State of Tennessee v. Christopher Scott Chapman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2012

STATE OF TENNESSEE v. CHRISTOPHER SCOTT CHAPMAN

Direct Appeal from the Criminal Court for Sumner County

No. 2008CR833 Dee David Gay, Judge

No. M2011-01670-CCA-R3-CD - Filed March 13, 2013

Defendant, Christopher Scott Chapman, was indicted by the Sumner County Grand Jury for

attempted first degree murder and possession of a firearm during the commission of a

dangerous felony. Following a jury trial, Defendant was convicted of aggravated assault,

charged to the jury as a lesser included offense of attempted first degree murder, and the

second count of the indictment was dismissed by the trial court. Defendant was sentenced

by the trial court to serve six years in the Tennessee Department of Correction. Defendant

appeals his conviction and sentence and asserts: 1) that the trial court erred by instructing the

jury as to the offense of aggravated assault as a lesser included offense of attempted first

degree murder; 2) that the trial court erred by not recusing itself; 3) that the trial court erred

by sentencing Defendant to the maximum sentence within the range; and 4) that the trial

court erred by ordering Defendant’s sentence to run consecutively to a prior sentence for

aggravated assault for which Defendant was on probation at the time he committed the

offense in this case. After a careful review of the record, we find no error and affirm the

judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M T IPTON, P.J.,

and J OHN E VERETT W ILLIAMS, J., joined.

Russell E. Edwards, Hendersonville, Tennessee, (on appeal), David R. Howard and David

Michael Carter, Gallatin, Tennessee, (at trial), for the appellee, Christopher Scott Chapman.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Lawrence Ray Whitley, District Attorney General; Tara Wyllie, Assistant District

Attorney; C. Wayne Hyatt, Assistant District Attorney General; and Lytle Anthony James,

Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

Facts

Sharon Markum Estes and Defendant met while they were in high school. They

parted ways and later began dating. She testified that their “relationship had been up and

down.” On the morning of August 7, 2008, Defendant and Ms. Estes “both had things to

do,” and they left Ms. Estes’ house. At approximately 4:00 p.m., Mrs. Estes went to

Defendant’s grandfather’s house. She left there to go to her sister’s house at approximately

5:30 p.m. She testified that when she left, things between Defendant and her were “pretty

normal.” Defendant had asked her to find some boxes for him to ship some items, but she

did not find any boxes so she did not return to Defendant’s grandfather’s house that evening.

She arrived home at approximately 8:30 p.m., and she spoke to Defendant on the phone at

approximately 9:30 p.m. Defendant “was upset with [her]” because she had not returned

with some boxes. She explained to Defendant that she did not find any and that “it was late,

and [she] . . ., wanted to stay home.” Defendant was angry, and he told Ms. Estes that he was

going to come get his printer that he had let her borrow the previous day. She testified that

Defendant threatened to end their relationship but that Defendant had made those threats

before, and it was not unusual. She testified that she “wasn’t really worried” about

Defendant coming over to retrieve his printer.

Defendant arrived at Ms. Estes’ house at approximately 10:00 p.m. She testified that

he was “very angry.” Defendant “grabbed a cup off the table and got a glass of wine” and

“slammed” her VCR on the cabinet. Ms. Estes testified that she was frightened by

Defendant’s tone because he had “never used that tone with [her] ever.” She testified that

Defendant sounded “demonic.” Defendant was following her through the house and “yelling

and screaming and telling [her], [‘]why can’t you do what I ask you to do[?’]” She “grabbed

[her] cell phone” and “bolted out the back door.” Defendant chased her. Ms. Estes was

dialing 911 when Defendant grabbed her by the hair and she “saw the gun in [her] face.” She

testified that Defendant had a revolver. Defendant put the gun to Ms. Estes’ temple.

