        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 9, 2012

                  STATE OF TENNESSEE v. DAVID M. JONES

                Appeal from the Circuit Court of Montgomery County
                      No. 41000604     Michael R. Jones, Judge


                 No. M2011-01686-CCA-R3-CD - Filed July 13, 2012


David M. Jones (“the Defendant”) pled guilty to one count of attempted second degree
murder, with no agreement as to sentence. After a sentencing hearing, the trial court
sentenced the Defendant to twelve years’ incarceration, consecutive to a prior conviction.
The Defendant has appealed the length of his sentence. Upon our thorough review of the
record, we affirm the judgment of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Travis N. Meeks, Clarksville, Tennessee, for the appellant, David M. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; John Carney, District Attorney General; and Helen Young, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                          Factual and Procedural Background

       The Defendant was indicted on one count of attempted first degree (premeditated)
murder and one count of aggravated assault, committed on March 17th, 2010. The
Defendant pled guilty to a single count of attempted second degree murder with no
agreement as to sentence. As a part of the plea agreement, the State dismissed the aggravated
assault count.
       At the sentencing hearing, William Larson, the victim, testified that the Defendant
stabbed him repeatedly, including cutting him across his throat. He lost 2.9 liters of blood
and suffered a collapsed lung. He was hospitalized and had surgery. After four days in the
trauma center, he moved to the Veterans Administration Hospital.

       The attack occurred in Larson’s home. Larson explained that the Defendant, whom
he knew, had come to his home with another man, whom the Defendant introduced as
“Adam, his cousin.” Larson let both men, who were each carrying a can of beer, into his
home. The Defendant, however, did not appear intoxicated. While Larson was speaking
with the Defendant, Adam went out to the Defendant’s vehicle, returned inside, and dropped
a knife. The Defendant picked up the knife and attacked Larson, telling Larson “he wanted
the guns out of the safe.” Larson testified:

       after he stabbed me in here (indicating) and then [the Defendant] said I’ll kill
       you and get it over with. And then he stabbed me down here and I told [the
       Defendant], I’ll open up the safe, you can have the guns, there is gold, silver,
       and money in the safe and that’s when Adam started yelling, he’s trying to
       trick you, kill him, kill him, kill him.

Larson stated that the Defendant knew that Larson kept his hunting guns in the safe.

       Larson testified that, after the attack, he is afraid to help other people. He also
“hurt[s] all the time.” He stays home and does not answer the door or the telephone. He no
longer feels safe in his home.

       The Defendant made a statement, apologizing and explaining that he was “pretty
drunk that night.”

        In addition to Larson’s testimony, the presentence report was admitted into evidence
without objection. The report indicates that, on January 19, 2007, the Defendant was
convicted of false imprisonment and aggravated assault. For these crimes, he received
sentences of eleven months, twenty-nine days, suspended, and three years, suspended,
respectively. On July 11, 2007, the Defendant was convicted of robbery and received a
sentence of three years to serve in the Tennessee Department of Correction. Additionally,
the Defendant’s previous sentence of probation was revoked in February 2011 as a result of
the instant offense.

       The trial court also admitted into evidence the Defendant’s pleading titled “Mitigating
Factors” in which the Defendant averred that he had acted under the strong provocation of
Adam Chison; that he was “blind drunk” at the time; that he suffered from “serious chemical
dependency problems as well as anti-social personality disorders”; that the episode was not

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planned and it was unlikely “that there was ever a sustained intent to violate the law”; and
that he had been subjected “to the undue influence of another because of his severe
intoxication and lack of judgment at the time.”

        After considering the evidence adduced at the sentencing hearing, the statement of
facts provided at the guilty plea hearing,1 the presentence report, “the principles of sentencing
and arguments as to sentencing alternatives, the nature and characteristics of the criminal
conduct involved, [and] the evidence and information offered by the parties on mitigating
and enhancement factors,” the trial court rejected several of the Defendant’s proffered
mitigating factors but applied in mitigation his guilty plea and his expressed remorse. As to
enhancement factors, the trial court found that the Defendant has a criminal history in
addition to that necessary to establish his range. The trial court also found that the Defendant
was on probation when he committed the instant offense. The trial court sentenced the
Defendant as a Range I offender to twelve years, noting, “[t]his is a terrible, terrible event,
totally no reason whatsoever. Prior convictions and the fact that he was on probation greatly
outweigh the mitigating factors.”

       The trial court also determined that confinement was appropriate as “necessary to
protect society by restraining a defendant who has a long history,” “necessary to avoid
depreciating the seriousness of the offense,” as “particularly suited to provide an effective
deterrence,” and because “measures less restrictive have frequently and recently been applied
unsuccessfully.” Accordingly, the trial court ordered the Defendant to serve his sentence in
the Tennessee Department of Correction.

