         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 20, 2008

                STATE OF TENNESSEE v. JECORY J. LEONARD

               Direct Appeal from the Circuit Court for Montgomery County
                        No. 40700807    Michael R. Jones, II, Judge



                      No. M2008-00179-CCA-R3-CD - filed July 23, 2009


The appellant, Jecory J. Leonard, pled guilty in the Montgomery County Circuit Court to facilitation
of second degree murder and facilitation of attempted first degree murder, Class B felonies. The plea
agreement provided that the length and manner of service of the sentences would be determined by
the trial court. Following a sentencing hearing, the appellant was sentenced to concurrent sentences
of ten years in the Tennessee Department of Correction. On appeal, the appellant challenges the
length of the sentences imposed and the denial of alternative sentencing. Upon our review of the
record and the parties’ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES, J., joined.
JOHN EVERETT WILLIAMS, J., concurred in results only.

Mart G. Fendley, Clarksville, Tennessee, for the appellant, Jecory J. Leonard.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; John
Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

        On July 2, 2007, the Montgomery County Grand Jury returned a multi-count indictment
charging the appellant with the first degree premeditated murder of Sylvester Hockett, the first
degree felony murder of Sylvester Hockett, seven counts of attempted first degree murder, and seven
counts of aggravated assault.1 After plea negotiations, the appellant pled guilty to the lesser included
offense of facilitation of the second degree murder of Sylvester Hockett and to the lesser included
offense of facilitation of the attempted first degree murder of Alonza Slayden. In exchange for the
guilty pleas, the remaining counts of the indictment were dismissed.

        A transcript of the guilty plea hearing was not included in the record on appeal. However,
at the sentencing hearing the State submitted the appellant’s presentence report as an exhibit. The
report summarized the actions underlying the appellant’s guilty pleas as follows:

                         Count 2: Defendant, along with several co-defendants,
                 traveled to the area of Caldwell Lane to “fight with some Greenwood
                 boys[.”] As a result, Sylvester Hockett, Jr. was shot in the head and
                 died later at Vanderbilt Hospital.

                         Count 15: Defendant, along with several co-defendants, went
                 to an area on Greenwood Avenue to fight. An altercation between
                 defendant and his friends and another group of individuals started at
                 a local bar. The “fight” then moved to Greenwood Avenue.

                          When defendant and his friends arrived, several shots were
                 fired at the group of individuals. Victim, Alonza Slayden[,] was in
                 the group of individuals.

         The State’s first witness at the sentencing hearing was Tyrece Dante Ravana Lowry, a
twenty-one-year-old co-defendant of the appellant. Lowry testified that he had entered a guilty plea
for his participation in the incident underlying the appellant’s convictions. Lowry stated that he was
a member of a gang called the Bloods and that on the evening in question he was at a club, Tipper’s,
with some fellow gang members. While at the club, the Bloods and some “Greenwood boys” were
involved in an altercation and shots were fired. Lowry claimed that his friends did not fire any of
the shots.

         Lowry testified that afterward, he left the club and went to Deon Murray’s residence. Also
at the residence were the appellant, Murray, John Buggs, Deontrea Milligan, Jermaine Smith, Kenny
Peachman, and Shawn Robinson. Lowry said that Peachman, Murray, Milligan, and Smith had guns.
He recalled that the men were “just kicking back” when two females came in and told them that
some of the Greenwood boys had made disrespectful remarks to them. Lowry said none of the
Bloods wanted to be “disrespected.”




