          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                      OCTOBER SESSION, 1996

                                                            FILED
                                                              December 4,
STATE OF TENNESSEE,        )                                     2001
                           )    No. 02C01-9605-CC-00178
    Appellee               )                                Cecil Crowson, Jr.
                           )    HARDIN COUNTY                Appellate Court Clerk
vs.                        )
                           )    Hon. C. Creed McGinley, Judge
ROBERT WILLIS CHANCE, JR., )
                           )    (Second Degree Murder;
    Appellant              )    Attempted First Degree Murder)



For the Appellant:              For the Appellee:

James T. "Jim" Sanderson        Charles W. Burson
 & Associates, P.C.             Attorney General and Reporter
Stephen L. Hale
William G. Hatton               William David Bridgers
Attorneys for Appellant         Assistant Attorney General
P. O. Box 331                   Criminal Justice Division
Bolivar, TN 38008               450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                G. Robert Radford
                                District Attorney General

                                John Overton
                                Asst. District Attorney General
                                601 Main Street
                                Savannah, TN 38372




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, Robert Willis Chance, pled guilty to one count of second

degree murder and one count of attempted first degree murder. Pursuant to the

plea agreement, the sentences were to be served concurrently. The Hardin

County Circuit Court imposed a sentence of twenty-three years for each

conviction. In his sole issue, the appellant contends that the trial court erred in

imposing twenty-three year sentences because of the misapplication of Tenn.

Code Ann. § 40-35-210 (1995 Supp.), regarding the presumptive sentence of a

class A felony.



       Upon review, we affirm the judgment of the trial court.




                                  I. Background



       On the night of July 9, 1995, the appellant walked into the woods near his

family's home armed with an SKS assault rifle and with the intention of

committing suicide. Later, when his parents could not locate him, they began

searching the woods. Hidden by the foliage, the appellant heard his father

"belittling" him to his mother. Inflamed by these remarks, the appellant emerged

from the woods and stated "Daddy, you've hurt mama around thirty years. And

you're not going to hurt no [sic] more." The appellant then began firing his

weapon. His mother was hit once in the leg. His father was shot four times,

which resulted in his death. Concerned for his mother's welfare, the appellant

telephoned 911 to obtain assistance. He informed the operator that he and his

parents were "under fire" by an "unknown" assailant. The appellant later

abandoned this story and admitted his guilt. The appellant was indicted on one

count of first degree murder and one count of attempted first degree murder.


                                         2
On December 4, 1995, the appellant pled guilty to one count of second degree

murder and to one count of attempted first degree murder. A sentencing

hearing was held on January 11, 1996.



         At the sentencing hearing, the proof revealed that the appellant had a

troubled relationship with his father that had stemmed from years of physical and

emotional abuse. Moreover, the appellant's psychiatric history involved chronic

depression, relationship difficulties, sleeping problems, a variety of neurological

complaints, "suicidal ideations," and borderline personality disorder. The trial

court found two enhancement factors and one mitigating factor applicable to the

appellant's second degree murder conviction and three enhancement factors

and one mitigating factor applicable to his attempted first degree murder

conviction.1 To determine the appropriate length of the appellant's sentence, the

trial court began at the midpoint of the applicable range.2 Applying this

procedure, the trial court imposed twenty-three year sentences for each

conviction.




                                               II. Analysis


         1
          Specifically, the trial court found that (1) the appellant has a history of criminal
convictions or criminal behavior; (9) the appellant employed a firearm during the commission of
the offense; and, applicable only to the attempted first degree murder conviction, that (6) the
personal injuries inflicted upon the victim were particularly great. Tenn. Code Ann. § 40-35-114
(1995 Su pp.). The only mitigating factor applied was Tenn . Code A nn. § 40-35-11 3(8) (1990),
that the app ellant was s uffering fro m a m enta l cond ition that s ignificantly reduced his cu lpability.
In his appeal, the appellant does not contest the applicability of these factors.

         2
          The trial court stated,
                  As I read the law on a class A sentence, the court is to start with a
         pres um ptive sente nce at the m idpoint of the rang e. . . . That's as opp ose d to
         Class B, C, D, and E where you start at the minimal sentence and work up and
         then down. On a class A felony, the sentence, pursuant to the terms of Section
         40-35-210, Subsection C, the presumptive sentence starts at the midpoint of the
         range. And then the Court applies enhan cing factors and then m itigating factors
         from there.

                 . . . And th e m idpoint of his rang e, it wou ld be fifteen to twenty-five. [See
         Tenn. C ode Ann. § 40-35-112(a)(1) (1990).] So obviously, the m ath em atic ally
         equation lends itself to a twenty year sentence to start with.

