             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                                JUNE 1997 SESSION          October 31, 1997

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                   )
                                      )    C.C.A. NO. 03C01-9611-CR-00428
             Appellee,                )
                                      )    ANDERSON COUNTY
VS.                                   )
                                      )    HON. D. KELLY THOMAS, JR.,
JAMES DAVID HARRIS,                   )    JUDGE
                                      )
             Appellant.               )    (Assault with intent to commit
                                            first-degree murder)



FOR THE APPELLANT:                         FOR THE APPELLEE:


MART S. CIZEK                              JOHN KNOX WALKUP
245 North Main St., Suite 100              Attorney General & Reporter
Clinton, TN 37716
   (On appeal)                             TIMOTHY F. BEHAN
                                           Asst. Attorney General
TOM MARSHALL                               450 James Robertson Pkwy.
District Public Defender                   Nashville, TN 37243-0493
101 S. Main St.
Clinton, TN 37716                          JAMES N. RAMSEY
   (At trial)                              District Attorney General

                                           JAN HICKS
                                           Asst. District Attorney General
                                           Anderson County Courthouse
                                           Clinton, TN 37716




OPINION FILED:____________________



CONVICTION AFFIRMED; REMANDED
FOR RESENTENCING


JOHN H. PEAY,
Judge
                                                    OPINION



                   The defendant was initially convicted in 1988 of attempted first-degree

murder with bodily injury. He was granted post-conviction relief in June 1991 on the basis

of ineffective assistance of counsel. Following the State’s appeal through our Supreme

Court of that decision and appointment of a new trial judge, he was retried in November

1995 and convicted of assault with intent to commit first-degree murder. 1 After a hearing

he was sentenced as a Range I standard offender to twenty-three years incarceration.

In this appeal as of right, he raises the following issues:

                   1.        The trial court abused its discretion when it rejected his
                             plea bargain;

                   2.     The four and one-half year delay between the grant of
                          post-conviction relief and his second trial violated his right
                   to a speedy trial;

                   3.    The trial court erred in its instruction to the jury about the
                   range of his punishment for the indicted offense; and
                   4.    The trial court erred in sentencing him.

After our review of the record, we find no merit to the first three of the defendant’s

contentions. However, because the trial court erred in sentencing him, we remand this

matter for resentencing.



                   On October 19, 1987, the defendant and the victim, his ex-wife, had a

custody hearing in conjunction with their divorce. Following the hearing, the victim went


         1
           The defendant was charged with “maliciously, deliberately and premeditatedly mak[ing] an
ass ault u pon the b ody of [the vic tim] w ith the felon ious inten t then and t here to un lawfu lly, felon ious ly,
maliciously, deliberately and premeditatedly to kill and murder the [victim] and to commit the crime of
murder in the first degree by use of a deadly weapon , to wit: a knife, and did thereby cause bodily injury
to the victim . . . all in violation of TC A 39-2- 103.” T .C.A. § 39 -2-103 ( Repl. 19 82) is titled “As sault with
intent to murder” and provides “(a) Whoever shall feloniously and with malice aforethought assault any
person, with intent to commit murder in the first degree, . . . though death shall not ensue, shall, on
conviction, be imprisoned in the state penitentiary for not less than five (5) nor more than twenty-five (25)
years. (b) If bodily injury to the victim occurs as a result of such an assault in violation of subsection (a),
the punishmen t shall be a determinate sentence of con finement in the state penitentiary for life or for a
perio d of n ot les s tha n five (5) yea rs. (c ) In the cas e of b odily inj ury to th e victim , the o ffen se de fined in
subse ction (b) of this section is a Class X felony.”

                                                            2
to the offices of the pediatric dentist for whom she worked as a dental assistant. While

she was preparing to treat a five-year old girl who was seated in the dental chair, the

defendant entered the area and attacked the victim with a knife. He cut the victim’s neck,

causing a wound approximately five inches long and at least an inch deep. The dentist,

hearing the commotion, came in and disarmed the defendant. The police arrived shortly

thereafter.



