         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 September 25, 2007 Session

              STATE OF TENNESSEE v. MILTON LEBRON BYRD

                     Appeal from the Criminal Court for Hamilton County
                             No. 257167   Rebecca Stern, Judge



                      No. E2006-02619-CCA-R3-CD - Filed April 2, 2008


The defendant, Milton Lebron Byrd, was convicted of attempted first degree premeditated murder,
a Class A felony, and aggravated assault, a Class C felony. The trial court merged the offenses and
sentenced the defendant to life without the possibility of parole as a repeat violent offender. On
appeal, he contends that the evidence is not sufficient to support his conviction and that the repeat
violent offenders statute is unconstitutional in violation of the prohibition against cruel and unusual
punishment and of his due process and equal protection rights. We affirm the judgment of the trial
court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and NORMA MCGEE OGLE, JJ., joined.

Jerry H. Summers and Marya L. Wegenka, Chattanooga, Tennessee (on appeal), and Kelli L. Black,
Chattanooga, Tennessee (at trial), for the appellant, Milton Lebron Byrd.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Bates W. Bryan, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s stabbing his father’s girlfriend, Valnetta Blount. Ms.
Blount testified at the trial that on September 13, 2005, she lived with her boyfriend, Ernest Milton
Byrd; the defendant, Ernest Byrd’s son; and the three children she and Mr. Byrd had together. She
said she had been in a relationship with Mr. Byrd for about nineteen years and that they had lived
in a house on Third Avenue in Chattanooga for about a month before the stabbing occurred. She
said that at 1:30 p.m. on September 13, 2005, she and the defendant were the only people home. She
said they talked about $20 that she owed the defendant. She said she told the defendant that she did
not have the money but that she would get it for him. She said she and the defendant were not
fighting and that the defendant told her he was not mad at her.

        Ms. Blount testified that the defendant’s father, Mr. Byrd, came home shortly thereafter and
that he and the defendant began arguing. The defendant complained to Mr. Byrd that Ms. Blount
owed him $20, and Mr. Byrd offered to give the defendant $15. Ms. Blount said the argument was
a continuation of an argument the defendant and Mr. Byrd had a couple of days earlier, during which
Mr. Byrd told the defendant to get a job so he could get his own apartment. She said that at one
point after Mr. Byrd’s arrival at the house on September 13, 2005, Mr. Byrd was sitting on a couch
in the living room and she was standing near the front door talking on the telephone when the
defendant walked to the kitchen, which was through an open doorway adjacent to the living room.
She said that the defendant came out of the kitchen and toward her and that she did not see anything
in his hand, as he was holding his hand behind his back. She said that the defendant approached her,
told her, “I’ll teach you,” and stabbed her with a knife. She said that she struggled with the
defendant and that Mr. Byrd grabbed the defendant. She said the defendant had stabbed her in the
chest and tried to put the knife deeper into her chest. She said she feared she would die if the
defendant stabbed her any deeper.

        Ms. Blount testified that when Mr. Byrd grabbed the defendant, she ran from the house,
looking for someone to help her. She said she ended up on the porch of Cathy McKee, who lived
across the street from her. Ms. McKee called an ambulance, and while they waited on Ms. McKee’s
porch for the ambulance to arrive, the defendant was on the porch across the street shouting that
whoever called the police would be “next.” She said the defendant also shouted ,“[D]ie, b----, die.”
Ms. Blount was taken to the hospital, where she had surgery to treat the two stab wounds–one to her
chest and one to her arm–caused by the defendant. She identified a photograph of the knife that the
defendant used to stab her, which she said came from her kitchen. She also identified photographs
of her bloody cellular telephone and of blood stains on the sidewalk in front of her house.

        On cross-examination, Ms. Blount testified that she was not employed in September 2005
and was receiving government assistance. She said Mr. Byrd was self-employed and supported her
and their children. She said she lived in Kentucky apart from Mr. Byrd for some time and that she
had returned about two months before the stabbing. She said Mr. Byrd did not know she received
government assistance. She admitted that she was a drug user but denied using crack cocaine the
day of the incident. She said that on September 13, 2005, she and the defendant were at home alone
from about 10:00 a.m. until Mr. Byrd came home at 1:00 or 1:30. She said they had no problems
and did not fight, even though she owed the defendant $20 and the defendant owed her $40. She
said the defendant did not threaten to kill her before the stabbing.

