State of Tennessee v. Arzell A. Harmon

07/03/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 27, 2017

STATE OF TENNESSEE v. ARZELL A. HARMON

Appeal from the Criminal Court for Knox County

No. 104777 G. Scott Green, Judge

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No. E2016-00551-CCA-R3-CD

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Arzell A. Harmon (“the Defendant”) pleaded guilty to attempted second degree murder

and was sentenced pursuant to a plea agreement to ten years at thirty percent release

eligibility with the manner of service to be determined by the trial court. At the

sentencing hearing, the trial court ordered the Defendant to serve his ten-year sentence in

confinement. The Defendant then filed a motion for reduction of sentence pursuant to

Rule 35 of the Tennessee Rules of Criminal Procedure, which the trial court summarily

denied. On appeal, the Defendant asserts that the trial court abused its discretion by

denying his Rule 35 motion. Alternatively, the Defendant contends that the trial court

should have converted his Rule 35 motion into a petition for post-conviction relief. Upon

review, we affirm the judgment of the Knox County Criminal Court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Arzell A. Harmon, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Charme Allen, District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

On January 16, 2015, the Defendant was charged by information with attempted

second degree murder, a Class B felony. The same day, the Defendant waived his right

to a jury trial and entered a guilty plea to the charged offense. Pursuant to a plea

agreement, the Defendant was sentenced, as a Range I, standard offender, to ten years

with the trial court to determine the manner of service of the sentence.1

At a subsequent sentencing hearing conducted November 13, 2015, the State

offered into evidence without objection the Defendant’s presentence report. The

presentence report contained the following facts regarding the offense:2

On 10/19/14, a warrant was issued charging the [D]efendant with the

offense of attempted first degree murder (premeditated and intentional). It

alleges that on 10/18/14, deputies with the Knox County Sheriff’s office

responded to . . . Carter Road on reports of a victim with multiple gunshot

wounds. The juvenile suspect contacted the victim (Eric Stevens) at the

request of the suspects to speak with him about obtaining a tattoo. The

juvenile suspect conveyed to the victim [his] desires, and the victim gave

the juvenile suspect his address. The juvenile suspect and three other

suspects drove to the victim’s residence, and all suspects except for the

juvenile exited the vehicle short of the victim’s residence. The juvenile

suspect picked up the victim from his residence and drove down the road

and pulled in the driveway of 5005 Brown Gap Road (which is an

abandoned house). [Co-defendant] Raymond Pryor . . . then approached

the vehicle with [the Defendant], and [Co-defendant] Tonia Chaney . . . hit

the victim about the head with a gun while he was seated in the vehicle,

then demanded him to exit. As the victim was exiting, the Defendant took

the gun from [Co-defendant] Pryor, and as [Co-defendant] Chaney was

beginning to strike the victim with a closed fist, [the Defendant] shot the

victim two times and as the victim was running away, [the Defendant]

attempted to shoot the victim a third time though the firearm would not

discharge again due to a weapon malfunction. All suspects then exited the

scene and fled, throwing evidence of the robbery of the victim’s property in

a trash can at Walbrook studio apartments. The victim left some of his

property and equipment in the car, which was then stolen by the defendants.

Some of the property was recovered. Value of stolen property exceeds

$1,000.00.

1

As part of his plea deal, the Defendant agreed to “continue to cooperate with the State including

truthful testimony.”

2

A transcript of the Defendant’s guilty plea submission hearing is not included in the record on

appeal.

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The State submitted evidence that the Defendant was not qualified for Enhanced

Probation due to the nature of the offense and the Defendant’s “lengthy misdemeanor

record.” However, the State acknowledged that the Defendant had been cooperative and

truthful with investigators and that the Defendant’s agreement to testify against Co-

defendant Pryor led to Co-defendant Pryor’s decision to plead guilty.

In a victim impact statement, the victim explained that he suffered permanent

injuries. He was shot in the leg and in the groin area, and one bullet almost hit his

femoral artery. He lost a testicle as a result of the shooting. The victim further stated that

the Defendant attempted to shoot him in the back of the head as the victim ran from the

scene. The victim also recalled that, during various courtroom proceedings in the case,

the Defendant “made gestures” and “had to be kicked out of courtrooms[.]” At the

conclusion of the hearing, the trial court denied probation and ordered the Defendant to

serve his ten-year sentence in the Department of Correction.3

On January 25, 2016, the Defendant filed a pro se motion for reduction of sentence

pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. As the basis for his

request for a reduction of sentence, the Defendant asserted:

I was sentenced to serve my 10[-]year sentence in TDOC custody. I’ve

been incarcerated since [October 18, 2014;] my [C]o-defendants are at

home right now where I wish to be. If I can get any type of favor in my

time-reduction I would surely appreciate it. I feel . . . if I can get a split

confinement I would be [a] help to my friends, family, and the community.