        1
            The appellant’s attempted first degree murder and aggravated assault charges concerned the following
victims: Nikelia Patterson, Alonza Slayden, Jeremy Rugante, Christa Hassell, Cedrick Carney-Henderson, Christopher
Fletcher, and DeAuntrey Kelly.
                                                       -2-
         Lowry said that after the Bloods heard about the disrespectful remarks, someone telephoned
Ronald Cowling, the leader of the gang, to ask if they should go to Greenwood. Lowry recalled that
the appellant said that “he wanted to go up there, so we all was like well, we ain’t going to let you
leave by yourself.” Nine gang members, traveling in three cars, went to Greenwood. The appellant,
Smith, and Milligan drove the three cars. Lowry said, “[T]here was a gun in every car.” Lowry
believed that the appellant knew guns were being taken to Greenwood because the guns had been
in the residence and said that “there was some discussion about who had guns and who did not . .
. until everybody got in the car.” Lowry said that four people were in his car: the appellant, Lowry,
Murray, and Buggs. The appellant did not have a gun, but Murray and Buggs each had a gun. Lowry
stated that it was not unusual for the gang members to carry guns but that it was unusual for them
to shoot at people. Lowry acknowledged that he anticipated the shooting in Greenwood.

       Lowry testified that the appellant was driving the lead car. When the Bloods arrived in
Greenwood, people were standing outside houses, but, because of the darkness, Lowry could not see
how many. Lowry estimated that the Bloods’ vehicles were approximately twenty-five or thirty
yards away from the houses when the appellant’s vehicle began to slow down and the Bloods started
shooting. Lowry stated, “Nobody said shoot, but the car slowed down.” Lowry said that “the clips
were emptied,” but he did not know how many shots were fired. Lowry said that he did not see any
weapons on the people in Greenwood and that they were not trying to stop the Bloods’ vehicles.

         Deon LaShaun Murray testified that he was twenty years old and that fellow gang member
Deontrea Milligan was his half-brother. He acknowledged that he had pled guilty for his role in the
offense and was awaiting sentencing. Murray recalled that on the night of the shooting, some of the
gang members gathered at Tipper’s. While they were at the club, the appellant fired Murray’s pistol
into the air. Afterward, the gang members congregated at Murray’s trailer. Two girls came to the
trailer and told the gang that some Greenwood boys had “basically . . . called [the Bloods] out.” The
message angered the Bloods. Murray said that the appellant and other people “suggested” going to
Greenwood to fight. Murray heard that Cowling, the leader of the gang, had been called and that he
had instructed them not to go to Greenwood. Murray said that despite Cowling’s instruction, “[the
appellant] and Milligan were hyping [the gang members] up to go.” Murray acknowledged that
without the influence of the appellant and Milligan, he probably would not have gone to Greenwood
that night.

        Murray testified that the group did not talk about taking guns; however, it was not unusual
for them to carry guns. Murray said that four men were in his vehicle; the appellant and Lowry did
not have guns, but Murray had a .380 caliber pistol and Buggs had a 9 millimeter pistol. Regardless,
Murray averred that he did not anticipate the shooting at Greenwood.

        Murray testified said that when the gang members arrived at Greenwood, the appellant
stopped the vehicle to allow them to get out of the vehicle and fight. However, before they could
exit the vehicle Murray heard gunfire and thought it had come from the Greenwood crowd. He
acknowledged that none of the vehicles were hit by gunfire. After Murray heard shots, Buggs began
shooting and Murray fired about four rounds from his weapon.


                                                 -3-
        Clarksville Police Detective Timothy Finley testified that he was the lead investigator in the
case. One man, Sylvester Hockett, Jr., was killed by the gunfire. Detective Finley said that nine
people, including the appellant, were arrested in connection with the incident. When the appellant
was arrested, he initially claimed he was not involved in the crime. However, he later admitted that
he was driving one of the three cars. The appellant disclosed to police the names of the individuals
who had fired weapons from his vehicle. The appellant said that when the gang members arrived
at Greenwood, he stopped the vehicle and the gunfire commenced. The appellant told police he
knew Peachman was armed with a shotgun when the gang members left for Greenwood. Detective
Finley said none of the perpetrators ever claimed self-defense.

       Pittman Brumley, a former cellmate of the appellant, testified on behalf of the appellant.
Brumley stated that he had “been born again, in Christ” and that the appellant had a “similar spiritual
outlook.” Brumley said that he and the appellant shared their spiritual views with other inmates at
a Bible study group and a prayer group. Brumley said that the appellant had renounced his gang
membership, despite some opposition from his fellow “charge partners.” Brumley believed that the
appellant had a “sincere desire to know God and to change.”

