         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs May 21, 2003

            STATE OF TENNESSEE v. JOSEPH HAROLD RUCKER

                  Direct Appeal from the Criminal Court for Roane County
                           No. 12586     E. Eugene Eblen, Judge



                                 No. E2002-02486-CCA-R3-CD
                                         July 8, 2003

The defendant, Joseph Harold Rucker, appeals the Roane County Criminal Court’s imposition of a
23-year Department of Correction sentence for the second-degree murder of his girlfriend, Tommy
Jean Trinkle. Because we determine that the length of the Class A, Range I sentence is supported
in the record, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY , J., and
THOMAS T. WOODA LL, JJ., joined.

Joe H. Walker, Harriman, Tennessee (on appeal); and Walter B. Johnson, II, Harriman, Tennessee
(at trial and on appeal); for the Appellant, Joseph Harold Rucker.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; J.
Scott McCluen, District Attorney General; and Frank Harvey, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                The defendant pleaded guilty to the August 26, 2001 second-degree murder of Ms.
Trinkle. Although the transcript of the plea submission hearing is not in the appellate record, the
presentence report and the evidence introduced at the sentencing hearing adequately reveal the
known circumstances of the homicide. A neighbor found the defendant standing nude in his yard,
washing blood from his body with a water hose. The defendant told the neighbor that he had killed
the victim. Inside the house, the neighbor found the victim lying in the floor with her throat cut and
a knife protruding from her chest.

               The autopsy revealed that the victim suffered a cut on the front and both sides of her
neck, a portion of which was nearly an inch deep; various stab wounds, some of which were nearly
five inches deep and perforated the right lung and pulmonary artery; strangulation injuries to the
neck; various cuts, abrasions and bruises on her face and body; and multiple bilateral fractures of the
ribs. The defendant maintained that he was intoxicated at the time of the offense.

                Facing an indictment for first-degree, premeditated murder, the defendant submitted
a plea-bargained guilty plea to second-degree murder and agreed that the trial court would determine
the length of his Range I sentence. Following a sentencing hearing, the court found that the severity
of the defendant’s actions substantially outweighed the defendant’s claim that voluntary intoxication
should mitigate the sentence. The court imposed a 23-year sentence to be served in the Department
of Correction.

               The defendant was 42 years of age at the time of sentencing and has a twelfth-grade
education. His prior criminal history includes two felonies and approximately nineteen misdemeanor
convictions. Of the latter, eleven were alcohol-related offenses, and four were assault offenses.

                When an accused challenges the length, range, or manner of service of a sentence,
this court has the duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). 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).

                 In conducting a de novo review of a sentence, this court must consider: (a) the
evidence, if any, received at the trial and 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) any statutory mitigating or enhancement factors;
(f) any statement that the defendant made regarding sentencing; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann.§§ 40-35-102 (1997), -103 (1997), -210(B)
(Supp. 2002); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

                Defendant was convicted of second-degree murder, a Class A felony. See Tenn.
Code Ann. § 39-13-210(a)(1), (b) (1997). The sentence for a Range I offender convicted of a Class
A felony is between fifteen and twenty-five years. Id. § 40-35-112(a)(1) (1997). The presumptive
sentence for a Class A felony is the midpoint of the range if there are no enhancement or mitigating
factors. Id. § 40-35-210(c) (Supp. 2002). If the court finds that enhancement and mitigating factors
are applicable, the court must begin with the midpoint and enhance the sentence to appropriately
reflect the weight of any statutory enhancement factors, and then the court must reduce the sentence
to appropriately reflect the weight of any mitigating factors. See State v. Chance, 952 S.W.2d 848,
850-51 (Tenn. Crim. App. 1997).

                In the present case, the trial court made essentially one finding – that the severity of
the defendant’s actions “go way past anything that would mitigate” the sentence. Based upon that
finding, the court enhanced the sentence from the presumptive sentence of 20 years to a sentence of
23 years. Thus, the court appears to have enhanced the sentence based upon the nature and


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circumstances of the offense. Although the trial court is authorized to consider the nature and
circumstances of the offense in making its sentencing determinations, see Tenn. Code Ann. § 40-35-
210(b)(4) (Supp. 2002), the length of the sentence should be based upon statutorily enumerated
enhancement factors, see id. § 40-35-114 (Supp. 2002); State v. Anderson, 985 S.W.2d 9, 20 (Tenn.
Crim. App. 1997). In this situation, we do not accord the lower court’s sentencing determination the
presumption of correctness.

                Nevertheless, the sentence of 23 years in the Department of Correction is more than
adequately supported in the record. As a function of our de novo review, we hold that the following
enhancement factors apply: The defendant has a previous history of criminal convictions or criminal
behavior in addition to that necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-
114(2) (Supp. 2002), and he treated the victim with exceptional cruelty, id. § 40-35-114(6) (Supp.
2002). The victim was strangled, viciously beaten and stabbed, and her head was nearly severed by
a brutal cut to her neck. These enhancement factors are entitled to significant weight, and they
overwhelm any claim of mitigation based upon voluntary intoxication. See State v. Gary Thomas
Moore, No. 01C01-9711-CC-00545 (Tenn. Crim. App., Nashville, Oct. 2, 1999) (voluntary
intoxication is excluded from the scope of mitigating factor (8) (Tenn. Code Ann. § 40-35-113(8)
(1997)); State v. Robert McPherson, Jr., No. 5 (Tenn. Crim. App., Jackson, June 7, 1989) (declining
to apply voluntary intoxication in mitigation of sentence).

               Thus, based upon the record before us, we have no hesitation in affirming the
sentence of 23 years.




                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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