        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  August 3, 2010 Session

         STATE OF TENNESSEE v. DAWN KATHLEEN DAVIDSON

               Direct Appeal from the Circuit Court for Chester County
                      No. 08-CR-93    Roy B. Morgan, Jr., Judge




                 No. W2009-02313-CCA-R3-CD - Filed March 3, 2011


A Chester County jury convicted the defendant, Dawn Kathleen Davidson, of attempted first
degree murder, a Class A felony, and the trial court sentenced her as a Range I, standard
offender to twenty-three years in the Tennessee Department of Correction. On appeal, the
defendant claims that (1) the trial court erred by denying her motion for a bill of particulars;
(2) the trial court erred by preventing her attorney from fully cross-examining the state’s
witnesses; and (3) her sentence was excessive because the trial court incorrectly applied an
enhancement factor and erroneously failed to apply any mitigation factors. Following our
review, we conclude that the defendant waived all issues other than sentencing. Finding no
reversible error, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R. and
J OHN E VERETT W ILLIAMS, JJ., joined.

Ryan B. Feeney, Selmer, Tennessee, for the appellant, Dawn Kathleen Davidson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James G. Woodall, District Attorney General; and Jody Pickens and Al Earls,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                         Background

      In November 2008, a Chester County grand jury indicted the defendant, Dawn
Kathleen Davidson, and her father, Jimmie David Stiddom, for the first degree murder of
Ronald Perkins and for tampering with evidence, a Class C felony. The state dismissed the
tampering with evidence charge on June 11, 2009. The court granted the defendant’s motion
to sever her trial from the co-defendant’s, and the case went to trial on June 23, 2009.

       At trial, Deputy Jeremy Wilson, of the Chester County Sheriff’s Department, testified
that he responded at approximately 2:30 p.m. on March 24, 2008, to a call that a man had
been shot at 1995 Sweet Lips Road. He arrived simultaneously with other officers and
observed that the defendant and Timmy Davidson were outside of the residence in the
driveway. Deputy Wilson frisked the defendant before placing her in his patrol car, and he
discovered three live .22 caliber bullets in her left front pocket. He collected the bullets,
which he later put into an evidence bag and gave to Investigator Jason Crouse. After placing
the defendant into his patrol car, Deputy Wilson and Investigator Mark Griffin entered the
residence to locate the shooting victim. They found the victim slumped over with his back
against a wall, surrounded by a large pool of blood. Deputy Wilson testified that he,
Investigator Steve Davidson, and Investigator Griffin searched the house. Deputy Wilson
located two live .22 caliber bullets and two spent .22 caliber casings, which someone else
collected.

       On cross-examination, Deputy Wilson testified that he observed a bullet hole in the
wall above the victim’s head, but he did not know whether anyone retrieved the bullet.

       Investigator Steve Davidson, of the Chester County Sheriff’s Department, testified
that he responded to a shooting call at 1995 Sweet Lips Road on March 24, 2008.
Investigator Davidson said that, after Chief Deputy Gly Weaver photographed the two live
.22 caliber bullets found in the residence, he collected them and gave them to Investigator
Crouse.

       Investigator Mark Griffin, of the Chester County Sheriff’s Department, testified that
he responded to a shooting call at 1995 Sweet Lips Road on March 24, 2008. Investigator
Griffin said that when he arrived, two people were in the driveway. They identified
themselves as Timmy and Dawn Davidson. Mr. Davidson advised him “that his wife . . . had
to shoot a man.” Investigator Griffin entered the residence to determine the condition of the
victim, whom he found slumped against a wall. He said that the victim appeared to be
deceased. He testified that he had observed a .22 caliber bolt action rifle outside of the
residence by the back door. Investigator Griffin collected two spent .22 caliber casings and
gave them to Investigator Crouse. Investigator Griffin testified that a green Dodge or
Plymouth vehicle was parked in the driveway of the residence. He learned that the vehicle
was registered to the victim and Ann Perkins. Investigator Griffin located a bullet hole in
the wall above the victim’s head. He testified that he did not see a way to retrieve the bullet.