              Prior to the first trial, the State made a plea bargain offer to the defendant’s

attorney of aggravated assault with a sentence of five years incarceration. This plea offer

was never communicated to the defendant. Upon trial, the jury convicted the defendant

of attempted first-degree murder with bodily injury and he was sentenced to thirty-five

years incarceration. The defendant was subsequently granted post-conviction relief on

the basis that his lawyer was ineffective for failing to present the plea offer to him, and

that he was thereby prejudiced. Following the State’s appeals, our Supreme Court

ordered “[t]he cause . . . remanded to the trial court for a hearing by a new judge in which

the State is directed to reinstate its original guilty plea offer and negotiate in good faith.

If accepted by defendant, the trial court may utilize its discretion to accept or reject this

or any other plea agreement which may be negotiated. Otherwise, the case will stand

for trial in due course.” The State did as ordered, the defendant accepted the plea offer,

and it was presented to a new trial judge who, after a hearing, rejected it. The defendant

was then retried and reconvicted.



              In his first issue, the defendant contends that the trial court abused its

discretion when it rejected the plea agreement of aggravated assault with a five year

sentence of incarceration. The defendant is particularly concerned with the trial court’s

reliance on facts which would not have been available at the time the original plea offer



                                              3
was made. At the plea hearing, the victim testified that, following the defendant’s release

on bond upon his successful bid for post-conviction relief, he had harassed her over the

phone and had “tried to perform oral sex” on their minor daughter. In taking the plea

bargain under consideration, the trial court stated, “I think it has to be analyzed in part

from the situation as it would have existed back at that time and then I think also there’s

a certain amount of the present facts that have to be considered in deciding what still is

in the best interest of the people involved in this case and . . . the overall administration

of justice and the best interest of the public.” In then rejecting the plea bargain, the trial

court stated:

                I would not have accepted a guilty plea to a felony like this
                reduced as much as this one was had the victim not come in and
                really persuaded me that her best interest[s] were more important
                than the overall interest of society in having cases such as this
                prosecuted if there’s reasonable grounds to support the
                indictment. And I don’t think that [the victim] back then would
                have been successful with that and I don’t think she would have
                tried too hard from what I’ve heard her say here today.
                ...
                [I]t is not in the best interest of society or the public that [the
                defendant] go back to the penitentiary and as soon as the
                paperwork is completed be released under no supervision. That
                makes him free to pursue any sort of conduct that he wants to
                pursue short of criminal activity and he has shown from the
                testimony I’ve heard here today that that’s exactly what he
                intends to do. And that’s not, that can’t be tolerated, that’s just a
                lesser version of the same state of mind that caused this situation
                to occur in the first place. I mean, it’s a dangerous, dangerous
                thing. It shows that no real closure to this case has happened in
                his mind, no real rehabilitation as far as his attitude about his
                former wife is concerned by this whole offense. And I can’t say
                at all that it’s, would help the administration of justice or the
                interest of the public to take this [five] year plea. And I’m not
                going to.

Clearly, then, the trial court gave some consideration to events which had occurred after

the defendant had been convicted in determining to reject the plea agreement. However,

we do not agree with the defendant that the trial court thereby abused its discretion.



                This Court has previously held that, “[b]ecause a trial court is afforded


                                               4
discretion in the acceptance of a plea, the judgment cannot be set aside unless there has

been a plain abuse of authority.” Goosby v. State, 917 S.W.2d 700, 705 (Tenn. Crim.

App. 1995). Moreover, “[t]o find that a trial court has abused its authority, it must appear

that no substantial evidence supports the conclusion of the trial judge.” Id. In the instant

case, substantial evidence does support the trial court’s conclusion. In response to being

questioned about whether she had wanted to go through a trial initially, the victim testified

that, prior to the original trial, she “really didn’t know what [she] wanted to do. [She] was

scared, and . . . had two small children and . . . was concerned about how they would

feel.” She admitted that the original plea bargain had initially been “okay” with her. No

further testimony indicative of how the plea bargain would have served the victim’s “best

interests” was elicited, from the victim or anyone else. On the other hand, the proof

available prior to the original trial was that the defendant had brutally attacked the victim

at her place of employment while in the presence of a child. The trial court was

concerned about the “overall interest of society” and the fact that the defendant’s charge

of assault with intent to commit first-degree murder had been “reduced as much as this

one.” That is, the trial court was concerned that the proposed plea bargain was simply

too mild. Our Supreme Court has held that “[o]ne valid reason for rejecting a plea

agreement is that the proposed sentence is considered too lenient under the

circumstances.” State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995).



