IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 12, 2016 Session

STATE OF TENNESSEE v. STEPHEN GERARD SMITH

Appeal from the Circuit Court for Franklin County

No. 20336 J. Curtis Smith, Judge

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No. M2015-00261-CCA-R3-CD – Filed November 4, 2016

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Stephen Gerard Smith, the Defendant, filed a pro se Motion for Reduction of Sentence

pursuant to Tennessee Rule of Criminal Procedure 35 in which he asked the trial court to 

either reduce his sentence or to grant a new sentencing hearing. Because the Defendant 

was erroneously sentenced as a career offender rather than a persistent offender for Class 

C felony aggravated assault and because the sentence was entered as the result of an 

agreement between the State and the Defendant, the trial court granted a new sentencing 

hearing. Following the sentencing hearing, the trial court sentenced the Defendant to 

thirteen years‟ incarceration as a Range III persistent offender for Class C felony 

aggravated assault and to a consecutive sentence of twelve years‟ incarceration as a 

career offender for Class D felony attempted aggravated assault. The Defendant was 

sentenced to eleven months and twenty-nine days for each of the three domestic assault

convictions to be served concurrently with each other and with the felony sentences. The 

Defendant claims the trial court abused its discretion in allowing him to proceed pro se in 

the motion hearing and in the imposition of the sentences. Discerning no error, we affirm 

the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Robert T. Carter, Tullahoma, Tennessee, for the appellant, Stephen Gerard Smith.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant 

Attorney General; J. Michael Taylor, District Attorney General; and Courtney Lynch, 

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

In July 2012, the Franklin County Grand Jury indicted the Defendant for three 

counts of aggravated assault and four counts of domestic assault. The victim in the first 

six counts was the Defendant‟s wife, and the victim in Count 7 was the Defendant‟s 

daughter. Count 7 was dismissed by the State. On June 26, 2013, the State filed a 

“Notice of Intention to Seek an Upper Range Punishment . . .” listing six prior felony 

convictions—two Class D and four Class E felonies. On July 15, 2013, a jury found the 

Defendant guilty of aggravated assault, attempted aggravated assault, and three counts of 

domestic assault. The jury found the Defendant not guilty of aggravated assault in Count 

5.

We glean from the briefs and record that the Defendant and the State reached an 

agreement shortly after the jury trial on a proposed sentence for the five Franklin County 

convictions, as well as a plea agreement for two pending Grundy County charges. On 

July 18, 2013, the trial court signed an order finding that the Defendant, after being “fully 

informed by his attorney,” “waives all issues related to the jury trial and verdict in this 

case and the possible appeals thereof.” The order also provided that “issues related to 

bond revocation are moot” and that the Defendant “waived venue so that these judgments 

and order can be entered in Grundy County[.]” On July 19, 2013, judgments of 

conviction were entered in Franklin County sentencing the Defendant to fifteen years as a 

career offender for aggravated assault, twelve years as a career offender for attempted 

aggravated assault, and eleven months and twenty-nine days for each of the three 

domestic assaults. All sentences were ordered to be served concurrently. Based on the 

briefs and statements of counsel at the motion hearing, the Defendant pleaded guilty to 

the Grundy County charges and was sentenced to twelve years as a career offender for 

Class D felony vandalism and to fifteen years as a career offender for Class C felony 

aggravated assault. The Grundy County sentences were ordered to be served 

concurrently with each other and with the Franklin County sentences as part of a global 

sentencing agreement. The effective sentence for the seven convictions was fifteen years 

in the Department of Correction with a 60% release eligibility date.

On November 4, 2013, the Defendant filed a pro se Rule 35 motion in which he 

asked the trial court to either reduce his sentence or to grant a new sentencing hearing. 

The motion specifically asked the trial court to sentence the Defendant as a Range II 

offender and to release the Defendant on probation or parole for time served. 

