The opinion
11/16/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 27, 2021
STATE OF TENNESSEE v. LAJUAN HARBISON
Appeal from the Criminal Court for Knox County
No. 101406D Steven W. Sword, Judge
No. E2020-01403-CCA-R3-CD
The Defendant, Lajuan Harbison, remains convicted of three counts each of attempted
voluntary manslaughter and of employing a firearm during the commission of a dangerous
felony. Following remand for a resentencing hearing, the trial court imposed an effective
sentence of eighteen years’ incarceration. On appeal, the Defendant argues that his overall
sentence was not reasonably related to the severity of the offenses and that the trial court
failed to properly account for his rehabiliative efforts while incarcereated prior to
resentencing. Following our review, we affirm the trial court’s sentencing decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.
Gerald L. Gulley (on appeal), and Keith L. Lieberman (at resentencing), Knoxville,
Tennessee, for the appellant, Lajuan Harbison.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha M.
Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On April 9, 2013, the Knox County Grand Jury issued a presentment against the
Defendant charging him with four counts each of attempted first-degree murder and of
employing a firearm during the commission of a dangerous felony.1 These charges arose
out of a shooting on September 7, 2012, near Austin-East High School in Knoxville.
Following a jury trial, the Defendant was convicted of four counts each of attempted
voluntary manslaughter and of employing a firearm during the commission of a dangerous
felony. See generally State v. Lajuan Harbison, No. E2015-00700-CCA-R3-CD, 2016 WL
4414723 (Tenn. Crim. App. Aug. 18, 2016), rev’d, 539 S.W.3d 149 (Tenn. 2018). A
detailed recitation of the facts underlying these offenses can be found in this court’s opinion
on direct appeal. See id.
At the March 14, 2014 sentencing hearing,2 the State argued that several
enhancement factors from Tennessee Code Annotated section 40-35-114 applied: (1) the
Defendant had a previous history of criminal convictions or behavior in addition to that
necessary to establish the sentencing range due to his carrying a gun without a permit for
at least a month prior to the shooting; (2) the Defendant was a leader in the commission of
an offense involving two or more criminal actors because he was the driver and chose to
stop the car and engage in the shoot-out; (8) the Defendant failed to comply with conditions
of a sentence involving release into the community given that his juvenile probation had
previously been revoked; and (10) the Defendant had no hesitation about committing a
crime when the risk to human life was high based upon the circumstances of the offenses.
The State also requested consecutive sentencing pursuant to the dangerous offender
criterion of Tennessee Code Annotated Section 40-35-115(b)(4)—“The defendant is a
dangerous offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime in which the risk to human life is high.”
The Defendant argued that several mitigating factors from Tennessee Code
Annotated section 40-35-113 applied: (2) the Defendant acted under strong provocation
believing that co-defendant Brown was robbing a group of students and due to a prior
shooting by the co-defendants at the Defendant’s mother’s house; (3) substantial grounds
existed that tended to excuse or justify the Defendant’s criminal conduct for the same
reasons; (6) the Defendant lacked substantial judgment due to his youth (eighteen years of
age) and the fact that the Defendant’s father died when he was young; and (13) the catch-
all mitigating factor, noting that the Defendant accepted responsibility for his actions and
was willing to undergo mental health evaluation. The Defendant also submitted that the
1
The presentment also levied multiples charges against Arterious North, Laquinton Brown, and Carlos
Campbell. Counts 11 through 18 concerned the Defendant.
2
Though the documents from the original sentencing hearing were not made a part of the record at the
resentencing hearing, this court make take judicial notice of its own records. See State v. Lawson, 291
S.W.3d 864, 869 (Tenn. 2009).
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dangerous offender criterion for consecutive sentencing was inherent in the charged
conduct and that concurrent, not consecutive, sentencing was merited.
The trial court began by finding that the Defendant was a Range I, standard offender,
which carried a range of two to four years for the attempted voluntary manslaughter
convictions, see Tennessee Code Annotated section 40-35-112(a)(4), and noting that a
mandatory minimum sentence of six years for the convictions of employing a firearm in
the commission of a dangerous felony was required, see Tennessee Code Annotated section
39-17-1324(h)(1). The trial court then considered the enhancement and mitigation factors
urged by the parties.