              Given the victim’s less than persuasive testimony about how the plea would

have served her best interests, and given the trial court’s stated concern with the

significant reduction of the charge, we find that the trial court did not abuse its discretion

in rejecting the proposed plea agreement, irrespective of the court’s consideration of

post-trial facts. This issue is without merit.




                                              5
                  The defendant next contends that his right to a speedy trial was violated

following his successful bid for post-conviction relief. On June 3, 1991, the court which

heard the defendant’s petition for post-conviction relief entered an order vacating his

conviction and granting relief “as specified at the postconviction hearing.” On June 27,

1991, the State filed its notice of appeal from this order. This Court affirmed the post-

conviction court’s decision by order filed June 3, 1992. On November 30, 1992, our

Supreme Court granted the State’s application for permission to appeal from this Court’s

order. On April 18, 1994, our Supreme Court affirmed this Court on the issue of

ineffective assistance of counsel and remanded the matter to the trial court as set forth

above.       Following the lower court’s rejection of the reinstated plea bargain, the

defendant’s new trial began in mid-November, 1995. Thus, the defendant waited for a

period of almost four and one-half years for his second trial while the State pursued its

appeals.



                  In United States v. Loud Hawk, 474 U.S. 302 (1986), the United States

Supreme Court was faced with the issue of whether delays caused by interlocutory

appeals of certain pretrial decisions violated the defendant’s constitutional right to a

speedy trial.2 To determine the issue, the Court adopted the four-part balancing test set

forth in Barker v. Wingo, 407 U.S. 514 (1972). That test includes four factors: a) the

length of the delay; b) the reason for the delay; c) the defendant’s assertion of his right

to a speedy trial; and d) prejudice to the defendant resulting from the delay. Id. at 530.

See also State v. Bishop, 493 S.W.2d 81 (Tenn. 1973). Although Loud Hawk dealt with

interlocutory appeals rather than an appeal following the grant of post-conviction (or


         2
           The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions,
the acc used s hall enjoy the rig ht to a spe edy and p ublic trial . . . .” This righ t has bee n applied to state
crimina l prosec utions thro ugh the F ourteen th Am endm ent to the U .S. Con stitution. Klopfer v . North
Carolina, 386 U.S. 213 (1967). The Tennessee Constitution similarly provides “That in all criminal
prosecutions [by indictment or presentm ent], the accused hath the right to . . . a speedy public trial. . . ”
Art. I, Sec. 9.

                                                         6
habeas corpus) relief, we think the same approach is appropriate here. Thus, we analyze

the defendant’s claim using the Barker test.



             A delay of four and one-half years is, we think, “clearly sufficient to trigger

an inquiry into the remaining three factors.” State v. Wallace, 648 S.W.2d 264, 266

(Tenn. Crim. App. 1980). See also Doggett v. United States, 505 U.S. 647, 652 n.

1(1992) (recognizing that a delay approaching one year “marks the point at which [lower]

courts [generally] deem the delay unreasonable enough to trigger the Barker inquiry”);

State v. James Sylvester Coure, C.C.A. No. 85-149-III, Perry County (Tenn. Crim. App.

filed Nov. 21, 1985, at Nashville) (“delay of over three and one-half (3 ½) years from

indictment to trial is unusual and requires us to examine the other three (3) factors set

forth in Barker.”) Thus, we must examine the reason(s) for the delay.



             Most of the delay, from June of 1991 to April of 1994, resulted from the

State’s decision to appeal from the post-conviction court’s order granting relief. The

defendant contends that this appeal was “weak from the onset,” “fruitless,

nonmeritorious, tangential and therefore frivolous.” In support of his contention, the

defendant points to a letter from the assistant attorney general to the prosecuting

attorney requesting her to dismiss the appeal on the grounds that, in his opinion,

“pursuing an appeal on this record is futile.” The State responds that the author of the

letter “did not understand the two pronged analysis for ineffective assistance of counsel

claims” and rhetorically asks, “if the issue is so meritless, why did our Supreme Court

grant the State’s Rule 11 application on the prejudice issue?”



