        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                              AT KNOXVILLE                  January 5, 2000

                                                           Cecil Crowson, Jr.
                        OCTOBER SESSION, 1999             Appellate Court Clerk


STATE OF TENNESSEE,           )    C.C.A. NO. 03C01-9901-CC-00007
                              )
      Appellee,               )
                              )    ANDERSON COUN TY
VS.                           )
                              )
JAMES HARRIS,                 )    HON . D. KEL LEY T HOM AS, JR .,
                              )    JUDGE
      Appellan t.             )
                              )    (Resentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
               CRIMINAL COURT OF ANDERSON COUNTY


FOR THE APPELLANT:                      FOR THE APPELLEE:

MART S. CIZEK                           PAUL G. SUMMERS
245 North Main Street, Suite 100        Attorney General and Reporter
Clinton, TN 37716
                                        ELLEN H. POLLACK
                                        Assistant Attorney General
                                        425 Fifth Avenu e North
                                        Nashville, TN 37243

                                        JAMES M. RAMSEY
                                        District Attorney General

                                        JAN HICKS
                                        Assistant District Attorney General
                                        127 Anderson County Courthouse
                                        100 North Main Street
                                        Clinton, TN 37716

OPINION FILED ________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, James Harris, appeals as of right his sentence imposed

by the trial c ourt afte r a rem and fro m this Cour t. He w as orig inally ind icted in

December 1987 b y an An derson Coun ty Gran d Jury for a ssault w ith intent to

com mit first degree murder. After a jury trial in October 1988, the Defendant was

found guilty of the crime charged and was sentenced to thirty-five years

incarceration. That conviction and sentence was upheld by this Court, and the

Tennessee Supreme Court denied review. Subsequently, the Defendant filed a

petition for post-conviction relief which was granted on the basis of ineffective

assistance of counsel due to counsel’s failure to communicate a plea offer to the

Defen dant.   In its opinion upholding the grant of post conviction relief, the

supreme court set forth the facts giving rise to the finding of ineffective assistance

of counsel as follows:

               Appellee was indicted in Anderson Coun ty for assau lt with
       intent to commit murder. In pre-trial negotiations the defense
       counsel and the Assistant District Attorney General in the case
       discussed the possibility of defendant entering a plea of g uilty. In a
       letter dated 12 February 1988 the State made a plea offer of a five
       (5) year Ra nge I sen tence, w ith no prob ation or co mm unity
       correction. The offer was conditioned on the defense waiving any
       filed motions and would be held open for only 10 days. The letter
       included a nota tion stating that if the offer was rejected defense
       counsel should schedule a motion hearing with the trial court. On
       24 Febru ary 19 88 the Attorn ey Ge neral was notified that defense
       counsel had scheduled a motion hearing and the prosecution
       regarded the scheduling of these motions as a rejection of the plea
       offer. Defense counsel testified at the post-conviction hearing that
       he received the prosecution’s plea offer on the 17 th or 18th day of
       February. He endeavored to inform petitioner of the offer through
       his parents , but did not communicate with him directly concerning
       the matter until later in Ma rch 1988, after the expiration of the offer.

              On 29 February 1988 the Assistant District Attorney General

                                          -2-
      informed defense counsel that since no response had been
      forthcoming within the allotted 10 days the plea bargain offer was no
      longer valid and no further offers w ould be ma de. On the sam e date
      State’s counsel filed notice informing the trial court and defense
      counsel that the S tate intend ed to seek Range II sentencing at trial.

             Defendant went to trial without any knowledge of the plea
      offer by the Sta te and was fo und g uilty at tria l.

Harris v. State, 875 S.W.2d 662, 663 (Tenn. 1994). The supreme court found

that trial counsel was ineffective in failing to relay the plea offer to the Defendant

and remanded the case to the trial court with instruction s for the S tate to

“reinstate its original guilty plea offer and n egotiate in good faith.” Id. at 667. If

the Defen dant ac cepted the offer, the suprem e court d irected the trial court to

“utilize its discretion to accep t or reject this or any othe r plea agreement which

may be negotiated. O therwise, the ca se will stand for trial in due co urse.” Id.




      Upon remand, the Defendant accepted the five-year plea offer, but the trial

court rejected it. The Defe ndan t was th en ag ain tried and convicted in November

1995 of assault with intent to commit first degree murder. He was sentenced as

a Range I standard offender under the Criminal Sentencing Reform Act of 1989

to twen ty-thre e yea rs inca rcerat ion. He appe aled h is conviction and se ntence to

this Court, which upheld the conviction, but remanded for resente ncing. State v.

