        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 13, 2013

                 STATE OF TENNESSEE v. CLEO D. GADSON

               Appeal from the Circuit Court for Montgomery County
                    No. 41100435      John H. Gasaway, Judge




               No. M2012-01521-CCA-R3-CD - Filed February 14, 2013


The Defendant, Cleo D. Gadson, entered a best interest guilty plea to attempted second
degree murder, agreeing to allow the trial court to determine his sentence. After a sentencing
hearing, the trial court sentenced the Defendant to nine years, to be served at 30%. On
appeal, the Defendant contends that the trial court erred when it sentenced him because it
improperly considered written statements of persons other than the victim. He further
contends that the manner of the service of his sentence is excessive. After a thorough review
of the record and applicable authorities, we conclude that there is no error. We, therefore,
affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J EFFREY S. B IVINS, JJ., joined.

Michael T. Pugh, Clarksville, Tennessee, for the appellant, Cleo D. Gadson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          I. Facts

                                      A. Guilty Plea

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        This case arises from the Defendant’s shooting the victim, a seventeen-year-old girl,
in the face, leaving her paralyzed on the left side of her body and, from the waist down, on
both sides of her body. In relation to this shooting, a Montgomery County grand jury
indicted the Defendant for attempted second degree murder, two counts of aggravated
assault, and possession of a firearm during the commission of a dangerous felony. The
Defendant entered a “best interest” guilty plea to the offense of attempted second degree
murder. At the guilty plea submission hearing, the State informed the trial court that, had the
case gone to trial:

       The bulk of the State’s case would come primarily from the testimony of
       Naosha (phonetic spelling) Johnson, who is now 17 – or approximately 17.
       She would testify that back on September 10th[,] 2010[,] she and the
       Defendant, along with two others, were hanging out at a house here in
       Montgomery County in a room together.

              She would testify that she was sitting on a bed listening to music, they
       were chatting amongst themselves. [The Defendant] had a Glock nine
       millimeter that he was playing with, for lack of a better word, racking the slide.
       A discussion ensued about someone that Ms. Johnson had perhaps had a sexual
       encounter with. [The Defendant] wanted to know if he could do the same with
       her; she replied no. Ms. Johnson would then testify that [the Defendant]
       approached her, put the gun in her face, that the discussion continued and she
       ran her mouth, she says, because [s]he was not afraid of him, that angered him
       and the last thing she remembers is being shot in the head. Ms. Johnson has
       – she is paralyzed from the waist down and completely paralyzed on the left
       side of her body.

               After the shooting the Defendant and the two other individuals in the
       room fled out the window from the bedroom leaving the victim laying there.
       The gun was tossed; it was later recovered and matched having fired the bullet
       that struck Ms. Johnson. The Defendant did not make any statement at all.

        The trial court clarified that the parties had reached a plea agreement, one in which
the Defendant was pleading guilty because, all things considered, he believed it was in his
best interest. The trial court agreed that, pursuant to the agreement, it would hold a
sentencing hearing to determine the length and manner of service of the Defendant’s
sentence. The statutory range of punishment was eight to twelve years, but the State agreed,
as part of the plea agreement, to a punishment range of eight to ten years.


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       The Defendant agreed that the factual basis for his conviction, as provided by the
State, was true. The trial court went over each of the rights the Defendant was waiving by
pleading guilty, and the Defendant acknowledged that he understood his decision. The trial
court accepted the Defendant’s plea.

                                       B. Sentencing

       At the beginning of the sentencing hearing, the trial court stated that the plea
agreement contemplated that the Defendant would be sentenced as a Range I offender to a
term between eight and ten years. The State offered the presentence report, and the
Defendant objected. The Defendant noted that the presentence report contained three or four
statements from parties other than the victim, which he argued contravened the relevant
sentencing statute, Tennessee Code Annotated section 40-35-207. The trial court noted the
objection, and the State offered no additional evidence.

        The Defendant testified that, at the time of his arrest, he was living with his mother
and his grandmother. He said that, on the day of this shooting, he was eighteen years old.
He said he awoke at around noon when some friends called to invite him to their house to
play video games. Later that evening, he was in a room at the friend’s house with three
people “chillin, smoking weed,” and listening to music on his laptop. The Defendant said
that the slide on his gun, which was on his person, “pinched” him, so he took the gun out and
placed it under a pillow.

       The Defendant said that his friends asked to see the gun, and the Defendant refused.
After their repeated requests, he took the gun out and removed the clip. He said that he
believed that there was also no bullet in the chamber. The Defendant allowed his friends to
look at the gun but then he took it back. He said that he popped the clip back into the gun.
The Defendant recalled that he pushed a piece on the side of the gun to “make the gun
steady,” and the gun “went off.”