             When considering the interlocutory appeals before it in the Loud Hawk

case, the Supreme Court stated that such an appeal “ordinarily is a valid reason that



                                            7
justifies delay.” 474 U.S. at 315. The Court continued: “In assessing the purpose and

reasonableness of such an appeal, courts may consider several factors. These include

the strength of the Government’s position on the appealed issue, the importance of the

issue in the posture of the case, and -- in some cases -- the seriousness of the crime.

For example, a delay resulting from an appeal would weigh heavily against the

Government if the issue were clearly tangential or frivolous.” Id. at 315-16 (citation

omitted). In the case sub judice, the importance of the issue in the posture of the case

was profound: unless it successfully appealed, the State lost a conviction of attempted

first-degree murder and faced the unhappy prospect of having to try the defendant a

second time. Likewise, the seriousness of the crime was extreme. It was undisputed that

the defendant attacked the victim while at her place of employment and slit her throat,

all in the presence of a five-year old child. Both of these factors weigh in favor of the

reasonableness of the State’s appeal.



              With respect to the strength of the State’s position, we respectfully disagree

with both the defendant and the assistant attorney general who advised the prosecuting

attorney to dismiss her appeal. As pointed out by the State, a claim of ineffective

assistance of counsel involves two issues, both of which must be proved by the

defendant. First, the defendant must prove that his lawyer failed to render competent

legal representation. Once the defendant proves incompetence, he must then prove that

the incompetent representation prejudiced him to the extent of undermining confidence

in the outcome of the trial. See Strickland v. Washington, 466 U.S. 668 (1984).

Obviously, the post-conviction court was satisfied that the defendant in this case had

proved both prongs of the Strickland test. The State contended on appeal, however, that

the post-conviction court had erred in its determination of the prejudice issue. As it states

in its brief, “The State maintained that [the defendant] suffered no prejudice because the



                                             8
original trial judge stated he would not have accepted the plea.” That is, even if the

defendant’s lawyer had conveyed the plea offer to him, and even if the defendant had

accepted it, the original trial court would have rejected it. Therefore, the State reasoned,

the defendant lost nothing by his lawyer’s mistake.



              In its opinion affirming the post-conviction court’s decision, this Court said

simply, “Albeit implicitly, the trial judge found that Harris was prejudiced by [his lawyer’s]

ineffectiveness. We agree.” Our Supreme Court, however, decided that this issue

merited further consideration. Thus, it granted the State’s Rule 11 application in order

to determine, in part, “whether the petitioner established the necessary prejudice to

sustain a claim of ineffective assistance of counsel.” Harris v. State, 875 S.W.2d 662,

663 (Tenn. 1994). We agree with the State that the Supreme Court’s grant of its Rule

11 application in order to address this very issue indicates that its appeal was neither

meritless nor frivolous notwithstanding the State’s eventual defeat.           Nor has the

defendant shown any bad faith or dilatory purpose on the part of the State in pursuing its

appeal. See Loud Hawk, 474 U.S. at 316. Therefore we find that the reason for the

initial period of delay was justified under the circumstances of this case.



              The four and one-half year period of delay also includes a fifteen month

delay between our Supreme Court’s order that the original plea offer be reinstated and

the eventual presentation of that offer to the new trial court. The record does not reveal

the reasons(s) for this delay, but both the defendant and the State proffer the explanation

that there was some difficulty in finding a judge unfamiliar with the case.



              In Wallace, this Court recognized “three categories into which a delay

between indictment and trial might fall: (1) deliberate attempt to delay the trial in order



                                              9
to hamper the defense . . . ; (2) a more neutral reason such as negligence or

overcrowded dockets; and (3) a valid reason, such as a missing witness, which should

serve to justify appropriate delay.” 648 S.W.2d at 269 (internal quotations omitted). We

think the fifteen month delay in this case falls within either the second or third category.

“[I]n dealing with the second category, that is, with a question of negligent delay,

Tennessee law requires a determination of the necessity of that delay, or . . . whether it

was reasonably avoidable.” Id. (internal quotations omitted) (emphasis in original). The

initial trial judge in this case recused himself upon the petition for post-conviction relief

because “[he] kn[e]w, in retrospect, that [he] would have rejected the plea agreement

addressed in the Post Conviction Petition and thus put the defendant to trial.” Therefore,

it was in the defendant’s best interest to have a new judge appointed to consider the

proposed plea bargain. There is no proof in the record as to why it took so long to find

a judge, but we are painfully aware of the overcrowded nature of most trial courts’

dockets. We find, therefore, that this delay was necessary, not reasonably avoidable,

and/or for a valid reason.



