        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 11, 2014

        STATE OF TENNESSEE V. JEWELL WAYNE SMITH, JR.

                  Appeal from the Circuit Court of Robertson County
                     No. 2011-CR-690 Michael R. Jones, Judge


               No. M2013-01573-CCA-R3-CD - Filed February 20, 2014


Jewell Wayne Smith, Jr. (“the Defendant”) entered a best interest plea to voluntary
manslaughter. Following a sentencing hearing, the trial court sentenced the Defendant to
thirteen years’ incarceration. The trial court ordered this sentence to run consecutively to a
sentence the Defendant received for a probation violation. On appeal, the Defendant argues
that the length of his sentence in this case is excessive. After a thorough review of the record
and the applicable law, 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 JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Gregory D. Smith (on appeal) and Chris Clark (at plea submission and sentencing),
Clarksville, Tennessee, for the appellant, Jewell Wayne Smith, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; John W. Carney, District Attorney General; and Jason White,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

      The Defendant was indicted on November 16, 2011, on one count of first degree
premeditated murder. This indictment arose from an incident occurring on August 14, 2011.
The Defendant subsequently entered a best interest plea to voluntary manslaughter. At the
Defendant’s plea submission hearing, the State recited this factual basis for the plea:
        The facts would show, Your Honor, the date of the homicide, prior to
that, the victim and the defendant had once been friends, but had developed a
disagreement over some money and the night of the homicide that occurred on
Blair Street, about 2005 Blair, about an hour or so before that homicide, the
victim – the defendant pulled up in a green, I believe a Pontiac and got out and
then probably thirty minutes or so, twenty minutes or so before the homicide,
and Martel (phonetic) Black would say to him and the defendant and another
person, Terrence Bigby, were in a car smoking marijuana when . . . the victim
came by on his bicycle and bumped the car, would say at that time that [the
victim] went on down the street. The Defendant got out of the car and had a
weapon in his hand, he would describe it as a Smith and Wesson, .40 caliber
and that [the Defendant] made some comments about the victim and then at
that time, Mr. Black would say that he called the victim multiple times to warn
him about [the Defendant] and this is corroborated by phone records, what the
conversation is about . . . .

        The proof would show that the victim had went [sic] to April Davis’
house to see, to sit for phone calls and finally picked up on[ ]the last one and
after talking, left to head back down the street to 2005 Blair. Ms. Davis will
say that when he came in, he took a gun out and put it on the dresser drawers
and when he left, he picked that gun back up, that being the victim.

        The corroboration of witnesses would then say, Your Honor, that the
victim came down on his bicycle, got off his bicycle at 2005 Blair, it’s a
housing authority duplex. There’s a tree there and would say that the – a
couple of witnesses would say at that time that [the Defendant] was kind of
behind the tree, kind of in a dark area and that the victim got out and could tell
a conversation occurred and that shortly thereafter, a ray [sic] of gunfire,
describe anywhere between four to six, seven – one even told me seven shots.
Everybody described the gunfire going in one direction from the defendant to
the victim. Nobody sees any gunfire coming back the other way and describes
the victim is shot multiple times and from there – does not die immediately,
Your Honor, gets up and goes down the street and waves for help. At that
time, the Defendant . . . flees the scene.

       . . . We have several – a few witnesses that would put it there, say they
saw the gunfire, but say they didn’t see [the Defendant] actually do the
shooting. One witness in TDOC has got an aggravated conviction since this,
that would be the only eyeball witness that we would have. [The Defendant]
gave a statement, Your Honor, that if he testified, would say that the victim,


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       he did shoot one time but that was only because the victim pulled the gun on
       him first. Would have a witness say that he did – the police weren’t sure
       where the crime scene occurred so it took them – because the victim had fled
       down the street, by the time they got up to the crime scene, most everything
       had been picked up. Out of all six shots, no shell casings – only one bullet
       found. No guns found. Would have one witness to say that he did pick up a
       gun, may or may not be the victim’s gun . . . . So there is not a lot of physical
       evidence at the scene because the crime scene had been cleared or cleaned up
       before the police realized where the crime scene was. That would be the facts,
       Your Honor, to show – we do have an eyeball witness that would say the
       Defendant shot him. Other witnesses that would corroborate that. Due to the
       circumstances of witnesses’ impeachment and not sure exactly what everyone
       is going to say on the stand – we even had one at the prelim to charge her
       story.