Prison should be my last resort. I’m a kind [and] smart young man who

shouldn’t be around these animals. This is my [first] felony although it’s

pretty harsh. I just honestly feel like I’m being over punished for [a] one[-

]time mistake that I’ll never make again. Violence is never the answer and

disregarding my charge, I’m far from a violent person! It’s just a wrong

place and wrong time situation that I’m still regretting. [The victim] was

cautiously shot below the waist which I feel shouldn’t be an [attempted]

murder case. I was offered [to plead to Aggravated Assault], Range 2, if I

could have that back, or a split confinement with my charge partners, or an

8 at 30% to serve I would be oh so [grateful], please and thank you!

In response, the trial court entered an order summarily denying the Rule 35

motion. This timely appeal followed.

3

The Defendant did not appeal the trial court’s sentencing determination.

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Analysis

The Defendant asserts that the trial court abused its discretion by denying his Rule

35 motion. Alternatively, he contends that the trial court should have converted his Rule

35 motion into a petition for post-conviction relief. He asserts that he is entitled to post-

conviction relief based on the alleged ineffectiveness of trial counsel. The State responds

that the trial court exercised proper discretion in denying the Rule 35 motion “given the

absence of any supporting argument or evidence.” The State further contends that the

Defendant did not raise the issue of ineffective assistance of counsel in his motion for

reduction of sentence and that the Defendant cannot raise new claims for the first time on

appeal. We agree with the State.

Rule 35 of the Tennessee Rules of Criminal Procedure provides, as follows:

(a) Timing of Motion. The trial court may reduce a sentence upon

motion filed within 120 days after the date the sentence is imposed or

probation is revoked. No extensions shall be allowed on the time

limitation. No other actions toll the running of this time limitation.

(b) Limits of Sentence Modification. The court may reduce a

sentence only to one the court could have originally imposed.

(c) Hearing Unnecessary. The trial court may deny a motion for

reduction of sentence under this rule without a hearing.

(d) Appeal. The defendant may appeal the denial of a motion for

reduction of sentence but shall not be entitled to release on bond unless

already under bond. If the court modifies the sentence, the state may appeal

as otherwise provided by law.

Tenn. R. Crim. P. 35. According to the Advisory Commission Comments to Rule 35,

“[t]he intent of this rule is to allow modification only in circumstances where an

alteration of the sentence may be proper in the interests of justice.”

This court reviews a trial court’s denial of a Rule 35 motion under an abuse of

discretion standard. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006); State v. Edenfield,

299 S.W.3d 344, 346 (Tenn. Crim. App. 2009). “[A]n appellate court should find that a

trial court has abused its discretion only when the trial court has applied an incorrect legal

standard, or has reached a decision which is illogical or unreasonable and causes an

injustice to the party complaining.” Ruiz, 204 S.W.3d 778 (citing Howell v. State, 185

S.W.3d 319, 337 (Tenn. 2006)).

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In the instant case, the trial court considered the merits of the Defendant’s Rule 35

motion before denying relief. However, the trial court concluded:

This Court is mindful of the changes [the Defendant] has made in his life

and this [C]ourt applauds him for the positive steps he has taken. The

uncontradicted facts within the record, however, justify the sentence

previously imposed by this Court. [The Defendant] was the driving force

behind the apprehension of the victim . . . and he . . . fired multiple shots

which, not only struck the victim but caused serious injury to [the victim].

The serious nature of this offense calls for a sentence of confinement.

The record does not establish that the Defendant presented the trial court with

evidence of a change in circumstances sufficient to warrant a reduction or suspension of

his sentence “in the interests of justice.” See State v. Sabrina Howard, No. W2014-

02309-CCA-R3-CD, 2015 WL 8334629, at *3 (Tenn. Crim. App. Dec. 9, 2015) (quoting

Tenn. R. Crim. P. 35, Advisory Comm’n Cmts.). As such, we conclude that the trial

court did not abuse its discretion in denying the Defendant’s motion to reduce his

sentence. The Defendant is not entitled to relief on this issue.

The Defendant additionally argues that he was denied the effective assistance of

counsel. He contends that the trial court should have converted his Rule 35 motion into a

petition for post-conviction relief, citing Archer v. State, 851 S.W.2d 157 (Tenn. 1993),

and urges this court to do the same. In Archer, the petitioner sought a writ of habeas

corpus, alleging that his guilty pleas were involuntarily entered. Id. at 158. Our supreme

court determined that, generally, challenges to the voluntariness of guilty pleas are not

properly advanced in state habeas corpus proceedings but stated that “[i]f the petition is,

in fact, a request for relief that may be granted only pursuant to the post-conviction

statutes, a court may properly treat that petition as a petition for post-conviction relief . . .

.” Id. at 158, 164. However, the Defendant did not raise the issue of ineffective

assistance of trial counsel in his Rule 35 motion, and the Defendant’s motion contained

no other claims for relief that could be granted only under the Post-Conviction Procedure

Act. Thus, the Defendant’s reliance on Archer is misplaced, and this court will not

consider a claim raised for the first time on appeal. State v. Alvarado, 961 S.W.2d 136,

153 (Tenn. Crim. App. 1996). The Defendant is not entitled to relief.

Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE

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