        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 18, 2009

                 STATE OF TENNESSEE v. DEONRAY J. FISK

                 Direct Appeal from the Circuit Court for Warren County
                        No. F-11077 Larry B. Stanley, Jr., Judge




                  No. M2007-02353-CCA-R3-CD - Filed July 20, 2010


Following a jury trial, Defendant, Deonray J. Fisk, was found guilty of three counts of
attempted second degree murder, a Class B felony, three counts of aggravated assault, a Class
C felony, and one count of unlawful possession of a handgun by a convicted felon, a Class
E felony. The Trial Court sentenced Defendant as a Range I, standard offender, to eleven
years for each attempted murder conviction, six years for each aggravated assault conviction,
and two years for the weapons conviction. The trial court ordered Defendant to serve his
sentences for attempted murder consecutively. The trial court ordered Defendant to serve
his sentences for aggravated assault concurrently with each other and with Defendant’s
sentence for attempted second degree murder in count one of the indictment. The trial court
ordered Defendant to serve his sentence for his weapons conviction consecutively with his
conviction for attempted second degree murder in count one and concurrently with the other
sentences for an effective sentence of thirty-five years. On appeal, Defendant argues that the
trial court erred in determining the length and manner of service of his sentences. After a
thorough review, we affirm the trial court’s judgments. We conclude, however, that double
jeopardy principles require that Defendant’s aggravated assault convictions in counts 4, 5,
and 6 of the indictment be merged with Defendant’s convictions of attempted second degree
murder in counts 1, 2, and 3, and we remand for the entry of corrected judgments consistent
with this opinion. Defendant’s effective sentence of thirty-five years remains unchanged.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES,
and R OBERT W. W EDEMEYER, JJ., joined.

Bud Sharp, McMinnville, Tennessee, for the appellant, Deonray J. Fisk.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General; Thomas Miner, Assistant District
Attorney General; and Jason Crain, Assistant District Attorney General, for the appellee, the
State of Tennessee.

                                         OPINION

I. Background

        David Marcindes, Aldon Estrada, and Jorge Baltista went to Wal-Mart on December
22, 2005, to shop for groceries. David Marcindes testified that as they were standing in the
check-out line, Defendant, who was standing behind him, made a hand gesture and spoke
“crazy pathos.” None of the three men spoke to Defendant. The men left the store and
placed the groceries in the back of Aldon Estrada’s truck. Aldon Estrada and Mr. Baltista
stated that they saw Defendant in the store’s parking lot in a white vehicle with a temporary
tag attached to the rear window. Aldon Estrada said that Defendant was sitting in the
passenger side of the vehicle.

        Aldon Estrada got into the driver’s seat of the truck, Mr. Baltista got into the front
passenger seat, and David Marcindes sat in a side seat in the cab with his back to the driver’s
side of the truck. The three men began to drive home on Highway 70E. Aldon Estrada saw
in front of him the white vehicle with the temporary tag which he had previously seen in the
Wal-Mart parking lot. Aldon Estrada pulled into the left lane and passed the vehicle. A
short time later, the men heard a sharp noise and thought that the one of the truck’s tires had
burst. They then realized that the noise was a gunshot. The white vehicle began to pass the
truck, and Alson Estrada saw flashes emanating from the muzzle of a gun. David Marcindes
fell over in his seat with a gunshot wound to his back right hip. The white vehicle passed
Aldon Estrada’s truck, crossed over the grass median separating the four lanes of traffic, and
began to drive back toward the truck. Aldon Estrada increased the speed of his vehicle and
drove past the white car. The men drove to the White County Hospital so that Mr. Marcindes
could receive treatment for his injury.

        Photographs of Aldon Estrada’s truck were introduced as an exhibit at trial. The
photographs showed two bullet strikes in the side of the truck’s bed, one bullet strike in the
extended cab’s panel behind which David Marcindes was sitting, and a fourth bullet strike
in the bottom of the driver’s side door.

