order of protection by going to the victim’s home; he explained he understood the order of
protection, but did not understand the “seriousness this was.” The proof established the defendant’s
only other criminal conviction was for violating the order of protection.

                   IV. ENHANCEMENT AND MITIGATING FACTORS

A. Enhancement Factors

        The trial court found three enhancement factors applied: factor (5), the defendant treated the
victim with exceptional cruelty; factor (6), the personal injuries inflicted upon the victim were
particularly great; and factor (8), the defendant had a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-
35-114(5), (6), (8) (1997). The trial court stated it did not give much weight to factor (8). The trial
court further found that enhancement factor (9), the defendant possessed a deadly weapon, did not
apply because “that is part of assault with intent to commit second degree murder.” See Tenn. Code
Ann. § 40-35-114(9).

        While the defendant does not contend the trial court improperly applied any enhancement
factors, we must conclude the trial court erred in its application of enhancement factor (8), the

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defendant had a “previous history of unwillingness to comply with the conditions of a sentence
involving release in the community.” See Tenn. Code Ann. § 40-35-114(8) (1997) (emphasis
added). The record shows the trial court applied this factor because the defendant violated the
conditions of his bond by returning to the victim’s home. Bail is not a sentence; therefore, this
enhancement factor was not applicable. Due to this error, we will conduct a de novo review of the
defendant’s sentence without a presumption that the trial court’s determinations are correct. Poole,
945 S.W.2d at 96.

        Based on the evidence appearing in the record, we conclude the trial court properly applied
enhancement factors (5) and (6). See Tenn. Code Ann. § 40-35-114(5), (6) (1997). Further, the trial
court was mistaken in concluding enhancement factor (9) could not be applied to a sentence for
attempted second degree murder. See Tenn. Code Ann. § 40-35-114(9) (1997). The use of a deadly
weapon is not an essential element of attempted second degree murder, and it may be considered
as an enhancement factor. See State v. Baxter, 938 S.W.2d 697, 705 (Tenn. Crim. App. 1996). We
find this factor to be applicable in the instant case.

B. Mitigating Factors

        The trial court applied mitigating factors (2), the defendant acted under strong provocation,
and (8), the defendant was suffering from a mental or physical condition that significantly reduced
his culpability. See Tenn. Code Ann. § 40-35-113(2), (8) (1997). Although we question the
applicability of mitigating factor (2), we need not address its applicability to reach a proper
disposition of this case.

C. Summary

         We have determined the trial court erred in applying enhancement factor (8). However, the
wrongful application of one or more enhancement factors by the trial court does not necessarily lead
to a reduction in the length of the sentence. State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000).
This determination requires that we review the evidence supporting any remaining enhancement
factors, as well as the evidence supporting any mitigating factors. State v. Imfeld, 70 S.W.3d 698,
707 (Tenn. 2002). We also found enhancement factor (9) was applicable, although not applied by
the trial court. We conclude the mid-range sentence of ten years was appropriate.




                              V. ALTERNATIVE SENTENCING

       The defendant further argues he is entitled to alternative sentencing in the form of split
confinement. This argument is without merit.

        The defendant is not eligible for probation because he has received a sentence of greater than
eight years. See Tenn. Code Ann. § 40-35-303(a). Further, he is not eligible for the community
corrections program. First, he was convicted of a crime against the person using a weapon. See

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Tenn. Code Ann. § 40-36-106(a)(2), (4). Second, because he is not eligible for probation, he cannot
be considered as a candidate for community corrections under the special needs provision of
Tennessee Code Annotated subsection 40-36-106(c). State v. Grigsby, 957 S.W.2d 541, 546 (Tenn.
Crim. App. 1997); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). There are no
sentencing alternatives available to the defendant.

                                        CONCLUSION

         We conclude the trial court misapplied enhancement factor (8) to the defendant’s sentence,
but erred in not applying enhancement factor (9). After conducting a de novo review, we conclude
the ten-year sentence imposed by the trial court was proper. Therefore, we affirm the judgment of
the trial court.




                                                     JOE G. RILEY, JUDGE




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