             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs September 9, 2008

               STATE OF TENNESSEE v. HERBERT H. FOSTER, JR.

                     Direct Appeal from the Circuit Court for Madison County
                              No. 07-241    Donald H. Allen, Judge


                       No. W2007-02636-CCA-R3-CD - Filed February 3, 2009


Defendant-Appellant, Herbert H. Foster, Jr. (hereinafter “Foster”), appeals the sentence imposed by
the Madison County Circuit Court as excessive. He entered open guilty pleas1 to three counts of
aggravated assault, one count of possession of a Schedule IV controlled substance, and one count
of possession of drug paraphernalia and was sentenced to an effective term of ten years in the
Tennessee Department of Correction as a Range II, multiple offender.2 The sole issue for our review
is whether the trial court sufficiently weighed the proof offered to mitigate the sentence. Following
our review of the record and the applicable authorities, we affirm the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Herbert H.
Foster, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
James (Jerry) G. Woodall, District Attorney General; and Shaun A. Brown Assistant District
Attorney General, for the appellee, State of Tennessee.


                                                     OPINION

                                         FACTUAL BACKGROUND




         1
          A defendant enters an open guilty plea where he or she pleads guilty to a charge but authorizes the trial court
to determine the length and manner of the sentence for this charge.

         2
          Foster does not challenge the sentences for the possession of Schedule IV controlled substance or possession
of drug paraphernalia convictions.
       A. Guilty Plea Hearing. On September 20, 2007, Foster entered open guilty pleas to all
counts of the indictment. At the guilty plea hearing, the State recited the following facts in support
of Foster’s convictions:

       [On] January [12], 2007, [Foster] was in the parking lot at Jackson Madison County
       General Hospital and the victim in Count 1, Milton Strain, was backing out of a
       parking space. He was allowing somebody else to pull into that parking space and
       [Foster] pulled up. Mr. Strain explained to [Foster] that he was waiting for someone
       else who was coming to take that parking space. Mr. Frank White was in the vehicle
       also. [Foster] began arguing with them and then [Foster] pulled a knife and
       brandished a large knife and began waving that at Mr. Strain. Mr. Strain pulled out
       a baton and a chemical weapon to defend himself. Mr. Strain worked out there at
       least at the time. [Foster] then fled that area after he placed Mr. Strain in fear of
       imminent bodily injury by the use of that knife, but he was not hurt. Of course, he
       notified security.

               Mr. Beare, the victim in Count 2, John Beare, who is in security at the
       hospital came in contact with [Foster] as [Foster] was exiting one of the entrances to
       the hospital on that same day and night and, of course, Mr. Beare confronted [Foster]
       and [Foster] then brandished the same knife and [waved] it at Mr. Beare causing him
       to reasonably fear imminent bodily injury. I believe his uniform was torn from that
       incident, but there [were] no serious injuries to him, but he feared injury and, of
       course, he stepped back into the building once [Foster] then began [waving] that
       knife in order to avoid that situation.

               Then Mr. Pollen, Daniel Pollen,3 who is also with security at the hospital, the
       victim in Count 3, came in contact with [Foster] outside that door and then was able
       to subdue [Foster], I believe with a chemical weapon, and [Foster] was also
       brandishing the knife at Mr. Pollen and [waving] the knife but then dropped that
       knife once a chemical weapon was used. Security was then able to take him into
       custody after he placed Mr. Pollen in reasonable fear of imminent death or serious
       bodily injury.

               Once [Foster] was taken into custody, there was a pill bottle that was
       recovered from his person which contained a crack pipe which was the paraphernalia
       in Count 5 that he did unlawfully possess. Also, I believe it was six pills -- I’m sorry,
       Your Honor, nine pills, Your Honor, that turned out to be Propoxyphene [Darvocet]
       which is a Schedule IV controlled substance as tested positive by the T.B.I. lab to be
       that substance. All of these offenses occurred in Madison County, Tennessee.




       3
           The indictment refers to this individual as Daniel Paullin.

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        B. Sentencing Hearing. On October 22, 2007, and November 19, 2007, the trial court
conducted sentencing hearings. John Marlon Beare testified that he worked at Jackson General
Hospital in the security department and was one of the victims in the case. As a result of the assault,
Beare stated that he “reaggravated [his] back and had to have therapy on [his] back and [he] damaged
a uniform and cell phone.” Although the cost of his therapy was covered by his employer, Beare
stated his out of pocket loss was “[j]ust [his] uniform pants [that were] $35 and $112 for [his] cell
phone.” Beare concluded his testimony and explained, “[W]e were very fortunate in the . . . sense
that we had a lot of civilians and people and it could have been a lot worse situation [sic] than it
was.” He added, “You know, the fact that the perpetrator was blindly flailing his weapon trying to
injure anybody he could hit with it . . . needs to be taken into consideration.”