       Deputy John Ford with the White County Sheriff’s Department, spoke with the
victims’ interpreter at the hospital and then contacted the Warren County Sheriff’s
Department. Deputy Ford searched Mr. Estrada’s truck on December 22, 2005. He

                                              -2-
recovered one projectile from the interior of the truck’s cab and another projectile in the bed
of the truck.

       Nancy Milley testified that in December 2005 she lived in the Wayside Trailer Park
in McMinnville. On December 27, 2005, Ms. Milley heard gunshots fired from the house
next door. Ms. Milley looked out her window and saw Defendant standing on the back porch
of the house. Ms. Milley called 911.

        Kevin Murphy, a detective with the Warren County Sheriff’s Department, drove to
the location of the reported shooting on Lowry Lane next to the Wayside Trailer Park.
Deputy Murphy saw Defendant standing on the back porch of the house. Deputy Murphy
approached Defendant who invited him into the house. As he entered the house, Deputy
Murphy noticed a 9 mm shell casing near the back steps. Defendant told Deputy Murphy that
he had not recently discharged a gun and denied that he had a gun. Defendant told Deputy
Murphy that the house belonged to Christy Fisk, his cousin’s wife, and Defendant could not
consent to a search of the house. The two men exited the house, and Defendant locked the
back door. Deputy Murphy telephoned Ms. Fisk at her place of employment and asked her
to return home.

        Ms. Fisk testified that Defendant spent the night at her home on December 26, 2005,
and was still there when Ms. Fisk left for work the next morning. Ms. Fisk said that
Defendant was alone in the house that morning. When she arrived home in response to
Deputy Murphy’s telephone call, Ms. Fisk consented to a search of her home. Deputy
Murphy searched Ms. Fisk’s house and found a 9 mm Taurus pistol located on the top of one
of the kitchen cabinets. Two more 9 mm shell casings were found in the back yard. Ms. Fisk
stated that she did not own a gun, and she had never seen the gun found in her home.

        Jim Hartman, an investigator with the Warren County Sheriff’s Department,
investigated the vicinity of the shooting on Highway 70E on December 22, 2005. With the
aid of strobe lights, Investigator Hartman located a 9mm shell casing approximately one mile
from the Highway 30 junction. Investigator Hartman left Deputy Phil Bollinbeck in charge
of the investigation of the crime scene while he traveled to the hospital to interview the
victims. The victims, through an interpreter, described the series of events leading up to the
shooting. Mr. Estrada and Mr. Baltista gave Investigator Murphy the receipts for their
purchases from Wal-Mart on December 22, 2007, with Mr. Estrada’s receipt numbered
06068 and Mr. Baltista’s receipt numbered 06069. Investigator Murphy later obtained
receipt no. 06070 from a Wal-Mart employee showing that the person in line behind Mr.
Estrada purchased socks, heat packs, and gloves.




                                              -3-
        Investigator Hartman participated in Defendant’s interview at the District Attorney
General’s office in McMinnville on December 27, 2005. Defendant denied any involvement
in the shooting, but he later acknowledged that he had spoken to the victims in the check-out
line at Wal-Mart on December 22, 2005. After Defendant’s interview, a vehicle matching
the victims’ description of the vehicle involved in the shooting was located on December 27,
2005, at the Rosewood Apartments. The temporary tag attached to the back window was
registered in the name of Thomas Bonner, Defendant’s father. A search of the vehicle
revealed a white, plastic bag from Wal-Mart containing a pair of socks and a pair of
Remington gloves. The prices listed on the items’ tags matched the prices reflected on
receipt no. 06070.

       Linda Farley, an employee of Wal-Mart, testified that the store’s receipts showed the
store’s assigned number and the number of the cash register generating the receipts. Ms.
Farley stated that receipts are numbered sequentially so that receipt nos. 06068 and 06069
were generated before receipt no. 06070.

       Thomas Bonner testified that he was scheduled for surgery on December 21, 2005.
Mr. Bonner stated that he loaned Defendant his vehicle because he was not going to be able
to drive for four or five days following the surgery. Mr. Bonner said that he did not
remember which day Defendant took his vehicle. Mr. Bonner acknowledged that he told the
investigating officers on December 27, 2005, that he loaned Defendant his vehicle on
December 21, 2005.