        Dr. Vincent Mejia testified as an expert medical doctor and surgeon. He was the trauma
surgeon who treated Ms. Blount on September 13, 2005. He said Ms. Blount arrived at the hospital
with a stab wound in her chest and one in her “right upper extremity.” He performed surgery on Ms.
Blount and first performed a “pericardial window” and determined that there was no injury to her
heart. He said there was a transection, or complete division, of a vessel and a laceration to her lung


                                                 -2-
and pulmonary artery vessel. This caused a lot of bleeding, and almost one liter of blood had to be
drained from Ms. Blount’s chest. He described the injury to Ms. Blount’s arm as a “complex
laceration,” about ten centimeters long and deep enough to penetrate the muscle.

        On cross-examination, Dr. Mejia testified that he did not ask about the circumstances
surrounding Ms. Blount’s stabbing wounds when she was brought into the hospital. He identified
her medical records and acknowledged that they noted that Ms. Blount was conscious when she
arrived at the hospital and reported not having any numbness or weakness. He said a complete drug
screen was ordered on Ms. Blount. He said the stab wound to Ms. Blount’s chest was about seven
centimeters long. He said he could not determine how the wound to the arm occurred and that it was
not deep enough to penetrate the bone. Ms. Blount was discharged from the hospital on September
19 and readmitted on September 22 due to a “retained hemothorax,” which may have been caused
by an infection that may or may not have been caused by bacteria on the knife that penetrated her.

        Ernest Milton Byrd testified that he was the defendant’s father and that the defendant was
living in his home on September 13, 2005. He said that he got home from work on that day at
around 2:00 and had been home about ten minutes before the defendant stabbed Ms. Blount. He said
that when he arrived home, the defendant and Ms. Blount were talking about the $20 that Ms. Blount
owed the defendant. He said that he offered to give the defendant $15 but that the defendant told
him to “forget about it.” He said he went to the living room to watch television. He said there was
no further discussion or disagreement before the defendant went to the kitchen, then walked toward
Ms. Blount, said “I’ll teach you,” and stabbed her. He said he grabbed the defendant’s arm while
Ms. Blount ran out of the house. He said that the defendant told him, “I’m going to kill her,” and
that he had to hold the defendant to keep the defendant from chasing after Ms. Blount. He told the
defendant to stay inside the house while he went outside to check on Ms. Blount. He found Ms.
Blount on Ms. McKee’s porch with a towel held against her chest. He saw that Ms. Blount had been
stabbed in the chest and was bleeding badly.

        On cross-examination, Mr. Byrd testified that he came home at 2:00 because Ms. Blount had
requested money from him for gas. He said he and Ms. Blount had been together for eighteen or
nineteen years and had lived in the house on Third Avenue for about four or five months before the
incident occurred. He denied that he got into a fight with the defendant before the defendant stabbed
Ms. Blount. He said he was aware that Ms. Blount used crack cocaine, although he did not approve
of it and did not give her money for drugs.

        Cathy McKee testified that she lived across the street from Ms. Blount and Mr. Byrd. She
said that on September 13, 2005, she was washing dishes in her house when Ms. Blount knocked on
her door and asked her to call an ambulance. She said that shortly before that, she had seen Ms.
Blount and the defendant talking to each other outside. She said that she called 9-1-1 and that while
they waited for an ambulance to arrive, the defendant was outside his house shouting that whoever
called an ambulance was “going to be next.” She said the defendant also said, “[L]et the b---- die.”
She acknowledged that she did not see Ms. Blount get stabbed and that she met with Ms. Blount, Mr.
Byrd, and the district attorney, at the same time, a few weeks before the trial.


                                                -3-
        Tommy Fraley testified that he lived next door to Ms. Blount and Mr. Byrd. He said that he
was home on September 13, 2005, when he received a telephone call that caused him to go outside.
He said he saw Ms. Blount lying on the porch of the house across the street and bleeding. He said
the defendant was standing in the front yard of Ms. Blount’s and Mr. Byrd’s house shouting at them
not to “help that b----” and telling them to “let her die.” He said the defendant shouted until the
police arrived but did not leave the yard.