              The next factor is whether the defendant asserted his right to a speedy trial.

He did not. However, a defendant does not waive his or her right to a speedy trial by

failing to assert it. Rather, the defendant’s assertion of, or failure to assert, this right is

a factor in the balancing test. Barker, 407 U.S. at 528. Since the State has the burden

of proving guilt beyond a reasonable doubt, delay will often help rather than hurt the

defendant. Thus, the defendant may not necessarily want a speedy trial and may make

a tactical decision not to assert his right to it. As a consequence, failure to assert the

right to a speedy trial will make it difficult for the defendant to later prove that this right

was denied. Id. at 532.




                                             1 0
                 In this case, the defendant was not merely trying to avoid a speedy trial:

he was trying to avoid a trial altogether because he wished to plead guilty pursuant to the

original plea offer. We think his raising of the issue at this late date is a direct result of

the fact that his plea bargain was rejected and he was convicted again of the indicted

offense. That is, there is no indication that he wanted a speedy trial until the slow trial he

eventually got resulted in a conviction and a twenty-three year sentence.3 While we

certainly do not fault his appellate attorney for raising this issue, we think the defendant’s

failure to raise it until appeal weighs against him under the circumstances of this case.



                 Finally, we must determine what, if any, prejudice the defendant suffered

as a result of the delay in his second trial. He admits that his ability to conduct his

defense was not impaired and that he was out on bond throughout the four and one-half

year period but contends that he was prejudiced by a “cloud of anxiety accompanying the

unresolved criminal charges” and by the curtailment of certain liberties as a condition of

bond. Specifically, he could not leave the state and his personal associations were

curtailed. However, if given the opportunity, the defendant would have pled guilty to

aggravated assault pursuant to the plea offer. Hence, the cause for his anxiety was not

the fear of a criminal conviction (which he wanted), but the fear that a new jury would

again convict him of the more serious crime with which he was charged.



                 Overall, the factors when taken together weigh against the defendant’s

claim that his constitutional right to a speedy trial was violated. The minor prejudice he

suffered while awaiting trial is outweighed by the fact that there were valid reasons to

justify the delay. An important public interest was served by permitting the State to



        3
         Indeed, the record contains an August 3, 1995, letter from the defendant to his lawyer stating,
among other things, “It is my thoughts that avoiding trial is the best way for all parties involved. I have a
num ber of idea s to kee p a trial delayed for a perio d of time .”

                                                     1 1
appeal a legitimate issue in a case as serious as this one, and the defendant’s rights

were protected by the effort to find an impartial judge to decide whether to accept the

reinstated plea. This issue is without merit.



              In this third issue, the defendant contends that the trial court erred when it

instructed the jury that the punishment for assault with intent to commit first-degree

murder ranged from five to twenty-five years. At sentencing, the court determined that

the minimum sentence for this crime was twenty years. Thus, the defendant contends,

he was “subjected to punishment not known or contemplated by his convicting jurors” and

that, since the jury was “misinstructed that the actual consequences of their verdict w[ere]

less severe than they actually were,” the erroneous instruction “had a dramatic [e]ffect

on their verdict.” That is, had the jury been properly instructed, it likely would have

convicted him of a lesser offense.



              We think the defendant’s allegation of error is misplaced. This crime was

committed in 1987; the defendant was sentenced in 1995. Our Supreme Court has ruled

that,

              in order to comply with the ex post facto prohibitions of the
              U.S. and Tennessee Constitutions, trial court judges
              imposing sentences after the effective date of the 1989
              statute, for crimes committed prior thereto, must calculate the
              appropriate sentence under both the 1982 statute and the
              1989 statute, in their entirety, and then impose the lesser
              sentence of the two.