        Don Carmen testified that he is a special agent assigned to the Tennessee Bureau of
Investigation’s Crime Laboratory as a forensic scientist in the area of firearms identification.
Special Agent Carmen stated that he tested the 9 mm Taurus pistol recovered from Ms.
Fisk’s house, and the three shell casings found in her back yard and determined that the three
shell casings came from the Taurus pistol. Special Agent Carmen also compared the four
cartridge casings found on Highway 70E and the bullet and bullet fragments recovered from
Aldon Estrada’s vehicle with the 9mm pistol found in Ms. Fisk’s home and determined that
the bullet and cartridge casings were fired from the 9 mm pistol. Special Agent Carmen
stated, however, that “[t]he bullet fragments were in pieces, and it was very difficult to
determine anything” but the fact that the fragments had the same rifling profile as the bullet.

       The State rested its case-in-chief, and Defendant presented his defense. Shona
Cozelle testified that she was operating the cash register on December 22, 2005, when the
victims and Defendant made their purchases. Ms. Cozelle stated that she remembered the
four men because employees were talking about the shooting the next morning. Ms. Cozell
described the victims as “agitated.” Ms. Cozelle did not notice any altercation between



                                              -4-
Defendant and the victims. Ms. Cozelle said that Defendant was using his cell phone while
he stood in line.

        Chris Hollis testified that he was with Defendant on December 22, 2005, between
10:00 p.m. and midnight. Mr. Hollis said that he and Defendant went to Wal-Mart and then
sat in the store’s parking lot smoking marijuana. Mr. Hollis denied that they followed the
victim’s vehicle. Mr. Hollis said that he drove Defendant to Jamie Ivey’s house around
midnight and then went home.

       James Russell Davis, II, a special agent assigned to the T.B.I.’s microanalysis section
of the Crime Laboratory, testified that he analyzed a gunshot residue test taken from
Defendant on December 27, 2005 during Defendant’s interview with the investigating
officers. Special Agent Davis stated that he did not find any evidence indicative of gunshot
powder residue. Special Agent Davis said that generally residue will remain present on an
individual’s skin for approximately eight hours. On cross-examination, Special Agent Davis
acknowledged that he did not personally know the length of time which had elapsed between
the reported shooting and the performance of the test. Special Agent Davis also stated that
gloves could prevent the accumulation of gunshot powder residue on the individual’s hands.

        Defendant testified that he lived in Murfreesboro in December 2005, and he returned
to Warren County “a day or two before Christmas” to attend a funeral and spend the holidays
with his family. Defendant said that he went to Wal-Mart on December 22, 2005, to
purchase gloves, heat packs to put in the gloves, and insulated socks because the heater in
his father’s car was not working. Defendant remembered seeing the victims in front of him
at the check-out line, but he said that he did not engage in any conversation with the three
men. Defendant stated that he was on his cell phone the entire time that he stood in line and
was still on his cell phone when he exited the store. Defendant said that he sat in the parking
lot with Mr. Hollis and smoked marijuana. Defendant then drove to Whitaker Street to Ms.
Ivey’s house and got out of his vehicle. Defendant said that he let Mr. Hollis drive the
vehicle away with the understanding that Mr. Hollis would pick Defendant up the next
morning. Defendant stated that he did not leave Ms. Ivey’s house until the next morning.
Defendant said that he went to Ms. Fisk’s home on December 26, 2005. After Ms. Fisk left
for work the next morning, two of Defendant’s friends stopped by the house. Defendant took
a shower and when he returned to the living room, his friends were gone.