Defendant told Ms. Estes, “[g]ive me the phone you [f]-ing [b]itch.” She let go of the phone

and pulled away from Defendant. She felt the gun “slip,” and she heard a gunshot and “felt

the blood spray [her] in the face.” She fell to the ground and “jumped back up” and ran

screaming. Defendant threatened Ms. Estes, “you better keep running you [f]-ing [b]. I’m

going to kill you.” She heard another gunshot as she ran towards the neighbor’s house. She

testified that she fell running through a hedgerow between her house and the neighbor’s

house. When she fell, Defendant was standing over her with the gun to her side. She

testified that she was pleading with Defendant to “please, just stop,” and she heard another

gunshot. Defendant then went back around the bushes, and Ms. Estes ran to her neighbors’

houses until someone let her inside and gave her help.

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Dr. Michael Johnson, an attending physician in the Emergency Department at

Vanderbilt Medical Center, treated Ms. Estes. He reviewed a CT scan and testified that Ms.

Estes had bullet fragments and injuries in her shoulder and upper torso. On cross-

examination, Dr. Johnson testified that Ms. Estes was brought by LifeFlight to Vanderbilt

due to “penetrating trauma to the torso.” Although Ms. Estes’ wounds qualified her to be

airlifted to the hospital, the wounds were not necessarily life threatening. Hospital records

showed that Ms. Estes arrived at the hospital at 11:26 p.m. and was discharged approximately

two hours later.

David Anderson, Defendant’s grandfather, testified that in 2008, Defendant lived with

him. Mr. Anderson owned a .38 caliber revolver. He testified that the first chamber that

would fire was loaded with birdshot and the following chambers were loaded with .38 caliber

bullets. Mr. Anderson discovered that the revolver was missing after the incident.

Robert Reese, the victim’s neighbor, testified that on August 7, 2008, he heard a

gunshot. He saw “a heavyset man with a ponytail” walk from his truck to the side of the

house and back to his truck again. Mr. Reese testified that “[n]othing seemed to be out of

the ordinary.” He testified that the man “was very calm.” Mr. Reese also testified that he

heard a scream. He testified that he heard only one gunshot that night.

Kurt Hargrove lived beside Mr. Reese, two doors down from the victim’s house. He

testified that on August 7, 2008, at approximately 10:18 p.m., he heard “what sounded like

three shots.” He then heard “a loud knocking at the other end of the house.” He testified that

“there was knocking all around the house,” and that his wife saw someone standing outside.

He called the police, and when he looked outside, no one was there.

Mr. Hargrove’s wife, Brenda Hargrove, testified that she walked outside through the

back door and looked towards the victim’s house. She saw a “white Dodge pickup truck with

the taillights on and it went into reverse quickly because it threw gravel and as it turned to

head out the driveway the [driver turned the] headlights . . . off.” It was the same truck that

had been at the victim’s house “every day” previously.

Steven Carter lived three houses away from the victim. He testified that at

approximately 10:00 p.m., he heard a noise outside. He looked out the window and saw the

victim “banging on . . . the Hargroves[’] door.” The victim then ran toward Mr. Carter’s

house. He went to the front door and opened the door, and the victim “basically pried herself

in and fell in the front door.” Mr. Carter testified that the victim was “distraught, shaking,

upset,” and she “had blood on her.” Mr. Carter brought the victim into his house, locked the

doors, turned off the lights, and called 911.

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Detective Dirk Witherow, of the Hendersonville Police Department, was called to the

scene to investigate the shooting. Detective Witherow took photographs of the scene. He

testified that he observed a trail of blood from the victim’s house to the neighbors’ houses.

Detective Witherow interviewed the victim in the early morning hours on the night of the

incident. He looked for the revolver used in the shooting but did not find it. He also testified

that a shell casing had been found at the crime scene.

Doris Sandefur testified that she and Defendant’s mother had been best friends since

fifth grade and she had known Defendant since he was born. Ms. Sandefur saw Defendant

on August 7, 2008, at 11:26 p.m. She testified that her husband answered a knock at the

door, and she heard her husband say Defendant’s name. Defendant came inside. Ms.