Harris , 978 S.W.2d 109, 118 (Tenn. Crim. App. 1997). Because the crime was

committed in 1987, before the effective date of the current sentencing statute, the

trial court was required to calculate the appropriate sentence under both the

Criminal Sentencing Reform Act of 1989 and the Criminal Sentencing Reform Act



                                          -3-
of 1982 a nd then impos e the less er sente nce of the two. State v. Pearson, 858

S.W.2d 879, 884 (Tenn. 1993). Because the trial court did not calculate the

approp riate sentence under b oth statutes and then impose the lesser sentence,




                                       -4-
the case was re mand ed for the trial court to pe rform this ta sk. Harris , 978

S.W.2 d at 116 .




      At the new sentencing hearing on November 5, 1998, the trial court

calculated the sentence under both the 1989 statute and the 1982 statute. Under

the 1982 statute, the trial court found that the Defendant was a Range II offender

because he had committed an especially aggravated offense and that the

minimum sentence for the crime in Range II was thirty-two and a h alf years. See

Tenn. Code Ann. §§ 40-35-107(2), (7), 40-35-109(b) (repealed 1989). Under the

1989 statute, the trial court found that the Defendant was a Range I standard

offender and tha t the sente nce ran ge wa s fifteen to tw enty-five y ears. See id. §

40-35-112. Because the minimum sentence in Range II under the 1982 statute

was greate r than th e ma ximu m se ntenc e in Range I under the 1989 statute, the

trial court determined that it should sentence the Defendant under the 1989

statute. It then applied enhancement and mitigating factors and determined that

the appropriate se ntence wa s twenty-three years. Acco rdingly, the trial court

imposed a twenty-three year sentence.           It is from this sentence that the

Defendant now app eals, arguing tha t the trial court erred in using Ra nge II

sentencing considerations in calculating the approp riate sentence under the 1982

statute because the State sought Range II sentencing due to vindictive

prosecution caused by the Defendant’s original trial counsel’s ineffective

representation.




      The statute under which the Defendant was twice convicted provides as


                                         -5-
follows:




           -6-
       Assa ult with intent to murder. - (a) Who ever sh all felonious ly and w ith
malice aforethought assault any person, with intent to commit murder in the first
degree, or sha ll administer or attempt to give any poison for that purpose, though
death shall not ensue , shall, on conviction, be imprisoned in the state penitentiary
for not less than five (5) nor more than twenty-five (25) years.
                       (b) If bodily injury to the victim occurs as a result of
       such an assault in violation of subsection (a ), the pu nishm ent sh all
       be a determ inate sentence of confinement in the state penitentiary
       for life or for a period of not less than five (5) years.
               (c) In the c ase o f bodily injury to the vic tim, the offense
       defined in subsection (b) of this section is a Class X felony.

Id. § 39-2-103 (repealed 1989). The evidence at trial revealed that following a

hearing in relatio n to the Defe ndan t’s divorce from Linda Harris, the Defendant

went to his former wife’s place of employment at the offices of a pediatric dentist.

While Linda Harris was preparing to treat a five-year old girl who was s eated in

the dental chair, the Defendant entered the area and a ttacke d Ms . Harris with a

knife. He cut Ms. Harris’ neck with the knife, causing a woun d app roxim ately five

inches long and at least an inch d eep, w hich b arely m issed Ms. H arris’ ca rotid

artery and w hich left a permanent scar. He also cut tendons in two of Ms. Harris’

fingers. One of Ms. Harris’ fingers remains impaired. Thus, under the statute,

the Defendant caused bodily injury in the commission of the crime and was

subject to a sente nce of five years to life im prisonm ent. See id. § 39-2-103(b)

(repeale d 1989 ).




       Also, under the 1982 Act, an offense is an “especially aggravated offense”

if the offense is a “felony during the com miss ion of w hich th e defe ndan t willfully

inflicted serious bodily injury upon another pers on.” Id. § 40-35-107(2) (repealed

1989). “‘Serious bodily injury’ includes bodily injury which involves a substantial

risk of death; unconsciousness; extreme physical pain; protracted and obvious


                                          -7-
disfigurem ent; or protracted loss or impairment of the function of a bodily member

or organ.” Id. § 40-35-107(5)(B) (repealed 1989). The victim spent three days

in the ho spital fo r a nec k wou nd tha t barely misse d her c arotid artery, she has a

permanent scar on her neck, and she suffers impairment of the function of one

of her fing ers. Th us, it is apparent that she suffered “serious bodily injury” under

the statute and the crime could be considered an “especially aggravated offen se.”

The trial court below found that to be the case, and the Defendant does not

challenge that finding.