       The Defendant said that he and the victim had not been arguing that night and that the
shooting was not intentional. He explained that he ran because he panicked, knowing he
would be in trouble for having a gun in the house at all. After a week, the Defendant turned
himself in to the police.

        During cross-examination, the Defendant testified that he jumped out a window after
the gun fired. At that time, he did not know whether he had shot the victim, and he did not
stop to check. The Defendant said he threw the gun after he jumped out of the window. He
said he was worried about the victim, but he conceded that he never checked on her.



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       Upon questioning from the trial court, the Defendant said the victim was lying when
she said that the two had an argument before the shooting. The Defendant informed the trial
court that the victim’s mother and his mother were good friends and that their families spent
the holidays together. He said he had no reason to shoot her.

       The trial court then sentenced the Defendant, finding:

       [The Defendant] has been convicted upon his best interest plea of guilty of
       criminal attempt to commit second degree murder, which is a B felony. He is
       a range one standard offender. The range of punishment for the offense is
       eight to 12 years, however, there was an agreement announced at the time he
       entered his plea that the sentence range for the Court today would be eight to
       ten years rather than eight to 12 years.

              The Court has considered the testimony . . . or the evidence which has
       been received today; the Court has reviewed the presentence report and the
       attached victim impact statements made by persons the [C]ourt believes are
       contemplated by 40-35-207[(A)(8)]; the Court has considered the principl[e]s
       of sentencing and arguments as to sentencing alternatives; the Court has
       considered the nature and characteristics of the criminal conduct involved,
       however, the nature and characteristics of the criminal conduct involved are
       disputed. On one hand [the Defendant] paints a picture of being in the
       company of [the victim] and two other people, that one of the other people saw
       a weapon, inquired about it; he took the magazine out of it, they looked it over,
       he took it back from him, put the magazine in and, according t[o] him, the
       slide engaged and a shot rang out and she was accidently hit in the head. I
       mean, if his version of [the] events is completely accurate, then it was either
       a reckless or a negligent act on his part that gave rise to her injury.

                On the other hand, her version of [the] events is entirely different. I say
       entirely, there’s some similarities. She agrees they were listening to music and
       the . . . boys were smoking marijuana, and the conversation ensued between
       herself . . . and [the Defendant] having to do with a sex act, which gave rise to
       him getting angry, and according to what [the State’s attorney] said that [the
       victim] said he had a gun in his hand and to hear her tell it he shot her in the
       head.

              Now, those two versions can’t be reconciled not without more. So as
       far as what the Court finds that the nature and characteristics of the criminal
       conduct involved are the Court is required to make a finding based on a


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       preponderance of the evidence. Since he has entered a plea of guilty to attempt
       to commit second degree murder . . . the Court accredits her version of events
       rather than his.

               As far as the evidence and the information regarding mitigating and
       enhanc[ement] factors, under 40-35-[1]13 the Court finds that under
       subsection ten that [the Defendant] had no hesitation about committing a crime
       when the risk to human life was high. Also, under subsection six the Court
       finds that the personal injury inflicted upon [the victim] was particularly great.

               As to mitigating circumstances the Court finds under 40-35-113 [sic]
       . . . the Court rejects the contention . . . that the Court should find under
       subsection six that his youth caused him to . . . lack substantial judgment in
       committing the offense. . . . [E]ither version of events does not demonstrate
       that his youth had anything to do with his judgment.

              Under subpart 11, the Court rejects subpart 11 but under subpart 13 the
       Court does find in mitigation that he entered this plea, and that that eliminated
       the necessity to have a jury trial and the associated time, effort and expense.

               With regard to whether he should be placed in a release status or
       whether he should be confined, the Court finds that confinement is necessary
       to avoid depreciating the seriousness of the offense. The Court also finds that
       confinement is particularly suited to provide an effective deterrence to others
       likely to commit similar offenses. The [C]ourt agrees with [the State’s
       attorney’s] statement that [the Defendant] needs to understand and others need
       to know that such conduct that results in this type of injury is going to get you
       a trip to the penitentiary.

               The [C]ourt fixes his actual sentence at nine years, and orders him to
       satisfy it in confinement at the Department of Correction.

       It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       The Defendant contends that the trial court erred when it sentenced him. He first
contends that the trial court improperly considered the written statements of persons other
than the victim. He next asserts that the manner of the service of his sentence is excessive.
The State counters that the trial court properly sentenced the Defendant to a term of nine


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years and did not err when it denied the Defendant an alternative sentence. We agree with
the State.