State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (emphasis added). Under the 1982

Act, the defendant was subject to “a determinate sentence of confinement in the state

penitentiary for life or for a period of not less than five (5) years.” T.C.A. § 39-2-103(b)




                                            1 2
(Repl. 1982).4 Under the 1989 Act, he was subject to a range of fifteen to twenty-five

years. T.C.A § 40-35-112(a)(1) (Repl. 1990).5 Because the defendant was entitled to the

lesser of the two sentences calculated under each act, his minimum sentence was five

years and his maximum sentence was twenty-five years. Thus, the trial court’s instruction

to the jury was correct.



                 However, the trial court did commit error when it calculated the defendant’s

sentence solely under the 1989 Act. Therefore, this matter must be remanded for

resentencing in accordance with our Supreme Court’s opinion in Pearson.6



                 The defendant also contends that the court below erred when, in calculating

his sentence under the 1989 Act, it determined the presumptive sentence to be the

midpoint of the range rather than minimum. The court below found both enhancement

and mitigating factors. Accordingly, the 1989 Act required the court to “start at the

minimum sentence in the range, enhance the sentence within the range as appropriate

for the enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors.” T.C.A. § 40-35-210(e) (Supp. 1995). As argued

by the defendant, the court below appears to have begun at the mid-range point of twenty




        4
          The m aximum sentence to which the defenda nt is subject under the 1982 Act is life
imprisonment rather than twenty-five years because his assault with intent to commit first-degree murder
resulted in bodily injury to the vic tim. See T.C.A. §39-2-103(b) (Re pl. 1982).

        5
          Assault with intent to commit first-degree murder is a Class A felony under the 1989 Act, T.C.A.
§ 40-35 -118 (S upp. 199 5), and the defend ant was senten ced as a Rang e I offend er.

        6
           As pointed out in Judge Tipton’s concurring opinion, it is possible that, under the 1982 Act, the
trial court may find the defendant to have com mitted an “especially aggravated offense.” See T.C.A . §
40-35-107. If the court below finds him to have committed an especially aggravated offense, then he
would receive a Range II sentence under the 1982 Act. T.C.A. § 40-35-107(7). A Range II sentence for
the crime of assault with intent to commit first-degree murder, accompanied by bodily injury, would be
thirty-three years. T.C.A. §§ 40-35-109(b),(d)(1) and (e)(2); 39-2-103(b). Thus, if the court below
determ ines the d efenda nt to have com mitted a n espe cially aggrava ted offen se, then w e agree with
Judge Tipton that no further Pearson analysis is necessary. However, we disagree with Judge Tipton
that this Co urt shou ld mak e the initial finding th at the defe ndant c omm itted such an offen se..

                                                    1 3
years. This was error.7 On remand, assuming the sentencing court again finds both

enhancement and mitigating factors, it shall start at the minimum sentence of fifteen

years when calculating the defendant’s sentence under the 1989 Act.



                   Finally, the defendant contends that the sentencing court erred when it

applied as enhancement factors under the 1989 Act that he had a history of criminal

behavior and that the injuries to the victim were particularly great.8 See T.C.A.

§ 40-35-114(1) and (6) (Supp. 1995). He contends that particularly great personal

injuries to the victim are an element of the offense committed and therefore cannot be

used to enhance his sentence, relying on State v. Makoka, 885 S.W.2d 366 (Tenn. Crim.

App. 1994). We disagree. The defendant was convicted of assault with intent to commit

first-degree murder. Because the crime resulted in bodily injury -- which was both alleged

in the indictment and proved at trial -- it was a Class X felony. T.C.A.

§39-2-103(c) (Repl. 1982). The comparable offense under current law is attempted first-

degree murder, a Class A felony.                        T.C.A. § 40-35-110, Sentencing Commission

Comments. In Makoka, a panel of this Court ruled that the enhancement factor for

serious bodily injury resulting from the defendant’s actions, T.C.A. § 40-35-114(12)9,

should not be applied to an attempt to commit first-degree murder on the basis that it

would constitute double enhancement. 885 S.W.2d at 374 (Tenn. Crim. App. 1994).

However, in State v. Freeman, 943 S.W.2d 25 (Tenn. Crim. App. 1996), another panel


         7
        Chapter 493 of the Te nnessee Pub lic Acts amended this sec tion of the code to provide for a
mid-range presumptive sentence for Class A felonies occurring on or after July 1, 1995.