Sandefur testified,

And we started talking, I started talking to him. And he said, [“]Sharon and

I got into a fight. I went down there to get my computer printer, we got in

a fight and I shot at her.[”] And he said, [“]I just – I didn’t hit her. I didn’t

try to kill her. I just shot at her.[”] [He s]aid, [“] I think I nicked her on the

ear[,”] and he pulled the gun out of his pocket and he said, [“]you can look

at it and count the bullets.[”] And I went, [“]I don’t want to. Put it back.[”]

And I said, [“]we just don’t want to be a part of this. I don’t, you know, I

think she’s trouble and I don’t want to be involved in it.[”]

Defendant’s mother, Karen Chapman, testified that in August, 2008, she lived across

the street and four houses down from the victim. On August 7, 2008, Ms. Estes drove her

riding lawnmower to Ms. Chapman’s house for Ms. Chapman to use. Ms. Chapman testified

that Ms. Estes told her that she had given Defendant a Xanax for his headache.

Analysis

Jury Instructions

Defendant asserts that the trial court erred by instructing the jury on the offense of

aggravated assault because, Defendant argues, aggravated assault is not a lesser included

offense of attempted first degree murder under State v. Burns, 6 S.W.3d 453 (Tenn. 1999).

The State concedes that aggravated assault is not a lesser included offense of attempted first

degree murder. In State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000

WL 262936, *2 (Tenn. Crim. App. at Nashville, filed March 9, 2000), perm. app denied

(Tenn., Sept. 10, 2001), this court examined this issue and determined that “assault and

aggravated assault are not lesser included offenses of attempted first degree murder.” See

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also State v. Joshua Lee Williams, No. W2000-01435-CCA-R3-CD, 2001 WL 721056, at *6

(Tenn. Crim. App. at Jackson, filed June 27, 2001), perm. app. denied (Tenn., Oct. 29, 2001).

The State contends, however, that Defendant consented to an effective amendment

of the indictment to include the offense of aggravated assault when he specifically requested

a jury instruction on the offense. In Demonbreun v. Bell, 226 S.W.3d 321 (Tenn. 2007), the

Tennessee Supreme Court determined that where the defendant “actively sought” an

instruction on aggravated assault as a lesser included offense of attempted first degree

murder, his actions constituted consent to an effective amendment of the indictment. Id. at

326. Here, Defendant filed a pretrial motion requesting a jury instruction on the offense of

aggravated assault. The motion stated in part:

That pursuant to established Tennessee law, the Defendant avers that, in

addition to the jury charge of Attempted First Degree Murder, he is entitled

to jury instructions as to all available lesser included offenses, [including]

but not limited to: Attempted Second Degree Murder, Attempted Voluntary

Manslaughter, Attempted Reckless Homicide, Attempted Criminally

Negligent Homicide, and Aggravated Assault.

In a written order, the trial court granted Defendant’s motion, but

“specifically reserved the right to charge the Jury on those Lesser included Offenses

believed relevant based upon the evidence presented at trial and, therefore, held

[Defendant’s request for specific jury instructions] under advisement until such time

it could make a proper determination.”

We conclude that the trial court properly instructed the jury as to the offense of

aggravated assault based on Defendant’s specific request for such instruction. By requesting

the instruction, Defendant consented to an effective amendment of the indictment.

Defendant is not entitled to relief on this issue.

Recusal

Defendant next asserts that the trial court should have recused itself from Defendant’s

case. Defendant cites several instances where he alleges the trial court showed personal

prejudice against him.

At a pretrial hearing on November 19, 2009, one of Defendant’s previous trial counsel

(who was later allowed to withdraw) advised the court of disagreements between Defendant

and himself over his representation of Defendant. He stated the following to the court:

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[DEFENSE COUNSEL]: The difficulty that I’m having at this point and

the difficulty that we need to make the Court

aware of, the difficulty that we need to put on

the record is that I am tasked to zealously

represent my client and to effectively represent

my client. It is my belief that no lawyer

walking the face of the earth can effectively

represent a client who has already made his

mind up about what can be done and what the

outcome of a jury trial is going to be and who

refuses to participate or listen to his counsel.