       In addition to providing that an offense may be co nside red an “espe cially

aggravated offense,” the statute provides that “[i]f the district attorney general

believes that a defendant should be sentenced . . . for an especially aggravated

offense . . . he shall file a statement thereof with the court and defense counsel

before trial or acceptance o f a guilty plea on the p rimary offense .” Id. § 40-35-

202(a) (repealed 1989). When sentencing a defendant, the trial court must base

the sente nce “o n the e viden ce in th e reco rd of the trial, the sentencing hearing,

the pre-sentence report, and in the ca se of a n esp ecially aggravated offense or

a persistent offender, the statement filed by the dis trict attorney genera l with the

court as required by § 40-35-20 2.” Id. § 40-35-21 0(d) (repealed 1989). Thus,

before a court may sentence a defendant for an especially aggravated offense,

the prosecution must request such a sentence. If, after such a request, the cou rt

finds beyo nd a re ason able doubt th at the d efend ant co mm itted an espe cially

aggravated offense, then the defen dant is to b e sente nced w ithin Ran ge II. See

id. § 40-35-107(7) (repealed 1989). A Range II sentence is a sentence “not less


                                          -8-
than the minimum sentence plus one-half of the difference between the maximum

sentence and the minimum sentence, and not more than the maximum sentence

as provided by law,” which in this case would be a sentence of thirty-two and a

half years to life. See id. § 40-35-10 9(b) (repealed 1989).




       As noted by the supreme court in the appeal from post-conviction relief, on

the same day that she informed defense counsel that the plea bargain offer was

no longe r valid and no further offers would be made, the assistant district attorney

general filed a notice informing the trial court and defen se co unse l of the S tate’s

intent to seek Range II sentencing at trial because the Defendant had committed

an especially aggrava ted offens e. See Harris , 875 S.W.2d at 663, 665. In a

footnote, the supreme court stated, “Ther e is som e indic ation in the rec ord at th is

point evidencing a developing friction between counsel.” Id. at 665 n.2. From

these notations in an opinion by our supreme court, the Defendant now asks us

to presume, without further proof, that the assistant district attorney general filed

the notice due to prosecutorial vindictiveness caused by origina l trial cou nsel’s

ineffectiveness in failing to communicate th e plea to the D efend ant an d in

negotiating with the State.




       In our judic ial system ,

       so long as the prosecutor has probable cause to believe that the
       accused committed an offense defined by statute, the decision
       whether or not to prosecute, and what charge to file or bring before
       a grand jury, generally rests entirely in his discretion. Within the
       limits set by the legislature’s constitutionally valid definition of
       charg eable offenses, “the conscious exercise of some select ivity in
       enforcement is not in itself a federal constitutional violation” so long


                                          -9-
       as “the selec tion was [not] deliberately based upon an un justifiab le
       standa rd such as race, re ligion, or othe r arbitrary cla ssification.”

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368

U.S. 448, 456 (1962)). Also, the original indictment, which often begin s plea

negotiations, “does not necessarily define the exten t of the le gitima te intere st in

prosecution. For just as a pro secutor may forgo legitimate charges already

brought in an effort to save the tim e and expe nse o f trial, a pro secu tor ma y file

additional charge s if an initial exp ectation th at a defen dant w ould plea d guilty to

lesser charges pro ves unfoun ded.” Unite d State s v. Go odw in, 457 U.S. 368, 380

(1982). While the prosecutor no doubt had the discretion to seek enhanced

punishment because the facts clearly support the finding that the Defendant

committed an especially aggravated offense, the Defendant asks us to find that

the pros ecutor e xercised that discre tion out of v indictivene ss.




       In the case of North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969), the

United States Supreme Court held that it is a violation of basic due proces s to

punish a person because he has done what the law plainly allows.                    The

defendant in Pierce successfully appealed his conviction and then received a

greater sentence on retrial. While concluding that the Constitution does not bar

the imposition of a more severe sentence after retrial, the Court held that the Due

Process Clause of the Fourteenth Amendment prevents increased sentences

which are actually or likely motivated by a vindictive desire to punish a defendant

for the exer cise of a sta tutory or pr ocedu ral right. Id. at 723-24. To prevent

actual vindictiveness and the fear of vindictiveness on the part of a defendant, the



                                          -10-
Supreme Court established the rule that

      whenever a judge imposes a more severe sentence upon a
      defendant after a new trial, the reasons for his doing so must
      affirma tively appear. Those reasons must be based upon objective
      information concerning identifiable conduct on the part of the
      defendant occurring after the time of the original sentencing
      proceeding. And the factual data upon which the increased
      sentence is based must b e mad e part of the record, so that the
      constitutional legitimacy of the increased sentence may be fully
      review ed on appe al.