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       Investigator Griffin further testified that he took a written statement from the
defendant at the scene. She told him that the victim had raped her “[s]ometime between
Thanksgiving and Christmas” and had threatened to kill her if she told anyone. She said that
she reported the rape to the McNairy County Sheriff’s Department. The defendant told
Investigator Griffin that the victim had driven by her house several times and would slow
down and honk. She said that on that day, she was doing laundry when she heard someone
knock on her door. She thought it was a friend, so she told the person to come inside. She
said that Mr. Davidson was in the bathroom at the time. The defendant said that she went
down the hallway with a gun because she was afraid of the victim. When she saw the victim
standing in her living room, she shot him, and he fell. The defendant said that she shot him
again when he tried to get up, and she shot him a third time when he continued to try to get
up. Investigator Griffin said that the defendant reviewed and signed her written statement.
He said that he asked her when she had last communicated with the victim. She reported that
she had called him that morning. Investigator Griffin told her that he would have more
questions and asked her to accompany him to the sheriff’s department. She agreed to do so.

        Investigator Griffin said that the defendant was not under arrest at the time that they
arrived at the sheriff’s department, but he advised her of her Miranda rights, which she
waived. In the defendant’s second statement, she said that the victim raped her “several
times between Thanksgiving and Christmas of 2007.” She said that she reported the rapes
to the McNairy County Sheriff’s Department but was unaware of any action taken. The
defendant said that the victim had driven by her house several times, and her husband
reported it to the McNairy County Sheriff’s Department. The defendant said that on March
24, 2008, she called the victim at Larry Johnson’s house from a phone at the Finger Store so
that her husband would not know what she was doing. She told the victim that she and her
husband were no longer together, and he told her to call him back and that he would come
over. She could not remember whether she called him back. The defendant said that while
she was doing laundry, she heard a knock at the door and invited the person in, thinking that
it was a friend. She said that the victim came inside and that he could not see the gun in her
right hand. She said that he told her, “I’m going to do it to you again,” and she shot him
three times. The defendant said that she “thought if [the victim] showed up [Mr. Davidson]
would whip his ass.” Investigator Griffin testified that the defendant reviewed and signed
her second written statement. He used a gunshot residue kit to collect any possible evidence
from her hands.

        On cross-examination, Investigator Griffin testified that the bullet hole in the wall was
just below the ceiling, and it appeared to him that the bullet passed through the wall and into
the ceiling. He testified that in the course of the investigation, Mr. Davidson gave several
statements, which were inconsistent with each other. Investigator Griffin said that the



                                               -3-
defendant told him, between her first and second statement, that she called the victim to tell
him not to drive by her house.

       Dr. Paul Schwartz testified that he was a family physician and served as the Chester
County Medical Examiner. He testified that he went to 1995 Sweet Lips Road on March 24,
2008, and determined that the victim was deceased. Dr. Schwartz said that he initially noted
two gunshot wounds to the victim’s face and head. Dr. Schwartz testified that he does not
perform autopsies, so he had the victim’s body transported to the state medical examiner.

        Dr. Bruce Levy testified that he was the chief medical examiner for Tennessee. He
performed the autopsy of the victim’s body. Dr. Levy testified that the toxicology report
revealed cocaine metabolites, which indicated that cocaine had “metabolized out of his
system, but he still had what was left over after the cocaine was broken down.” The
toxicology report also noted the presence of alcohol in the victim’s system. Dr. Levy
testified that the victim suffered three gunshot wounds to his face. He said that his
description of the wounds did not indicate the order in which the victim received them. Dr.
Levy said that the wound located on the victim’s left eyebrow indicated that the barrel of the
gun was at most six inches from the victim’s head when fired. Dr. Levy testified that he
recovered bullet fragments from the victim’s brain, and he said that the bullet damaged half
of the victim’s brain and was a fatal injury. He testified that the victim also had a gunshot
entrance wound beneath his right eye and a corresponding exit wound in front of his left ear.
He said that the bullet did not enter the brain but was nonetheless a fatal injury. Dr. Levy
said that the third entrance wound was in the victim’s mouth. He said that the bullet
damaged the victim’s tongue and soft tissues and exited through the victim’s jaw. He
categorized the wound to the victim’s mouth as serious and potentially fatal, and he said that
a person could bleed to death over a period of time from such a wound. Dr. Levy said that
his office photographed and catalogued the victim’s clothing and personal effects, which
included a cigarette lighter, cigarettes, a beer can, jewelry, and keys.