II. Sentencing Hearing

       Jennifer Craighead, a probation officer for the Tennessee Board of Probation and
Parole, prepared Defendant’s presentence report which was introduced as an exhibit at the
sentencing hearing without objection. Ms. Craighead testified that Defendant submitted his

                                              -5-
version of the incident during the preparation of the presentence report. Defendant denied
committing the offenses and wrote:

       [a]ll I ask is whatever time you give me that you understand your [sic] giving
       it to a man who’s not guilty of the charge[.] Yes I was at Wal-Mart and yes
       I was at the house [where] they found the gun[,] but I wasn’t the only Black
       man at [Wal-Mart] with ta[t]toos on his neck and I wasn’t the only person or
       persons at that house!!

       Ms. Craighead said that Defendant entered a plea of guilty to robbery, a Class C
felony, in 2001 and was sentenced to five years. Ms. Craighead stated that Defendant was
denied parole and served his entire sentence. In 2006, while he was incarcerated on the
current charges, Defendant entered a plea of guilty to possession of hydrocodone, a Class A
misdemeanor, and was sentenced to eleven months, twenty-nine days. Defendant reported
that he began using marijuana at sixteen and “used about a quarter a day.” Defendant
reported that he began using cocaine when he was twenty-one and used “a couple of grams”
almost every day until he was incarcerated on the current charges.

       On cross-examination, Ms. Craighead said that Defendant described his childhood as
“confusing” because his parents were not involved in his life. Defendant reported dropping
out of high school in the eleventh grade. Defendant said that playing sports during school
was “a positive influence in his life,” but he was unable to participate in the school’s sports
program after he injured his knee and ankle.

       At the sentencing hearing, Defendant testified that he was removed from the custody
of his parents when he was nine years old, and he remained in State custody until he was
eighteen. Defendant stated that he tried to continue his high school education, but he did not
follow through with enrollment in an adult high school program. Defendant acknowledged
that he voluntarily used drugs. Defendant denied committing the charged offenses.

       On cross-examination, Defendant acknowledged that he had received disciplinary
write-ups while in prison for his robbery conviction, and had spent time in segregation for
“interfering with an officer’s duty.” Defendant acknowledged that the misdemeanor drug
charge was incurred while he was incarcerated at the Warren County Jail on the current
charges. On redirect examination, Defendant explained that he had conflicts with the other
inmates while he was incarcerated which led to the denial of parole. Defendant said,
“You’ve got to take up for yourself. You got to defend yourself.”

      The trial court considered Defendant’s previous history of criminal convictions as an
enhancement factor in determining the length of Defendant’s sentences for all of the

                                              -6-
offenses. See T.C.A. § 40-35-114(1). The trial court considered Defendant’s use of a gun
to commit the attempted second degree murder offenses as an enhancement factor for these
sentences. See id. § 40-35-114(9). Based on these considerations, and the presence of no
mitigating factors, the trial court sentenced Defendant as a Range I, standard offender, to
eleven years for each attempted second degree murder conviction, six years for each
aggravated assault conviction, and two years for his weapons conviction.

       The trial court found that an extended sentence was appropriate based on its finding
that Defendant was a dangerous offender whose behavior indicated little or no regard for
human life, and that Defendant had no hesitation about committing a crime in which the risk
to human life was high. T.C.A.§ 40-35-115(4). The trial court found that the circumstances
surrounding the commission of the offenses were “aggravated” and “atrocious.” The trial
court stated:

       [a]nd I hate it that he grew up that way. And I hate that [Defendant] has
       become what he is. But he’s a dangerous man. I don’t think its improper to
       grant an extensive sentence here because I think it relates directly to what
       happened. He was a prior felon. He committed the offense of robbery.
       Possessed a high-powered handgun. He attempted to kill people he didn’t
       even know. And that is just extremely troubling to me.

       Based on these findings, the trial court ordered Defendant to serve his attempted
murder sentences in counts 1, 2, and 3 of the indictment consecutively. The trial court
ordered Defendant to serve his aggravated assault sentences in counts 4, 5, and 6
concurrently with each other and with count 1. The trial court ordered Defendant to serve
his sentence for unlawful possession of a weapon consecutively to count 1 and concurrently
with the other sentences, for an effective sentence of thirty-five years.