         Chattanooga Police Department Investigator Jeffery Gaines testified that he arrived at Ms.
Blount’s house on September 13, 2005, at about 2:20 p.m. He said another officer had arrived before
him and had the defendant in custody. He said that while he waited for the crime scene unit to
arrive, he obtained a list of witnesses and took statements from witnesses who were present. He said
he did not enter the house until the crime scene unit arrived about twenty minutes after he got there.
He said that officers from the crime scene unit took photographs of the scene and collected evidence
but that none of the evidence was tested. He said he did not talk to Ms. Blount until the next day,
when she was still in the hospital.

         Investigator Gaines testified that he worked in the police department’s domestic violence
unit. He said that the homicide unit was first called to respond to Ms. Blount’s stabbing but that they
left in order for the domestic violence unit to handle the investigation. He said he briefly spoke to
the defendant while the defendant was in a police car and agreed that the defendant was not
combative or argumentative. He identified the shirt that the defendant was wearing when arrested
and acknowledged that it did not appear to have blood on it.

      The jury found the defendant guilty of the charged offenses. The trial court ultimately
merged the two counts and sentenced the defendant under the repeat violent offenders statute.

                            I. SUFFICIENCY OF THE EVIDENCE

       The defendant contends that the evidence is insufficient to support his conviction for
attempted first degree murder. He argues that there is no evidence of premeditation and that, at most,
the evidence supports a conviction of attempted second degree murder or attempted voluntary
manslaughter. The state counters that the evidence is legally sufficient to prove attempted
premeditated murder.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn
all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding
witness credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).


                                                 -4-
        The defendant was charged and convicted of “unlawfully, intentionally and with
premeditation attempt[ing] to kill Valnetta Blount” in violation of Tennessee Code Annotated
section 39-13-202. That statute defines premeditation as follows:

               “[P]remeditation” is an act done after the exercise of reflection and
               judgment. “Premeditation” means that the intent to kill must have
               been formed prior to the act itself. It is not necessary that the purpose
               to kill pre-exist in the mind of the accused for any definite period of
               time. The mental state of the accused at the time the accused
               allegedly decided to kill must be carefully considered in order to
               determine whether the accused was sufficiently free from excitement
               and passion as to be capable of premeditation.

T.C.A. § 39-13-202(d). The presence of premeditation is a question for the jury and may be
established by proof of the circumstances surrounding the attempted killing. State v. Bland, 958
S.W.2d 651, 660 (Tenn. 1997). Our supreme court has noted the following factors that demonstrate
the existence of premeditation: the use of a deadly weapon upon an unarmed victim, the particular
cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, and calmness immediately
after the killing. Id.

        In the light most favorable to the state, the evidence in the present case shows that the
defendant came upon the unarmed victim with a knife and stabbed her. There is conflicting evidence
regarding whether the defendant and his father were arguing before the defendant stabbed Ms.
Blount. However, Ms. Blount testified that she had been in the house with the defendant all day and
had not been fighting or arguing with him. The defendant walked into the kitchen, grabbed a knife,
and then approached Ms. Blount while hiding the knife behind his back. The defendant’s attack was
a shock to both Ms. Blount and Mr. Byrd. The defendant stabbed Ms. Blount in the chest and
attempted to stick the knife further into her chest while Ms. Blount struggled, and his father had to
grab his arm to pull him off Ms. Blount. Ms. Blount also had a stab wound in her arm, which
indicates that the defendant attempted to stab Ms. Blount a second time. The defendant told Ms.
Blount, “I’ll teach you,” immediately before he stabbed her. Ms. Blount had severe internal bleeding
that required surgical treatment. The defendant shouted comments after the stabbing that indicated
that he did not want anyone to help Ms. Blount and hoped that she would die.

        This evidence is sufficient to establish the elements of attempted first degree murder,
including premeditation. Particularly relevant to the premeditation element are the facts that the
victim was unarmed and that the defendant walked into the kitchen to obtain a knife, held the knife
behind him while he approached an unaware Ms. Blount, and told Ms. Blount “I’ll teach you” just
before stabbing her. Although there was evidence that the defendant may have been arguing with
his father before he stabbed Ms. Blount, Ms. Blount testified that she and the defendant were getting
along well that day and were not fighting.