On February 11, 2014, the Defendant‟s Rule 35 motion was argued in the trial 

court. The Defendant was represented at the hearing by the attorney who represented 

him in the jury trial, the entry of the plea to the Grundy County cases, and the sentencing 

hearing (trial counsel). The State admitted that it erred in determining that the Defendant 
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had sufficient prior convictions to justify sentencing the Defendant as a career offender 

on the Class C felony aggravated assault, and trial counsel admitted that he incorrectly 

advised the Defendant that he was a career offender for the Franklin County Class C 

felony. After statements by counsel, the trial court stated, “In my opinion I cannot grant 

him a new sentencing hearing and leave the [Grundy County] pleas in place.” The trial 

court stated, “[The Defendant] can go to trial on the [Grundy County charges], he can 

plead them out, but I‟m not telling you I will do anything, Mr. Smith, but you run the risk 

of getting somewhere between [ten] and [fifteen] years on the one that you‟re convicted 

[of] and then going to trial and getting those stacked on top of those.” The Defendant 

responded, “Yes, sir.” 

Thereafter, the trial court granted the Rule 35 motion, set aside the prior 

judgments for both the Franklin County and Grundy County convictions and granted a 

new sentencing hearing for the Franklin County convictions. In addition, the trial court 

set aside the order dismissing Count 7. In its order entered on February 18, 2014, the trial

court stated that it was treating the Rule 35 motion as a “Motion to Withdraw” his guilty 

pleas in the two Grundy County cases and as a “Motion to Set Aside the Judgment[s] 

previously entered in [Franklin County] Case #20336[.]” Because the judgments 

sentencing the Defendant to the Department of Correction were set aside, the trial court 

ordered the Defendant to be held in the Franklin County Jail. The order further stated

that the Defendant “shall have no contact” with his wife, his daughter, a witness who 

testified at trial, and the witness‟ husband. The judgments of conviction for aggravated 

assault and attempted aggravated assault also contained a no contact provision 

concerning the Defendant‟s wife. Trial counsel was relieved of further representation,

and new counsel was appointed. 

The State filed a petition for contempt alleging that the Defendant willfully 

violated the no contact by telephoning his parents from the jail and speaking with his 

daughter. The trial court set the hearing on the contempt petition on the same day as the 

sentencing hearing.

At the sentencing hearing, Josh Rogers, a probation officer, testified that he 

prepared the presentence report, which was entered as an exhibit. Mr. Rogers was also 

actively supervising the Defendant‟s probation on previous misdemeanor convictions at 

the time the Defendant was indicted for the seven assaults in this case. The Defendant‟s 

probation was revoked after he was indicted. The presentence report listed the following 

six prior felony convictions: Class E felony reckless endangerment involving a deadly 

weapon; Class E felony evading arrest; Class E felony theft; Class D felony burglary;

Class D felony theft; and Class E felony schedule VI controlled substance. The report 

indicated that the Defendant was sentenced to concurrent sentences of three years for

Class D felony theft of property and two years for a Class E felony marijuana offense on 
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July 10, 2001, and placed on probation. On December 5, 2001, he was sentenced to 

consecutive, two-year sentences for Class E felony theft and Class D felony burglary, and 

as a result, his probation was revoked. He was sentenced to community corrections after 

service of ninety days in jail. The Defendant‟s community corrections was revoked on 

March 11, 2003, and he was ordered to serve his sentence in the Department of 

Correction. He was sentenced to two years for the reckless endangerment and two years 

for felony evading on March 27, 2003. Those sentences were ordered to be served 

consecutively to his prior convictions. He was paroled October 11, 2004, and his parole

was revoked on March 1, 2005. He was sentenced to three consecutive eleven-month and 

twenty-nine day sentences for two assaults and one count of vandalism and thirty days for 

criminal trespass on March 17, 2009. He was ordered to serve eleven months and 

twenty-nine days in the jail followed by probation. He was sentenced to eleven months 

and twenty-nine days for vandalism on April 29, 2009, and that sentence was ordered to 

be served consecutively to the prior misdemeanor sentences. His probation was fully 

revoked on July 12, 2010. 

