        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 14, 2013

           STATE OF TENNESSEE v. HOYTE MITCHELL HOBBS

                  Appeal from the Circuit Court for Warren County
                       No. 13597     Larry B. Stanley, Judge




                No. M2012-02537-CCA-R3-CD - Filed August 14, 2013


The defendant, Hoyte Mitchell Hobbs, appeals from his Warren County Circuit Court guilty-
pleaded conviction of attempted second degree murder, claiming that the trial court erred by
imposing a fully incarcerative sentence. Discerning no error, we affirm.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and R OBERT W. W EDEMEYER, JJ., joined.

L. Scott Grissom, Assistant District Public Defender, for the appellant, Hoyte Mitchell
Hobbs.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Lisa S. Zavogiannis, District Attorney General; and Randal Gilliam, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               The defendant, originally charged with attempted first degree murder and two
counts of aggravated assault, entered a best interests guilty plea to one count of attempted
second degree murder in exchange for a Range I sentence of eight to 10 years, with the
precise length and manner of service of the sentence to be determined by the trial court. At
the guilty plea submission hearing, the prosecutor summarized the factual basis for the plea:

              Had this matter gone to trial, the State’s proof would be on
              October 19, 2011, the victim was attacked by the defendant
              while he lay on a couch and was stabbed numerous times by the
              defendant with a knife. The victim did survive. The State’s
              proof would include a phone call made by the defendant to 9-1-1
              essentially confessing the crime admitting that he attempted to
              kill the victim who is Bryan Dedman.

               At the sentencing hearing, the victim testified that as he lay sleeping on the
couch, the defendant, who had moved into the residence a few weeks before, stabbed him
repeatedly. He said that the defendant continued to stab him even after he got up from the
couch and tried to escape through the front door. As the victim struggled with the deadbolt
on the door, the defendant stabbed him “three more times in the back,” and those wounds
punctured the victim’s lung, broke three of his ribs, and broke “a little piece off [his] rotator
cu[ff].” The victim testified that he spent six weeks in the intensive care unit recovering
from the seven stab wounds he received during the attack. The victim said that he did not
believe that the 300 days that the defendant had served in jail was a sufficient amount of
incarceration.

              Magnolia Solomon testified that she had lived next door to the defendant since
1985 and that the defendant was a good neighbor.

              Patsy Hobbs, the defendant’s wife of more than 30 years, testified that the
defendant had moved out of the marital residence and into the residence where the victim
lived because the defendant was irritated by her smoking. She said that she had tried to quit
but could not. Ms. Hobbs said that the defendant had served in the Army National Guard for
some time and had been declared 100 percent disabled by the Veteran’s Administration. Ms.
Hobbs testified that she trusted the defendant “faithfully” and that she wanted him to return
to their home. She said that she had quit smoking in anticipation of his return.

               During cross-examination, Ms. Hobbs denied that the defendant had moved out
because of a domestic dispute. She acknowledged that she had called the police to report that
he had struck her in the face but claimed that he did not actually strike her. She labeled the
incident “a silly accident.”

               Howard David Hobbs, the defendant’s brother, testified that the defendant had
joined the Army “when it was closing Vietnam out” and that he was later discharged. The
defendant then joined the National Guard and served for more than 12 years until he became
disabled. Mr. Hobbs explained that the defendant received a head injury “in the summer
camp in Savannah.” He said that the defendant “had a seizure while he was laying on the top
bunk and fell out on the concrete on his head and split his head.” Mr. Hobbs testified that
the injury altered the defendant’s personality. He said that he and his wife were willing to
let the defendant live with them should he be placed on probation.

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              During cross-examination, Mr. Hobbs acknowledged that the defendant
received an other than honorable discharge from the Army in the 1970s due to some type of
misconduct. He clarified that the defendant was not dishonorably discharged.

              The presentence report, which was exhibited to the hearing, established that
the defendant had one prior conviction of reckless endangerment and that he had successfully
completed a probationary term of 11 months and 29 days following that conviction.

                In arriving at the nine year sentence, the trial court found that the defendant had
treated the victim with exceptional cruelty during the commission of the offense and that the
injuries inflicted upon the victim were particularly great. In imposing a fully incarcerative
sentence, the trial court noted the “bizarre violent” nature of the defendant’s act and
observed, “I’m not sure what kind of rehabilitation can be done for someone that would
engage in this type of behavior out of the blue.” The court expressed doubt about the
defendant’s ability to abide by the terms of probation and concluded that it was “in the
interest of our community and our society to protect it from violent criminal outbursts like
the one that happened in this case.” The trial court also found that “confinement is
particularly suited, very much so, to provide a deterrent to others who would likely commit
similar offenses.” Noting again that the defendant’s was “a very heinous offense, very
disturbing,” the trial court denied all forms of alternative sentencing and ordered the
defendant to serve his sentence in the Department of Correction.

               In this appeal, the defendant challenges the imposition of a fully incarcerative
sentence.

               “[A]lthough the statutory language continues to describe appellate review as
de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act
“effectively abrogated the de novo standard of appellate review.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). Observing that a change in our standard of review was necessary to
comport with the holdings of the United States Supreme Court, our supreme court “adopt[ed]
an abuse of discretion standard of review, granting a presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Id.

               Despite the new standard of review, trial courts must still consider the
principles of sentencing enumerated in Code section 40-35-210(b), see Bise, 380 S.W.3d at
698 n.33 (citing T.C.A. § 40-35-210(b)), 706 n.41, and must, as required by statute, consider
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5).
The court cautioned that, despite the wide discretion afforded the trial court under the revised

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Sentencing Act, trial courts are “still required under the 2005 amendments to ‘place on the
record, either orally or in writing, what enhancement or mitigating factors were considered,
if any, as well as the reasons for the sentence, in order to ensure fair and consistent
sentencing.’” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).

              The supreme court expanded the holding in Bise to the trial court’s decision
regarding alternative sentencing and probation eligibility in State v. Caudle, ruling “that the
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

              Here, the trial court denied alternative sentencing based upon the need to avoid
depreciating the nature of the “very heinous, . . . very disturbing” offense and that
confinement was particularly suited to work as a deterrent. See T.C.A. § 40-35-103(1)(B).
The record fully supports the trial court’s finding that confinement was necessary to avoid
depreciating the seriousness of the offense. The defendant mounted a vicious and
unprovoked attack on the unarmed victim as he lay sleeping on the couch. The defendant
continued to stab the victim even as he tried to escape. Under these circumstances, the trial
court did not abuse its discretion by ordering a fully incarcerative sentence.

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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