                                                 -5-
        In arguing that there is not sufficient evidence of premeditation, the defendant compares his
case to two recent cases in which this court held that the evidence was insufficient. In State v.
Michael H. Evans, No. M2005-02048-CCA-R3-CD, Humphreys County (Tenn. Crim. App. Sep. 19,
2006), the defendant stabbed and killed the victim after they had been drinking and had begun
fighting. This court held that the evidence did not show premeditation because there was no
evidence that the defendant “made any declarations of intent to kill the victim, made any
preparations to conceal the offense prior to stabbing the victim, or had a previously formed design
or intent to kill the victim.” Id. slip op. at 7. The court noted that there was no evidence that the
defendant procured the knife in his possession for the purpose of killing the victim, as the knife was
in the defendant’s possession earlier in the evening and the victim had even used the knife at one
point, and that the defendant appeared upset after the killing occurred. Id. The court noted that the
fact that the victim was unarmed was not alone sufficient evidence of premeditation. Id. This court,
in State v. Brandon Compton, No. E2005-01419-CCA-R3-CD, Knox County (Tenn. Crim. App. Oct.
13, 2006), noted similar factors and concluded that there was not sufficient evidence that the
defendant killed the victims with premeditation. In that case, the defendant and the victims were
involved in a drug deal, and the defendant chased after and shot the victims as they were attempting
to leave with his drugs and without paying. The court noted there was no evidence the defendant
had procured his weapon for the purpose of killing the victims and that his being armed and
attempting to conceal the crime afterwards were not sufficient facts to prove premeditation. Id. slip
op. at 6. The court further noted that the defendant’s hostility toward the victims was triggered by
the victims’ attempt to steal a large amount of drugs belonging to the defendant. Id. Thus, the court
concluded that the defendant’s intent to kill the victims was formed in passion. Id.

         The present case can be distinguished from these prior cases in that the evidence shows that
the defendant did not obtain the knife he used to kill Ms. Blount until just before he stabbed her.
There is also evidence that the defendant concealed the knife while he approached Ms. Blount.
While there is evidence that the defendant was upset about money that Ms. Blount owed him, we
cannot conclude that the evidence shows that the intent to kill was formed while the defendant was
in a state of passion as the defendant in Brandon Compton was. Moreover, while the defendant was
not calm after he stabbed Ms. Blount, he also did not appear upset over what he had done but rather
expressed hope that Ms. Blount would die from her wounds. We conclude that sufficient evidence
exists by which a jury could infer that the defendant formed the intent to kill Ms. Blount prior to his
stabbing her and that he committed the act with premeditation.

     II. CONSTITUTIONALITY OF REPEAT VIOLENT OFFENDERS STATUTE

         The defendant challenges the constitutionality of Tennessee Code Annotated section 40-35-
120, the repeat violent offenders statute. The record shows that the defendant was convicted of
second degree murder in 1992, which, after his current attempted first degree murder conviction,
qualified him as a “repeat violent offender” under section 40-35-120(a)(3)-(4). Under the statute,
the trial court ordered the mandatory sentence of life without the possibility of parole. The defendant
contends the act provides unconstitutionally cruel and unusual punishment and violates his
constitutional rights to due process and equal protection of the law.


                                                 -6-
                                 A. Cruel and Unusual Punishment

        The defendant contends that the repeat violent offenders statute is cruel and unusual
punishment, in violation of both the federal and state constitutions. See U.S. Const. amend. VIII;
Tenn. Const. art. I, § 16. We note that the Eighth Amendment gives large discretion to the punishing
jurisdiction to determine appropriate sentencing schemes. Rummel v. Estelle, 445 U.S. 263, 100 S.
Ct. 1133, 1145, 63 L. Ed. 2d 382 (1980). In this regard, our legislature is entitled to “distinguish
among the ills of society which require a criminal sanction, and may punish them appropriately
without violating constitutional limitations.” State v. Hinsley, 627 S.W.2d 351, 355 (Tenn. 1982).
In determining whether a punishment is cruel and unusual, we consider (1) whether the punishment
conforms to contemporary standards of decency, (2) whether it is grossly disproportionate to the
offense, and (3) whether it goes beyond that necessary to achieve a legitimate penal objective. State
v. Black, 815 S.W.2d 166, 189 (Tenn. 1991).