     On cross-examination, Dr. Levy testified that the victim died of multiple gunshot
wounds and that he could not isolate one injury from the others as the cause of death.

        Investigator Jason Crouse, of the Chester County Sheriff’s Department, testified that
he was in charge of the investigation in this case. He said that he checked for gunshot
residue on Timmy Davidson at the scene on March 24, 2008. Investigator Crouse testified
that on March 25, he collected Mr. Davidson’s clothing that he had worn the day before, and
he collected the defendant’s clothing from the property room at the county jail. Investigator
Crouse said that Mr. Davidson advised him that he had attempted to clean the victim’s blood
from his residence while wearing the clothes that Investigator Crouse collected. Investigator
Crouse testified that he submitted the live rounds collected from the defendant, the live

                                             -4-
rounds found inside the residence, the shell casings, the rifle, the defendant’s gunshot residue
kit, Mr. Davison’s gunshot residue kit, the defendant’s clothing, Mr. Davidson’s clothing,
and the bullet fragments recovered by the medical examiner to the Tennessee Bureau of
Investigation Crime Lab. Investigator Crouse testified that the rifle recovered at the scene
was a bolt action, and while the gun could have a magazine, investigators did not find a
magazine at the scene.

        On cross-examination, Investigator Crouse agreed that the testimony given by Mr.
Davidson at the preliminary hearing in this case differed from the first two statements that
he gave. Investigator Crouse said that he was unable to verify Mr. Davidson’s preliminary
hearing testimony. He testified that he recovered a nine millimeter handgun in connection
with this case, which he believed Mr. Davidson fired at the victim on March 24. Investigator
Crouse did not submit the handgun for further examination because he did not have a bullet
fired from the gun for comparison. Investigator Crouse said that he developed a second
suspect, Jimmy Stiddom, from the information given to him by Mr. Davidson. He
investigated the co-defendant, who confessed to firing the third shot at the victim, and the
state ultimately charged the co-defendant with murder. Investigator Crouse said that he
believed the co-defendant’s statement that he fired the third shot, despite the defendant’s
statement that she fired the third shot. He testified that he did not perform a gunshot residue
test on the co-defendant, who made the 911 call on March 24, because he did not believe he
was involved.

       On redirect examination, Investigator Crouse testified that he recovered the nine
millimeter handgun on August 14, 2008. He located the handgun through information given
by the co-defendant. He also said that a private investigator, Guy Buck, hired on behalf of
the defendant, photographed the nine millimeter in the co-defendant’s home at some point.
Investigator Crouse stated that Mr. Davidson said that he fired the nine millimeter after the
defendant had shot the victim once. The bullet hit the ceiling because the defendant grabbed
Mr. Davidson’s arm as he fired.

       On recross-examination, Investigator Crouse testified that Mr. Davidson originally
told him that he was in the bathroom when all of the shots were fired. He later told
Investigator Crouse that he accidently discharged the nine millimeter.

       Agent Mark Dunlap, a forensic scientist at the Tennessee Bureau of Investigation
Crime Lab, testified that he examined the defendant’s and Mr. Davidson’s clothing for the
presence of blood. He located blood on the defendant’s blue jeans and Mr. Davidson’s
coveralls. Agent Dunlap said that the blood on the coveralls belonged to the victim, but the
blood on the defendant’s blue jeans had a female profile.



                                              -5-
       Agent Laura Hodge, a forensic scientist with the Tennessee Bureau of Investigation
Crime Lab, testified that she examined the gunshot residue kits collected from the defendant
and Mr. Davidson. Agent Hodge testified that results from both kits were inconclusive, and
she noted that “some [.]22 rimfire ammunition does not have all the elements needed for
gunshot residue analysis.”