        Another victim, Daniel Pollen, testified that he was the security supervisor at Jackson
General Hospital and was working on the date of the offense. Pollen stated he came into contact
with Foster “[a]t the west front main entrance of [the hospital].” As Foster drew his knife and turned
toward Pollen, Pollen had already drawn his chemical spray. Foster “attempted to slash the knife
at [Pollen], [and Pollen] spray[ed] [Foster].” Foster “then threw the knife in [Pollen’s] direction.”
With the assistance of other deputies, Pollen was able to take Foster into custody. Although Pollen
did not suffer any physical injury or property damage, he believed that Foster “showed disregard for
human life” and “would be pretty much a menace if he [were] allowed to stay out.”

        Foster testified that “[w]hen [he] was younger, [he] had a substance abuse problem.” He
explained that “[he] drank and [he] used marijuana and other drugs.” On the date of the offense, he
admitted to using “crack cocaine” and to possession of nine Darvocet pills. He explained that he had
been unable to sustain employment because of injuries he received from two prior car wrecks. He
stated that “[he saw] several counsellors [sic] when [he] was younger” because he had “an abusive
alcoholic father.” As an adult, he went to “Pathway’s” and discovered he suffered from post-
traumatic stress disorder, depression, and bipolar disorder. Foster stated, “It helped [him to]
understand [him]self and maybe get this under control in the future.” On the day of the assaults,
Foster was visiting his mother at the hospital because she was suffering from heart problems. After
the deputies “sprayed [him] with the chemical spray [Foster] was unable to see and [] was afraid [the
deputies] would knock [him] down on top of the knife . . . so [he] threw [the knife] underhanded
away from [him] . . . .” He explained that “[the deputies] were close enough to [him and] if [he] had
wished to hurt [them], [he] could have done that.” As a result of the arrest, Foster stated that he
“was unable to sleep on [his] back or sit down or really walk well for about three months.” Finally,
Foster testified that he would benefit from a special needs placement program.

       On cross-examination, Foster stated he drew the knife because he felt threatened, given the
number of deputies surrounding him. He admitted to the criminal history as outlined in the pre-
sentence report as well as to being on probation when the instant offenses were committed.

       Veronica Fortune, Foster’s mother, testified that she realized Foster needed mental health
counseling at the age of nine or ten years old. She took Foster to the doctor and he was “put on pills
every day and one shot a week.” She stated that a special needs treatment program would benefit


                                                 -3-
Foster because she had “seen him have [bipolar symptoms] two or three times.” She was certain that
Foster “felt threatened that night because they thought [she] was going to die and when something
goes wrong with [her], [Foster’s] kind of uncontrollable anyway.”

        The pre-sentence report was admitted into evidence without objection. After the hearing, the
court considered the proof, the pre-sentence report, and arguments of counsel. The court then
reviewed Foster’s extensive criminal history, which included three prior felony aggravated assaults,
possession of a weapon with intent to employ in the commission of a felony, and three misdemeanor
convictions for driving under the influence. Foster was also previously convicted of various other
misdemeanor offenses including failure to stop and identify, public intoxication, possession of
alcohol by a minor, resisting official detention, and two citations for driving on a revoked license.
The court noted that Foster was on probation for driving under the influence when he was charged
with another driving under the influence offense. The court additionally observed that Foster was
on probation for aggravated assault when he committed the instant offenses. Accordingly, the trial
court enhanced Foster’s sentence because he (1) had an “extensive previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range”
and (2) had a “previous history of unwillingness to comply with the conditions of a sentence
involving release in the community.” See T.C.A. § 40-35-114(1), (8) (2006). In mitigation, the trial
court considered that Foster (1) had previously received some “psychiatric help,” (2) was addicted
to pain medication, (3) had suffered from depression, and (4) had some alcohol and drug problems.
However, the trial court afforded the above mitigation proof “slight consideration” because it was
“not enough to justify any of [Foster’s] actions.” The trial court sentenced Foster to ten years as a
Range II offender for each of the three aggravated assault convictions. For the remaining offenses
of possession of a schedule IV controlled substance and possession of drug paraphernalia, the trial
court sentenced Foster to eleven months and twenty-nine days and imposed fines of $750 and $150,
respectively. Pursuant to the plea agreement, the trial court ordered the above sentences to be served
concurrently.

                                            ANALYSIS

         The only issue Foster presents for our review is whether the sentence imposed by the trial
court is excessive. He does not contest the enhancements based on his criminal history and previous
probation violations; however, he contends “the mitigation offered at the sentencing hearing should
have been afforded greater weight by the trial court.” In response, the State cites to State v. Carter
and maintains “such a disagreement is not grounds for reversal under the revised Sentencing Act.”
See State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). We agree with the State.