        Deputy Samuel Shoopman, a jailer at the Montgomery County Jail, testified that he had never
had any problems with the appellant nor had he ever had to discipline the appellant. Thereafter, the
State stipulated that the appellant had not had any disciplinary problems in jail.

       Pamela Denise Leonard, the appellant’s sister-in-law, testified that she had been married to
the appellant’s older brother, Victor, for eleven years and that she had known the appellant “since
he was a baby.”2 She said the appellant’s upbringing was “very tough . . . not supportive.” The
appellant was raised by his mother, and his father was not a part of his life. Pamela said that her
home was stable and religious. She testified that if the appellant were released on probation, he
would be welcome to stay in her home. She said she believed the appellant now understood the
“seriousness of life” and had developed a closer relationship with God.

         Victor Leonard, the appellant’s brother, testified that he was thirty-eight years old. He said
that if the appellant were released on probation, he had a job waiting for him at Victor’s workplace.
Victor stated that during their childhood, he and the appellant had to fend for themselves. The
family moved frequently, and their mother worked. He opined that the appellant did “what he had
to do to survive.” Victor said that he had “little troubles” when he was younger but that his life
turned around when he married.

        Victor testified that his family was religious and that it associated only with people who were
religious and family-oriented. He said the appellant was welcome to live with him as long as he was
willing to abide by the family’s rules.




         2
         Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to utilize their first
names. W e mean no disrespect to these individuals.
                                                           -4-
        Brittney Angelica Lewis, the appellant’s twenty-one-year-old niece, testified that she was
employed and was a sophomore at Austin Peay University. She said she and the appellant were close
growing up. She said that the appellant had changed since he had been in jail, explaining that he
smiled more, seemed happy, and had “more of an uplifting spirit.” She described the appellant as
“mean” and “angry” before his incarceration. Lewis stated that the appellant now had a Christian,
spiritual attitude similar to her own.

        Lewis testified that when the appellant was growing up, he “didn’t always have the most
favorable environment.” She maintained that because the appellant’s family moved so frequently,
he “had to adapt to the streets to survive.” She opined that because the appellant’s father was not
actively involved in his life, the appellant felt neglected at home and chose the gang lifestyle.

        Erion Wilson, the appellant’s twenty-one-year-old fiancé, testified that the appellant’s
outlook had changed since his incarceration. She said he was calmer, easier to get along with, and
had developed a “spiritual side.” The appellant told Wilson he admired his brother and his niece,
and he realized his family “was there for him.” Wilson said she did not know the appellant was in
a gang, she had never seen the “gang banger” side of him, and she had never met any of his gang
friends.

       The appellant’s mother, Constance Leonard, testified that she did not have trouble with the
appellant until he was fourteen years old. She acknowledged that the family had moved ten or
twelve times during the appellant’s childhood. Constance said that after the appellant’s
incarceration, she visited him frequently until she “got stressed” and moved to Atlanta to be with her
son, Eddie McMillan. Constance said that since his incarceration, the appellant had become more
loving, forgiving, and understanding. She said she became aware of the appellant’s gang
involvement when he was fifteen years old.

        The appellant testified that his childhood lacked stability, and he “ventured out . . . [and]
looked up to the people in the street.” He said his mother had a difficult time being a single parent.
After an injury prevented him from playing ball, he lost interest in school and dropped out at age
sixteen. He acknowledged that he had been arrested as a juvenile for underage drinking and that he
had truancy problems.

       The appellant testified that on the night of the shooting, he and several gang members
gathered at Tipper’s. Some Greenwood boys showed up, and, when the club closed for the night,
the two groups were involved in an altercation. The appellant said the altercation was not physical
and consisted mainly of threats and arguing.

       He testified that after leaving the club, the Bloods returned to the residence the appellant
shared with Murray. Later, some girls came in and told the gang members that they had been
disrespected by some of the Greenwood boys. The Greenwood boys told the girls that if the Bloods
wanted to fight, they should come to Greenwood. The appellant called Cowling, the leader of the
Bloods. Cowling did not forbid the appellant from going to Greenwood, but he told the appellant


                                                 -5-
there was no need to go. The appellant disregarded Cowling’s advice and decided to go to
Greenwood.