        Agent Donald Carman, a forensic scientist with the Tennessee Bureau of Investigation
Crime Lab, testified that the .22 caliber shell casings found at 1995 Sweet Lips Road had
been fired from the .22 bolt action rifle found at the same location. He testified that he could
not conclusively determine whether the bullet fragments removed from the victim had been
fired from the bolt action rifle because the fragments were too mutilated. He said that the
bullet fragments were from a .22 caliber bullet. Agent Carman said that without a magazine,
he had to manually load each cartridge into the rifle to fire multiple shots. He also said that
he had difficulty operating the rifle because of a loose pin and that the rifle did not fire
reliably. Agent Carman testified that he determined that the same manufacturer made the
bullets found in the defendant’s pocket and the bullets found inside the residence, and he said
that the fragmented bullet recovered from the victim was consistent with the same
manufacturer.

         Joseph Cadle testified that in February 2008, he was a deputy for the McNairy County
Sheriff’s Department. He said that on February 24, 2008, he responded to a rape call at 1995
Sweet Lips Road. Mr. Cadle said that the defendant reported that the victim had raped her
“[a]round Thanksgiving.” Mr. Cadle had the defendant write a statement describing what
happened. She wrote that the victim came to the Davidsons’ home, and Mr. Davidson asked
him to take the defendant to the store to buy cigarettes. The defendant wrote that she drove
because the victim had been drinking, but approximately halfway to the store, he told her to
pull over so he could drive. She wrote that he raped her after she pulled the car over, and
after the rape, they drove to the store. She bought the cigarettes, and they returned to the
Davidsons’ house. The defendant wrote that the victim threatened her life and her husband’s
life if she ever told her husband. Mr. Cadle said that he discussed the case with the district
attorney, who advised him that nothing could be done because of the length of time that had
passed.

       Bob Gray testified that he was an assistant district attorney general for the 25th
Judicial District. He said that after reviewing the documents pertaining to the defendant’s
alleged rape and discussing the case with the responding officer, the sheriff, the county
investigator, and his supervisor, he determined that there was not sufficient probable cause
to charge the victim. General Gray said that some factors in his determination included the
length of time between the alleged rape and the report, the fact that the defendant could not
remember the exact date on which the alleged rape occurred, the lack of medical evidence,

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the “lack of believability” of the defendant’s story, and the difficulty of proving in which
county the alleged rape occurred.

       Leslie Hildebrandt testified that she was the victim’s sister. She said that in
November 2007, the victim lived with their father, who was very ill. Ms. Hildebrandt said
that she called their house either Thanksgiving Day or the day after Thanksgiving, and a
female answered the phone. She said that she called again in December and a female
answered.

       Carol Defoul testified that she was the victim’s sister. She said that after their father
passed away, the victim moved into Larry Johnson’s house in Finger, Tennessee.

        Larry Johnson testified that he knew the defendant because he was the defendant’s
landlord in 2007. He said that he also knew the victim because he rented a room to the
victim after his father died. Mr. Johnson recalled that a female called for the victim at 9:22
a.m. on the day that the victim died. He said that he answered the phone and gave it to the
victim, who spoke with the caller for one or two minutes. Mr. Johnson said that the victim
left the house at approximately 2:30 p.m. that day.

       Hugh Branson testified that he was the manager of the Finger Discount Store in
Finger, Tennessee. Mr. Branson said that he knew the defendant because she frequented his
store. He was also acquainted with the victim, whom he had met twice. He recalled that the
defendant, her husband, and the victim visited his store in December 2007. The defendant
and the victim came together to his store in January 2008. Mr. Branson testified that the
defendant came to his store on March 24, 2008, bought cigarettes, asked to use the store’s
phone, and made a phone call outside. He said that he saw the defendant again between 1:30
and 2:00 p.m. that day, and she made another phone call from the store phone. Mr. Branson
said that he did not know whom she called either time.

