                                                                                         05/10/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 26, 2019

       STATE OF TENNESSEE v. TOREY MARTEZ UNDERWOOD

                  Appeal from the Criminal Court for Knox County
                          No. 108578 Scott Green, Judge


                            No. E2018-00811-CCA-R3-CD


The defendant, Torey Martez Underwood, appeals the Knox County Criminal Court’s
denial of alternative sentencing for his guilty-pleaded conviction of attempted second
degree murder. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.

John Halstead, Assistant District Public Defender, for the appellant, Torey Martez
Underwood.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Charme Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               On November 20, 2017, the defendant, Torey Martez Underwood, pleaded
guilty to one count of attempted second degree murder. Pursuant to the plea agreement,
the defendant received an agreed-upon sentence of nine years as a Range I offender, and
the State dismissed the charge of attempted first degree murder. After a sentencing
hearing, the trial court ordered the defendant to serve the entire sentence in confinement.
The defendant filed this timely appeal, asserting that the trial court erred by imposing a
fully-incarcerative sentence.

              At the plea submission hearing, the State provided the following summary
of the offense:
              [T]he defendant was married to a woman named Jessica
              Underwood, who had a child with the victim in this case,
              Noel Djenini.

                     . . . [T]he parties had met at a location on East
              Magnolia on April the 23rd, 2016 in Knox County for the
              purpose of Mr. Djenini seeing his four year-old child.
              Apparently there was an argument between Mr. Djenini and
              Jessica Underwood. . . . Mr. Djenini was outside his vehicle,
              was in front of a business place. And . . . Jessica Underwood
              said some things to the defendant, . . . who was in the vehicle
              with her. He got out of the vehicle. The assault on Mr.
              Djenini was on video. The video . . . shows that Mr. Djenini
              ha[d] his back to the defendant. There [wa]s absolutely no
              conversation between them. No altercation. And the
              defendant jumped him.

                      The [defendant] . . . stabbed him four times causing
              serious bodily injury. He then fled the scene. Mr. Djenini
              received a stab wound to his heart that would have been lethal
              without medical intervention. He was stabbed behind the left
              ear. He was stabbed [in] another place in the back. It was not
              a life threatening injury. And he was stabbed very close to
              his spinal column in the back with the fourth wound. . . .
              [H]e was very close, . . . had he not received medical
              intervention[,] to death.

                     He was in the hospital for several days. After his
              discharge, he was out of work for about three and a half
              months. And had a very long, prolonged rehab. This was an
              unprovoked assault . . . according to the witnesses who were
              present at the case . . . .

              The defendant added to the State’s summary that Ms. Underwood asked the
defendant “what kind of man doesn’t stand up for his wife[?]” and “why didn’t you do
anything?” The defendant stated that it was “after hearing his wife say all these things to
him that [he] then went and committed this crime.”

             At the sentencing hearing, the defendant made a brief statement, but neither
the defendant nor the State called any witnesses. The victim was not present at the
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hearing, but the presentence investigation report containing a victim impact statement
was exhibited to the hearing. An enhanced probation report was also exhibited. The
presentence investigation report showed that the defendant’s criminal history included
only one misdemeanor conviction for a driving violation and a dismissed charge for
domestic assault. The State requested a fully-incarcerative sentence, emphasizing that
the defendant was deemed “a high risk for violence,” had few family connections, was
not employed, did not graduate from high school, and had anger and mental health issues.
The defendant argued for a split confinement sentence highlighting that his only prior
conviction was for a driving offense, his limited cognitive abilities made it difficult for
him to maintain stable employment, he suffered from “a heart problem,” and he
committed the present offense only after Ms. Underwood provoked him. The defendant
explained that he had arranged to receive treatment at Cherokee Health and to continue
consulting with a social worker if he were granted an alternative sentence.

               In rendering its decision to impose a fully-incarcerative sentence, the trial
court considered the severity of the crime, the injury to the victim, and the fact that the
crime was committed in front of the victim’s young child1 and ordered the defendant to
serve his full sentence in confinement.

               The defendant appeals the imposition of a fully-incarcerative sentence,
arguing that the defendant “was an appropriate candidate for alternative sentencing” but
that the trial court “focused solely on the severity of the offense” without considering
“the factors favoring alternative sentencing.” The defendant further asserts that his
offense was “not an especially violent or horrifying attempted second degree murder.”
The State contends that the trial court did not err.

              Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[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.” T.C.A. § 40-35-103(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 706 n. 41 (quoting T.C.A. § 40-35-210(e)). The abuse-of-discretion standard
1
        Although the trial court identified the victim’s son as being three years old at the time of the
offense, the facts recited at the plea submission hearing indicated that the child was four years old.

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of review and the presumption of reasonableness also applies to “questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012).

               Although the trial court must consider the defendant’s potential for
rehabilitation in determining whether to impose an alternative sentence, see T.C.A. § 40-
35-103(5), “[c]onvicted 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” are not considered favorable candidates for alternative
sentencing, id. § 40-35-102(5)-(6)(A).

              When a trial court orders confinement and therefore rejects any form of
alternative sentencing such as probation, split confinement, or periodic confinement, it
must base the decision to confine the defendant upon the considerations set forth in Code
section 40-35-103(1), which provides:

              (1) Sentences involving confinement should be based on the
              following considerations:

                      (A) Confinement is necessary to protect society by
              restraining a defendant who has a long history of criminal
              conduct;

                     (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly
              suited to provide an effective deterrence to others likely to
              commit similar offenses; or

                    (C) Measures less restrictive than confinement have
              frequently or recently been applied unsuccessfully to the
              defendant; . . . .

T.C.A. § 40-35-103(1). When the circumstances of the offense serves as the sole basis
for denying alternative sentencing, those circumstances must be “especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree.” State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991).

              In determining the manner of service of the defendant’s sentence, the trial
court pointed to the severity of the offense, the serious injury to the victim, and that the
offense was committed in the presence of the victim’s young son. The record supports
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these findings. The defendant’s criminal record reveals only a prior conviction for a
misdemeanor driving violation and a dismissed charge of domestic assault, and he has no
prior violations of non-incarcerative sentences. As such, the denial of alternative
sentencing in this case was based solely on the circumstances of the offense. The record
shows that the defendant attacked the victim from behind, stabbing him four times and
causing life-threatening injuries that required the victim to undergo open heart surgery.
Committing such an offense in the presence of a four-year-old child satisfies the
requirement that the offense be “especially violent, horrifying, shocking, reprehensible,
[and] offensive.” See Hartley, 818 S.W.2d at 374. The circumstances of this offense
support the trial court’s denial of alternative sentencing.

              Accordingly, we discern no error in the trial court’s decision to impose a
fully-incarcerative sentence, and we affirm the judgment of the trial court.

                                                  _________________________________
                                                 JAMES CURWOOD WITT, JR., JUDGE




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