       The trial court also ordered the instant sentence to be served consecutively to the
sentence the Defendant was serving on his previous conviction of aggravated assault. In so
ordering, the trial court stated the following:

       under 40-35-115, he was on probation at the time of the event. He is an
       offender whose record of criminal activity is extensive. He is a dangerous
       offender whose behavior indicates little or no regard for human life and no
       hesitation about committing a crime to which the risk to human life is high.

              Mr. Larson is fortunate to be alive. There is absolutely no doubt of that.
       Based on the two prior violent offenses, an extended sentence is necessary to
       protect the public against further criminal conduct by this defendant. This is
       about the most severe attempted second-degree murder there could be. You
       don’t have to even have any injuries whatsoever. This is very severe so the


       1
           The record on appeal does not contain a transcript of the guilty plea hearing.

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       consecutive sentence is reasonably related to the severity of the offense that
       was actually committed, so that twelve year sentence will be consecutive to the
       sentence that he is presently serving [on the aggravated assault].

        The Defendant has now appealed, arguing that twelve years is an excessive sentence
in light of the two mitigating factors and single enhancement factor applied by the trial court.
The Defendant does not take issue with the trial court’s order of consecutive service.

                                           Analysis

       In making its sentencing determination, a trial court must consider:

       (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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2010). The trial judge also should consider “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5)
(2010).

       When the record affirmatively shows that the trial court considered the statutory
sentencing principles and all relevant facts and circumstances, our review is de novo with a
presumption that the trial court’s determinations are correct. See Tenn. Code Ann. § 40-35-
401(d) (2010); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Also, when the trial court
considered all of the criteria set out in Tennessee Code Annotated section 40-35-210(b),
imposed a sentence within the applicable range, set forth its reasons for imposing the
particular sentence, and the record establishes that the trial court’s findings of fact are

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adequately supported, we may not disturb the sentence even if we would have preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). When the record
does not demonstrate that the trial court gave due consideration to the requisite criteria, our
review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169. The appealing party,
here the Defendant, bears the burden of establishing that the sentence is improper. Tenn.
Code Ann. § 40-35-401, Sent’g Comm’n Cmts; see also Ashby, 823 S.W.2d at 169.

        The Defendant was sentenced as a Range I, standard offender. Attempted second
degree murder is a Class B felony, see Tenn. Code Ann. §§ 39-12-107(a) (2010), 39-13-
210(c) (2010), and the Range I sentence for a Class B felony is eight to twelve years, see id.
§ 40-35-112(a)(2) (2010). In determining the appropriate length of a sentence within the
applicable Range, a trial court must consider the applicable mitigating and enhancement
factors. See id. § 40-35-210(b)(5), (c)(2) (2010). The weight to be given the various
applicable factors, however, is left to the trial court’s sound discretion. Carter, 254 S.W.3d
at 345.

        In this case, the trial court sentenced the Defendant to the maximum term available.
The Defendant complains that the maximum sentence is “excessive under the consideration
set out in T.C.A. § 40-35-210(c) and . . . inconsistent with the purposes of sentencing set out
in T.C.A. § 40-35-102(2).” We disagree.

        As set forth above, Tennessee Code Annotated section 40-35-210(b), (c) requires a
trial court to consider mitigating and enhancing factors when deciding the length of a
defendant’s sentence within the applicable range. The weight to be given each applicable
factor is left to the trial court’s sound discretion. Carter, 254 S.W.3d at 345. Initially, we
note that, contrary to the Defendant’s argument, the trial court applied two enhancement
factors, not one. The trial court enhanced the Defendant’s sentence on the basis of his
previous criminal convictions, see Tenn. Code Ann. § 40-35-114(1) (2010), and on the basis
that the Defendant was on probation at the time he committed the instant offense, see id. §
40-35-114(13)(C).

         In essence, the Defendant is asking this Court to reweigh the mitigating and enhancing
factors applied by the trial court in setting the Defendant’s sentence. This we may not do.
See Carter, 254 S.W.3d at 345-46. As our supreme court has made clear, “[a]n 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. at 346.

        Tennessee Code Annotated section 40-35-102(2), also cited by the Defendant as
entitling him to relief, provides that the Sentencing Act is intended “to assure fair and
consistent treatment of all defendants by eliminating unjustified disparity in sentencing and

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providing a fair sense of predictability of the criminal law and its sanctions.” Tenn. Code
Ann. § 40-35-102(2) (2010). The Defendant has provided this Court with no authority
whatsoever for his apparent conclusion that his sentence is unjustifiably greater than those
imposed on other defendants who have committed similar crimes. Moreover, given the facts
and circumstances adduced at the sentencing hearing, the record supports the trial court’s
imposition of the maximum sentence for the Defendant’s violent offense. Accordingly, this
issue is without merit.

                                       Conclusion

       For the foregoing reasons, we affirm the judgment of the trial court.




                                          _________________________________
                                          JEFFREY S. BIVINS, JUDGE




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