           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        NOVEMBER 1999 SESSION
                                                       March 14, 2000

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             )     No. M1999-00004-CCA-R3-CD
                                )    C.C.A. NO. 01C01-9901-CR-00001
           Appellee,            )
                                )    WILSON COUNTY
VS.                             )
                                )    HON. JOHN D. WOOTTEN,
JAMES MATTHEW LAWRENCE,         )    JUDGE
                                )
           Appellant.           )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


FRANK LANNOM                         PAUL G. SUMMERS
BRODY KANE                           Attorney General & Reporter
102 E. Main St.
Lebanon, TN 37087                    MARK E. DAVIDSON
                                     Asst. Attorney General
                                     425 Fifth Ave., N.
                                     Nashville, TN 37243-0493

                                     TOM P. THOMPSON
                                     District Attorney General

                                     ROBERT HIBBETT
                                     Asst. District Attorney General
                                     119 College St.
                                     Lebanon, TN 37087




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Special Judge
                                            OPINION



                 Defendant was transferred from juvenile to criminal court and indicted for

attempted second-degree murder and two counts of aggravated assault, all arising from

defendant having shot and injured a single victim. Defendant pled guilty to one count of

aggravated assault, with no agreement as to his sentence.1 After a hearing, the trial court

sentenced defendant as a Range I standard offender to five years incarceration.2 On this

direct appeal, defendant contends that his sentence is too long and that the trial court

erred in not granting him an alternative sentence. Upon our review of the record, we

affirm the judgment below.



                 Defendant's conviction stems from an incident that occurred when he was

seventeen years old. The evidence at the sentencing hearing established that defendant

went to a party with a loaded gun. When the victim arrived, he and defendant began

arguing. Defendant hit the victim and then shot the gun into the air. Defendant testified

that he then tried to hit the victim again with the gun and the gun accidentally discharged.

The victim was shot in the mouth. As a result, the victim's jaw was shattered and he lost

seven teeth. Due to his injuries, the victim received five hundred stitches in his mouth;

underwent three surgeries, including a bone graft; and required extensive dental work.

In addition, at the time of the sentencing hearing, the victim still needed to have implants

put in his mouth to replace the lost teeth.



                 Defendant first contends that his sentence is too long. Defendant was

convicted of causing bodily injury to the victim by the use or display of a deadly weapon,

a Class C felony. See T.C.A. § 39-13-102(a)(1)(B) & (d). As a Range I standard



       1
           The other charges were nolled.

       2
          Judge John D. Wootten conducted the sentencing hearing. For reasons not apparent from the
record , Judge J. O. Bo nd signe d the judg men t.

                                                 2
offender, defendant was therefore subject to a sentence of three to six years. T.C.A. §

40-35-112(a)(3). The trial court applied as an enhancement factor that defendant had

a previous history of criminal behavior in addition to that necessary to establish the

appropriate range. See T.C.A. § 40-35-114(1). The trial court also found a single

mitigating factor, that defendant, because of his youth, lacked substantial judgment in

committing the offense. See T.C.A. § 40-35-113(6). In weighing these factors, the trial

court found that “the enhancing factor of previous history outweighs [the mitigating factor]

considerably, given the fact that [defendant] appeared in the juvenile courts of Wilson

County on two separate occasions.” Accordingly, the trial court sentenced defendant to

a mid-range term of five years.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness.             T.C.A. § 40-35-401(d).      This

presumption, 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the

sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments.



              A portion of the Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-

210, established a number of specific procedures to be followed in sentencing. This

section mandates the court’s consideration of the following:


              (1) The evidence, if any, received at the trial and the
              sentencing hearing; (2) [t]he presentence report; (3) [t]he
              principles of sentencing and arguments as to sentencing
              alternatives; (4) [t]he nature and characteristics of the criminal
              conduct involved; (5) [e]vidence and information offered by
              the parties on the enhancement and mitigating factors in §§
              40-35-113 and 40-35-114; and (6) [a]ny statement the
              defendant wishes to make in his own behalf about sentencing.




                                              3
T.C.A. § 40-35-210. In addition, this section provides that the minimum sentence within

the range is the presumptive sentence for Class C felonies. If there are enhancing and

mitigating factors, the court must start at the minimum sentence in the range and enhance

the sentence as appropriate for the enhancement factors and then reduce the sentence

within the range as appropriate for the mitigating factors. If there are no mitigating factors,

the court may set the sentence above the minimum in that range but still within the range.

The weight to be given each factor is left to the discretion of the trial judge. State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).



              The Act further provides that “[w]henever the court imposes a sentence, it

shall place on the record either orally or in writing, what enhancement or mitigating factors

it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A. § 40-35-

210(f) (emphasis added). Because of the importance of enhancing and mitigating factors

under the sentencing guidelines, even the absence of these factors must be recorded if

none are found. T.C.A. § 40-35-210 comment. These findings by the trial judge must be

recorded in order to allow an adequate review on appeal.