         I. Standard of Review. On appeal, we must review issues regarding the length and manner
of service of a sentence de novo with a presumption that the trial court’s determinations are correct.
T.C.A. § 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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). Our review is de novo, without a presumption of correctness, if the


                                                 -4-
trial court applied inappropriate mitigating or enhancement factors or otherwise failed to follow the
principles of the Sentencing Act. Carter, 254 S.W.3d at 345. The defendant, not the State, has the
burden of showing the impropriety of the sentence. T.C.A. § 40-35-401(d) (2006), Sentencing
Commission Comments.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider:
(1) the evidence adduced at the trial and the sentencing hearing; (2) the pre-sentence 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 enhancement and mitigating factors set forth in Tennessee Code Annotated sections
40-35-113 and 40-35-114; (6) any statistical information provided by the Administrative Office of
the Courts as to Tennessee sentencing practices for similar offenses; and (7) any statement the
defendant wishes to make in the defendant’s own behalf about sentencing. See T.C.A. §
40-35-210(b); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State v. Osborne, 251
S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       In State v. Carter, the Tennessee Supreme Court clarified the changes in Tennessee
sentencing law post-Blakely4 and stated:

                  [A] trial court’s weighing of various mitigating and enhancement
                  factors has been left to the trial court’s sound discretion. Since the
                  Sentencing Act has been revised to render these factors merely
                  advisory, that discretion has been broadened. Thus, even if a trial
                  court recognizes and enunciates several applicable enhancement
                  factors, it does not abuse its discretion if it does not increase the
                  sentence beyond the minimum on the basis of those factors.
                  Similarly, if the trial court recognizes and enunciates several
                  applicable mitigating factors, it does not abuse its discretion if it does
                  not reduce the sentence from the maximum on the basis of those
                  factors. The appellate courts are therefore left with a narrower set of
                  circumstances in which they might find that a trial court has abused
                  its discretion in setting the length of a defendant’s sentence.

Carter, 254 S.W.3d at 345-46.

       Thus, a trial court’s “fail[ure] to appropriately adjust” a sentence in light of applicable, but
merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for appellate
review. Carter, 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-DD, 2007
WL 1966039, at *48 (Tenn. Crim. App., at Jackson, July 6, 2007) (noting that “[t]he 2005
amendment [to the Sentencing Act] deleted appellate review of the weighing of the enhancement and



       4
           Blakely v. W ashington, 542 U.S. 296 (2004).

                                                          -5-
mitigating factors, as it rendered the enhancement and mitigating factors merely advisory, not
binding, on the trial courts”)).

        In this case, the record shows that the sentencing court engaged in an exhaustive review of
the proof, Foster’s criminal history, arguments of counsel as well as various enhancement and
mitigating factors. Additionally, the sentencing court stated the following:

               Also, this pre-sentence investigation report, the Court has reviewed
               this and will consider this for sentencing purposes along with the
               Principles of Sentencing. Certainly the Court will consider the nature
               and characteristics of the criminal conduct involved in this case. . . .

                       The Court will also consider the evidence and arguments that
               have been made here today by counsel both as to mitigating and
               enhancing factors. The defendant has testified here today in his own
               behalf. I will consider that testimony along with his mother’s
               testimony. Certainly the Court will consider the defendant’s
               amenability to rehabilitation and will also consider all possible
               alternative sentencing in this matter.

                       ....

                       As far as mitigating, you know, it does appear from this report
               that Mr. Foster since the age of ten years has received psychiatric
               help; apparently has had some problems and suffered some car
               accidents whereby he received some pretty serious injuries as a result
               of these accidents. He said that as a result of that, he became addicted
               to this pain medication, this Darvo[c]et, and also he suffered from
               depression in the past. You know, I take all of that into consideration
               to some extent to be mitigating but certainly not enough to justify any
               of his actions on this particular occasion. It’s kind of interesting that
               he’s reported to the probation officer that he has no problem with
               drugs or alcohol yet he testifies here today that just a few hours before
               the incidences occurred, he had used crack cocaine and also, of
               course, had Darvo[c]et in his possession as well. So, you know, it
               would appear he does have some drug and alcohol problems in this
               case. Now, I will give that slight consideration for mitigating
               purposes.

                       Now, considering all of the facts and circumstances as I’ve
               talked about and especially this criminal record and so forth, the
               Court finds that the appropriate sentence would be something toward
               the top of the range, which is Range 2, so the Court is going to


                                                 -6-
               sentence him to 10 years as a Range II offender for each of the three
               different counts. . . .

         Foster challenges the weight the trial court afforded to the proof he offered to mitigate his
sentence. However, pursuant to Carter, this is no longer an issue for appellate review, and Foster
is not entitled to relief. See id. at 345. The record clearly shows that the trial court followed the
statutory sentencing procedure, made findings of facts that are adequately supported in the record,
and gave due consideration to the principles that are relevant to sentencing. In support of his
position, Foster merely claims that his mental problems contributed to the instant offenses and that
the testimony regarding his mental health should have been given greater weight by the trial court.
However, the sentencing court considered this mitigating testimony and determined it did not “justify
any of [Foster’s] actions” in the instant case. Foster has not carried his burden of showing that the
trial court failed to consider the relevant principles of the sentencing act. Therefore, we cannot
conclude that the sentences imposed are excessive or inconsistent with the purposes of our
sentencing laws. Accordingly, Foster is not entitled to relief.

      Conclusion. Based on the foregoing reasons, Foster’s sentences are not excessive and the
judgments of the trial court are affirmed.

                                               __________________________________
                                               CAMILLE R. McMULLEN, JUDGE




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