         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs June 28, 2005

           STATE OF TENNESSEE v. JEFFERY SCOTT SHERRILL

                       Appeal from the Circuit Court for Rhea County
                         No. 15481     Thomas W. Graham, Judge



                  No. E2004-02914-CCA-R3-CD - Filed September 16, 2005


The defendant, Jeffery Scott Sherrill, pleaded guilty to second degree murder. After conducting a
sentencing hearing, the trial court sentenced the defendant to serve a 25-year sentence as a Range
I violent offender. Aggrieved of his sentence, the defendant brings the instant appeal challenging
his sentence as excessive. After a thorough review of the record and applicable law, we affirm the
judgment of the lower court.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Phillip A. Condra, District Public Defender; and B. Jeffery Harmon, Assistant District Public
Defender, for the Appellant, Jeffery Scott Sherrill.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; and
James Michael Taylor, District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                On December 24, 1999, the defendant and his girlfriend, Kristy Howell, attended a
Christmas Eve party at a friend’s residence. After a fight broke out at the party, the defendant and
Ms. Howell left the party in the vehicle of another friend. The defendant originally requested to be
driven to Wolf Creek. The driver, who was intoxicated, told the defendant that he was unwilling to
drive the defendant that far. The driver agreed, however, to drive the defendant and Ms. Howell to
the residence of the victim, James Lowell Nixon. The defendant had known the victim for
approximately ten to fifteen years, and the defendant had lived with the victim periodically during
that period of time.

              According to the defendant’s testimony at his sentencing hearing, the defendant had
a sexual encounter with a female other than Ms. Howell at the victim’s house four or five days prior
to the victim’s murder. Ms. Howell learned of the encounter when she entered the victim’s house
at that time and discovered the defendant with this other female. The defendant testified that Ms.
Howell was angry with the victim for allowing the defendant to use his residence to meet another
female.

                 On the night of the murder and shortly after the defendant and Ms. Howell arrived
at the victim’s residence, Ms. Howell and the victim had an argument, and the defendant physically
separated the two individuals. Moments thereafter, Ms. Howell picked up a hammer in the residence
and hit the victim with the hammer in the head. The first blow incapacitated the victim, and Ms.
Howell continued to strike the victim in the head approximately six more times. The defendant
testified that he did not intervene because he was scared that Ms. Howell might attack him and
because the whole incident happened very quickly. 1 Afterwards, the defendant took the hammer
from Ms. Howell, put it in a sink, and ran water over it. Additionally, the defendant cut the gas line
in the victim’s residence. The defendant and Ms. Howell then went to another friend’s residence
where Ms. Howell called some relatives and asked them for money to enable her to flee town
because she had just hit a man with a hammer and killed him. One of these relatives contacted the
police, who in turn located the victim, who was dead when they arrived at his residence. The police
arrested Ms. Howell and the defendant. Ms. Howell and the defendant entered separate guilty pleas
to second degree murder.

                 Thereafter, the trial court conducted a sentencing hearing in which the defendant and
his mother testified on the defendant’s behalf. The court considered this testimony, the defendant’s
presentence report, and arguments of counsel and sentenced the defendant to serve a maximum 25-
year sentence within his applicable range of 15 to 25 years. The court enhanced the defendant’s
sentence based on the defendant’s extensive criminal history and because the defendant was on
parole at the time he committed the instant offense. The court found that no mitigating factors were
applicable to the defendant’s sentence.

                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This
presumption is conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the defendant. Id.
In the event the record fails to demonstrate the required consideration by the trial court, review of
the sentence is purely de novo. Id. If appellate review reflects that the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this court must


         1
            After his arrest, the defendant gave four different statements to law enforcement officers. In some of the
statements, the defendant claimed that Ms. Howell delivered all of the blows, and in other statements, the defendant
claimed that he delivered som e or all of the blows. The version of the crime recounted above has been summarized from
the defendant’s testimony at his sentencing hearing. However, as noted infra, the trial court expressed doubt abo ut the
accuracy of this version of the crime.