         8
           The title to this section of the defendant’s brief also includes as error the court’s application as
an enhancement factor, “no hesitation when there was a high risk to others.” The defendant did not
brief this factor, however, and it is therefore waived. Ct. Crim. App. R. 10(b). We note that the
sen tenc ing co urt did apply a s an e nha nce me nt fac tor tha t “[t]he re w[e re] ris ks to othe r indiv iduals .” Th is
is not an e nhanc eme nt factor listed in either the 1 982 or 1 989 Ac t. See T.C .A. §§ 40-3 5-11 1 (Re pl.
1982) a nd 40-3 5-114 (S upp. 199 5). On re man d, we su ggest tha t the sente ncing co urt set forth its
findings o f enhan cem ent facto rs in the lang uage o f the statute .

         9
         “During the commission of the felony, the defendant willfully inflicted bodily injury upon another
person, or the actions of the defendant resulted in the death of or serious bo dily injury to a victim or a
person other than the intende d victim.”

                                                            1 4
of this Court disagreed with Makoka on the basis of our Supreme Court’s finding in State

v. Trusty that “an attempted murder does not necessarily require either contact with the

victim or bodily injury.” 919 S.W.2d 305, 313 n.7 (Tenn. 1996).



               In Freeman, this Court held “that because bodily injury is not an essential

element of the offense of attempted second-degree murder, the trial court properly

enhanced the defendant’s sentence for that offense with regard to the victim who was

actually wounded.” 943 S.W.2d at 32. W e think the same reasoning should apply in this

case. The victim of an attempted murder does not necessarily suffer particularly great

personal injuries. Accordingly, there is no double enhancement from the application of

this factor where the victim does suffer such injuries. Therefore, if on remand the

sentencing court finds that the victim in this case suffered such injuries, application of this

factor would be appropriate under the 1989 Act.



               With respect to calculating the defendant’s sentence under the 1982 Act,

it also provides for certain enhancement factors. See T.C.A. § 40-35-111(Repl. 1982).

One of them is that “[t]he personal injuries inflicted upon . . . the victim [were] particularly

great.” T.C.A. § 40-35-111(6) (Repl. 1982). The crime of assault with intent to murder

is automatically enhanced under T.C.A. § 39-2-103(b) and (c) (Repl. 1982) “[i]f bodily

injury to the victim occurs as a result” of the assault. Particularly great personal injuries

are significantly greater in degree than simple bodily injury.              Accordingly, this

enhancement factor is not a necessary element of the offense. Nor is it one of the

criteria for establishing an especially aggravated offense. See T.C.A. § 40-35-107 (Supp.

1987). Therefore, we find that this enhancement factor, if supported by the proof at the

resentencing hearing, may properly be applied in this case in determining the


defendant’s sentence under the 1982 Act.


                                              1 5
              The court below also found as an enhancement factor “a history of criminal

behavior.” This is an enhancement factor under both the 1982 and 1989 Acts. See

T.C.A. § 40-35-111(1) (Repl. 1982); T.C.A. § 40-35-114(1) (Supp. 1995). The court did

not specify what this history consisted of, other than to note “[a]lso those [two

misdemeanor] convictions” (emphasis added). Obviously, the court had in mind some

history other than the two misdemeanor convictions, which it stated “don’t weigh very

heavily,” but its findings are insufficient for this Court to determine whether that history

was appropriately considered or not. On remand, we remind the sentencing court that

it “shall place on the record either orally or in writing what enhancement or mitigating

factors it found, if any, as well as [specific] findings of fact [upon which application of the

sentencing principles was based.]” T.C.A. §§ 40-35-210(f) (Supp. 1995). See also

T.C.A. §§ 40-35-209(c) (Supp. 1987) (“The record of the sentencing hearing is part of the

record of the case and shall include specific findings of fact upon which application of the

sentencing principles w[as] based”) and 40-35-210(c) (Repl. 1982) (“Whenever the court

imposes a sentence, it shall place on the record either orally or in writing its findings of

fact and reasons as required by § 40-35-209”).



              The defendant’s conviction is affirmed and his sentence is vacated. This

matter is remanded for resentencing in accordance with this opinion.