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In 2005, the Tennessee
General Assembly amended the sentencing law in order to bring Tennessee’s sentencing
scheme into compliance with United States Supreme Court rulings on the subject. See
United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004).
As a result, of the 2005 amendments to the Sentencing Act, which deleted a claim that the
trial court did not properly weigh enhancement and mitigating factors as a ground for appeal,
the appellate courts were “left with a narrower set of circumstances in which they might find
that a trial court has abused its discretion in setting the length of a defendant’s sentence.”
Carter, 254 S.W.3d at 345-46.

       Appellate review of sentences has been de novo with a presumption of correctness.
See T.C.A. § 40-35-401(d) (2010). In a recent decision, the Tennessee Supreme Court
reviewed changes in sentencing law and the impact on appellate review of sentencing
decisions. State v. Susan Renee Bise, 380 S.W.3d 682 (Tenn. 2012). The Tennessee
Supreme Court announced that “sentences imposed by the trial court within the appropriate
statutory range are to be reviewed under an abuse of discretion standard with a ‘presumption
of reasonableness.’” Id. at 708; State v. Christine Caudle, __ S.W.3d __, No. M2010-01172-
SC-R11-CD, 2012 WL 5907374, at *5 (Tenn. Nov. 27, 2012) (explicitly applying the same
standard to questions related to probation or any other alternative sentence).

        A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record
must be void of any substantial evidence that would support the trial court’s decision. Id.;
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980).

       The “presumption of reasonableness” applied to sentences imposed by trial courts
“‘reflects the fact that, by the time an appeals court is considering a within-Guidelines
sentence on review, both the sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper sentence in the particular case.’” Bise, 380
S.W.3d at 703 (quoting Rita v. United States, 551 U.S. 338, 341 (2007)). A presumption of


                                              6
reasonableness “simply recognizes the real-world circumstance that when the judge’s
discretionary decision accords with the [Sentencing] Commission’s view of the appropriate
application of [sentencing purposes] in the mine run of cases, it is probable that the sentence
is reasonable.” Rita, 551 U.S. at 350-51.

        In conducting its 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 in his own behalf; and (8) the potential for
rehabilitation or treatment. See T.C.A. §§ 40-35-102, -103, -210 (2010); see also Bise, 380
S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c).

                               A. Victim Impact Statements

       The Defendant contends that the trial court erred when it considered the victim impact
statements contained in the presentence report. He asserts that Tennessee Code Annotated
section 40-35-207(a)(8) permits the introduction only of a statement from the victim or the
investigative agency. As such, the Defendant asserts that the trial court’s consideration of
any other statements in the presentence report was in error. The State counters that the
record does not show that the trial court considered the statements to which the Defendant
objected. The State quotes the trial court as stating, “To the extent that [the other statements]
don’t comply with 40-35-207[(a)(8)], the court will grant the motion, otherwise, the


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presentence report is received into evidence and marked as exhibit one to this proceeding.”
Further, the State notes that the trial court later stated when sentencing the Defendant, that
it had considered “the attached victim impact statements made by persons the [C]ourt
believes are contemplated by 40-35-207[(a)(8)].” Therefore, the State asserts that there is
no evidence that the trial court wrongfully considered the other statements. Further, even if
it had, the State asserts it would not amount to an abuse of discretion.

        We conclude that there is no proof that the trial court considered statements other than
the victim’s statement. When sentencing the Defendant, the trial court mentioned only the
Defendant’s testimony and the victim’s statement of the incident. It found two enhancement
factors applicable, factor (6) that the personal injury inflicted upon the victim was
particularly great and (10) that the Defendant had no hesitation about committing a crime
when the risk to human life was high. At the guilty plea hearing, the State offered the factual
basis to support the Defendant’s conviction, facts to which the Defendant agreed, and those
facts included that the victim suffered extensive paralysis as a result of the gunshot wound
to her head. Those facts also included that when the Defendant fired the gun at the victim,
there were two other persons present in the room where the shooting occurred. The trial
court applied both of these enhancement factors based upon the victim’s version of the
events, finding her version more credible in light of the Defendant’s guilty plea to attempted
second degree murder. We cannot find in the record any evidence that the trial court based
its sentencing findings on any witness statements other than the victim’s impact statement.
We also note that reliable hearsay is admissible evidence in a sentencing hearing and that
Tennessee Code Annotated section 40-35-207(a)(5) provides that the presentence report
should contain “[i]nformation relating to any enhancement or mitigating factors that may
affect the sentence imposed . . . .” Accordingly, we conclude that the trial court did not err
in this regard, and the Defendant is not entitled to relief on this issue.