III. Untimely Notice of Appeal

        Before we determine the merits of the case, we must determine whether to hear
Defendant’s untimely appeal. The trial court entered its judgments of conviction on October
8, 2007, and Defendant untimely filed his motion for new trial on March 11, 2008. See Tenn.
R. Crim. P. 33(b) (providing that “[a] motion for a new trial shall be in writing . . . within
thirty days of the date the order of sentence is entered”). The trial court denied Defendant’s
motion on August 26, 2008. However, the trial court had no power to hear Defendant’s
untimely motion for a new trial, and the order issued denying a new trial was a nullity. State
v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v. Stephens, 264 S.W.3d 719, 728 (Tenn.
Crim. App. 2007).



                                             -7-
         Defendant’s notice of appeal was untimely filed because the untimely motion for a
new trial did not toll the thirty-day filing period for a notice of appeal. See Tenn. R. App. P.
4(c). The thirty-day period specified in Rule 4(a) of the Tennessee Rules of Appellate
Procedure for filing a timely notice of appeal began to run on October 8, 2007, when the trial
court entered Defendant’s judgments of conviction, and the period ended on November 7,
2007. Tenn. R. App. P. 4(a). If a motion for new trial is not timely filed following a jury
trial, all issues predicated upon error as a result of “action committed or occurring during
the trial of the case, or other ground upon which a new trial is sought” are waived. Tenn. R.
App. P. 3(e).

       Unlike the untimely filing of Defendant’s motion for new trial, however, this Court
does have authority to waive the untimely filing of Defendant’s notice of appeal “in the
interest of justice.” Because Defendant raises only sentencing issues on appeal, we elect, in
the interest of justice, to waive the untimely filing of the notice of appeal and review the
issues on the merits.

IV. Merger of Offenses

       Prior to imposing sentencing, the trial court noted that it intended to merge
Defendant’s convictions for aggravated assault with his convictions for attempted second
degree murder. However, an order to this effect is not reflected on the judgment forms. The
State on appeal concedes that the aggravated assault convictions and attempted second
degree murder convictions should merge, and we agree.

        The indictment charged Defendant with committing attempted second degree murder
and aggravated assault in counts 1 and 4 against David Estrada, in counts 2 and 5 against
Aldon Estrada, and in counts 3 and 6 against Jorge Baltista. In State v. Hall, 947 S.W.2d
181, 184 (Tenn. Crim. App. 1997), this Court concluded that a defendant’s convictions of
attempted second degree murder and aggravated assault arising out of a single attack upon
a single victim violates principles of double jeopardy under Tennessee’s Constitution. See
generally State v. Denton, 938 S.W.2d 373 (Tenn. 1996). As was the case in Hall,
Defendant’s convictions in counts one and four, counts two and five, and counts three and
six arose out of a single attack upon a single victim, and the same evidence was relied upon
to prove both the attempted second degree murder offense and aggravated assault offense as
to each victim. We therefore set aside the convictions for aggravated assault and remand this
case to the trial court for entry of corrected judgments to reflect the merger of Defendant’s
convictions for aggravated assault into his convictions for attempted second degree murder
as to each victim.

V. Length and Manner of Service of Sentence

                                              -8-
        Defendant argues that the trial court erred in determining the length of his sentences
and in imposing consecutive sentencing. On appeal, the party challenging the sentence
imposed by the trial court has the burden of establishing that the sentence is improper. See
T.C.A. § 40-35-401, Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d
250, 257 (Tenn. 2001). When a defendant challenges the length, range, or manner of service
of a sentence, it is the duty of this Court to conduct a de novo review on the record with a
presumption that the determinations made by the court from which the appeal is taken are
correct. T.C.A. § 40-35-401(d). This presumption of correctness, however, “‘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. Carter, 254 S.W.3d 335, 344-
45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however,
the trial court applies inappropriate mitigating and/or enhancement factors or otherwise fails
to follow the Sentencing Act, the presumption of correctness fails,” and our review is de
novo. Carter, 254 S.W.3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn.
Crim. App. 1992); State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).