        The appellant testified said that once he decided to go to Greenwood, he did not force other
gang members to go with him. The appellant admitted that he drove the first vehicle, but he denied
“leading the charge” to Greenwood. He said he thought there would be a fight; he did not anticipate
a shooting.

        The appellant testified that when the Bloods arrived in Greenwood, they saw eight or nine
people gathered in front of houses. The appellant stopped the vehicle so the Bloods could get out
and fight. At that point, the appellant heard gunfire but could not establish from where it originated.
Buggs and Murray fired their weapons, and the appellant drove away to escape the gunfire. Later,
when the appellant was apprehended, he told police about his participation in the events and revealed
the names of the other perpetrators. The appellant acknowledged that he knew the gang members
typically carried guns and that he had specifically seen Peachman with a gun that night. He further
acknowledged that he knew Peachman was on probation for a previous shooting incident. He
conceded that everyone who was standing in front of the houses that night had been in extreme
danger and could have been killed.

       The appellant apologized to the victim’s family. He said he had “found the Lord” since his
incarceration, and he wanted to get his life together. He said he had renounced his gang membership
and would face the consequences of his renunciation. He acknowledged that “drive by shootings”
had increased in the area.

        The trial court imposed a ten-year sentence for each offense and denied alternative
sentencing. On appeal, the appellant challenges the length of the sentences imposed and the denial
of alternative sentencing.

                                             II. Analysis

        Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee;
(7) any statement by the appellant in his own behalf; and (8) the potential for rehabilitation or
treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823
S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his
sentence(s). See Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if
the record reveals that the trial court adequately considered sentencing principles and all relevant



                                                  -6-
facts and circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

       In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

               (1) The minimum sentence within the range of punishment is the
               sentence that should be imposed, because the general assembly set the
               minimum length of sentence for each felony class to reflect the
               relative seriousness of each criminal offense in the felony
               classifications; and

               (2) The sentence length within the range should be adjusted, as
               appropriate, by the presence or absence of mitigating and
               enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c). Although the trial court should also consider enhancement and
mitigating factors, the statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-
35-114 (2006); State v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s
weighing of various mitigating and enhancement factors [is] left to the trial court’s sound
discretion.” Carter, 254 S.W.3d at 345.

        On appeal, the appellant argues that the trial court erred in determining the appropriate length
of his sentences by finding that the following mitigating factors did not apply to the appellant: the
appellant played a minor role in the commission of the offense and the appellant, because of youth
or old age, lacked substantial judgment in committing the offense. See Tenn. Code Ann. § 40-35-
113(4) and (6) (2006). The appellant maintains that the trial court “erred in relying upon an
unspoken enhancement factor relating to the [appellant’s] alleged gang membership and thereby
removing mitigating factor six.” The appellant also contends that the trial court erred by applying
enhancement factor (2), that the appellant was a leader in the commission of the offense, and
enhancement factor (7), that the offense involved a victim and was committed to gratify the
appellant’s desire for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(2) and (7) (2006).
Additionally, the appellant argues that because he did not possess a weapon during the offense, the
trial court erred in reducing his sentence by only two years.

        Initially, as we have noted, the appellant failed to include the transcript of the guilty plea
hearing in the record for our review. This court has previously stated, “A guilty plea hearing often
provides an important occasion for the state to present its proof, and thus, it is the equivalent of a
trial and should be made part of the record on appeal in order to comply with [Tennessee Code
Annotated section] 40-35-210.” State v. Bobby Blair, No. M2002-02376-CCA-R3-CD, 2003 WL
22888924, at *2 (Tenn. Crim. App. at Nashville, Dec. 5, 2003); see also State v. Shatha Litisser
Jones, No. W2002-02697-CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App. at Jackson,
July 14, 2003). Accordingly, the appellant’s “failure to include the transcript of the guilty plea


                                                  -7-
hearing in the record prohibits the court’s conducting a full de novo review of the sentence under
[Tennessee Code Annotated section] 40-35-210(b).” Jones, No. W2002-02697-CCA-R3-CD, 2003
WL 21644345, at *3. Regardless, from the proof adduced at the sentencing hearing, we conclude
that the trial court did not err in sentencing the appellant.