                                  B. Alternative Sentence

       The Defendant next contends that the trial court erred when it denied him an
alternative sentence. He asserts that there was insufficient proof of a need for deterrence
presented at the sentencing hearing and, thus, the trial court should have granted him an
alternative sentence. The State counters that, while the Defendant is correct that there was
no evidence of a need for deterrence presented at trial, the trial court also considered other
relevant factors when it denied the Defendant an alternative sentence and, therefore, properly
denied him an alternative sentence.

        Regarding alternative sentencing, the Tennessee Supreme Court noted that, due to the
2005 sentencing amendments, a defendant is no longer presumed to be a favorable candidate
for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347, (Tenn. 2008) (citing


                                               8
T.C.A.§ 40-35-102(6) (2006)). Instead, a defendant not within “the parameters of
subdivision (5) [of T.C.A. § 40-35-102], and who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary.” Id. (footnote
omitted). Generally, defendants classified as Range II or Range III offenders are not to be
considered as favorable candidates for alternative sentencing. T.C.A. § 40-35-102(6) (2010).
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A.§ 40-35-102(6) (emphasis added).

        In addition to the aforementioned sentencing considerations, when considering an
alternative sentence, the trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or length
of a term to be imposed. T.C.A. § 40-35-103 (2010).

       When sentencing the defendant to confinement, a trial court should consider whether:

       (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.

T.C.A. § 40-35-103.

       The Defendant in this case pled guilty to attempted second degree murder, a Class B
felony. As such, he is not considered as a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary. Carter, 254 S.W.3d at 347. He was still,
however, eligible for an alternative sentence because his sentence was ten years or less and
he was not convicted of one of the enumerated offenses the sentences that are not probatable.
See T.C.A. § 40-35-303 (2010). When a defendant is eligible for an alternative sentence, but
not considered a favorable candidate, the trial court shall automatically consider probation
as a sentencing alternative; however, the defendant bears the burden of proving his or her
suitability for probation. T.C.A. § 40-35-303(b). In addition, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b), Sentencing
Comm’n Comments. Rather, the defendant must demonstrate that probation would serve
“the ends of justice and the best interests of both the public and the defendant.” State v.
Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (citations omitted).



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          In the case under submission, when the trial court rejected an alternative sentence, it
stated:

                  With regard to whether he should be placed in a release status or
          whether he should be confined, the Court finds that confinement is necessary
          to avoid depreciating the seriousness of the offense. The Court also finds that
          confinement is particularly suited to provide an effective deterrence to others
          likely to commit similar offenses. The court agrees with [the State’s
          attorney’s] statement that [the Defendant] needs to understand and others need
          to know that such conduct that results in this type of injury is going to get you
          a trip to the penitentiary.

        Having reviewed the record, we conclude that there is nothing in the record to suggest
that the trial court abused its discretion by denying the Defendant an alternative sentence.
The trial court sentenced the Defendant to the midpoint of the sentencing range agreed to in
the plea agreement, which is only one year above the minimum sentence for that offense.
The trial court also thoroughly considered the principles and purposes of the Criminal
Sentencing Reform Act. It concluded that confinement was necessary to avoid depreciating
the seriousness of this offense. The trial court accredited the victim’s account of the events
leading to the shooting. According to that account, the victim and the Defendant were
socializing with some friends listening to music when the conversation became of a sexual
nature. The Defendant asked the victim if she would engage in a sex act with him, and she
refused. He brandished a weapon, approached her, and she, being unafraid of the Defendant,
still “ran her mouth.” The Defendant shot the weapon at her head, causing injury to the
victim that resulted in extensive paralysis. The Defendant fled out of a bedroom window,
threw his weapon, and evaded apprehension for more than a week, until he ultimately turned
himself in to police. The Defendant offered his own testimony at sentencing that the victim
lied about the sexual nature of the conversation and about him pointing a gun at her. He said,
rather, he fired the gun accidentally and fled before he knew that he had shot the victim. The
trial court accredited the victim’s version of events, and the Defendant did not demonstrate
that, in light of these facts, an alternative sentence would serve the ends of justice and the
best interests of both the public and the Defendant. See Souder, 105 S.W.3d at 607. The
Defendant is not entitled to relief on this issue.

                                         III. Conclusion

       Based upon the foregoing authorities and reasoning, we conclude that the trial court
did not err when it sentenced the Defendant. As such, the trial court’s judgment is affirmed.




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     ___________________________________
     ROBERT W. WEDEMEYER, JUDGE




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