He and I may differ –

[DEFENDANT]: That’s not true, Your Honor.

THE COURT: Okay. Hold on a second.

[DEFENSE COUNSEL]: It is my view that [Defendant] has a deep

desire to control the situation, that [Defendant]

is manipulative; that [Defendant] is belligerent;

that [Defendant] is insulting to his counsel.

That being said, I’m not asking the Court to

relieve me at this time. I’m just merely making

the Court aware that it’s going to be very

difficult for anyone to represent [Defendant]

unless he has a change of heart.

THE COURT: I understand.

The trial court then placed Defendant under oath and explained that it wanted “to be

certain that all your constitutional rights are protected and I will do that as long as I live and

breath.” The trial court advised Defendant that he had “an obligation to work with any

attorney that [the trial court] appointed” to represent him, and the trial court stated, “I’m

getting concerned because this is the second attorney that I’ve appointed, the second attorney

that’s had problems.” Defendant expressed his dissatisfaction with his attorney’s services,

stating that his representation was “about as ineffective as it gets.” The following exchange

then occurred:

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[THE COURT]: Well, that’s the same thing you said about

[your former attorney]. Do you think the

problem might be with you?

[DEFENDANT]: Well, did you ever think –

[THE COURT]: Did you ever think the problem might be with

you?

[DEFENDANT]: Well –

[THE COURT]: Hold on just a second. You have and will

reserve all your rights to appeal, and I will be

sure that all your rights are preserved for you.

My order is that you cooperate with Mr.

Sindle; that you-all prepare for your trial; that

you be cooperative and that you be respectful.

[DEFENDANT]: I have a question for you, Your Honor.

[THE COURT]: No.

[DEFENDANT]: Okay. Well, I –

[THE COURT]: No.

[DEFENDANT]: – I’m going to ask it anyway.

THE COURT: Well, get him out – hold on just a second –

hold on just a second. Get him out of court.

DEFENDANT: How is it effectual –

THE COURT: Get him out of court.

DEFENDANT: How is it ethical to bring a state’s witness to

my meeting with my lawyer? How ethical is

that? It’s not ethical. That’s fine.

(Defendant is escorted out of the courtroom.)

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THE COURT: [Defense counsel], I don’t know how you

cannot get along with him.

[DEFENSE COUNSEL]: Judge, I thank you for the Court’s indulgence.

I think now the record will reflect the attitude

of [Defendant], and I will continue to meet

with him and try to prepare –

THE COURT: That’s all you can do.

[DEFENSE COUNSEL]: I do want to make the Court aware of the

situation that even though I go down and even

though I attempt to meet with him, whatever I

say, just as demonstrated by [Defendant], will

be manipulated to attempt to place

responsibility for his problems on someone

other than himself.

THE COURT: I understand. I understand.

[DEFENSE COUNSEL]: And until – I want this on the record. Until

[Defendant] grows out of his boyhood, until he

becomes a man and starts accepting

responsibility for the consequences of his

actions, he will always be before this or

another court.

THE COURT: And that’s unfortunate, . . . . That’s kind of the

thing that we see here all the time, and that’s

why we’re here, to protect people from this

type of conduct.

At another hearing on December 17, 2009, the trial court began the proceeding by

stating, “We’re back out here again. It looks like we’ve got the same problem we had the last

time we were in.” The trial court read a letter written by Defendant to his trial counsel, and

Defendant again expressed his dissatisfaction with his counsel’s representation, complaining

that counsel was “talking to various people not even associated with [his] case.” Defendant

indicated that he had filed complaints against his counsel with the Board of Professional

Responsibility, and the trial court found that it created “an unavoidable conflict” and

appointed new counsel to represent Defendant. The trial court commented, “[w]hat the

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problem is, is the relationship with you and your attorney in preparation for trial and so forth.

That’s the problem . . . It looks like you’re the one that’s having a problem because this is

the third attorney that I’ve appointed for you.”

