         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE         FILED
                       NOVEMBER 1998 SESSION
                                                December 30, 1998

                                                Cecil W. Crowson
                                               Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 01C01-9708-CR-00383
      Appellee,                  )
                                 )    DAVIDSON COUNTY
VS.                              )
                                 )    HON. THOMAS H. SHRIVER,
LAMONT McDONALD,                 )    JUDGE
                                 )
      Appellant.                 )    (Motion to Reduce Sentence)



FOR THE APPELLANT:                    FOR THE APPELLEE:

KARL DEAN                             JOHN KNOX WALKUP
Public Defender                       Attorney General and Reporter

JEFFREY A. DeVASHER                   TIMOTHY BEHAN
ROSS E. ALDERMAN                      Assistant Attorney General
Asst. Public Defenders                Cordell Hull Building, 2nd Floor
1202 Stahlman Building                425 Fifth Avenue North
211 Union Street                      Nashville, TN 37243-0493
Nashville, TN 37201-5066
                                      VICTOR S. JOHNSON III
                                      District Attorney General

                                      KYMBERLY HAAS
                                      Assistant District Attorney General
                                      Washington Square Building
                                      222 Second Avenue North
                                      Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Lamont McDonald, appeals the trial court's denial of his

Tenn. R. Crim. P. 35(b) motion to reduce sentence. He originally pled guilty to

second degree murder and received an agreed sentence of twenty-three (23)

years as a Range I, standard offender. On appeal, the defendant claims the trial

court abused its discretion in denying the motion. Finding no abuse of discretion,

we affirm the judgment of the trial court.



                                             I.



       Although indicted for first degree murder, the defendant pled guilty on

April 23, 1997, to second degree murder. He entered into plea negotiations and

agreed to a twenty-three (23) year sentence as a Range I, standard offender. 1



       On June 10, 1997, the defendant timely filed a Tenn. R. Crim. P. 35(b)

motion. The defendant's motion requests his sentence be reduced to twenty

(20) years. The trial court denied the motion after a hearing. Defendant now

contends his sentence should be reduced based upon his "spotless institutional

record, his desire to obtain vocational and computer training, his age, his lack of

a prior record, and the harshness of his sentence when compared to those of his

co-defendants who entered negotiated pleas."



                                          II.



       Under Tenn. R. Crim. P. 35(b), a sentence may be reduced if the trial

court determines it is in the “interests of justice.” See Committee Comment. In



       1
          Tenn. Code Ann. § 40-35-501(i) provides that those committing second
degree murder on or after July 1, 1995, are ineligible for parole and can only
receive sentencing credits not to exceed 15%. This offense was committed
January 11, 1995; therefore, Tenn. Code Ann. § 40-35-501(i) is not applicable.

                                             2
contrast to the de novo standard of review applicable to sentencing appeals

perfected under Tenn. Code Ann. § 40-35-401(d), appeals of Rule 35(b)

decisions are reviewed simply to determine if there has been an abuse of

discretion by the trial court. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim.

App. 1993). A trial court should not modify an agreed sentence imposed from a

Tenn. R. Crim. P. 11(e)(1)(C) guilty plea absent unusual and unforeseen post-

sentencing developments. State v. McDonald, 893 S.W.2d 945, 947 (Tenn.

Crim. App. 1994).



       The defendant's attempts at rehabilitation are admirable. Likewise, his

youth and lack of prior criminal involvement are positive factors. However, his

co-defendant who actually fired the fatal shot received a life sentence. Even

though the two other co-defendants received sentences substantially less than

the defendant’s sentence, their involvement was much less than the defendant’s

involvement. Thus, defendant’s sentence does not appear unduly harsh. In the

final analysis, we are unable to conclude that the trial court abused its discretion

in denying the motion.



       Accordingly, the judgment of the trial court is AFFIRMED.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE

CONCUR:



____________________________
PAUL G. SUMMERS, JUDGE



____________________________
L. T. LAFFERTY, SENIOR JUDGE




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