        First, we will address the trial court’s imposition of enhancement factor (2), that the appellant
was a leader in the commission of an offense involving two (2) or more criminal actors. See Tenn.
Code Ann. § 40-35-114(2). The appellant contends that he should not be considered a leader in the
commission of the offenses because he did not have a weapon and did not plan the shooting.
However, the trial court found that the appellant played a “very major role in the commission of the
offense[s],” noting that the appellant made telephone calls prior to leaving for Greenwood,
encouraged the group to go with him, and drove the shooters to the scene. The proof at the
sentencing hearing revealed that the appellant initiated the trip to Greenwood, and, once he decided
to go, the other gang members followed suit. Notably, Murray testified that without the appellant
“hyping [the gang] up to go,” he probably would not have gone to Greenwood. We conclude that
the trial court properly found that the appellant was a leader in the commission of the offenses.
Moreover, we agree with the trial court that the appellant played a significant role in the commission
of the offenses. We further conclude that the trial court properly refused to mitigate the appellant’s
sentences because he played a minor role in the offenses. See Tenn. Code Ann. § 40-35-113(6).

       The appellant also challenges the trial court’s application of enhancement factor (7), that the
offenses involved a victim and was committed to gratify the appellant’s desire for pleasure or
excitement. Tenn. Code Ann. § 40-35-114(7). The trial court stated:

                I relate that [factor] back to Tipper’s, then to the trailer, where they
                get into a frenzy about going, telephone calls[.] I don’t know that it
                is pleasure, but it was certainly excitement, so that they went there
                with the idea of guns, shooting, for excitement.

We again note the witnesses’ testimony that “[the appellant] and Milligan were hyping [the gang
members] up to go,” indicating that the appellant was excited about the prospect of a fight.
Moreover, the appellant’s own testimony reflects that he wanted to go to Greenwood and that he
anticipated the groups would fight. Accordingly, we conclude that the trial court did not err in
applying this enhancement factor.

        Next, we will address the appellant’s complaint that the trial court erred by not applying
mitigating factor (6), that the appellant, because of youth or old age, lacked substantial judgment in
committing the offense. Tenn. Code Ann. § 40-335-113(6). Regarding this issue, the appellant
maintains that the trial court “erred in relying upon an unspoken enhancement factor relating to the
[appellant’s] alleged gang membership and thereby removing mitigating factor six.”

        Our supreme court has stated that in determining whether factor (6) is applicable,



                                                  -8-
               courts should consider the concept of youth in context, i.e., the
               defendant’s age, education, maturity, experience, mental capacity or
               development, and any other pertinent circumstance tending to
               demonstrate the defendant’s ability or inability to appreciate the
               nature of his conduct.

State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993).

        The appellant testified that he decided to go to Greenwood to fight. He was aware that
various gang members were taking guns to Greenwood. The appellant knew that Peachman, who
had a shotgun, was on probation for a shooting offense. Despite this knowledge, the appellant chose
to engage in a fight with a rival gang. Like the trial court, we believe that the proof demonstrates
that the appellant “made a calculated judgment about the prospects for violence in the situation in
which [he] placed himself.” State v. Kelley, 34 S.W.3d 471, 481-82 (Tenn. Crim. App. 2000). There
is nothing in the record to indicate that the appellant lacked substantial judgment because of his
youth. Moreover, the record does not reflect that the trial court relied upon the appellant’s alleged
gang membership to deny mitigating factor six. The trial court merely stated that the appellant’s
decision making process was hampered by the influence of his gang membership not by his age. In
our view, the trial court properly declined to apply mitigating factor (6).