At a hearing on May 10, 2010, the trial court considered various pretrial motions,

including the State’s motion to transfer Defendant to the Tennessee Department of

Corrections from the Sumner County Jail. At the hearing, Sonya Troutt, the jail administrator

at the Sumner County Jail, testified about Defendant’s conduct at the jail as follows:

Throwing trays through the pie hold, becoming irate and belligerent

in the attorney-client booth with his attorney, making verbal threats towards

officers. Most recently, he had – one of my newer officers who happened

to be a seasoned police officer at one time, had an altercation where he

would not obey verbal commands. Hands-on was necessary.

And he also has taken some type of offense toward our medical

contractors, who is Southern Health Partners, to the point that when he’s

asked to come to medical, he will either lag and say he’s thinking about it

or he becomes disrespectful with the officers.

He seems – like I said, this has progressed in the last few months.

And in my opinion I feel like that we’ve done everything we can to house

him. I think he would better be served in another facility.

Several specific instances of Defendant’s conduct as reflected in his jail file were also

testified to. At the conclusion of the hearing, the trial court granted the State’s motion and

stated,

[Defendant], I read here what you told your attorney, . . . . I consider

[him] to be a very good, competent attorney. Nobody should have to put up

with that baloney, and they have a difficult job, and your anger, your

personality, your ability to – or your narcissism about you’re the only one

that means anything, it is requiring absolutely too much time and effort by

our Sumner County Jail.

You are a troublemaker. You say what you want to get what you

want which is evidenced by today smiling, having a good time, taking it

easy; everything is cool. And now when you talk about suing people, you

talk about all this and all that, but when you come around to the issue today,

now it’s okay for you to sit in the Sumner County Jail.

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Well, I’m not going to put up with this baloney. I’m not going to ask

the Sumner County Jail to put up with this baloney. They’ve done

everything they can to safely house you.

I find the record is absolutely overwhelming that the Sumner County

Jail is insufficient for your safekeeping and you will be transferred to the

Tennessee Department of Correction.

On November 10, 2010, Defendant filed a motion for recusal, and a hearing was

conducted on November 22, 2010. The trial court explained that it had made rulings on

Defendant’s motions and taken the necessary steps to maintain order in the courtroom. The

trial judge acknowledged that he had been “somewhat agitated” by Defendant, but stated that

he did not recall what he had said to Defendant in previous hearings. The trial court

continued:

I can tell you this, [Defendant], I don’t know fact one about the facts

of this particular case. I don’t know anything. Maybe if it’s been brought

up here, but I don’t know anything about the facts. I don’t know anything

about your history. I might have mentioned that in the proceedings before

when they were brought up in evidence. But I tell you this, I’m not going

to put up with any baloney and I’m not going to put up with any disrespect

in this Court, and I’m not going to put up with any efforts to delay things.

Now, I’m sure that I was pretty passionate and pointed in what I’ve

said, but I can’t remember what I’ve said, but I’m not going to change one

bit. And, secondly, there is no reason in this case why I can’t sit and

continue to be fair and impartial. Like I stated, I don’t know anything about

the facts of this case. I don’t remember specifically your background. I do

know we had to send you to the penitentiary and I do know that we had

problems with attorneys and we’ve had maybe some potential problems

with your attitude in court that I’ve had to address.

But, [Defendant], I’m a judge and that’s what I’ve been called to do

now and there’s no reason why I can’t put aside any rulings that I’ve made

any emotions that I’ve made in the past or exhibited in the past and preside

in this trial. There is absolutely no reason that I can’t be fair and impartial

in continuing to preside as judge in this trial and I respectfully deny the

Motion to Recuse.

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On December 28, 2010, Defendant filed a second motion for recusal, stating that he

had filed a pro se civil action in federal court naming the trial court as one of the defendants.

On the morning of the first day of trial, the trial court addressed the motion and denied it.

