        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 21, 2009

                STATE OF TENNESSEE v. ANTHONY T. DEAN

                 Appeal from the Criminal Court for Sumner County
                 Nos. 133-2008 and 863-2007  Dee David Gay, Judge




                             No. M2008-02409-CCA-R3-PC


The Defendant, Anthony T. Dean, appeals from an order of the trial court denying his motion
for reduction of sentence. Following our review of the record, we conclude that the trial
court did not err by denying the motion. We affirm the order of the trial court in accordance
with Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                accordance with Rule 20, Tenn. Ct. Crim. App. R.

D AVID H. W ELLES, J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Anthony T. Dean, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Lawrence R. Whitley, District Attorney General; and William Lamberth,
II, Assistant District Attorney General, for the appellee, State of Tennessee.


                              MEMORANDUM OPINION

       The record on appeal reflects that on May 8, 2008, the Defendant pleaded guilty to
and was convicted of aggravated assault, a Class C felony, and failure to appear, a Class E
felony. He also pleaded guilty to and was convicted of the following Class A misdemeanors:
possession of a schedule IV drug, possession of drug paraphernalia, and four counts of
driving on a revoked license (fourth offense).
        Pursuant to his negotiated plea agreement, the Defendant was sentenced as a Range
I, standard offender to four years in the Department of Correction for his aggravated assault
conviction and two years in the Department of Correction for his failure to appear conviction.
In accordance with his plea agreement, these two sentences were ordered to be served
consecutively. Also in accordance with the plea agreement, he received a sentence of eleven
months and twenty-nine days for each misdemeanor conviction to be served concurrently
with his felony convictions. As part of the plea agreement, additional charges against the
Defendant were dismissed.

        On September 5, 2008, the Defendant filed a motion for reduction of his sentences.
See Tenn. R. Crim. P. 35. In his motion, the Defendant asserted that there were certain
circumstances existing at the time of his guilty plea which were not “properly presented” to
the trial court: that the Defendant had a G.E.D. dipolma; that prior to the incident giving rise
to the sentence, the Defendant and the victim had lived as husband and wife for over ten
years; that prior to sentencing, the Defendant and the victim had reconciled their differences;
that the Defendant had two children and had been a good provider for his family; and that
the Defendant was an active member of a church. In the motion, the Defendant also asserted
that he had a “reasonable excuse” for failing to appear, that his aggravated assault conviction
“would more likely fit” as a Class D felony, and that consecutive sentences were not
mandatory for his convictions.

       As post-sentencing facts, the Defendant asserted that had accepted Christ and had
been baptized, had completed several Bible studies, had completed an alcohol-drug program,
was enrolled in an anger management class, and was paying on his court costs and fines from
the pay he received from his prison job.

       The trial court denied the Defendant’s motion without a hearing. See Tenn. R. Crim.
P. 35(c). In its order denying the reduction of the Defendant’s sentences, the trial court
entered findings as follows:

              The Court finds that the Defendant entered a knowing and voluntary
       guilty plea, which was the result of the Defendant’s agreement with the
       District Attorney’s office for the resolution of all charges against him. The
       Defendant offers no information for the Court’s consideration that was not
       available at the time of the Defendant’s voluntary plea other than the progress
       made since such plea and during the Defendant’s subsequent incarceration.
       While the Court is pleased that the Defendant has made positive changes since
       his incarceration, those changes have no bearing on the circumstances
       involving his voluntary guilty plea.



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              Modification of a sentence is only appropriate in the interests of justice,
       and the Court finds that there is no basis to modify the Defendant’s sentence,
       and that his Motion is not well-taken and should be DENIED.

       It is from the order of the trial court denying the Defendant’s motion for reduction of
sentence that the Defendant appeals.

                                           Analysis
       The advisory commission comments to Rule 35 of the Tennessee Rules of Criminal
Procedure state that the intent of the rule is “to allow modification only in circumstances
where an alteration of the sentence may be proper in the interests of justice.” This Court has
noted that relief under Rule 35 will be limited when the sentence was imposed in accordance
with a negotiated plea agreement. State v. McDonald, 893 S.W.2d 945, 947 (Tenn. Crim.
App. 1994). Our review of a trial court’s ruling under Rule 35 of the Tennessee Rules of
Criminal Procedure is governed by the “abuse of discretion” standard. State v. Irick, 861
S.W.2d 375, 376 (Tenn. Crim. App. 1993).

        There is nothing contained in the record on appeal which demonstrates that the trial
court abused its discretion when it denied the motion to reduce the Defendant’s sentences.
The record does not contain a transcript of the guilty plea proceedings or facts considered by
the trial court at the time it accepted the Defendant’s guilty plea and approved the negotiated
plea agreement. Accordingly, we cannot conclude that the trial court abused its discretion
when it denied the motion.

                                         Conclusion
        The order appealed from was entered in a proceeding before the trial judge without
a jury. Such order is not a determination of guilt, and the evidence does not preponderate
against the findings of the trial judge. No error of law requiring a reversal of the order is
apparent on the record. In accordance with Rule 20 of the Rules of the Court of Criminal
Appeals, we affirm the judgment of the trial court by memorandum opinion, rather than by
formal opinion.




                                                    ______________________________
                                                    DAVID H. WELLES, JUDGE




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