Id. at 726.    The Supreme Court later interpreted this rule as applying a

presumption of vindictiveness which may be overcome only by objective

information in the re cord justifying the increase d sente nce. Goo dwin, 457 U.S.

at 374.




      In Blackledge v. Perry, 417 U.S. 21, 27-28 (1974), the Sup reme C ourt

extended the presumption of vindictiveness to post-trial prosecutorial conduct

which could be motivated by vindictiveness. In that case, the defendant was

convicted of assault in a court having exclusive jurisdiction for the trial of

misdemeanors, and when he appealed his conviction and requested a tria l de

novo in the Superior Court, the prosecutor obtained a felony indictment charging

the defendant with assault with a deadly weapon. The Court determined that

such a situation posed “a realistic likelihood of ‘vindictiven ess’” and explaine d its

reasoning for extending the presumption of vindictiveness as follows:

      A prosecutor clearly has a considerable stake in discouraging
      convicted misdemeanants from appealing and thus obtaining a trial
      de novo in the Su perior C ourt, since su ch an appe al will cle arly
      require increased expenditures of prosecutorial resources before the
      defen dant’s conviction bec omes final, an d may ev en result in a
      forme rly convicted defendant’s going free. And, if the prosecutor
      has the me ans rea dily at hand to discourage such appeals – by


                                         -11-
       “upping the ante” through a felony indictment whenever a convicted
       misd eme anan t pursu es his statutory a ppellate re medy – the Sta te
       can insure tha t only the m ost hardy defendants will brave the
       hazards of a de novo trial.

Id. at 27-28 .




       While the Su prem e Cou rt has im pose d a pre sum ption o f vindictiveness

when a defendant receives a harsher sentence upon retrial and when a

defendant is indicted for a more serious offense after appea ling a co nvictio n, it

has not yet applied the presump tion in a pretrial setting. See Bordenkircher v.

Hayes, 434 U .S. 357 (1 978); Unite d State s v. Go odw in, 457 U.S. 36 8 (1982).

The applicability of the presumption in a pretrial setting was first considered by

the Supreme Court in Bordenkircher, 434 U.S. at 362-65. There, the defendant

was indicted on a charge of uttering a forged instrument in the amount of $88.30,

which was an offense punishable by a term of two to ten years in prison. During

plea negotiations, the prosecutor offered a plea agreement and further told the

defendant that if he did not plead guilty, the State would seek an indictment under

the Kentucky Habitual Criminal Act which would subject the defendant to a

mand atory life sentence due to two prior felony convictions. The defendant

rejected the plea agreement and was subsequently indicted and convicted under

the Habitual Criminal Act. In distinguishing this situation from Pearce and

Blackledge, the Sup reme C ourt note d that

       [i]n those cases the Court was dealing with the State’s unilateral
       imposition of a pena lty upon a defend ant wh o had c hosen to
       exercise a legal right to attack his original conviction – a situation
       “very different from the give-and-take negotiation common in plea
       bargaining betw een th e pros ecutio n and defen se, wh ich arg uably
       posse ss relative ly equal b argaining powe r.”


                                        -12-
Bordenkircher, 434 U.S. at 362 (quoting Parker v. North Carolina, 397 U.S. 790,

809 (1970) (opinion of Brennan , J.)). Recognizing that a defendant may not be

punished for exercis ing a lega l right, the Court determined that “in the ‘give-and-

take’ of plea bargaining, there is no such element of punishment or retaliation so

long as the accused is free to accept or reject the prosecu tion’s offer.” Id. at 363.

It subsequently held that a presumption of vindictiveness does not arise when a

prosecutor follows through with a threat made during plea negotiations to bring

additional charges against a defendant if the defendant refuses to plead guilty.

Id. at 365.




      The applicab ility of a presump tion of vindictiveness again cam e before the

Supreme Court in th e pretrial co ntext in the case of United S tates v. Goodwin,

457 U.S. 368 (1982). In Goo dwin , the C ourt co nside red w hethe r the pro secu tor’s

addition of a pretrial felony charge following the defendant’s pretrial demand for

a jury trial on a misdemeanor charge gives rise to a presumption of

vindictiveness. While acknowledging that it has been necessary to “presume” a

vindictive motive in some circumstances, the Court stated, “Given the severity of

such a presumption, however, which may operate in the absence of any proof of

an improper motive and thus may block a legitimate response to criminal conduct

– the Court has done so only in cases in which a reasonable likelihood of

vindictiveness exists.” Id. at 373. In com paring post-trial actions o f prosecutors

to pretrial actions, the Supreme Court had the following to say:

              There is good reason to be cautious before adopting an
      inflexib le presumption of prosecutorial vindictiveness in a pretrial
      setting. In the course of preparing a case for trial, the prosecutor


                                         -13-
may uncover additio nal info rmatio n that s ugge sts a b asis for further
prosecution or he simply may come to realize that information
possessed by the S tate has a broader significance. At this stage of
the proceedings, the prosecutor’s assessment of the proper extent
of prosecution may not have crystallized. In contrast, once a trial
begins – and certainly by the time a conviction has been obtained
– it is much more likely that the State has discovered and assessed
all of the information against an accused and has made a
determination, on the basis of that information, of the extent to which
he should be prosecuted. Thus, a change in the charging decision
made after an initial trial is completed is much more likely to be
improperly motivated than is a pretrial decision.

        In addition, a defendant before trial is expected to invoke
procedural rights that inevitably impose some “burden” on the
prosecutor. Defense c ounsel routinely file pretrial m otions to
suppress evidence; to challenge the sufficiency and form of an
indictme nt; to plead an affirm ative d efens e; to req uest p sych iatric
services; to obtain access to government files; to be tried by jury.
It is unrealistic to assum e that a prosec utor’s prob able resp onse to
such motion s is to seek to pena lize and to deter. The invocation of
procedural rights is an integral part of the ad versa ry proc ess in
which our criminal justice system operates.

       Thus, the timing of the prosecutor’s action in this case
sugge sts that a p resum ption of vindictive ness is n ot warra nted. A
prosecutor should remain free before trial to exercise the broad
discretion entrusted to him to determine the extent of the societal
interest in p rosecu tion. An initial decision should not freeze future
condu ct. As we made clear in Bordenkircher, the initial charges filed
by a p rosec utor m ay no t reflect th e exte nt to w hich a n indiv idual is
legitimate ly subjec t to prosec ution.




                                    -14-
             . . . This Court in Bordenkircher made clear that the mere fact
      that a defendant refuses to plead gu ilty and forces the government
      to prove its case is insufficient to warrant a presumption that
      subse quent c hange s in the ch arging d ecision a re unjustified .

Id. at 381-83.




      While the Supreme Court did not hold that the presumption can never

apply in a pretrial context, in light of its reasoning in Bordenkircher and Goo dwin ,

we cannot find the existence of a presumption of prosecutorial vindictiveness just

because the prosecutor seeks enhanced punishment after plea nego tiations fail

and defense counsel files motions with the trial court. See State v. Phipps, 959

S.W.2d 538, 546 (Tenn. 1997) (setting forth when the presumption of

vindictiveness arises after considering the Suprem e Court precedent). Had the

prosecutor sought enhanced punishment after the Defendant’s conviction had

been overturned and the case was sent back for retrial, there might very well

have been a different ou tcome in this case . See id. However, the situation here

is precisely the type of situation in which the Supreme Court said the presumption

does n ot arise. See Goo dwin , 457 U.S . at 381-8 2.




      Because the presumption is not applicable, for us to find prosecutorial

vindictiveness in this pretrial con text, the Defendant would have to prove actual

vindictiveness. See id. at 384. The Defendant has pointed us to no proof of

vindictiveness. He has only cited our supreme court’s opinion upholding the

grant of post-conviction relief, in which the court noted that the prosecutor filed

the notice of intent to seek enhanced punishment on the same day it notified



                                        -15-
defense counsel that it view ed the plea offer a s rejected and that no further offers

wou ld be forthco ming. See Harris , 875 S.W.2d at 663, 665. The court also noted

that there w as so me e viden ce of a deve loping friction b etwe en co unse l at this

point. See id. at 665 n.2 . Without the presumption of vindictiveness, this falls far

short of establishing by any standard that the filing of the notice was im prope rly

motivated. It is undisputed that the facts supported the enhanced sentence and

that the prosecutor had the discretion to seek an enhanced sentence. Therefore,

we upho ld the trial court’s finding that the minimum sentence under the 1982 Act

wou ld be thirty-two and a half years because the Defendant committed an

espe cially aggrav ated offen se.     Acco rdingly, the Defen dant was properly

senten ced to tw enty-thre e years under th e 1989 Act.




      The jud gmen t is affirmed .




                                         ______________________________
                                         DAVID H. WELLES, JUDGE




CONCUR:




________________________________
GARY R. WADE, PRESIDING JUDGE




________________________________
DAVID G. HAYES, JUDGE



                                         -16-