It is a basic tenet of our jurisprudence that “‘[t]he right to a fair trial before an

impartial tribunal is a fundamental constitutional right.’” Bean v. Bailey, 280 S.W.3d 798,

803 (Tenn. 2009) (quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)). A trial judge

should recuse himself or herself whenever the judge has any doubt as to his or her ability to

preside impartially or whenever his or her impartiality can reasonably be questioned. Pannell

v. State, 71 S.W.3d 720, 725 (Tenn. Crim. App. 2001). This is an objective standard. Alley

v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). “Thus, while a trial judge should

grant a recusal whenever the judge has any doubts about his or her ability to preside

impartially, [citation omitted], recusal is also warranted when a person of ordinary prudence

in the judge’s position, knowing all of the facts known to the judge, would find a reasonable

basis for questioning the judge’s impartiality.” Id. The trial judge retains discretion over his

or her recusal. State v. Smith, 906 S.W.2d 6, 11 (Tenn. Crim. App. 1995). Unless the

evidence in the record indicates that the trial judge clearly abused his discretion by not

disqualifying himself, this court will not interfere with his decision. State v. Hines, 919

S.W.2d 573, 578 (Tenn. 1995).

Our review of the record in this case shows that the trial court did not abuse its

discretion in denying Defendant’s motions to recuse. On more than one occasion, the trial

court emphasized its duty to protect Defendant’s constitutional rights. While the trial court

made some disparaging comments about Defendant’s attitude and behavior in court and

towards his attorneys and the jail staff, those comments do not warrant recusal in this case.

None of the comments made by the trial judge suggest any prejudgment of the rights of

Defendant. The trial judge’s characterization of Defendant as “a menacing and destructive

force” at the hearing on the State’s motion to transfer Defendant from the Sumner County

Jail is supported in the record by several instances of Defendant’s unruly conduct.

We note that the filing of a lawsuit against the trial judge is normally insufficient to

warrant recusal. See State v. Parton, 817 S.W.2d 28, 29–30 (Tenn. Crim. App. 1991). To

hold otherwise would mean that a litigant could automatically disqualify a judge by the filing

of a frivolous suit and would set a dangerous precedent inviting additional frivolous

litigation, manipulation of the judicial system, and forum shopping. State v. Michael W.

Parsons, W2010–02073–CCA–R3–CD, 2011 WL 6310456, at *23 (Tenn. Crim. App., at

Jackson, Dec. 15, 2011), perm. app. denied, (Tenn., May 23, 2012).

We are unable to conclude that the trial court abused its discretion in denying

Defendant’s motion to recuse. Defendant is not entitled to relief on this issue.

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Sentencing

Defendant asserts that the trial court erred by sentencing Defendant to the maximum

sentence within the range for the convicted offense of aggravated assault and ordering his

sentence in this case to run consecutively to a sentence Defendant was serving for a prior

conviction.

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682 (Tenn.

2012). This court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id. The party challenging the sentence

imposed by the trial court has the burden of establishing that the sentence is erroneous.

Tenn. Code Ann. § 40–35–401 (2010), Sentencing Comm’n Comments; State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

At the sentencing hearing, April Thomas, of the Tennessee Board of Probation and

Parole, testified that she prepared the presentence report which was admitted into evidence.

She testified that Defendant pleaded guilty to aggravated assault on August 26, 2005, and he

was sentenced to serve four years, and the sentence was suspended and he was placed on

probation. Therefore, Defendant was on probation for the prior offense at the time the

offense in this case was committed. On cross-examination, Ms. Thomas testified that

Defendant had been placed on minimum supervision probation.

The trial court also admitted into evidence judgments showing that Defendant had

prior convictions for assault in 1992 with a sentence of 11 months and 29 days probation,

which was later revoked and the sentence was ordered to be served, and two 1993 judgments

for driving under the influence.

David Anderson, Defendant’s grandfather, testified that Defendant lived with him

prior to Defendant’s arrest. Mr. Anderson was 91 years old at the time of the sentencing

hearing. He testified that Defendant’s responses to him had “always been respectful and

correct, mild. And I do know Chris, when he gets pushed hard he reacts very hard.”