Relative to the enhancement factors, the trial court determined that the Defendant’s
criminal history was entitled to some weight given his juvenile record and his carrying a
weapon without a permit. The trial court also stated that the Defendant was a leader in the
commission of the offenses because he drove the car but that this factor was not entitled to
a lot of weight. The trial court likewise did not give “all that much weight” to the
Defendant’s prior revocation of juvenile probation in 2001. However, the trial court did
“put a lot of weight behind” enhancement factor (10), reasoning,
There were a lot of people around . . . , and [the Defendant’s] own testimony
. . . was that he shot up in the air to try to scare these people off. So the . . .
first round being fired would have come from him, and the risk to the human
life there was just unbelievably high, and all the rounds that were discharged
and sprayed all over that place made this an incredibly dangerous situation.
It’s just . . . a war in front of a high school.
As for mitigation, the trial court found that the Defendant was entitled to some mitigation
because he accepted a certain level of responsibility, though the trial court did not believe
that the Defendant was completely truthful in that regard.
According to the trial court, the “jury took into account all that mitigation” by
finding the Defendant guilty of the lesser-included offenses. The trial court then stated that
“the shooting in front of a school with multiple people, multiple guns, multiple rounds”
greatly outweighed all other mitigation and determined that the only appropriate sentence
was the maximum sentence of four years for each of the attempted voluntary manslaughter
convictions (counts 11-14).
In regards to whether the sentences would be served consecutively or concurrently,
the trial court found that the Defendant was a dangerous offender whose behavior indicated
little or no regard for human life and no hesitation about committing a crime in which the
risk to human life was high. The trial court found that the Defendant “was willing to engage
in highly risky behavior that present[ed] a crime that [was] highly risky to the li[ves] of
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others without hesitation.” The trial court added that consecutive sentencing was “justly
deserved in relation to the seriousness of the offense” and discussed the circumstances
surrounding the Defendant’s crimes—that the shoot-out occurred in front of a school where
numerous other persons were present and that the Defendant was the first to fire his
weapon. The trial court also remarked that it was “necessary to protect our community
from somebody who would engage in this type of behavior” and concluded that some
consecutive sentencing was justified.
The trial court ordered each the Defendant’s four-year sentences for attempted
voluntary manslaughter to run consecutively to one another. The trial court then ordered
that the six-year sentences for each count of employing a firearm during the commission
of a dangerous felony (counts 15-18) were to be served consecutively to the underlying
attempted voluntary manslaughter counts, i.e., count 15 was ordered to run consecutively
to count 11, count 16 consecutively to count 12, and so on. Ultimately, the trial court
utilized an alignment of concurrent and consecutive sentencing that yielded a sentence of
twenty-two years. Harbison, 2016 WL 4414723, at *30.
On direct appeal, this court overturned the decision of the trial court and remanded
the case for a new trial, reasoning that a severance of defendants should have been granted
and that the failure to do so constituted reversible error. Harbison, 2016 WL 4414723 at
*1. We also concluded that the evidence was insufficient to support one of the Defendant’s
convictions for attempted voluntary manslaughter because the doctrine of transferred intent
was inapplicable to such a conviction and that the corresponding count of employing a
firearm during the commission of said dangerous felony likewise could not stand. Id. In
addition, we determined that multiple convictions for employing a firearm during the
commission of a dangerous felony violated double jeopardy principles because the statute
did not authorize separate firearms convictions for each felony committed in a single
transaction. Id. The Tennessee Supreme Court reversed this court’s decision regarding
severance and double jeopardy principles, reinstated the Defendant’s three convictions for
attempted voluntary manslaughter and three convictions for employing a firearm during
the commission of a dangerous felony, and remanded the case to the trial court for
resentencing and corrected judgments. Harbison, 539 S.W.3d at 149.