                                                    _________________________________
                                                    JOHN H. PEAY, Judge




                                             1 6
CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
CURWOOD W ITT, Judge




                                 1 7
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE                       FILED
                         JUNE 1997 SESSION
                                                                       October 31, 1997

                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                            )
       Appellee,            )       No. 03C01-9611-CR-00428
                            )
                            )       Anderson County
v.                          )
                            )       Honorable D. Kelly Thomas, Jr., Judge
                            )
JAMES DAVID HARRIS,                 )          (Assault with intent to commit
                            )           first degree murder)
       Appellant.           )



                                 CONCURRING OPINION



       I concur in the remand of this case, but I do not believe that further review under the

Pearson guidelines is necessary. This is because the minimum sentence that could be

imposed under the pre-1989 sentencing law is greater than the maximum sentence

available under the 1989 Sentencing Act.



       Under T.C.A. § 40-35-107(2) (repealed 1989), a Range II, especially aggravated

offender is defined as one who willfully inflicts serious bodily injury upon another person.

In subsection (5)(B) of section -107, serious bodily injury includes “bodily injury which

involves a substantial risk of death; unconsciousness; extreme physical pain; protracted

and obvious disfigurement; or protracted loss or impairment of the function of a bodily

member or organ.”



       The evidence in the record reflects that the victim received a deep, five- inch cut in

her neck that the treating physician called life threatening, essentially because of its depth

and location. She has a permanent scar on her neck. Also, the victim had tendons cut in



                                               18
two of her fingers, one of which remains functionally impaired. Under these circumstances

and the facts surrounding the offense, I would conclude beyond a reasonable doubt that

the defendant willfully inflicted serious bodily injury so as to warrant him being sentenced

as a Range II, especially aggravated offender. 10



        This means that under the pre-1989 law, the defendant is exposed to a sentencing

range of thirty-four years to life in prison. See T.C.A. § 39-2-103(b); 40-35-109(b), (c) and

(e)(2) (repealed 1989). Thus, given the fact that the maximum sentence to which the

defendant is exposed under the 1989 Act is twenty-five years, no Pearson analysis is

needed. In fact, the trial court indicated that it actually did the Pearson analysis by its

statement that the defendant, under the new act, was subject to “less than the minimum

were he sentenced under the old act anyway.”



        As for the sentence that was actually imposed, the trial court found that the following

enhancement factors, as listed in T.C.A. § 40-35-114, applied:

                 (1) Previous history of criminal convictions or criminal behavior;

                 (6) Infliction of particularly great personal injuries upon the
                 victim;

                 (9) Possession of a deadly weapon during commission of the
                 offense; and

                 (10) No hesitation about committing a crime when the risk to
                 human life was high.

The trial court stated that factor (1) applied because the defendant had two old

misdemeanor convictions, although it did not weigh the factor heavily. It found that

factor (6) applied, not so much for the lasting injuries, but for the great risk of death that

was involved according to the proof. As for factor (9), the trial court stated that it did not

weigh heavily in its determinations. Finally, the trial court stated that factor (10) applied

because other persons, including a child, were at risk by the defendant’s assault upon


          10
             In fact, this court affirmed the defendant’s Range II, especially aggravated offender sentence
in the direct a ppeal afte r the defe ndant’s firs t conviction in this case . See State v. Jam es D avid H arris ,
No. 211 , Anders on Co unty (Ten n. Crim . App. Fe b. 27, 199 0), app. denied (Tenn. Aug. 27, 1990).

                                                        19
the victim, although it indicated that these facts did not “weigh as heavily” in its

consideration. The trial court also determined that his work record “weighed lightly in

mitigation” and that his mental and physical condition were grounds for mitigation but

did not significantly reduce his culpability. The trial court sentenced the defendant to

twenty-three years as a Range I, standard offender.



       As the majority opinion notes, though, the record reflects that the trial court’s

sentencing process began with a starting point of twenty years, not fifteen years as

required by law. Thus, the presumption of correctness that attaches to trial court

sentencing determinations falls and we are to review the sentencing de novo.

However, the presentence report is not in the record on appeal, thereby preventing us

from considering all matters required for sentencing. See T.C.A. § 40-35-210(b). Thus,

I concur in the case being remanded for resentencing, with the presumptive sentence

being the minimum sentence of fifteen years.



                                           ____________________________
                                           Joseph M. Tipton, Judge




                                             20