         In addressing the defendant’s contention, we will review the three factors outlined in Black,
while also considering that “we are required to indulge every presumption and resolve every doubt
in favor of the constitutionality of the statute.” In re Burson, 909 S.W.2d 768, 775 (Tenn. 1995).
First, regarding whether the defendant’s sentence comports with contemporary standards of decency,
the defendant argues that it does not because our Sentencing Reform Act generally allows for judicial
discretion and the consideration of relevant mitigating factors in setting sentences, whereas the repeat
violent offenders statute requires a mandatory sentence. As the defendant points out, our supreme
court has noted that the “‘clearest most reliable objective evidence of contemporary values is the
legislation enacted by the country’s legislatures.’” Van Tran v. State, 66 S.W.3d 790, 800 (Tenn.
2001) (quoting Penry v. Lynaugh, 492 U.S. 302, 331, 109 S. Ct. 2934, 2953 (1989)). What the
defendant does not acknowledge, however, is that many states have laws “providing for enhanced
sentencing of repeat offenders” and that “[r]ecidivism has long been recognized as a legitimate basis
for increased punishment.” Ewing v. California, 538 U.S. 11, 24-25, 123 S. Ct. 1179, 1187-88
(2003). Furthermore, our legislature has stated that the Sentencing Reform Act is premised in part
on meting out punishment in relation to the seriousness of offenses committed and the criminal
histories of offenders. See T.C.A. § 40-35-102. In addition, the defendant has not argued or
demonstrated that the majority of the public regards the sentence of life without the possibility of
parole as an unacceptable punishment for defendants with multiple violent felony convictions.
Cf. Black, 815 S.W.2d at 189 (“In determining whether the death penalty conforms with
contemporary standards of decency, we note that there is nothing to indicate that the majority of
contemporary Tennesseans consider the death penalty per se an inappropriate punishment for first
degree murder.”) In establishing a mandatory, severe punishment for defendants convicted of
multiple violent felonies, the statute does not conflict with contemporary standards of decency.

        Turning to the second factor, we conclude that the sentence of life imprisonment without the
possibility of parole is not grossly disproportionate to the offense. We note that federal courts have
stated that “only an extreme disparity between crime and sentence offends the Eighth Amendment.”
United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000). We further note that the United States
Supreme Court has upheld a mandatory sentence of life without the possibility of parole in a case


                                                  -7-
involving a first-time felony conviction for possession of more than 650 grams of cocaine. Harmelin
v. Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680, 2701 (1991); cf. Solem v. Helm, 463 U.S. 277,
296-97, 103 S. Ct. 3001, 3013 (1983) (holding unconstitutional sentence of life without the
possibility of parole for recidivist defendant’s conviction of uttering a no account check, which did
not involve violence or threat of violence, when prior offenses were all “relatively minor.”) Our
supreme court has held that

               the proper means by which to evaluate a defendant’s proportionality
               challenge under the Tennessee Constitution is that set forth by Justice
               Kennedy in Harmelin . . . (Kennedy, J., concurring in part). Under
               this methodology, the sentence imposed is initially compared with the
               crime committed. Unless this threshold comparison leads to an
               inference of gross disproportionality, the inquiry ends–the sentence
               is constitutional. In those rare cases where this inference does arise,
               the analysis proceeds by comparing (1) the sentences imposed on
               other criminals in the same jurisdiction, and (2) the sentences
               imposed for commission of the same crime in other jurisdictions.

State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992). Although the defendant’s sentence is second
only to the death penalty for sentence severity in our criminal justice system, we cannot conclude
that it is grossly disproportionate when compared to his violent felony offense, attempted first degree
premeditated murder. We are also unpersuaded by the defendant’s argument that his sentence is
disproportionate because his punishment for criminal attempt under the repeat violent offenders
statute is the same sentence he could have received if he had actually completed the offense of first
degree murder. As the state points out, the defendant could have faced a possible sentence of death
if he had completed the crime. In sum, the defendant’s sentence is not grossly disproportionate.

           Finally, the defendant’s sentence under the repeat violent offenders statute does not go
beyond what is necessary to achieve a legitimate penal objective. This court has previously stated
the purpose and principles of our sentencing statutes:

               The purpose of the sentencing statutes is to promote justice. Tenn.
               Code Ann. § 40-35-102. Among the sentencing principles designed
               to promote that purpose are the principles of preventing crime and
               promoting respect for the law by providing a deterrent to those likely
               to violate the law and incarcerating defendants who commit the most
               serious offenses. Tenn. Code. Ann. § 40-34-12(3)(A), (5).
               Furthermore, the legislature has a legitimate interest in protecting
               citizens from crime as a part of the state’s police power.