As part of the plea agreement, the Defendant agreed to be sentenced by the trial court in the
range of ten to fifteen years, which is a Range III sentence, see Tenn. Code Ann. § 40-34-
112(c)(3) (2010), but in all other respects to be sentenced as a Range II offender. The
Defendant had two probation violations, resulting in sentences of four years each to be
served consecutively. The trial court also was to determine at the sentencing hearing whether
the Defendant’s sentence for his voluntary manslaughter conviction would be served
concurrently or consecutively to the latter, previously imposed sentence for a probation
violation.

        At the sentencing hearing, the presentence report was admitted as an exhibit, and it
is included in the record before us. Cory Robertson testified that the victim was her son and
that he was approximately twenty years old at the time of his death. Although the victim did
not live with Robertson at the time of his death, she saw him “every other day” and “had a
wonderful relationship with him.” On the day of the victim’s death, Robertson received a
phone call to go to the hospital. When she arrived at the hospital, the victim was in surgery.
Eventually, Robertson learned that the victim had passed away. She knew the victim and the
Defendant as friends and did not understand why the Defendant would kill the victim.
Robertson stated that she had attended counseling but that the counseling ended when she
began her job.

        Sally Watson Hernandez testified that, on the night the victim was killed, she was
living at 2003 Blair Street, which is next door to the home where the victim was shot. When
the incident occurred, Hernandez was across the street talking to Katrina Johnson on the front
porch. She had observed the Defendant go by the house (2005 Blair Street) earlier in the day,
and she also had observed the victim ride his bicycle to the house shortly before he was shot.


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Shortly after the victim parked his bicycle, “there was fire . . . from a gun,” which prompted
Hernandez to run inside the house. Hernandez confirmed that she saw the “fire” and stated
that it was going toward the tree where the victim had parked his bicycle. She described the
sound of the shots as “[o]ne after another” and did not see gunshots being fired in a different
direction. At some point, Hernandez returned outside the house and observed the victim “in
the road dripping with blood.”

       On cross-examination, Hernandez stated that she believed the victim was somewhat
intoxicated. She confirmed that the gunshots she observed did not come from the tree where
the bicycle was parked.

        Montell Black stated that he currently was on community corrections for theft. He
confirmed that he was with the Defendant and an individual who went by “T” on the night
the victim was shot. According to Black, they were sitting in a vehicle outside the residence
at 2005 Blair Street. He denied having any knowledge that the Defendant and the victim
were having any sort of dispute. At some point, the victim approached on his bicycle and
bumped the vehicle in which Black, Robertson, and T were sitting. Immediately, the
Defendant “[j]ust jumped out.”

       According to Black, the Defendant walked under a tree, and Black walked away from
the area. He called the victim’s cell phone because Black had seen a gun in the Defendant’s
possession. Black believed the gun was a “40 Smith and Wesson.” When the victim
answered, Black told the victim, “I think [the Defendant is] fixing to do something to you;
I don’t know.” The victim met up with Black, “and then [the victim] took off.”
Approximately five minutes later, Black heard shooting.

       When Black returned to the scene, he saw that the victim had been shot and “was
bleeding out.” The victim did not say who shot him, and Black did not see the Defendant at
the scene at that time. On cross-examination, Black stated that he only saw approximately
two and one-half inches of the gun sticking out of the Defendant’s clothes, so he only was
guessing as to the type of gun. He denied seeing more than the one gun on the Defendant.
Black heard six gunshots and recalled that one shot came first, and then the others fired in
rapid succession.

         Peggy Stanton, the Defendant’s grandmother, testified that, at approximately 10:00
p.m. on the night of this incident, the Defendant knocked on her back door. She had been
asleep and was not expecting the Defendant. Stanton testified, “He said Granny. I said what
is it, baby? He said somebody’s after me. I said well, what’s the matter? He said they trying
[sic] to kill me.” The Defendant explained to her that the victim, with his bicycle, hit the
vehicle in which the Defendant was sitting. The victim drove away, returned, and then


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pulled out a gun. At that point, the Defendant “took off running” to her house, which was
approximately a block or two away.

       Stanton confirmed that she would assist the Defendant once he was released from jail
and that she had a good relationship with him. On cross-examination, Stanton acknowledged
that she did not call the police to inform them of the Defendant’s whereabouts.

