        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 15, 2009

          STATE OF TENNESSEE v. CEDRIC ANTONIO CONNER

            Direct Appeal from the Criminal Court for Hamilton County
                        No. 268816    Don W. Poole, Judge




                  No. E2009-01438-CCA-R3-CD - Filed May 20, 2010


The appellant, Cedric Antonio Conner, pled guilty in the Hamilton County Criminal Court
to aggravated assault and received a six-year sentence. On appeal, he challenges the trial
court’s refusal to grant him an alternative sentence. Upon review, we affirm the judgment
of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J OSEPH M. T IPTON, P.J., concurred in results only.

Darren Kennedy, Chattanooga, Tennessee, for the appellant, Cedric Antonio Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William H. Cox, District Attorney General; and Cameron Williams, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

        The Hamilton County Grand Jury indicted the appellant on count one with the
attempted first degree murder of the victim, Derrick Thornton, a Class A felony, and on
count two with the aggravated assault of the victim, a Class C felony. Subsequently, the
appellant pled guilty to aggravated assault in exchange for a sentence of six years as a
standard Range I offender and the dismissal of the attempted first degree murder charge. The
plea agreement further provided that the trial court was to determine the manner of service
of the sentence.
       The appellant did not include a transcript of the guilty plea proceedings in the record
for our review. However, at the sentencing hearing the victim testified regarding the
circumstances of the offense. The twenty-nine-year-old victim testified that he was a resident
of Chattanooga and was unemployed. The victim said he occasionally did “odd jobs” and
had sold cocaine in the past.

       The victim said that prior to the incident in question, he had seen the appellant once
but did not really know him. Around midnight on May 20, 2008, the victim was in the
“projects” visiting his friend, Jeffrey Hudgins. Hudgins was standing on the porch of the
residence, and the victim was sitting on the edge of the porch when the appellant walked up
to the victim and identified himself. The appellant confronted the victim about a female
named “Yo-Yo” with whom both men were involved. The victim told the appellant that
“Yo-Yo” said she was no longer involved with the appellant. The appellant disputed her
claim, maintaining they were still a couple. The victim told the appellant that “Yo-Yo”
should be able to decide with whom she wanted to be involved.

         At that point, the appellant reached into the front pocket of his red “hoodie” sweatshirt
and began firing a semiautomatic pistol that was concealed in the pocket. The victim said
he saw the handle of the gun when the appellant tried to “raise it up.” The victim said he was
unarmed and had not threatened the appellant. The victim said he felt a burning sensation
when a bullet entered his right leg, and he felt his left leg go cold and “paralyzed.” As the
victim tried to crawl inside the residence for safety, he saw the appellant running backwards,
still firing his gun.

        The victim said his major injuries included gunshot wounds to his stomach, liver, and
right lung. Doctors had to remove half of the victim’s liver. The victim also suffered
gunshot wounds to his right arm, both feet, and multiple shots to both legs. The victim also
had “graze” wounds to his left arm and left side. In total, he suffered two “graze” wounds
and ten gunshot wounds.

        The victim said he was unconscious for three weeks and was in the hospital for about
a month or a month and a half. The victim stated that when he awoke in the hospital, his pain
was unbearable. After his release, he returned to the emergency room multiple times. He
continued to suffer pain and was on pain medication. He stated that he had numbness in his
legs, a bullet in his thigh, and bullet fragments in his leg. He said he had issues with his
circulation and would probably suffer arthritis at an early age. He stated that he had
difficulty breathing after his lung collapsed. The victim had problems sleeping and was
plagued with bad dreams. The victim asserted that he would be “highly upset” if the
appellant received probation. He stated that considering the number of times he was shot,
he felt the appellant should have been convicted of attempted murder.

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       The appellant made an allocution in which he contended that “things did happen much
differently than perceived to be and I’m not the type of person that I’ve been perceived to
be.” The appellant maintained that he was “the only person in this matter . . . stepping
forward as far as taking responsibility” for the incident, explaining that he pled guilty to
aggravated assault in order to take responsibility. The appellant expressed his regret for his
behavior on the night in question.

       The appellant stated that he had been incarcerated for thirteen months, “greatly
suffering for my actions.” He said that while in confinement, he sought help from an
Alcoholics Anonymous program and from other programs which were offered in jail. The
appellant said he was concerned about his four children, especially his stepdaughter whose
mother had died and had only the appellant to support her. The appellant averred that he had
a good work history and had a job waiting for him if he received alternative sentencing. The
appellant said, “I’ve never been the type that’s out there assaulting people and catching these
kind of charges.”

       In making its sentencing determination, the trial court noted that the thirty-five-year-
old appellant was married but had divorce proceedings pending. He had four children. The
court observed that the appellant had an extensive criminal history consisting largely of
misdemeanor convictions, including two theft offenses, two assault offenses, one simple
possession of cocaine offense, vandalism, and various driving offenses. Additionally, the
appellant had one conviction from Georgia that would have been a felony in Tennessee. In
each case, the appellant received probation. The appellant violated his Georgia probation
and continued to incur new charges after the completion of his Tennessee probations. The
court noted that the circumstances of the offense were very serious; the appellant armed
himself and confronted the victim at his friend’s home. The court found that although the
appellant had a favorable work history, his past failures to rehabilitate after receiving
probation and the seriousness of the offense meant that the appellant should not be awarded
an alternative sentence. On appeal, the appellant challenges this ruling.

                                        II. Analysis

       Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court
considers the following factors: (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 enhancement and mitigating
factors; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant

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in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.
§§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the
trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

       We note that the appellant failed to include the transcript of the guilty plea hearing in
the record for our review. However, from the testimony at the sentencing hearing we
conclude that the trial court did not err in denying the appellant an alternative sentence.

        An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a) (2006). The appellant’s sentence
meets this requirement. Moreover, an appellant who is an especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered a favorable candidate
for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6).     Tennessee Code Annotated section 40-35-103(1) sets forth sentencing
considerations which are utilized in determining the appropriateness of alternative
sentencing:

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

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

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

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[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.” Tenn.
Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and
“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative
sentencing. Tenn. Code Ann. § 40-35-102(5).




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        In the instant case, the appellant is a standard Range I offender convicted of Class C
felonies; therefore, he is considered to be a favorable candidate for alternative sentencing.
However, as the trial court noted, the appellant has repeatedly been granted probationary
sentences and, despite his repeated convictions and the largess of the courts, he has continued
to violate the law, proving that he is unable to conform his behavior to comply with the law.
Additionally, the trial court noted that the appellant armed himself and sought a confrontation
with the victim. The victim was shot numerous times and was seriously injured. Based upon
these facts, the trial court found that granting the appellant an alternative sentence would
depreciate the seriousness of the offense. There is nothing in the record to preponderate
against the trial court’s ruling.

                                      III. Conclusion

       Finding no error, we affirm the judgment of the trial court.


                                                    ___________________________________
                                                    NORMA McGEE OGLE, JUDGE




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