         The appellant also argues that the trial court erred in reducing his sentence by only two years
due to the appellant not possessing a weapon during the offense. At the sentencing hearing, the trial
court stated that if the appellant “had a weapon in his own hand, I would have no hesitation . . . to
give him twelve years. . . .” After considering the various enhancement and mitigating factors, the
trial court imposed a sentence of ten years. The appellant’s complaint is essentially a challenge to
the trial court’s weighing of enhancement and mitigating factors. Our supreme court has cautioned
that “the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh
properly the enhancement and mitigating factors.” Carter, 254 S.W.3d at 344. Therefore, we are
bound by a trial court’s decision as to the length of the sentence “so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the Sentencing Act.”
Id. at 346. In the instant case, the trial court complied with the purposes and principles of the
Sentencing Act. Thus, we conclude that the trial court did not err in imposing ten-year sentences.

       Finally, the appellant argues that the trial court erred in denying probation. Generally, an
appellant who is an especially mitigated or standard offender convicted of a Class C, D, or E felony
should be considered a favorable candidate for alternative sentencing absent evidence to the contrary.
See Tenn. Code Ann. § 40-35-102(6). The appellant was convicted of two Class B felonies.
Therefore, he is not considered to be a favorable candidate for alternative sentencing. However, an
appellant is eligible for alternative sentencing if the sentence actually imposed is ten years or less.
See Tenn. Code Ann. § 40-35-303(a) (2006). The appellant’s sentences meet this criteria.

       Under the 1989 Sentencing Act, sentences which involve confinement are to be based on the
following considerations contained in Tennessee Code Annotated section 40-35-103(1):


                                                  -9-
               (A) Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;

               (B) Confinement is necessary to avoid depreciating the seriousness of
               the offense or confinement is particularly suited to provide an
               effective deterrence to others likely to commit similar offenses; or

               (C) Measures less restrictive than confinement have frequently or
               recently been applied unsuccessfully to the defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court
should consider the defendant’s potential or lack of potential for rehabilitation when determining if
an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

       The trial court denied alternative sentencing based upon the need to deter others and to avoid
depreciating the seriousness of the offense. In State v. Hooper, 29 S.W.3d 1, 10-12 (Tenn. 2000),
our supreme court specifically noted five factors for consideration when denying probation solely
upon the basis of deterrence:

                       1) Whether other incidents of the charged offense are
               increasingly present in the community, jurisdiction, or in the state as
               a whole.

                       ....

                       2) Whether the [appellant’s] crime was the result of
               intentional, knowing, or reckless conduct or was otherwise motivated
               by a desire to profit or gain from the criminal behavior.

                       ....

                       3) Whether the [appellant’s] crime and conviction have
               received substantial publicity beyond that normally expected in the
               typical case.

                       ....

                       4) Whether the [appellant] was a member of a criminal
               enterprise, or substantially encouraged or assisted others in achieving
               the criminal objective.

                       ....



                                                -10-
                     5) Whether the [appellant] has previously engaged in criminal
               conduct of the same type as the offense in question, irrespective of
               whether such conduct resulted in previous arrests or convictions.

       In the instant case, the appellant admitted that drive-by shootings had increased in the area.
Additionally, the record reflects that the appellant was a member of a criminal enterprise when he
and his gang decided to perpetuate violence against rival gang members. Further, the appellant’s
own testimony reflects that his conduct was “the result of intentional, knowing, or reckless conduct.”
Accordingly, we conclude that the trial court did not err in denying alternative sentencing on this
basis.

        In order to deny an alternative sentence to avoid depreciating the seriousness of an offense,
a court should determine if the criminal act is especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree. See Zeolia, 928 S.W.2d at 462. In
the instant case, the appellant and his gang, armed with guns, drove to Greenwood anticipating a
confrontation. According to the proof at the sentencing hearing, there was no physical evidence to
suggest that any of the people in Greenwood were armed. Nevertheless, several shots were fired at
eight or nine individuals, one of whom was killed. The appellant acknowledged that all the
individuals were in “extreme danger” and could have been killed. We conclude that the trial court
did not err in denying probation based upon the seriousness of the offenses.

                                           III. Conclusion

       Finding no error, we affirm the judgments of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




                                                 -11-