       Tanya Farmer, the Defendant’s sister, testified that, to her understanding, the
Defendant and the victim were friends. On the day of the incident, Farmer saw the victim
at approximately 10:00 a.m. at her friend’s apartment. The victim was looking for the
Defendant and asked Farmer where he was, but Farmer stated that she did not know. In
Farmer’s opinion, the victim seemed angry.

       Martize Leavell testified that he saw the victim at Southfield Apartments on the day
of the shooting. The victim told Leavell that he was at the apartments because “he was
waiting on [the Defendant].” Leavell confirmed that the victim appeared to be “under the
influence” and seemed “like he wanted to be left alone.”

       Natasha Dowlen, the Defendant’s fiancée, testified that she planned to marry the
Defendant upon his release from incarceration. She had two children, one of whom was the
Defendant’s daughter who was born after the Defendant became incarcerated. Her other
child was not the Defendant’s son, but the Defendant treated him as his own son and helped
provide for him.

       Laucja Mason, the Defendant’s mother, testified that the Defendant made good grades
in school until the twelfth grade. At that time, “[h]e got to hanging with some more friends,
they was [sic] skipping school, and he was underage.” Mason continued, “I had to go to
court for him missing so many days at school, and he just dropped out.” While in school, the
Defendant had played basketball and football and worked at Hardee’s. The Defendant began
working at Electrolux while in school and continued working there for nine months after he
dropped out. Mason knew the victim and believed that he and the Defendant were good
friends. Besides the Defendant skipping school, Mason never had any behavioral issues with
the Defendant. In her opinion, he was polite and respectful.

       On cross-examination, Mason acknowledged that the Defendant was on probation at
the time the victim was killed. She stated that she primarily was responsible for taking the
Defendant to and from meetings with the probation officer.

       The Defendant testified that he and the victim were friends. Prior to the night the
victim was killed, both the Defendant and the victim had been incarcerated, and the victim


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had been released from incarceration approximately one month before the Defendant’s
release. When both were released, they “started back hanging around each other.”

       The Defendant testified that, on the night the victim was killed, the victim, on his
bicycle, approached the Defendant. The Defendant and another individual, Joe Larry, were
standing by a tree in the yard of 2005 Blair Street. The victim said to the Defendant, “[M]an,
been hearing something. . . . I hope it ain’t [sic] even true.” The Defendant responded,
“[W]hat you talking about?” and the victim pulled out a pistol. The Defendant continued,

               And then when he pulled it out I hit his hand, he shot. Then I started
       running back, he shot again, that’s when I fell in front of Demarius[’] porch
       right there, that’s when I pulled out the gun and shot. The gun jammed up. So
       as I was getting up on the side of the house somebody else started shooting.

The Defendant explained that the shots were coming from the alley between 2005 and 2007
Blair Street.

      The Defendant testified that the victim was taller than him, and yet he recalled from
the medical examiner’s report that the shots on the victim were traveling downward. He
confirmed that he provided the gun in his possession to police – a Llama .45 caliber.
According to the Defendant, if he were given probation he would “straighten [his] life up.
[He]’d get married, and get [a] job, and be the father and man [he] need[s] to be.”

        On cross-examination, the Defendant agreed that he was on probation at the time of
the victim’s death. The underlying convictions for which he was on probation were
facilitation of aggravated assault and a drug offense. The Defendant had been charged in the
drug offense while out on bond for the aggravated assault offense. During this time, the
Defendant did not have a job, so he, the victim, and Demarius Smith made money by
“hustling drugs.” When they were released from incarceration, Demarius owed the victim
“some weed and some money.”

        The Defendant acknowledged that, despite the fact that he proclaimed his innocence
in this case, he did not turn himself in to police until approximately six weeks after the night
of the incident.

       Detective Terry Dorris testified that he and another officer, Agent Rigsby, investigated
the scene the day after the incident and could not find any shell casings. He stated that he
only found a .40 caliber bullet, which could not have been fired from the Defendant’s gun.
He confirmed that the medical examiner’s report indicated that all of the gunshots had gone
through the victim’s body completely such that it was impossible to determine the type of


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bullets fired into the victim’s body. Detective Dorris could find no markings or bullet holes
at the scene to corroborate the Defendant’s story of the victim’s shooting at him.

