             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                            FEBRUARY 1999 SESSION
                                                           FILED
                                                              April 5, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )     C.C.A. No. 02C01-9804-CC-00099
      Appellee,                )
                               )     Madison County
v.                             )
                               )     Honorable J. Franklin Murchison, Judge
MELVIN EDWARD HENNING,         )
                               )     (Sentencing)
      Appellant.               )




FOR THE APPELLANT:                   FOR THE APPELLEE:

C. Michael Robbins                   John Knox Walkup
46 North Third Street                Attorney General & Reporter
Suite 719                            425 Fifth Avenue North
Memphis, TN 38103                    Nashville, TN 37243-0493
(On Appeal)
                                     Elizabeth T. Ryan
George Morton Googe                  Assistant Attorney General
District Public Defender             425 Fifth Avenue North
227 West Baltimore Street                   Nashville, TN 37243-0493
Jackson, TN 38301
(At Trial)                           James G. Woodall
                                     District Attorney General
Vanessa King                         225 Martin Luther King Drive
Assistant Public Defender            P. O. Box 2825
227 West Baltimore Street                    Jackson, TN 38302-2825
Jackson, TN 38301
(At Trial)                           Donald H. Allen
                                     Assistant District Attorney General
                                     225 Martin Luther King Drive
                                     P. O. Box 2825
                                     Jackson, TN 38302-2825




OPINION FILED: __________________________


AFFIRMED AS MODIFIED


JAMES C. BEASLEY, SR., SPECIAL JUDGE




                                   OPINION
       The appellant presents two issues in this appeal as of right: (1) did the trial judge

sentence excessively, and (2) did the trial court err in ordering consecutive sentences?

Upon our de novo review, we modify the sentence by reducing it from eleven to ten years

and affirm the imposition of consecutive sentences.



       We begin our analysis with a brief history of the case. On June 5, 1995, the

Madison County Grand Jury returned an indictment against the appellant, Melvin Edward

Henning, charging him with the attempted first degree murder and aggravated assault of

Michael Smith in counts one and two, the attempted first degree murder and aggravated

assault of Keith Fason in counts three and four, possession of a deadly weapon during the

commission of a felony in count five, and resisting arrest in count six.



       On May 16, 1996, a jury convicted the appellant of the attempted second degree

murder and aggravated assault of Michael Smith, the attempted first degree murder and

aggravated assault of Keith Fason, possession of a deadly weapon during the commission

of a felony, and resisting arrest.



       The evidence presented to the jury is summarized in this Court’s opinion filed in the

original appeal:

                   On February 18, 1995, the appellant, accompanied by his
               cousin, Michael Smith, drove to the residence of Adel
               Washington, located at 236 Circle Drive, Jackson. Smith had
               agreed to accompany the appellant, believing that they were
               going to visit the appellant’s sick mother.1 Immediately prior to
               arriving at the Washington residence, the appellant made a
               stop at the residence of Ann Smith and inquired as to the
               whereabouts of the Washington children. Learning that they
               were with Ms. Smith, the appellant replied, “that’s all I need to
               know” and proceeded to the Washington residence.2 After


       1
        Michael Smith testified that, earlier that day, the appellant had told him “that some girl had
sent him to jail and ‘I am going to get the bitch.’” Smith said, although he was not certain, he
believed the girl to be someone named “Ardel” or “Adel.”
       2
        The proof at trial established that earlier in the month, Ms. Washington, who was
acquainted with the appellant, had refused to sell the appellant and a female companion “dope.”
Following Ms. Washington’s refusal to sell drugs, a heated argument ensued. The appellant
produced what appeared to be a pistol and stated that he would be back. Shortly thereafter, Ms.
Washington filed a complaint with the police, resulting in the appellant’s arrest. On February 17,

                                                 -2-
              arriving at the Circle Drive address, the appellant got out of his
              car and walked to the front door. At this point, the appellant
              was unaware that Ms. Washington was not at a home and that
              the only occupant was her live-in-boyfriend, Keith Fason, who
              was unknown to the appellant. The appellant pounded on the
              door and demanded that the door be opened. Upon receiving
              no reply, the appellant fired two shots at the door. At this
              point, Smith asked the appellant what was going on and the
              appellant turned and shot his cousin in the chest. Hearing the
              gunshots, Fason ran to a window on the other end of the
              house where he observed the appellant assisting the wounded
              Smith back to the passenger side of the car. Fason, while
              watching the appellant through the window, called the police to
              report the shooting. As Fason watched the appellant from the
              window, he observed the appellant look into the window where
              Fason was standing, raise his arm and fire one shot. The
              bullet passed through the window and struck a glass jar.
              Fason’s arm was cut by a piece of the shattered glass.

                   The appellant returned to his car and left the scene. In the
               car, the appellant informed his wounded cousin that “I ain’t
               taking you to the doctor.” He proceeded to drive around until
               he saw Donald Morrow on East Chester Street. He stopped
               the car, threw the bleeding and semi-conscious Smith out of
               the car onto the street, and instructed Morrow to “Take [Smith]
               [expletive deleted] to the hospital before he dies.”

State v. Melvin Edward Henning, No. 02C01-9703-CC-00126 (Tenn. Crim. App., Jackson,

October 24, 1997), slip op. at 3-4.