         A trial court is mandated by the Sentencing Act to “impose a sentence within the
range of punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required
to begin with a presumptive sentence subject to increase and decrease on the basis of
enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate
court is “bound by a trial court’s decision as to the length of the sentence imposed 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.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

                                   A. Length of Sentence

        Defendant argues that the lengths of his sentences are excessive and inconsistent with
the principles of sentencing. Defendant submits that the trial court erred in not considering
his difficult childhood and his drug use as mitigating factors. Defendant also contends that

                                             -9-
he does not have the type of criminal history which would support the imposition of a
maximum sentence and argues that his short criminal history would indicate his potential for
rehabilitation or treatment. Defendant argues that the length of his sentences are not
reasonably related to the seriousness of the offense which consisted of “one incident
committed in the space of two or three seconds.”

        As a Range I, standard offender, Defendant is subject to a sentence of between eight
and twelve years for each attempted second degree murder conviction, a sentence of between
three and six years for each aggravated assault conviction, and a sentence of between one and
two years for his conviction of unlawful possession of a weapon by a convicted felon.
T.C.A. § 40-35-112(a)(2) and (5). In determining the length of Defendant’s sentences, the
trial court considered the circumstances of the offenses, Defendant’s prior criminal history
and drug use, and his social and family history. The trial court observed, “And [defense
counsel], don’t get me wrong. I do have sympathy for someone like [Defendant] who is
probably not given the advantages that many people are in life, and did have a rough
upbringing.” The trial court, however, found that Defendant’s conduct was “simply
unjustified and scary.” The trial court found it “very troubling” that Defendant used a deadly
weapon to commit the attempted second degree murder offenses and that he discharged his
weapon in an attempt “to kill people he didn’t even know.” The trial court placed significant
weight on Defendant’s prior robbery conviction and the fact that he incurred a new
conviction of simple possession of drugs while incarcerated on the current charges.

      In State v. Carter, the Tennessee Supreme Court clarified the 2005 changes in
Tennessee sentencing law and stated:

       [A] trial court’s weighing of various mitigating and enhancement factors has
       been left to the trial court’s sound discretion. Since the Sentencing Act has
       been revised to render these factors merely advisory, that discretion has been
       broadened. Thus, even if a trial court recognizes and enunciates several
       applicable enhancement factors, it does not abuse its discretion if it does not
       increase the sentence beyond the minimum on the basis of those factors.
       Similarly, if the trial court recognizes and enunciates several applicable
       mitigating factors, it does not abuse its discretion if it does not reduce the
       sentence from the maximum on the basis of those factors. The appellate courts
       are therefore left with a narrower set of circumstances in which they might find
       that a trial court has abused its discretion in setting the length of a defendant’s
       sentence.

Carter, 254 S.W.3d at 345-46.



                                              -10-
        The record clearly shows that the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately supported in the record, and gave due
consideration to the principles that are relevant to sentencing. Based on our review, we
conclude that the enhancement factors considered by the trial court adequately support the
trial court’s discretionary decision to impose a sentence of eleven years for each attempted
second degree murder conviction, six years for each aggravated assault conviction, and two
years for his weapons conviction. Defendant is not entitled to relief on this issue.

                                 B. Consecutive Sentencing

       Defendant does not challenge the trial court’s finding that he is a dangerous offender
for sentencing purposes. Defendant argues, however, that this factor, by itself, is insufficient
to support the imposition of consecutive sentences. Defendant also submits that his effective
sentence of thirty-five years is grossly disproportionate to the sentences imposed for similar
crimes in other jurisdictions and thus constitutes cruel and unusual punishment.

        The Sentencing Act was passed to “[a]ssure fair and consistent treatment of all
defendants by eliminating unjustified disparity in sentences.” T.C.A. § 40-35-102(2).
However, “differences in sentences are appropriate where they relate to differences in the
offender or in culpability.” State v. Clint Ray McCoy, No. W2002-01017-CCA-R3-CD, 2003
WL 21339285, at *3 (Tenn. Crim. App., at Jackson, May 23, 2003), no perm. to appeal filed
(citing State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). “The policy expressed [in the
Sentencing Act] is that the punishment imposed should fit the crime as well as the offender.”
Moss, 727 S.W.2d at 235.