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affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The transcript of the defendant’s sentencing hearing reflects that the trial court made
careful and detailed findings when making its sentencing determination. Accordingly, we will afford
the court’s determinations a presumption of correctness. The trial court correctly began with the
midpoint in the defendant’s sentencing range, which is 20 years. Tenn. Code Ann. §§ 39-13-210(b)
(2003) (classifying second degree murder as a Class A felony), 40-35-112(1) (Range I sentence for
Class A felony, not less than 15 nor more than 25 years), 40-35-210(c) (presumptive sentence for
Class A felony is midpoint of range if there are no applicable enhancement or mitigating factors).

                 The court determined that no mitigating factors were applicable to the sentencing
determination but applied two enhancement factors: a previous history of criminal convictions or
behavior, id. § 40-35-114(2), and that the defendant had been released on parole when he committed
the instant offense, id. § 40-35-114(14)(C). The court determined that the application of the first
factor, the defendant’s substantial history of criminal convictions, enhanced the defendant’s
presumptive 20-year sentence by three years. The court then considered the final enhancement
factor, that the defendant was on parole when he committed the instant offense, and announced the
defendant’s 25-year sentence.

                 The defendant argues that the trial court erred by failing to consider three applicable
mitigating factors: factor (4), that the defendant played a minor role in the commission of the
offense; factor (11), that the defendant committed the crime under such unusual circumstances that
it is unlikely that he was motivated by a sustained intent to violate the law; and factor (13), that the
defendant had a gentle nature and had expressed remorse. Id. § 40-35-113(4), (11), (13). The state
counters that each of the defendant’s proposed mitigating factors are not applicable to his sentence
and that the trial court correctly applied two enhancement factors and sentenced the defendant to
serve a 25-year sentence.

                We first note that the defendant does not challenge the applicability of the two
enhancement factors applied to his sentence, that he has an extensive prior criminal record and that
he committed the instant crime while on parole. We hold that there is sufficient evidence in the
record to support the trial court’s application of these two factors. Next, we turn to the defendant’s
proposed mitigating factors. The defendant asserts that the court should have reduced his sentence
because he played a minor role in the commission of the instant offense. In support thereof, the
defendant asserts that his sentencing hearing testimony reflects that he did not deliver the fatal blows
to the victim and merely helped conceal the evidence of the crime after it had been committed. The
defendant asserts that because his role in the crime was minor, the state proceeded under the theory
of criminal responsibility when prosecuting him for this crime.

                However, the record of the defendant’s plea submission hearing and sentencing
hearing reflects that the defendant gave several contradictory versions of the events of the instant
crime to the police, and in one version, the defendant admitted repeatedly striking the victim with


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a hammer. Moreover, after the defendant testified at his sentencing hearing, the trial court opined
that the defendant’s sentencing hearing testimony recounting the events of the crime was not
credible, stating “I’m not convinced the way he told it is exactly the way it happened.” We note that
the assessment of witness credibility is entrusted to the sound discretion of the trial court. See State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Moreover, the court further determined that the facts
of the defendant’s case did not warrant the application of this mitigating factor after finding that the
defendant either delivered some of the blows himself or watched and failed to intervene as his co-
defendant delivered those blows. We find that the record supports the court’s refusal to apply this
mitigating factor.

                Next, we address the defendant’s argument that the trial court erroneously failed to
apply mitigating factor (11), that the offense was committed under such unusual circumstances that
it is unlikely he sustained an intent to violate the law. Tenn. Code Ann. § 40-35-113(11) (2003).
The defendant asserts that the evidence demonstrates that he was good friends with the victim and
that he went to the victim’s home on the night of his murder only by happenstance. In short, the
defendant asserts that his testimony supports the application of this factor. However, when
addressing the applicability of this factor, the trial court again alluded to its conclusion that the
defendant’s sentencing hearing testimony was not credible. Again, the court was in the best position
to assess the defendant’s credibility, and we hold that the record supports the court’s refusal to apply
this factor. By his own admission, the defendant attempted to conceal evidence of the crime, and
according to some of his statements made to law enforcement officers, he struck the victim with a
hammer.