       After a sentencing hearing on July 16, 1996, the trial court imposed sentence as

follows:   eleven years for attempted second degree murder, nine years for each

aggravated assault conviction, twenty-four years for attempted first degree murder, three

years for possession of a weapon during the commission of a felony, and four months for

resisting arrest. Counts one and two were ordered to run concurrently to each other, but

consecutively to counts three and four, which were ordered to run concurrently to each

other as well. All other sentences were concurrent, resulting in an effective sentence of

thirty-five years. The consecutive sentencing was based upon the appellant’s classification

as a dangerous offender and the appellant’s extensive criminal background.



       An appeal was duly perfected and, on October 24, 1997, this Court rendered its

opinion, affirming the appellant’s conviction and sentence for attempted second degree



the appellant, upon leaving a night club in Jackson, discovered that his car had been vandalized.
The appellant believed the person responsible was Ms. Washington.

                                              -3-
murder in count one and reversing and modifying the conviction for attempted first degree

murder to attempted second degree murder in count three. State v. Melvin Edward

Henning, No. 02C01-9703-CC-00126 (Tenn. Crim. App., Jackson, October 24, 1997).

Additionally, the Court dismissed the convictions for aggravated assault, finding a double

jeopardy violation. The trial court’s finding that the appellant was a dangerous offender

was also affirmed. The case was remanded to the trial court for entry of judgment on the

modified second degree murder conviction and for resentencing on that conviction and for

a determination of whether consecutive sentences were appropriate. Specifically, the trial

court was directed to determine whether the aggregate sentence imposed was reasonably

related to the severity of the offenses and was necessary to protect the public from further

criminal acts of the appellant as required by State v. Wilkerson, 905 S.W.2d 933 (Tenn.

1995).



         At the resentencing hearing, no evidence was presented. The State argued for a

maximum sentence of twelve years on the attempted second degree murder of Keith

Fason to be served consecutively with the eleven-year sentence previously imposed for

the attempted second degree murder of Michael Smith. Defense counsel sought a mid-

range sentence of ten years to run concurrently with the sentence previously imposed in

the Smith matter.



         At the conclusion of the hearing, the trial court, referencing and relying on its

decision and the reasons stated during the previous sentencing hearing, ordered a

sentence of eleven years for the modified attempted second degree murder conviction in

count three to run consecutively with the eleven years previously imposed in count one.



         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. Ashby, 823

S.W.2d 166 (Tenn. 1991). If the trial court fails to comply with the statutory directives,



                                            -4-
there is no presumption of correctness and our review is de novo. State v. Poole, 945

S.W.2d 93 (Tenn. 1997).



       The record reflects that, at the original sentencing hearing, the eleven-year sentence

imposed for the attempted murder of Michael Smith was based upon a finding of the

following enhancement factors: (1) the defendant has a previous history of criminal

convictions; (6) the personal injuries inflicted upon the victim were particularly great; and

(9) the defendant possessed a firearm during the commission of the offense. Tenn. Code

Ann. § 40-35-114. The victim testified that the appellant shot him one inch from the heart.

As a consequence of the shooting, Smith was hospitalized for one month, including nine

days in the intensive care unit. He underwent two surgeries due to injuries received to his

“kidney, spleen, liver, heart and lungs.” As a result of this incident, Smith asserted, “I am

destroyed for the rest of my life.”



       While enhancement factors (1) and (9) apply equally to the two attempted

homicides, the record reflects the only injury suffered by victim Fason was a cut on the arm

from a piece of shattered glass when a bullet passed through a nearby window and struck

a glass jar. Thus, there are three enhancement factors present in the attempted murder

of Smith and only two in the attempted murder of Fason.



       The State argues the fact the appellant also received an eleven-year sentence for

the attempted second degree murder of Michael Smith in a separate count has no bearing

on the propriety of the sentence in this case. On the other hand, the appellant avers it

amounts to an inequality between the two sentences which is unrelated to any purpose of

the Criminal Sentencing Reform Act of 1989. We agree with the appellant.



       Our de novo review of this record leads us to the conclusion that under these facts

and circumstances there is unjustified disparity in the sentencing of the appellant in the

instant case. Accordingly, we reduce the sentence from eleven to ten years. We

recognize that the weight to be afforded any existing enhancement and/or mitigating



                                            -5-
factors is left to the trial court’s discretion, but only so long as it complies with the purpose

and principles of the 1989 Sentencing Act and its findings are adequately supported by the

record. One of the stated purposes in the Sentencing Act is the elimination of disparity in

sentencing.



       As to the consecutive sentencing, the transcript of the resentencing hearing reflects

that the trial court again relied on the reasons stated during the original sentencing hearing

as the basis for imposing these consecutive sentences. The court stated:

              There is no reason to change that -- for the same reasons that
              I did impose consecutive sentences before on Counts 1 and 3.
              So -- he is a dangerous offender, etc. There is no reason to
              change that simply because it goes down from attempted first
              degree murder to attempted second degree murder on Count
              3.



       The trial judge failed to mention the Wilkerson factors, nor did he comment on the

appellant’s extensive record of criminal activity. However, under our power of de novo

review, we find the consecutive sentences are necessary to protect the public from further

criminal conduct by the appellant, are reasonably related to the severity of the offenses,

and are congruent with general sentencing principles.            The appellant was properly

sentenced to consecutive terms.



       We affirm the judgment as to the consecutive sentences and remand to the trial

court for entry of a judgment reflecting a ten-year sentence for the attempted second

degree murder of Keith Fason.




                                            ________________________________________
                                            JAMES C. BEASLEY, SR., SPECIAL JUDGE



CONCUR:




___________________________________


                                              -6-
JOHN H. PEAY, JUDGE




___________________________________
JOE G. RILEY, JUDGE




                                 -7-
