IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 15, 2009

STATE OF TENNESSEE v. CEDRIC ANTONIO CONNER

Direct Appeal from the Criminal Court for Hamilton County

No. 268816 Don W. Poole, Judge

No. E2009-01438-CCA-R3-CD - Filed May 20, 2010

The appellant, Cedric Antonio Conner, pled guilty in the Hamilton County Criminal Court

to aggravated assault and received a six-year sentence. On appeal, he challenges the trial

court’s refusal to grant him an alternative sentence. Upon review, we affirm the judgment

of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., J., joined. JOSEPH M. TIPTON, P.J., concurred in results only.

Darren Kennedy, Chattanooga, Tennessee, for the appellant, Cedric Antonio Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; William H. Cox, District Attorney General; and Cameron Williams, Assistant

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

OPINION

I. Factual Background

The Hamilton County Grand Jury indicted the appellant on count one with the

attempted first degree murder of the victim, Derrick Thornton, a Class A felony, and on

count two with the aggravated assault of the victim, a Class C felony. Subsequently, the

appellant pled guilty to aggravated assault in exchange for a sentence of six years as a

standard Range I offender and the dismissal of the attempted first degree murder charge. The

plea agreement further provided that the trial court was to determine the manner of service

of the sentence.
The appellant did not include a transcript of the guilty plea proceedings in the record

for our review. However, at the sentencing hearing the victim testified regarding the

circumstances of the offense. The twenty-nine-year-old victim testified that he was a resident

of Chattanooga and was unemployed. The victim said he occasionally did “odd jobs” and

had sold cocaine in the past.

The victim said that prior to the incident in question, he had seen the appellant once

but did not really know him. Around midnight on May 20, 2008, the victim was in the

“projects” visiting his friend, Jeffrey Hudgins. Hudgins was standing on the porch of the

residence, and the victim was sitting on the edge of the porch when the appellant walked up

to the victim and identified himself. The appellant confronted the victim about a female

named “Yo-Yo” with whom both men were involved. The victim told the appellant that

“Yo-Yo” said she was no longer involved with the appellant. The appellant disputed her

claim, maintaining they were still a couple. The victim told the appellant that “Yo-Yo”

should be able to decide with whom she wanted to be involved.

At that point, the appellant reached into the front pocket of his red “hoodie” sweatshirt

and began firing a semiautomatic pistol that was concealed in the pocket. The victim said

he saw the handle of the gun when the appellant tried to “raise it up.” The victim said he was

unarmed and had not threatened the appellant. The victim said he felt a burning sensation

when a bullet entered his right leg, and he felt his left leg go cold and “paralyzed.” As the

victim tried to crawl inside the residence for safety, he saw the appellant running backwards,

still firing his gun.

The victim said his major injuries included gunshot wounds to his stomach, liver, and

right lung. Doctors had to remove half of the victim’s liver. The victim also suffered

gunshot wounds to his right arm, both feet, and multiple shots to both legs. The victim also

had “graze” wounds to his left arm and left side. In total, he suffered two “graze” wounds

and ten gunshot wounds.

The victim said he was unconscious for three weeks and was in the hospital for about

a month or a month and a half. The victim stated that when he awoke in the hospital, his pain

was unbearable. After his release, he returned to the emergency room multiple times. He

continued to suffer pain and was on pain medication. He stated that he had numbness in his

legs, a bullet in his thigh, and bullet fragments in his leg. He said he had issues with his

circulation and would probably suffer arthritis at an early age. He stated that he had

difficulty breathing after his lung collapsed. The victim had problems sleeping and was

plagued with bad dreams. The victim asserted that he would be “highly upset” if the

appellant received probation. He stated that considering the number of times he was shot,

he felt the appellant should have been convicted of attempted murder.

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The appellant made an allocution in which he contended that “things did happen much

differently than perceived to be and I’m not the type of person that I’ve been perceived to

be.” The appellant maintained that he was “the only person in this matter . . . stepping

forward as far as taking responsibility” for the incident, explaining that he pled guilty to

aggravated assault in order to take responsibility. The appellant expressed his regret for his

behavior on the night in question.

The appellant stated that he had been incarcerated for thirteen months, “greatly

suffering for my actions.” He said that while in confinement, he sought help from an

Alcoholics Anonymous program and from other programs which were offered in jail. The

appellant said he was concerned about his four children, especially his stepdaughter whose

mother had died and had only the appellant to support her. The appellant averred that he had

a good work history and had a job waiting for him if he received alternative sentencing. The

appellant said, “I’ve never been the type that’s out there assaulting people and catching these

kind of charges.”

In making its sentencing determination, the trial court noted that the thirty-five-yearold appellant was married but had divorce proceedings pending. He had four children. The

court observed that the appellant had an extensive criminal history consisting largely of

misdemeanor convictions, including two theft offenses, two assault offenses, one simple

possession of cocaine offense, vandalism, and various driving offenses. Additionally, the

appellant had one conviction from Georgia that would have been a felony in Tennessee. In

each case, the appellant received probation. The appellant violated his Georgia probation

and continued to incur new charges after the completion of his Tennessee probations. The

court noted that the circumstances of the offense were very serious; the appellant armed

himself and confronted the victim at his friend’s home. The court found that although the

appellant had a favorable work history, his past failures to rehabilitate after receiving

probation and the seriousness of the offense meant that the appellant should not be awarded

an alternative sentence. On appeal, the appellant challenges this ruling.

II. Analysis

Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court

considers the following factors: (1) the evidence, if any, received at the trial and the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments

as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) evidence and information offered by the parties on enhancement and mitigating

factors; (6) any statistical information provided by the administrative office of the courts as

to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant

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in his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).

The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.

Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the

trial court adequately considered sentencing principles and all relevant facts and

circumstances, this court will accord the trial court’s determinations a presumption of

correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

We note that the appellant failed to include the transcript of the guilty plea hearing in

the record for our review. However, from the testimony at the sentencing hearing we

conclude that the trial court did not err in denying the appellant an alternative sentence.

An appellant is eligible for alternative sentencing if the sentence actually imposed is

ten years or less. See Tenn. Code Ann. § 40-35-303(a) (2006). The appellant’s sentence

meets this requirement. Moreover, an appellant who is an especially mitigated or standard

offender convicted of a Class C, D, or E felony should be considered a favorable candidate

for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-

102(6). Tennessee Code Annotated section 40-35-103(1) sets forth sentencing

considerations which are utilized in determining the appropriateness of alternative

sentencing:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited

to provide an effective deterrence to others likely to commit

similar offenses; or

(C) Measures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, “[t]he

potential or lack of potential for the rehabilitation or treatment of the defendant should be

considered in determining the sentence alternative or length of a term to be imposed.” Tenn.

Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and

“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative

sentencing. Tenn. Code Ann. § 40-35-102(5).

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In the instant case, the appellant is a standard Range I offender convicted of Class C

felonies; therefore, he is considered to be a favorable candidate for alternative sentencing.

However, as the trial court noted, the appellant has repeatedly been granted probationary

sentences and, despite his repeated convictions and the largess of the courts, he has continued

to violate the law, proving that he is unable to conform his behavior to comply with the law.

Additionally, the trial court noted that the appellant armed himself and sought a confrontation

with the victim. The victim was shot numerous times and was seriously injured. Based upon

these facts, the trial court found that granting the appellant an alternative sentence would

depreciate the seriousness of the offense. There is nothing in the record to preponderate

against the trial court’s ruling.

III. Conclusion

Finding no error, we affirm the judgment of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

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