       At the conclusion of the proof at the sentencing hearing, the trial court considered as
mitigation that the Defendant entered a plea, that he had worked, and that he had a child. See
Tenn. Code Ann. § 40-35-113(13) (2010). The trial court found that no other mitigating
factors applied. With regard to enhancement factors, the trial court noted that, given that it
was sentencing the Defendant as a Range III offender, it was not considering the Defendant’s
five prior felony convictions. However, the trial court did consider the Defendant’s prior
misdemeanor conviction to apply the first statutory enhancement factor See id. § 40-35-
114(1) (2010). Additionally, the trial court found that the Defendant possessed a firearm in
the commission of this offense. See id. § -114(9). The trial court also found that the
Defendant was on probation at time the offense was committed. Id. § -114(13).

       Accordingly, the trial court sentenced the Defendant to thirteen years’ incarceration.
The trial court ordered this sentence to run consecutively to the Defendant’s sentence for his
second probation violation.1 The Defendant timely appealed his sentence, arguing that the
length of his sentence is improper.

                                                Analysis

        Prior to imposing sentence, a trial court is required to consider the following:

        (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 [Tennessee Code Annotated sections ] 40-35-
        113 and 40-35-114;




        1
         As stated previously, the sentence for the Defendant’s second probation violation already was to
be served consecutively to the sentence for the Defendant’s first probation violation. These sentences were
four years each.

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       (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 referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (2010). “The sentence imposed should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),
(5) (2010).

       Our Sentencing Act also mandates as follows:

       In imposing a specific sentence within the range of punishment, the court shall
       consider, but is not bound by, the following advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

               (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement factors
       set out in [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor
does not remove the presumption of reasonableness from its sentencing decision.” Id. at 709.


                                             -8-
This Court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n
Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The Defendant argues on appeal that the length of his sentence is excessive.
Specifically, the Defendant contends that the trial court erred in its application of the first
statutory enhancement factor – that the Defendant had a previous history of criminal activity.
See Tenn. Code Ann. § 40-35-114(1).

       In this case, the Defendant pleaded guilty to voluntary manslaughter, a Class C felony,
which carries a sentence of ten to fifteen years for a Range III offender. See Tenn. Code
Ann. §§ 39-13-211(2006); 40-35-112(c)(3) (2010). Therefore, the trial court’s sentence of
thirteen years is within the authorized term for a Class C felony.

        At the sentencing hearing, the trial court considered as mitigation that the Defendant
entered a plea, that he had worked, and that he had a child. See Tenn. Code Ann. § 40-35-
113(13). The trial court found that no other mitigating factors applied. The trial court then
determined that the first, ninth, and thirteenth statutory enhancement factors were applicable
in this case. See Tenn. Code Ann. § 40-35-114(1), (9), (13) (“The defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range”; “The defendant possessed or employed a firearm . . .
during the commission of the offense”; and “At the time the felony was committed, one (1)
of the following classifications was applicable to the defendant: . . . (C) Released on
probation[] . . . .”).

        The trial court’s findings as to these enhancement factors are supported by the record.
The trial court was to sentence the Defendant within Range III with respect to the length of
the Defendant’s sentence. As applicable in this case, one way to establish a defendant as a
Range III offender is if the defendant has “[a]ny combination of five (5) or more prior felony
convictions within the conviction class or higher or within the next two (2) lower felony classes.”
Tenn. Code Ann. § 40-35-107(a)(1) (2010). A review of the record in this case confirms that the
Defendant had at least five prior felony convictions. Additionally, the Defendant had a prior
misdemeanor conviction, which is sufficient “criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range.” Id. § 40-35-114(1). Thus,
the trial court did not err in its application of this factor.



                                                -9-
        Moreover, the record established, by the Defendant’s own admission at the sentencing
hearing, that the Defendant employed a firearm during the commission of this crime. See id.
§ -114(9). Furthermore, the Defendant also admitted at the sentencing hearing that he was
on probation at the time of this offense. See id. § -114(13). Therefore, the trial court did not
err in its application of the statutory enhancement factors in this case.

        In summary, we hold that the trial court imposed this sentence in a manner consistent
with the purposes, principles, and goals of the Sentencing Act. Accordingly, the Defendant
is entitled to no relief.

                                       CONCLUSION

       For the reasons set forth above, we affirm the judgment of the trial court.




                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE




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