State v. Wyrick, 62 S.W.3d 751, 792 (Tenn. Crim. App. 2001). The defendant’s only complaint with
regards to his sentence not meeting these penal objectives is that the repeat violent offenders statute
cannot be an effective deterrent and achieve penal goals unless potential offenders are aware of the


                                                 -8-
statute, which is not required. However, as the Wyrick court noted in rejecting an ex post facto
challenge to the statute, a person who has committed one of the violent offenses specified in the
statute is “presumed to be on notice that any subsequent convictions for violent offenses could
subject him to a life sentence under the repeat violent offenders statute.” Id. at 794. The
effectiveness of the statute in accomplishing penal objectives does not depend on prior actual notice
of the consequences one might face under the statute. The defendant has provided no evidence that
the statute goes beyond what is necessary to achieve the objectives of promoting justice, preventing
and deterring crime, and protecting citizens. The statute does not violate constitutional provisions
against cruel and unusual punishment.

                               B. Due Process and Equal Protections

        The defendant also contends that his sentence under the repeat violent offenders statute
violates his constitutional rights to due process and equal protection of the law. See U.S. Const.
amend. XIV; Tenn. Const. art. I, § 8; Tenn. Const. art. XI, § 8. The defendant acknowledges that
this court has previously rejected similar constitutional challenges to the repeat violent offenders
statute. See Wyrick, 62 S.W.3d 751; State v. Bobby Joe Gentry, No. E2003-01069-CCA-R3-CD,
Knox County (Tenn. Crim. App. May 6, 2004). However, he asserts that he raises new issues
related to the statute’s constitutionality under the due process and equal protection clauses that were
not discussed in Wyrick and Bobby Joe Gentry.

        The defendant argues that his due process rights were violated because he “did not receive
prior notice that a conviction for a subsequent violent offense would result in a life sentence without
the possibility of parole.” The defendant complains that his first violent felony conviction for second
degree murder occurred in 1992, before the repeat violent offenders act took effect. In rejecting this
same argument in Wyrick, this court explained:

                       Penalty “enhancing statutes only enhance the sentence for the
               triggering offense, rather than punish prior acts.” State v. Johnson,
               970 S.W.2d 500, 505 (Tenn. Crim. App. 1996) (holding that the
               multiple rapist statute does not operate to increase punishment for a
               prior offense ex post facto but instead only enhances the punishment
               for the triggering offense). Although the repeat violent offender
               statute looks to prior violent offenses–here the 1987 rape
               conviction–to determine whether a defendant qualifies as a repeat
               violent offender, it is the triggering offense–here the two aggravated
               rape convictions–for which the life sentence is imposed. See Tenn.
               Code. Ann. § 40-35-120(g) (providing that the “court shall sentence
               a defendant who has been convicted of any offense listed in
               subdivision (b)(1), (c)(1), or (d)(1) to imprisonment for life without
               possibility of parole if the court finds beyond a reasonable doubt that
               the defendant is a repeat violent offender as defined in subsection
               (a)”). In other words, the statute disadvantages the defendant in


                                                 -9-
               relation to his present offenses rather than his 1987 conviction.
               Because the repeat violent offender statute was in effect before the
               defendant committed the present offenses, no ex post facto problem
               arises.

                        The same reasoning applies to the defendant’s due process
               argument. The defendant summarily contends that the repeat violent
               offender act violates his right to due process because he did not know
               at the time he pled guilty to rape in 1987 that this conviction could
               later be used to qualify him for repeat violent offender status. The
               portions of the repeat violent offender statute that apply to the
               defendant became effective on July 1, 1995. At that point, the
               defendant was presumed to be on notice that any subsequent
               convictions for violent offenses could subject him to a life sentence
               under the repeat violent offender statute. . . . The statute does not
               violate his due process rights.