        Defense Proof. Timmy Davidson testified that he was married to the defendant. He
said that at some point prior to March 24, 2008, he learned that the victim had raped his wife.
Mr. Davidson testified that he was angry and told someone that he was going to kill the
victim. He reported the alleged rape to the police and also called the police to complain
about the victim’s attempts to stop in their yard. According to Mr. Davidson, he did not
know that the victim was coming over to his house that day. Mr. Davidson testified that he
was in the bathroom when he heard the first shot. He said that when he first saw the victim,
he was sitting against a wall. Mr. Davidson said that he grabbed his gun from under a
mattress and pointed it at the victim, and he asked the victim why he was in their house after
raping his wife. The victim looked at him, and he could see the bullet wound to the victim’s
head. He said that the victim responded, “‘Things just happen.’” At that point, the defendant

                                              -7-
grabbed his arm, and the nine millimeter discharged above the victim’s head. He went to his
father-in-law’s house after that, and his father-in-law, the co-defendant, called 911. Mr.
Davidson said that he returned to the house and saw the co-defendant shoot the victim with
the .22 caliber rifle. He said that the rifle was approximately four inches from the victim’s
head. Mr. Davidson agreed that on the day of the shooting, he gave a statement to police in
which he said that he was in the bathroom of their house the entire time. He could not recall
whether he told police that he heard the defendant say, “‘[Y]ou ain’t going to do this to me
anymore.’” Mr. Davidson said that he did not tell police about the nine millimeter handgun
that day. He also said that he did not tell police that the co-defendant was involved because
the co-defendant threatened his life if he told. Mr. Davidson said that he told police that the
defendant fired all three shots, but that was not the truth. He said that he told Investigator
Crouse in May 2008 that he fired the nine millimeter handgun, but because the defendant
grabbed his arm, he shot over the victim’s head. Mr. Davidson testified that in May, he told
police that he did not know who fired the third shot, but he said that he testified at the
preliminary hearing that the co-defendant fired the third shot. Mr. Davidson said that he
spoke with Guy Buck, an investigator working for the defendant, and did not tell Mr. Buck
about the co-defendant’s involvement. He could not recall what he told Mr. Buck.

        On cross-examination, Mr. Davidson said that he lied to the police because of the co-
defendant’s threats. He testified that after he told the police about the threats, he wore a wire
to attempt to record the co-defendant’s making a threat but was unsuccessful. Mr. Davidson
remembered that he told Mr. Buck that he had a nine millimeter pistol that was in the co-
defendant’s possession. Mr. Davidson testified that the co-defendant told him that his lawyer
suggested that he get Mr. Davidson to confess to shooting the victim so that it would be
easier for the defendant.

        On re-direct examination, Mr. Davidson said that the defendant’s attorney was the
person who told the co-defendant to get Mr. Davidson to confess so that things would be
easier for the defendant. He testified that he burned the gloves and hat he had been wearing
during the shooting because he fell into the victim’s blood when attempting to clean it. He
further testified that the co-defendant took the nine millimeter away from him because he
unknowingly had it cocked when he went into the co-defendant’s home.

       Jonathan Plunk testified that he gave a statement to the police in which he recounted
a conversation he had with Timmy Davidson. He said that the day before the victim died,
Mr. Davidson asked him to drive him around to look for the victim. When he responded that
he did not want to, Mr. Davidson asked him to “deal with” the victim. Mr. Plunk testified
that Mr. Davidson offered to let him keep money that he owed to Mr. Davidson and also
offered him the money in his wallet. Mr. Plunk said that he refused to participate.



                                               -8-
       On cross-examination, Mr. Plunk said that he did not volunteer his statement to police
but told the investigator the information a year after the incident.

       David Ashbrook testified that Timmy Davidson asked him if he had a gun for sale or
if he knew anyone who had a gun for sale. He said that Mr. Davidson explained that he
wanted a handgun to kill the victim and asked Mr. Ashbrook if he had heard about the rape.