Following the appointment of counsel, a resentencing hearing was held on
September 11, 2020. At the outset, defense counsel stated that he intended to rely “to some
extent” on the original sentencing memorandum filed before the first sentencing hearing
and provided a copy to the trial court and the State. As collective exhibit 1, the defense
entered certificates of completion for various programs that the Defendant had taken while
in prison and reference letters from members of the community written in support of the
Defendant. The certificates reflected the Defendant’s completion of courses on leadership
skills, completion of a “Karios Inside Weekend Program,” and completion of seminars in
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behavior modification by Tennessee Prison Outreach Ministry, including anger
management. Additionally, the Defendant submitted numerous letters from friends,
family, and educators discussing the Defendant’s rehabilitation efforts and potential for a
future productive life. The presentence report and an addendum to the report were filed as
exhibit 2. The addendum to the report noted that the Defendant had received three
disciplinary infractions since the completion of the report for defiance on July 6, 2020, and
July 28, 2020, and for sexual misconduct on August 7, 2020.
Defense counsel remarked that the individual being sentenced today was not same
individual being sentenced back in 2014. Defense counsel noted that since the Defendant’s
convictions, the Defendant had spent seven years in prison and that he had changed his
perspective. Defense counsel submitted that the Defendant committed these offenses
because of a prior shooting at the Defendant’s mother’s house and he felt the need to protect
himself and his family following that event. Defense counsel also noted that the Defendant
“shot maybe twice” during the Austin-East shooting. According to defense counsel, the
Defendant wanted to become an electrician upon his release, and the Defendant had
provided potential contact information for a job.
Oracle West, the Defendant’s mother, testified that her son had changed “behavior-
wise,” as well as evolved spiritually. She acknowledged her shortcomings as a young
mother and indicated that she believed that the Defendant was ready to be an “example in
the community.”
Jessica Green, the Defendant’s girlfriend, testified that she and the Defendant knew
each other as children and that they had grown closer in the recent past through phone
conversations. Ms. Green indicated that she had “noticed a lot of change” in the Defendant
and that he had “matured a lot.” She described the Defendant as very patient, kind, and
understanding, as well as his becoming “a lot closer to God” while incarcerated. Ms. Green
also said that Defendant had “motivated” her to become a “better woman” and that he was
a positive motivator for her son. According to Ms. Green, the Defendant desired to become
a football coach after his release and to be an “example to younger children.”
Ms. Green admitted that she had visited the Defendant in December 2019 when she
placed her hand on his thigh. She acknowledged that the Defendant received a write-up
for inappropriate sexual contact because of this incident and that her visitation rights were
suspended. She was aware of another write-up against the Defendant for sexual
misconduct, on August 7, 2020, but said that it did not involve her on that occasion. She
was also aware of a write-up against the Defendant for defiance on July 28, 2020.
The Defendant stated that when he committed the crimes, he was not “really
developed as a . . . man,” that he lacked maturity, and that he was not thinking of the
consequences of his actions, but simply following others. According to the Defendant,
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since his incarceration he had done his best to better himself and tried to learn as much as
possible. He stated that he was reformed and asked to be judged as the person he was at
the time of this sentencing hearing. He expressed his desire for a second chance, so he
could spend more time with his family.
The State indicated that it was relying on the enhancement factors filed during the
first sentencing hearing. The State then submitted that the Defendant was still unwilling
to follow the rules, noting that the Defendant’s last write-up in prison was less than a month
before the resentencing hearing and that he had a total of twenty-nine infractions while
incarcerated. The State further observed that the circumstances of this offense had not
changed and that the facts of this case were “awful,” given that it was face-off between
rival gangs with multiple shots fired outside of a school while children were present.
The trial court first stated that it was adopting the findings “made at the original
sentencing hearing.” The trial court then addressed the Defendant’s arguments in
mitigation. Relative to mitigating factors (2) and (6), the trial court relied upon its previous
ruling. Relative to mitigating factor 3, the trial court determined that factor (3) was
inapplicable because the prior shooting at the Defendant’s mother’s house occurred earlier
in time and the subsequent shooting outside the high school was not some sort of
“immediate response, retaliation, or reflex of actions.” Relative to mitigating factor (13),
the trial court observed that most of the “additional” evidence had been dealt with at the
original sentencing hearing.