It is unclear from the presentence report as to which charges Mr. Rogers was 

referring when he stated the Defendant‟s probation was revoked when he was charged 

with the assaults in this case. Mr. Rogers also testified that the Defendant was convicted 

of DUI in Coffee County immediately after his jury trial in Franklin County. The 

presentence report also showed that the Defendant had charges pending against him in 

Franklin County for vandalism over $1,000, leaving the scene of an accident, aggravated 

burglary, and misdemeanor theft. The Defendant had also been convicted of a number of 

traffic offenses.

Following the testimony of Mr. Rogers, the State called John Smith, the 

Defendant‟s father, as a witness on the pending contempt petition. The State advised the 

court that it wanted to play several audio recordings of telephone calls made by the 

Defendant to his father from the Franklin County Jail. Additionally, the State argued the 

audio recordings were admissible on the issue of alternative sentencing because the 

Defendant had asked to be released into the community on probation or parole in the 

Rule 35 motion. The Defendant‟s counsel advised the trial court that the Defendant‟s 

father and Ginny Smith, the Defendant‟s mother, would be “invoking their 5th

Amendment right not to incriminate themselves.” After the Defendant‟s counsel 

stipulated that it was the Defendant‟s voice on the audio recordings, the State released

Mr. and Mrs. Smith from the subpoenas. The Defendant‟s counsel then stated “that [the 

Defendant] would be willing to offer a stipulation as a matter of law that he did violate 

conditions of his release by contacting or attempting to contact prohibited people in the 

conditions.” The State stated that it wanted to play the audio recordings “for the 

substance of those as to his candidacy for release” and announced that it would call 
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Scotty McKay, Jail Administrator for the Franklin County Sheriff‟s Department, as its 

next witness.

Mr. McKay explained that except for the initial call made when a prisoner is 

booked, all calls after a prisoner enters the general population are recorded. He testified 

that inmates are advised that telephone calls are recorded each time a call is made. The 

State asked to play the audio recordings. The Defendant made a “blanket objection” 

stating that the audio recording contained “some inflammatory thing” and argued that the 

Defendant had stipulated that he violated the court‟s order. Concerning the audio 

recordings, the trial court asked the State “where do they fit into the sentencing 

matrix[?]” The State responded that the Defendant‟s blatant disregard for the Court‟s

order shows that he is not a candidate for release. The trial court overruled the objection 

and allowed the audio recordings to be played.

During one telephone call, the Defendant was “talking to [his daughter] about her 

mother‟s truthfulness[.]” During another telephone call, this time speaking with his 

father, the Defendant made numerous offensive and vulgar remarks about the trial court

and stated that the trial court cannot “tell me when I can or cannot talk to my child.” The 

trial court, after acknowledging that the Defendant‟s statements were disparaging of the 

court, asked the State how they are relevant to sentencing. The State argued that the 

statements showed that the Defendant did not intend to follow the court‟s orders. The 

trial court stated that, “I take no personal offense in what he says about me.” The trial 

court indicated that it would consider the audio recordings on the Defendant‟s

“amenability, not following directions on probation[.]” 

At the conclusion of the sentencing hearing, the trial court took the matter under 

advisement.

On July 7, 2014, the trial court filed a “Sentencing Memorandum” in which the 

court stated:

In determining the appropriate sentence for these offenses, this Court has 

considered the evidence presented at the trial and the sentencing hearing, 

the presentence report, the principles of sentencing and arguments made as 

to sentencing alternatives, the nature and characteristics of the criminal 

conduct involved, the evidence and information offered by the parties on 

the mitigating and enhancement factors, any statistical information 

provided by the administrative office[] of the court[s] as to sentencing 

practices for similar offenses in Tennessee and the Defendant‟s potential 

for rehabilitation.
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The trial court made the following statement about the facts:

Defendant engaged in a several hours rampage of assaults lasting several 

days against his wife.... During that time defendant forcibly grabbed his 

wife on several occasions, hit her with his fists and foot on several 

occasions, pressed a sharp object against her neck, threatened her with his 

bow and arrows and verbally abused his wife. 