       Guy Buck testified that he was a licensed private investigator. He said that he
interviewed Timmy Davidson and that Mr. Davidson admitted that he had been in possession
of a weapon on the day the victim died but denied shooting the weapon.

      On cross-examination, Mr. Buck said that Mr. Davidson told him that he left the nine
millimeter handgun at the co-defendant’s house. Mr. Buck said that he photographed the
nine millimeter in the co-defendant’s house.

        The co-defendant testified that the defendant was his daughter. He said that on March
24, 2008, he saw Mr. Davidson running towards his house. He met Mr. Davidson on the
porch, and Mr. Davidson told him that the defendant had shot the victim and that they needed
to call 911. The co-defendant said that Mr. Davidson was carrying a handgun that was
cocked and, he assumed from the smell of gunpowder, had recently been fired. He testified
that he disarmed Mr. Davidson and hid the gun from him. He said that Mr. Davidson
disposed of a glove he had by throwing it into a barrel that he was using to burn trash. The
co-defendant called 911 and then went to the Davidsons’ house. He saw the defendant
holding the rifle and “jumping up and down on the ground by the door.” The co-defendant
said that she appeared scared. He testified that he took the rifle from her and went inside the
house. He approached the victim to determine if the victim was alive or deceased and if he
was armed. The co-defendant said that the victim was a threat to the defendant because he
had raped the defendant at knife point. He testified that he saw the victim move, heard him
make a sound, and then “the gun went off.” The co-defendant said that he shot and killed
the victim. He testified that he did not tell the defendant to finish the job nor did he tell Mr.
Davidson to lie about what happened.

       On cross-examination, the co-defendant agreed that he did not reveal his involvement
until questioned by law enforcement in August 2008. He recalled that he told Investigator
Crouse that he asked the defendant whether the victim was dead and that she responded that
“she didn’t know, but if he got up she would shoot him again.” The co-defendant testified
that when he took the rifle from the defendant, he assumed it was loaded.

        Following the close of proof and deliberations, the jury convicted the defendant of the
lesser included charge of attempted first degree murder, a Class A felony.

                                               -9-
        The court held a sentencing hearing on August 11, 2009. The state submitted the
defendant’s presentence report as an exhibit. The defendant testified that her husband
suggested luring the victim to their home but admitted that she made the phone call. She said
that she had received treatment for social anxiety disorder for ten years. She maintained that
she shot the victim in self-defense.

       The trial court found that the defendant was a leader in the commission of the offense.
The court also considered that her testimony at the sentencing hearing lacked credibility and
that confinement was necessary to protect society and serve as a deterrent. The court found
that no mitigating factors applied to the defendant. The court sentenced the defendant to
twenty-three years as a Range I, standard offender, in the Tennessee Department of
Correction.

       The defendant filed a motion for new trial on September 16, 2009. The court held a
hearing on October 7, 2009, and denied the motion by written order on November 16, 2009.
The defendant filed a notice of appeal on November 6, 2009.

                                             Analysis

        The defendant presents three issues for our review. First, she contends that the trial
court erred by denying her motion for bill of particulars because the indictment did not reveal
the state’s theory of liability. Secondly, she argues that the trial court did not allow a full
cross-examination of the state’s witnesses. Finally, she argues that the trial court erred in
sentencing by finding that the defendant was a leader in the commission of the offense and
by not finding any mitigators. The state responds that the defendant waived our review of
her first two issues -- the denial of her motion for a bill of particulars and denial of full cross-
examination -- by filing her motion for new trial outside of the thirty-day limit. The state
further argues that this court should dismiss this appeal because the defendant did not timely
file her notice of appeal.