       Our supreme court has concluded that Article I, Section 16 of the Tennessee
Constitution prohibiting the infliction of cruel and unusual punishments mandates a
proportionality inquiry even in noncapital cases. State v. Harris, 844 S.W.2d 601, 602 (Tenn.
1992). The Harris court adopted the following proportionality analysis for noncapital cases:

       [T]he sentence 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.

Id. at 603. However, “because reviewing courts should grant substantial deference to the
broad authority legislatures possess in determining punishments for particular crimes,
‘[o]utside the context of capital punishment, successful challenges to the proportionality of

                                              -11-
particular sentences [will be] exceedingly rare.’” Id. at 602 (quoting Solem v. Helm, 463 U.S.
277, 289-90, 103 S. Ct. 3001, 3009 (1983) (emphasis in original) (quoting Rummel v. Estelle,
445 U.S. 263, 272, 100 S. Ct. 1133, 1138 (1980)); see also State v. Smith, 48 S.W.3d 159,
172 (Tenn. Crim. App. 2000).

        “Determining whether a penalty for a particular offense raises an inference of gross
disproportionality entails a comparison between the gravity of the offense and the harshness
of the penalty.” Smith, 48 S.W.3d at 172 (quoting Solem, 463 U.S. at 290-291, 103 S. Ct. at
3010). Factors to consider “include (1) the nature of the crime, including whether society
views the crime as serious or relatively minor and whether the crime is violent or non-
violent; (2) the circumstances of the crime, including the culpability of the offender, as
reflected by his intent and motive, and the magnitude of the crime; and (3) the existence and
nature of any prior felonies if used to enhance the defendant’s penalty.” Id. (citing Solem,
463 U.S. at 291-297, 103 S. Ct. at 3010-3013).

        In the instant case, the offenses committed against the victims were both serious and
violent. Defendant discharged his weapon multiple times from a moving vehicle at another
moving vehicle while driving on a public highway, placing three people at risk of death.
Defendant’s vehicle then crossed over the median of the four-lane highway and turned
around to approach the victims’ vehicle again. Defendant did not know the victims or have
any prior relationship with them. The victims simply had the misfortune of standing in front
of Defendant in the check-out line and then passing Defendant’s vehicle on their way home.
In determining the manner of service of Defendant’s sentences, the trial court considered the
circumstances of the offenses, Defendant’s prior conviction of robbery, his difficulty in
complying with prison regulations while incarcerated on his robbery conviction, his
continuing criminal behavior while incarcerated on the current charges, and his denial of any
responsibility for his conduct. T.C.A. § 40-35-115(b)(4). Based on these factors, the record
supports the trial court’s finding that Defendant is a “dangerous offender whose behavior
indicates little or no regard for human life and no hesitation about committing a crime when
the risk to human life is high.” We further conclude that the record supports the trial court’s
finding that an extended sentence is “justly deserved in relation to the seriousness of the
offense” and “no greater than that deserved” under the circumstances. State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995). A “dangerous offender” is one classification of
offenders “considered by the legislature to be deserving of an extended sentence.” Id. at 936.
Only one factor is needed for the trial court to act within its discretion to impose consecutive
sentences. See T.C.A. § 40-35-102(2).

       Based upon our review, we conclude that there is no inference of gross
disproportionality under the facts presented in this case. Accordingly, we need not proceed
with a jurisdictional analysis. Defendant is not entitled to relief on this issue.

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                                     CONCLUSION

        After a thorough review, we remand for entry of corrected judgments to reflect the
merger of Defendant’s convictions for aggravated assault in counts 4, 5, and 6 of the
indictment with his convictions of attempted second degree murder in counts 1, 2, and 3. In
all other aspects we affirm the judgment of the trial court.




                                          THOMAS T. WOODALL, JUDGE




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