However, the trial court noted that under factor (13), the Defendant had presented
new mitigation information regarding his behavior since his incarceration. The trial court
commented that this new information was “kind of a mixed bag,” noting that the Defendant
had a lot of infractions while incarcerated, which was “obviously concerning,” though the
Defendant had also likely “grown up a lot” during that time. The trial court commented
that while “some of that stuff [was] true,” it did not “really mitigate what happened back
then,” so there was “not a lot different in [its] sentencing calculations.”
After determining that the Defendant’s mitigation evidence regarding his behavior
while incarcerated did not necessitate changing the original sentences imposed, the trial
court again sentenced the Defendant to four years on each count of attempted voluntary
manslaughter (counts 12-14), all run consecutively to one another. The trial court then
imposed six-year sentences on each count of employing a firearm during the commission
of a dangerous felony (counts 16-18), which were ordered to be served consecutively to
the underlying attempted voluntary manslaughter counts. The trial court also noted that
corrected judgment forms would need to be entered for counts 11 and 15 to reflect
dismissal. New judgment forms were entered, and this appeal followed.
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ANALYSIS
On appeal, the Defendant argues that the trial court erred in failing to impose a lower
effective sentence than that it imposed in 2014 because there was proof that the Defendant
was amenable to correction and because an eighteen-year sentence was not reasonably
related to the severity of the Defendant’s conduct. Specifically, the Defendant states that
he offered proof at the resentencing hearing that he was amenable to correction and that
his positive rehabilitative efforts while incarcerated should have been considered. The
Defendant cites to the favorable evidence that he had offered at the resentencing hearing,
such as his completion certificates and the recommendation letters from multiple
individuals, as well as observing that “most of his TDOC infractions were from his initial
few years in the TDOC,” and thus not representative of his evolving character. In addition,
the Defendant submits that an eighteen-year sentence is not reasonably related to the
severity of his conduct because there was “no physical evidence that he fired more than
two shots” and because he suffered a gunshot wound himself during the shooting. The
Defendant requests that this court either reduce the sentence within the applicable range
for the convictions for attempted voluntary manslaughter, run one or more of those
convictions concurrently with one another, or both.
The State responds that the trial court properly exercised its discretion in
resentencing the Defendant. Relative to the Defendant’s alleged rehabilitative efforts, the
State notes that the Defendant had twenty-nine write-ups for his misconduct while in
prison, including three that took place between the time of the preparation of the
presentence report and the September 11, 2020 hearing. The State further observed that
the Defendant underwent a risk and needs assessment on November 11, 2019, and that he
received a rating of “high (violent).” Relative to the effective sentence supposedly being
unrelated to the severity of the Defendant’s conduct, the State remarks that the Defendant’s
crimes involved rival gang members shooting at one another and the shoot-out occurred in
front of a high school just as students were being let out for the day.
Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (1) the evidence adduced 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 the enhancement and mitigating factors
set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (6) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; (7) any statement the defendant wishes to make
in the defendant’s own behalf about sentencing; and (8) the result of validated risk and
needs assessment. Tenn. Code Ann. § 40-35-210(b). When an accused challenges the
length and manner of service of a sentence, this court reviews the trial court’s sentencing
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determination under an abuse of discretion standard accompanied by a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). This standard of review
also applies to consecutive sentencing determinations. State v. Pollard, 432 S.W.3d 851,
860-61 (Tenn. 2013). The burden of showing that a sentence is improper is upon the
appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also
State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
To facilitate meaningful appellate review, the trial court must state on the record the
statutory factors it considered and the reasons for the ordered sentence. Tenn. Code Ann.
