             N THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                       AT KNOXVILLE
                               Assigned on Briefs July 23, 2014


               STATE OF TENNESSEE v. TYCORRIAN M. TAYLOR
                           Direct Appeal from the Criminal Court for Knox County
                                    No. 100470, Bob R. M cGee, Judge




                   No. E2013-02875-CCA-R3-CD - Filed August 20, 2014




The defendant appeals the sentence imposed for conviction of attempted voluntary
manslaughter and aggravated assault. Finding no error, we affirm the judgment of the
trial court.

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

J OE H. W ALKER, III, delivered the opinion of the court, in which JAMES CURWOOD
WITT, Jr, and ROBERT WEDEMEYER., joined.

Mitchell T. Harper, Knoxville, Tennessee, for the appellant, Tycorrian M. Taylor.

Robert Cooper, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel Criminal
Justice Division, for the appellee, State of Tennessee.




                                              OPINION

       Tycorrian Taylor was convicted by jury of aggravated assault and of attempted
voluntary manslaughter as a lesser offense of attempted first degree murder.1 The



       1
           The transcript of the jury trial was not included in the record on appeal.
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convictions were merged, and the defendant was sentenced to six years as a standard
offender, consecutive to an unexpired sentence.

        Defendant filed a timely notice of appeal of the “trial court’s sentence after a jury
verdict of guilty.” Defendant’s brief addresses only one issue with regard to sentencing, and
does not address the length of sentence, or the manner of service of sentence, and states the
“trial court properly applied T.C.A. 40-35-115(6) in imposing consecutive sentences.”


                                Sentencing Hearing

       At the sentencing hearing, it was presented that the defendant had prior convictions
and was on probation at the time of this offense. The defendant had been placed on
diversion for a misdemeanor conviction and revoked. He had received two additional
misdemeanor convictions, and was placed on probation on each and revoked. He was on
probation for a felony conviction at the time of this offense, and was revoked, and then
released on determinate release before the trial of this offense.

       At the sentencing hearing the victim testified that he is fifty years of age and had
been a successful businessman operating a towing company. He was a single parent to a
sixteen year old. After being beaten by the defendant and left in a parking lot, he endured
eighteen hours of surgery, spent thirty-six days in the hospital in a coma, and now lives in a
nursing home. He has been told he will be in a nursing home the rest of his life, due to brain
injury. He can not be the father he was which has caused depression for him and his child.

        The victim’s girlfriend testified they lost the business and two homes to foreclosure
after the defendant beat the victim. She is taking care of the victim’s son, who is not able to
be a normal teenager due to added responsibility.

      The victim’s child was sixteen years old at the time his father was beaten. He lost his
mother when he was nine years old. He described his father before the beating as “very
outgoing” and “a nice person.”

       The defendant testified: “I feel like, I mean, I deserve another chance to be back on
probation.”

                                   ANALYSIS

      A trial court’s decision regarding the length and manner of service of a sentence is
reviewed for abuse of discretion, with a presumption of reasonableness granted to within-
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range sentences reflecting a proper application of the purposes and principles of the
Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise, “sentences
should be upheld so long as the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” Id. At 706.

       In this case, the sentencing court conducted a sentencing hearing that met the
requirements of Tennessee Code Annotated section 40-35-209.

       The defendant does not appeal the length of sentence, the manner of service of
sentence, or the imposing of consecutive sentences.

       The defendant states the sentencing issue as: “the trial court erred in ordering the
service of defendant’s probation sentence without complying with T.C.A. 40-35-311.” That
code section deals with the procedure to revoke suspension of sentence or probation.

      The entire argument in defendant’s brief is as follows:

              The trial court properly applied T.C.A. 40-35-115(6) in imposing consecutive
      sentences in a case where consecutive sentencing is not otherwise required by statute.
      Clearly, Mr. Taylor was being sentenced for an offense committed while on
      probation. However, those acts, which constitute the offenses in docket #100470,
      had already been relied upon by the State in previously seeking to revoke Mr.
      Taylor[’]s probation. Moreover, Mr. Taylor had already served the mandatory
      service percentage of that sentence and had been placed on enhanced probation
      before conviction and sentencing in docket #100470. While the trial court properly
      applied T.C.A. 40-35-115, that code section does not waive or excuse the procedural
      requirements of T.C.A. 40-35-311 as it related to the revocation of suspended
      sentences. No violation of probation warrant was pending at sentencing and thus
      there could not be a finding that Mr. Taylor had violated his probation such that the
      trial court could order him to serve that sentence in TDOC custody.

        The defendant received the six year sentence in this appeal in docket #100470. That
sentence was run consecutively to docket #98666.2 It can be gleaned from the pre-sentence
report that in docket #98666, the defendant received a two year sentence in January 2012, on
probation, which was revoked October 11, 2012. At the sentencing hearing it was presented
that the defendant had been released on determinate release on that two year sente



       2
          Neither the judgment form or the record in that case (#98666) is included in the record
in this appeal.
3
nce before his conviction in this case.

       The provisions of Tennessee Code Annotated section 40-35-311 provide that a trial
court may revoke a sentence of probation if it determined by a preponderance of the
evidence that the defendant has violated the conditions of probation. The defendant seems
to be arguing that he was entitled to a revocation hearing in docket #98666 before the
sentencing court could run the six year sentence in docket #100470 consecutively to the two
year sentence in docket #98666. However, he presented no authority for that proposition.
In addition, the following colloquy was held at sentencing:

             The Court: All right. And the issue of revocation of probation in that case
       [docket #98666] is not before the Court?

              Asst. District Attorney: No, sir.

              The Court: Okay.

              Defense counsel: No.

              The Court: All right. Go ahead.


        The abuse of discretion standard, accompanied by a presumption of reasonableness,
is the appropriate standard of appellate review for all sentencing decisions. The standard
applies when the trial court properly addresses the purposes, principles, and considerations
for its sentence on the record. State v. Pollard, 2013 Tenn. Lexis 1011 (Tenn. 2013). The
trial court properly addressed the purposes, principles, and considerations for the sentence
imposed in this case, and the defendant has not shown an abuse of discretion.


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


                                                  _______________________________
                                                  JOE H. W ALKER, S P .J.




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