Wyrick, 62 S.W.3d at 793-94. The defendant in the present case does not present any new argument
which leads us to a different conclusion, although he also points out that the law is known and
captioned as the “Three strikes” law, while he was convicted after only “two strikes.” However, the
Wyrick court also addressed this issue and concluded that it did not affect the validity of the law.
Id. at 790. The defendant’s sentence does not violate his due process rights.

        Regarding his equal protection claim, the defendant argues that the statute “does not extend
the notice requirement for enhanced punishment for subsequent offenses to all repeat defendants.”
The defendant compares the statute to the enhancement of punishment for subsequent driving under
the influence (DUI) convictions under Tennessee Code Annotated section 55-10-403(g)(1), which
requires that “[a]ny person convicted of an initial or subsequent offense shall be advised, in writing,
of the penalty for second and subsequent convictions.”

        In Wyrick, this court held that the repeat violent offenders statute does not violate equal
protection provisions because it treats different classes of defendants differently. The court
concluded that a rational basis existed for this different treatment. The court reasoned:

                       Equal protection of the law requires that the state treat persons
               under like circumstances and conditions the same. Genesco, Inc. v.
               Woods, 578 S.W.2d 639, 641 (Tenn. 1979), superseded on other
               grounds by Combustion Eng’g, Inc. v. Jackson, 705 S.W.2d 655
               (Tenn. 1986). . . . “[R]ecidivist statutes do not violate either the equal
               protection or the due process provisions of the State and Federal
               Constitutions.” State v. Yarbro, 618 S.W.2d 521, 525 (Tenn. Crim.
               App. 1981) (evaluating enhanced punishment for a second offense of
               possession of a controlled substance); see also Glasscock v. State,


                                                 -10-
                570 S.W.2d 354, 355 (Tenn. Crim. App. 1978) (observing that the
                law is well-settled that the Habitual Criminal Statute does not violate
                equal protection or due process); Moore v. State, 563 S.W.2d 215,
                218 (Tenn. Crim. App. 1977) (holding that the enhancement of the
                defendant’s “present punishment . . . because of his status as an
                habitual criminal violates no constitutional provision, State or
                Federal”). In State v. Taylor, this court held that the Class X Felonies
                Act of 1979 did not violate equal protection because the Act treated
                all defendants under like circumstances and conditions alike. 628
                S.W.2d 42, 47 (Tenn. Crim. App. 1981). The Class X Felonies Act
                listed eleven felonies that were dangerous to human life and provided
                that these felonies were “determinate in nature, not subject to
                reduction for good, honor or incentive or other sentence credit of any
                sort, . . . terminate only after service of the entire sentence, and shall
                not be subject to pretrial diversion.” Id. (citing Tenn. Code Ann. §
                39-5403 (repealed 1989)). Similarly, the repeat violent offender
                statute treats defendants who have committed either two or three of
                certain specified violent offenses alike in that it imposes a sentence
                of life without parole for all qualifying defendants. See Tenn. Code
                Ann. § 40-35-120(g). Repeat violent offenders are under different
                circumstances than defendants who have not committed at least two
                violent offenses. Therefore, the equal protection of the law does not
                require that these two categories of offenders be treated alike.

Wyrick, 62 S.W.3d at 792. After discussing the purpose and principles of our sentencing laws, the
Wyrick court further concluded that “[t]he legislature’s decision to impose the very severe sentence
of life imprisonment without possibility of parole upon those criminals who repeatedly commit
violent offenses is rationally related to its desire to protect the public and deter crime.” Id. See also
Bobby Joe Gentry, slip op. at 26-27 (holding that repeat violent offenders statute does not violate
defendant’s equal protections rights because “other statutes require that a jury determine whether a
previous offense was committed and the violent offender statute mandates that the trial court make
this determination” or because the statute “treats some violent offenders differently than other violent
offenders”). In our view, part of the legislature’s decision to impose a severe penalty on defendants
who repeatedly commit specifically enumerated violent offenses is its decision not to require more
notice to such felons than is required under the constitution. Its different treatment of DUI offenders
does not violate equal protection provisions. This issue is without merit.

                                           CONCLUSION

       Based on the foregoing and the record as a whole, we conclude that the evidence is sufficient
to support the defendant’s conviction of attempt to commit first degree premeditated murder. We




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also conclude that the defendant’s sentence under the repeat violent offenders statute is not
unconstitutional. The judgment of the trial court is affirmed.


                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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