§ 40-35-210(e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the
reasons for imposing a particular sentence, however, should not negate the presumption [of
reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be upheld
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. at 709-
10. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008). Those purposes and principles include “the imposition of a sentence justly deserved
in relation to the seriousness of the offense,” Tennessee Code Annotated section 40-35-
102(1), a punishment sufficient “to prevent crime and promote respect for the law,”
Tennessee Code Annotated section 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” Tennessee Code Annotated section
40-35-103(5). Carter, 254 S.W.3d at 344. Ultimately, in sentencing a defendant, a trial
court should impose a sentence that is “no greater than that deserved for the offense
committed” and is “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).
Relative to sentence length, the weight to be afforded an enhancement or mitigating
factor is left to the trial court’s discretion so long as its use complies with the purposes and
principles of the 1989 Sentencing Act and the court’s findings are adequately supported by
the record. Tenn. Code Ann. § 40-35-210(d)-(f); Carter, 254 S.W.3d at 342-43. Moreover,
no longer does misapplication of an enhancement or mitigating factor “invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in
2005.” Bise, 380 S.W.3d at 706.
Relative to consecutive sentencing, Tennessee Code Annotated section 40-35-
115(b) provides, in pertinent part, that a trial court may order sentences to run
consecutively if it finds by a preponderance of the evidence that “[t]he defendant is a
dangerous offender whose behavior indicates little or no regard for human life, and no
hesitation about committing a crime in which the risk to human life is high[.]” Tenn. Code
Ann. § 40-35-115(b)(4). Moreover, when the imposition of consecutive sentences is based
on the trial court’s finding the defendant to be a dangerous offender, the court must also
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find “that the terms imposed are reasonably related to the severity of the offenses
committed and are necessary in order to protect the public from further criminal acts by
the offender.” State v. Wilkerson, 905 S.W.2d 938, 939 (Tenn. 1995); see also Pollard,
432 S.W.3d at 863-64.
The Defendant received an in-range sentence of four years for each of the three
attempted voluntary manslaughter counts and, as noted above, a six-year mandatory
minimum sentence was required for each of the employing a firearm convictions.
Furthermore, consecutive sentencing, as partially imposed, was mandatory in this case.
Tennessee Code Annotated section 39-17-1324(e)(1) mandates that a sentence for
employing a firearm during the commission of a dangerous felony “be served consecutive
to any other sentence the person is serving at the time of the offense or is sentenced to serve
for conviction of the underlying dangerous felony.” See also Tenn. Code Ann. § 39-17-
1324(i)(1)(C), (M) (incorporating attempted voluntary manslaughter as a dangerous
felony). Here, given the unique structure of the Defendant’s various sentences, each
firearm count is aligned consecutive to the corresponding underlying attempted voluntary
manslaughter count and then aligned concurrently as much as possible with all the other
counts.
Though the Defendant argues that he has benefited from his seven years in prison
by taking various rehabilitative steps, which, in his opinion, reflect that he is amenable to
corrections, the trial court determined otherwise, finding that the information presented at
the resentencing hearing was “kind of a mixed bag,” noting the Defendant’s multiple
infractions while incarcerated. The trial court once again concluded that the circumstances
of the offense outweighed the mitigation evidence offered by the Defendant. The
presentence report indicates that the Defendant had twenty-nine disciplinary infractions
while in prison, including three of which took place between the preparation of the
presentence report and the resentencing hearing. Moreover, in the risk and needs
assessment, the Defendant received a rating of “high (violent)” for likelihood of re-offense.
On appeal, the Defendant’s main contention is not with the trial court’s application
of any sentencing factors but rather with the trial court’s failure to weigh favorably the
mitigation evidence he offered about his behavior while incarcerated and to impose overall
lesser terms than originally ordered. However, the trial court reviewed the Defendant’s
behavior during his incarceration and did not find that it merited any lesser terms. The
record fully supports the trial court’s findings in this regard, and we discern no abuse of
discretion from the trial court’s conclusion that an eighteen-year sentence was reasonably
related to the severity of the Defendant’s conduct.
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CONCLUSION
Upon consideration of the foregoing, we affirm the sentencing decision of the trial
court.
______________________________
D. KELLY THOMAS, JR., JUDGE
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