                Finally, the defendant argues that the court should have reduced his sentence under
the catch-all provision of the statutory mitigation factors based on his reputation for having a gentle
nature and his remorsefulness. Tenn. Code. Ann. § 40-35-113(13) (2003). Although the trial court
did find that the defendant had expressed remorse, which is a proper basis for mitigation of a
sentence, see State v. Leggs, 955 S.W.2d 845, 850 (Tenn. Crim. App. 1997), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), the court questioned whether the defendant
was remorseful because he had committed a heinous crime or whether he was remorseful because
he had been successfully prosecuted for his crime and would be serving a substantial incarcerative
sentence. Absent a clear finding that the defendant was remorseful for his commission of the second
degree murder of the victim, we cannot say that the court erred by failing to apply this mitigating
factor. Moreover, although the defendant asserts that he has a peaceable and gentle nature, the only
evidence introduced to support the application of this mitigating factor is the defendant’s testimony,
which the trial court found incredible, and the testimony of the defendant’s mother, which the court
could have reasonably found to be biased. Accordingly, we conclude that the trial court acted
properly when refusing to apply these proposed mitigating factors.




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                In conclusion, we hold that the defendant’s 25-year sentence is reasonably supported
by the defendant’s history of criminal behavior, which includes 27 convictions2 all of which he
amassed in a 10-year period of time, as well as the fact that the defendant had been released on
parole when he committed the instant crime. The defendant testified that his extensive criminal
history was the result of his attempts to support his alcohol and drug addictions without being legally
employed, and the court found that the commission of the instant offense, which according to the
defendant occurred while he was intoxicated, was the unfortunate culmination of a life devoted to
supporting his habits. We agree and accordingly affirm the judgment of the lower court.3



                                                                    ___________________________________
                                                                    JAMES CURWOOD WITT, JR., JUDGE




         2
           The majority of the defendant’s convictions were for misdemeanor offenses. The state filed notice of its intent
to seek Range II classification for the defendant on May 10, 20 04, and the defendant pleaded guilty to the second degree
murder of the victim as a Range I violent offender on May 12, 2004.

         3
            We further note that the trial court declined to consider other potentially applicable enhancement factors, such
as the victim’s particular vulnerability du e to age or d isability, see Tenn. Code. Ann. § 40-35-114(5) (2003), based on
the then-recently announced United States Sup reme Court case of Blakely v. Washington, 542 U.S. 296, 125 S. Ct. 2531
(2004). The reco rd reflects that the victim was a diminutive man in his sixties whose physical state had been weakened
by his life of alcohol and substance abuse. See State v. Nathaniel Lee Jackson, No . M200 2-02 248 -CCA-R3-CD , slip
op. at 15 (Tenn. Crim. App., Nashville, June 7, 2004) (affirming application of enhancement factor (5) when defendant
bound a 69-year-old wom an); State v. Butler, 900 S.W .2d 305, 313 (Tenn. Crim. App. 199 4) (holding that application
of enhan cement facto r (5) is only applicable if the state establishes that the victim ’s age or disab ility made him or her
unab le to resist the commission of the crime). However, at the time of the defendant’s sentencing hearing, a sentencing
court’s ability to apply this facto r abse nt a jury-find ing had been called into question b y Blakely. Acco rdingly, the state
declined to argue its app licability, and the trial court failed to consider it and other enhancement factors. Since the date
of the defendant’s sentencing hearing, our supreme court has held that Blakely does not denote any constitutional
infirmities in Tennessee’s sentenc ing pro cedures. See State v. Gomez, 163 S.W .3d 6 32 (Tenn. 20 05), pet. to rehear
den’d (Tenn. 2005 ).



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