                                            I. Waiver
        A motion for new trial “shall be in writing or, if made orally in open court, be reduced
to writing, within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P.
33(b). This provision is mandatory, and the time for filing may not be extended. See Tenn.
R. Crim. P. 45(b)(3); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v.
Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). The thirty-day provision is
jurisdictional, and an untimely motion is a nullity. Dodson, 780 S.W.2d at 780. It deprives
the appellant of the opportunity to argue on appeal any issues that should have been raised
in the motion for new trial. Martin, 940 S.W.2d at 569. “The fact that a trial judge

                                               -10-
erroneously considers and rules upon a motion that has not been timely filed does not validate
the motion . . . .” Dodson, 780 S.W.2d at 780. Furthermore, the untimely filing of a motion
for new trial does not toll the time for filing a notice of appeal; thus, an untimely motion for
new trial will also result in an untimely notice of appeal. See State v. Davis, 748 S.W.2d 206,
207 (Tenn. Crim. App. 1987). Unlike the untimely filing of the notice of appeal, this court
does not have the authority to waive the untimely filing of a motion for new trial. See Tenn.
R. App. P. 4(a); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). However,
this court, in its discretion, may take notice of plain error which affects a substantial right of
the defendant where it may be necessary to do substantial justice. Tenn. R. App. P. 36(b);
State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998).

        In this case, the defendant filed her motion for new trial on September 16, 2009, more
than thirty days after the court entered the sentencing order. Therefore, she cannot now argue
issues that she should have raised in a timely motion for new trial. Additionally, the
defendant has not shown that consideration of these issues is “necessary to do substantial
justice,” so we decline to review the issues for plain error. State v. Smith, 24 S.W.3d 274,
282-83 (Tenn. 2000). We conclude that the defendant has waived her arguments that the trial
court erred by denying her motion for a bill of particulars and by limiting defense counsel’s
cross-examination of state’s witnesses.

        The defendant’s filing of an untimely motion for new trial did not toll the time for
filing a notice of appeal. See Davis, 748 S.W.2d at 207. A notice of appeal must be filed
within thirty days after the date of entry of the judgment from which the petitioner is
appealing. Tenn. R. App. P. 4(a). A notice of appeal is not jurisdictional, and the
requirement for an untimely notice of appeal may be waived in the interest of justice. Id.
Here, the court entered the judgment on August 12, 2009, and the defendant filed her notice
of appeal on November 6, 2009, well after the thirty-day limit. However, because of the
nature of the defendant’s conviction and the length of her sentence, we conclude that it is in
the interest of justice to review her issues regarding sentencing, which were not waived by
her untimely filing of the motion for new trial.

                                        II. Sentencing
       The defendant argues that the trial court erred by finding that she was a leader in the
commission of the offense and by not finding that mitigating factors applied in this case.
Specifically, the defendant contends that (1) the court’s finding of the enhancement factor
violated her right to a jury trial; (2) without evidence of communication between the
defendant and her co-defendant, the court’s finding of the enhancement factor was
inappropriate; and (3) the trial court erred by finding that the defendant did not meet her
burden of establishing the applicability of mitigating factors.



                                              -11-
       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).
The Sentencing Commission Comments to this section of the statute indicate that the
defendant bears the burden of establishing that the sentence is improper. When the trial court
follows the statutory sentencing procedure and gives due consideration to the factors and
principles relevant to sentencing, this court may not disturb the sentence. See State v. Carter,
254 S.W.3d 335, 344-45 (Tenn. 2008).

        In this case, the defendant, as a Range I, standard offender, was subject to a sentence
of fifteen to twenty-five years for attempted first degree murder, a Class A felony. Tenn.
Code Ann. § 40-35-112(a)(1). The trial court sentenced her to twenty-three years after
finding that she was a leader in the commission of the offense. The court considered the
mitigating factors presented by the defendant but found that none applied.

                                     A. Right to Jury Trial
        Initially, we conclude that the defendant’s argument that the trial court’s finding of
the enhancement factor violated her right to a jury trial is without merit. In Blakely v.
Washington, the United States Supreme Court held that the Sixth Amendment right to a jury
trial requires that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Blakely, 542 U.S. 296, 301 (2004) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The court emphasized that “the relevant
‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.” Id. at
303-04. The court further noted that the Sixth Amendment right to a jury trial is “no mere
procedural formality, but a fundamental reservation of power in our constitutional structure.”
Id. at 305-06.