Defendant gave an unsworn statement in allocution. He expressed regret and remorse

over the incident and apologized to the victim and to his family for having caused them pain.

Defendant also stated, “I know in my heart, and I know people out there know that I’m not

the bad guy that everyone tries to paint me out to be.” Defendant further stated:

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You know, nobody realizes – nobody talks about, you know, that I helped

my grandfather, or, you know, that I help my mom, or I took care of Sharon

and paid her bills and took care of her kids, or help my uncle build his

cabin. You know, running seven days a week working, helping everybody

around me, maybe getting four hours of sleep a night. Everybody just

wanted to paint this bad picture of me, but nobody ever brought up anything

good I did.

At the conclusion of the sentencing hearing, the trial court stated that it had

considered the evidence at trial and at the sentencing hearing, the presentence report,

Defendant’s statement to the court, and his potential for rehabilitation. The trial court found

that “[t]here’s no doubt that [Defendant] is remorseful[;]” however, the trial court expressed

disappointment that Defendant had not explained “why things happened the way they did.

The record does not show that.”

The trial court determined that Defendant was a Range I standard offender convicted

of a Class C felony offense, which carries a sentence of three to six years. The trial court

found that Defendant had a previous history of criminal behavior, that he “had no hesitation

about committing a crime when the risks to human [life was] high,” and that he was on

probation at the time he committed the offense in this case. The trial court considered “[t]he

imposition of a sentence justly deserved in relation to the seriousness of the offense” and

sentenced Defendant to six years, the maximum sentence within the applicable range. The

trial court also ordered Defendant’s sentence to run consecutively to the four-year sentence

he was already serving.

On appeal, Defendant asserts that the enhancement factors considered by the trial

court “were not enough here to justify sentencing the Defendant to the maximum length

within his range” and that the trial court should have considered certain mitigating factors.

Unless a trial court “wholly depart[s] from the 1989 Act, as amended in 2005[,]”

misapplication of enhancement or mitigating factors does not invalidate a sentence. Thus,

a maximum sentence within the appropriate range, in the total absence of any applicable

enhancement factors, and even with the existence of applicable mitigating factors, should be

upheld as long as there are reasons consistent with the statutory purposes and principles of

sentencing. Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345–46 (“Similarly, if the trial

court recognizes and enunciates several applicable mitigating factors, it does not abuse its

discretion if it does not reduce the sentence from the maximum on the basis of those

factors.”) In this case, the trial court sentenced Defendant to six years for his conviction for

aggravated assault, a sentence consistent with the purposes and principles of sentencing and

within the appropriate range. Furthermore, the record shows that the trial court stated its

reasons for imposing the maximum sentence, followed the statutory sentencing procedure,

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made findings of fact that are adequately supported in the record, and gave due

considerations to the relevant sentencing principles. Based on our review, we conclude that

the trial court did not abuse its discretion in ordering the maximum sentencing within the

applicable range. Defendant is not entitled to relief on this issue.

Defendant also asserts that the trial court erred by ordering consecutive sentencing.

The trial court stated its reasons for ordering Defendant’s sentence to run consecutively to

a prior sentence as follows:

This is a very aggravated crime. It’s a very aggravating in the sense of

rehabilitation and putting somebody on probation that was on probation

when this occurred. I’m going to run the six years at 30 percent

consecutively to the four years at 30 percent in Davidson County because

the defendant is sentenced today for an offense committed while on

probation. That is the reason for my consecutive sentence.

Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115, which provides

that the trial court may order sentences to run consecutively if it finds by a preponderance of

the evidence that “[t]he defendant is sentenced for an offense committed while on

probation[.]” Tenn. Code Ann. § 40-35-115(b)(6). The trial court has the discretion to order

consecutive sentencing if it finds that one or more of the required statutory criteria exist.

State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The presence of a single

factor is enough to justify the imposition of consecutive sentences. Id. We conclude that the

trial court properly ordered Defendant’s sentence to run consecutively to his prior sentence.

Defendant is not entitled to relief on this issue.

CONCLUSION

The judgment of the trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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