Neither side entered any objection to this procedure.

                                                      3
       In his only issue, the appellant contends that, in arriving at twenty-three

year sentences, the trial court misapplied Tenn. Code Ann. § 40-35-210 by

setting the presumptive sentence for a class A felony, with applicable

enhancement and mitigating factors, at the midpoint of the range. He insists that

the "plain language" of Tenn. Code Ann. § 40-35-210 directs sentencing courts

to set the presumptive sentence for a class A felony at the midpoint of the range

only if there are no enhancement factors and no mitigating factors. The State

contends that such application of this section leads to a result that is clearly

contrary to the legislature's intent in amending Tenn. Code Ann. § 40-35-210(c).

We agree.



       Tenn. Code Ann. § 40-35-210 provides, in parts pertinent to this issue:

       (c) The presumptive sentence for a Class B, C, D, and E felony
       shall be the minimum sentence in the range if there are no
       enhancement or mitigating factors. The presumptive sentence for
       a Class A felony shall be the midpoint of the range if there are no
       enhancement or mitigating factors.

       (d) Should there be enhancement but no mitigating factors, then the
       court may set the sentence above the minimum in that range but
       still within the range.

       (e) Should there be enhancement and mitigating factors, the court
       must 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.




       When read alone, Tenn. Code Ann. § 40-35-210(e) sets the presumptive

sentence for a class A felony, where both enhancement and mitigating factors

apply, at the minimum sentence within the range. However, when construing the

meaning of a statutory provision, courts must ascertain and give effect to the

intent of the legislature. Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994)

(citation omitted); Lyons v. Rasar, 872 S.W.2d 895, 897 (citation omitted). To

determine legislative intent, courts must look to the entire statute and to the

overall purpose of the legislation. Lyons, 872 S.W.2d at 897; see also West

                                          4
American Ins. Co. v. Montgomery, 861 S.W.2d 230, 231 (Tenn. 1993) (citation

omitted).



       In 1995, the Tennessee legislature amended Tenn. Code Ann. § 40-35-

210(c) by adding that "[t]he presumptive sentence for a Class A felony shall be

the midpoint of the range if there are no enhancement or mitigating factors." No

similar change was made to subsections (d) and (e). Thus, applying the

appellant's "plain language" reading of the statute, a class A felon who commits

an offense where the trial court finds only enhancement factors or both

enhancement and mitigating factors applicable may very well receive a shorter

sentence than a felon committing a class A offense involving no enhancement or

mitigating factors. See Tenn. Code Ann. § 40-35-210(c), (d), (e). This would

produce an absurd result. We presume that the legislature did not intend such

an absurdity in enacting this statute. See McClellan v. Bd. of Regents of State,

921 S.W.2d 684, 689 (Tenn. 1996); Epstein v. State, 366 S.W.2d 914, 918

(Tenn. 1963). Accordingly, "such a result will be avoided if the terms of the

statute admit of it by a reasonable construction." Epstein, 366 S.W.2d at 918.

(emphasis added).



       With consideration of the public's growing concern over violent crimes,

defendants committing class A felonies should not be entitled to a presumptive

sentence at the minimum of the sentencing range. See Tenn. Code Ann. § 40-

35-210(c) (retaining the presumptive sentence for class B, C, D, and E felonies

at the minimum but increasing the presumptive sentence for class A felonies to

the midpoint of the range). Moreover, it is difficult to conceive that the legislature

would have intended a longer sentence for a class A felony without an

enhancement factor than for a class A felony with an enhancement factor.

Thus, we conclude that the presumptive sentence for all class A felonies is the




                                          5
midpoint of the applicable sentencing range.3 Accordingly, the trial court's

imposition of twenty-three year sentences, in the instant case, are appropriate.



        The judgment of the trial court is affirmed.




                                             ____________________________________
                                             DAVID G. HAYES, Judge


CONCUR:


____________________________
JOHN H. PEAY, Judge


____________________________
PAUL G. SUMMERS, Judge




        3
          Although this issue has never specifically been addressed by the courts of this state, our
courts have s tated that, effective July 1, 1995, the presum ptive sentence for all class A felonies
sha ll be within th e m idpoint in the ra nge . See, e.g., State v. Sm ith, 926 S.W .2d 267, 271 (Tenn.
Crim . App . 1995); State v. Johnson, No. 01C01-9507-CC-00242 at note 4 (Tenn. Crim. App. at
Na shville, Sept. 30, 1996); State v. Boshears , No. 01C01-9412-CR-00402 (Tenn. Crim. App. at
Na shville, Nov. 15, 1995).

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