              Defendant does not challenge the applicability of enhancement factor (1).

Rather, he argues that the trial court improperly weighed the enhancement factor.

According to defendant, this enhancement factor does not considerably outweigh the fact

that he was only seventeen at the time of the offense. However, the weight to be given

to enhancement factors is within the discretion of the trial court. Shelton, 854 S.W.2d at

123. The presentence report indicates that defendant admitted the use of alcohol and

marijuana and that he had two sustained charges in juvenile court for under-age

possession of alcohol. In light of the foregoing, the trial court did not abuse its discretion

in weighing this factor heavily.



              Moreover, another enhancing factor, not applied by the trial court, is

                                              4
applicable in the case at bar. We note that this Court is allowed, in conducting its de novo

review, to consider any enhancing or mitigating factors supported by the record, even if

not relied upon by the trial court. See State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993);

State v. Smith, 910 S.W.2d 457, 460 (Tenn. Crim. App. 1995). As the State points out,

the trial court failed to apply as an enhancement factor that the personal injuries inflicted

upon the victim were particularly great. T.C.A. § 40-35-114(6). Since defendant pled

guilty to aggravated assault by use or display of a deadly weapon, particularly great

personal injuries suffered by the victim are not an essential element of the offense, and

may therefore be considered to enhance defendant's sentence. See State v. Samuel

Paul Fields, No. 01CO1-9512-CR-00414, Davidson County (Tenn. Crim. App. filed Feb.

26, 1998, at Nashville) (holding that this enhancement factor may be applied where the

defendant is convicted of aggravated assault by use of a deadly weapon). The proof

adduced at the sentencing hearing of the victim's personal injuries supports the

application of this factor.



               In light of the two applicable enhancement factors and only one mitigating

factor, we find that the trial court's sentence of five years is appropriate. This issue is

without merit.



               Defendant also contends that the trial court erred in failing to grant him an

alternative sentence, specifically probation or confinement in a local jail. We note,

however, that the trial court ordered defendant to be held “locally,” subject to transfer to

the department of corrections if he became a “disciplinary problem.”3 Thus, we need not

consider further defendant’s contentions about this form of alternative sentence. With

respect to probation, Tennessee Code Annotated Section 40-35-103 sets out sentencing

considerations which are guidelines for determining whether or not a defendant should be


        3
        The judgment form does not reflect this portion of the trial court’s ruling from the bench. The
judgment should be amended to set forth accurately and completely the trial court’s ruling.



                                                   5
incarcerated. These include the need “to protect society by restraining a defendant who

has a long history of criminal conduct,” the need “to avoid depreciating the seriousness

of the offense,” the determination that “confinement is particularly suited to provide an

effective deterrence to others likely to commit similar offenses,” or the determination that

“measures less restrictive than confinement have frequently or recently been applied

unsuccessfully to the defendant.” T.C.A. § 40-35-103(1).



              In determining the specific sentence and the possible combination of

sentencing alternatives, the court shall consider the following: (1) any evidence from the

trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing

and the arguments concerning sentencing alternatives, (4) the nature and characteristics

of the offense, (5) information offered by the State or the defendant concerning enhancing

and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant’s

statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-210(b). In

addition, the legislature established certain sentencing principles which include the

following:

               (5) In recognition that state prison capacities and the funds to
               build and maintain them are limited, convicted felons
               committing the most severe offenses, possessing criminal
               histories evincing a clear disregard for the laws and morals of
               society, and evincing failure of past efforts at rehabilitation
               shall be given first priority regarding sentencing involving
               incarceration; and

               (6) A defendant who does not fall within the parameters of
               subdivision (5) and is an especially mitigated or standard
               offender convicted of a Class C, D or E felony is presumed to
               be a favorable candidate for alternative sentencing options in
               the absence of evidence to the contrary.


T.C.A. § 40-35-102.



              After reviewing the statutes set out above, it is obvious that the intent of the

legislature is to encourage alternatives to incarceration in cases where defendants are


                                             6
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,

it is also clear that there is an intent to incarcerate those defendants whose criminal

histories indicate a clear disregard for the laws and morals of society and a failure of past

efforts to rehabilitate.



               We agree with the trial court that defendant did not prove his suitability for

probation in this case. As pointed out by the State in its brief, defendant’s history of

criminal behavior includes underage possession of alcohol; alcohol and drug use; and

possession of a weapon. He had already been before the Juvenile Court on two

occasions. Defendant has a “spotty” work history, and had dropped out of high school

when he committed the offense. He stated at the sentencing hearing that he had quit high

school because he was “living fast.” His assault could have killed the victim. All of these

factors overcame the presumption of an alternative sentence, and the trial court did not

err in sentencing defendant to confinement.



               The judgment of the trial court is affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Special Judge



CONCUR:



__________________________________
GARY R. WADE, Presiding judge



__________________________________
NORMA MCGEE OGLE, Judge




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