       Thereafter, in Cunningham v. California, 549 U.S. 270 (2007), the United States
Supreme Court extended the Blakely analysis to California’s determinate sentencing scheme.
In doing so, the court noted:

       We cautioned in Blakely, however, that broad discretion to decide what facts
       may support an enhanced sentence, or to determine whether an enhanced
       sentence is warranted in any particular case, does not shield a sentencing
       system from the force of our decisions. If the jury’s verdict alone does not
       authorize the sentence, if, instead, the judge must find an additional fact to
       impose the longer term, the Sixth Amendment requirement is not satisfied.

Cunningham, 549 U.S. at 290 (citing Blakely, 542 U.S. at 305 and n. 8)

                                              -12-
       “In order to avoid the constitutional violation arising from a trial court increasing a
presumptive sentence on the basis of judicially-determined enhancement factors,” the
Tennessee General Assembly amended Tennessee Code Annotated sections 40-35-102, -210,
and -401, effective June 7, 2005, to reflect the advisory nature of enhancement factors. State
v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The amendment, among other things, removed
the presumptive sentence language from our Sentencing Act and mandated only that the trial
“court shall impose a sentence within the range of punishment . . . .” Compare Tenn. Code
Ann. § 40-35-210(c) (Supp. 2005) with Tenn. Code Ann. § 40-35-210(c) (2003). The
General Assembly also provided that this amendment would apply to defendants who
committed a criminal offense on or after June 7, 2005. See 2005 Tenn. Pub. Act ch. 353, §
18.

       The defendant in this case committed the offense after the effective date of the 2005
amendments to the Sentencing Act. Therefore, her contention that the trial court erred by
applying sentencing factors that a jury had not found beyond a reasonable doubt or that the
defendant had not admitted is without merit because the General Assembly amended the
Sentencing Act, rendering the enhancement factors advisory, in order to avoid a
constitutional violation under Blakely.

                           B. Enhancement and Mitigating Factors
        Prior to 2005, the Sentencing Act set forth a “presumptive sentence” to be imposed
within the applicable range: the minimum sentence for all felonies other than Class A
felonies, and the midpoint sentence for Class A felonies. Tenn. Code Ann § 40-35-210(c)
(2003). Pursuant to the 2005 amendments, our Sentencing Act has abandoned the statutory
minimum sentence and renders enhancement and mitigating factors advisory only. See Tenn.
Code Ann. §§ 40-35-114, -35-210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” which the trial court is required to consider but is not bound by. See
id. § 40-35-210(c). Although the application of factors is advisory, a court shall consider
“[e]vidence and information offered by the parties on the mitigating and enhancement factors
in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court is also required to
place on the record “what enhancement or mitigating factors were considered, if any, as well
as the reasons for the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(d).
Once applied, the chosen enhancement factor becomes a sentencing consideration subject to
review under Tennessee Code Annotated section 40-35-401(c)(2). Thus, while the court can
weigh enhancement factors as it chooses, the court may only apply the factors if they are
“appropriate for the offense” and “not already an essential element of the offense.” Id. §
40-35-114. The trial court must find facts related to sentencing by a preponderance of the
evidence rather than beyond a reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283
(Tenn. 2000).

                                             -13-
       The evidence at trial and the defendant’s testimony at her sentencing hearing
established that she lured the victim to her house by calling him and that she fired the first
two shots. The state presented some evidence that she and her co-defendant had a
conversation about whether the victim was alive before the co-defendant fired the third shot.
Based on the defendant’s actions, we conclude that the trial court did not err in its
determination that the defendant was a leader in the commission of an offense involving two
or more criminal actors. Furthermore, the trial court considered each mitigating factor
presented by the defendant and placed its reasons for not applying the mitigation factors on
the record, which does not preponderate against the court’s determination. Therefore, we
conclude that the trial court followed the statutory sentencing procedure and gave due
consideration to the factors and principles relevant to sentencing, and we will not disturb its
sentence.

                                         Conclusion

       Based on the foregoing reasons, we affirm the judgment of the trial court.




                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




                                             -14-