In determining the proper length of the Defendant‟s sentences, the trial court

applied three enhancement factors listed in Tennessee Code Annotated section 40-35-

114, finding that the Defendant:

(1) “has a previous history of criminal activity or criminal behavior in addition to 

those necessary to establish the appropriate range[;]”

(2) “before trial or sentencing, has failed to comply with the conditions of a 

sentence involving release into the community[;]”and

(3) “[a]t the time the felony was committed ... was released on probation....” 

T.C.A. § 40-35-114(1), (8), (13). The court found no mitigating factors.

Focusing on the alignment of the multiple convictions, the trial court found,

pursuant to Tennessee Code Annotated section 40-35-115(b)(2) and (6), that “the 

defendant is an offender whose record of criminal activity is extensive” and that “the 

defendant is sentenced for an offense committed while on probation[.]” The trial court 

ordered the thirteen-year aggravated assault sentence and the twelve-year attempted

aggravated assault sentence to be served consecutively in the Department of Correction.

The record does not shed any light on the outcome of the charges in Grundy County.

After the Defendant‟s Motion for New Trial was overruled, the Defendant timely 

filed his Notice of Appeal.

Analysis

Pro se representation

The Defendant claims the trial court abused its discretion by allowing the 

Defendant to proceed pro se “when it failed to adequately safeguard the [Defendant‟s] 

[S]ixth [A]mendment right to counsel” at the Rule 35 motion hearing and by failing to 

ensure “that [the Defendant‟s] decision to do so was a voluntary act made knowingly and 

intelligently[.]” The State argues the issue is waived because the Defendant raised this 

issue for the first time on appeal. The State also avers that the Defendant cannot meet the 
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plain-error test because there was no clear violation of the law. Finally, the State argues 

that the Defendant was represented by counsel in the Rule 35 motion. We agree with all 

three of the State‟s arguments.

First we note that the only “pro se representation” occurred when the Defendant 

initially filed the Rule 35 motion during the time he was incarcerated in prison. The 

Defendant claims the trial court “should not have heard and ruled on a pro se motion 

unless the accused knowingly and voluntarily waived his right to counsel and expressed a 

competent desire to represent himself.” That argument defies logic. The Defendant had 

an absolute right to file the motion and to request whatever relief to which he believed he 

was entitled. A trial court cannot anticipatorily appoint counsel should a defendant 

decide to file a motion after the judgment of conviction becomes final. However, a trial 

court can insure that a defendant is provided an opportunity to be represented by counsel 

after the motion is filed, which is exactly what the trial court did in this case. 

The Defendant did not raise this issue at the Rule 35 motion hearing, probably 

because the Defendant‟s trial counsel represented him throughout the hearing without the 

Defendant voicing a concern or raising an objection to that representation. “Ordinarily, 

issues raised for the first time on appeal are waived.” State v. Alvarado, 961 S.W.2d 136, 

153 (Tenn. Crim. App. 1996). Even if the issue were not waived, the Defendant cannot 

prevail under a plain error analysis. There was no clear violation of any law concerning 

pro se representation. See State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App.

1994). He was represented by his trial counsel throughout the Rule 35 motion hearing,

and trial counsel successfully obtained a new sentencing hearing for the Defendant. The 

issue is without merit.

Length of sentences

The Defendant claims the trial court abused its discretion by imposing more than 

the minimum sentence for the two felony convictions and by ordering the two felony 

sentences be served consecutively. The State argues that the trial court did not abuse its 

discretion because it imposed sentences within the appropriate range after a proper 

application of the purposes and principles of our Sentencing Act and that the findings by 

the trial court supported consecutive sentences. We agree with the State.

When the record establishes that the trial court imposed a sentence within the 

appropriate range that reflects a “proper application of the purposes and principles of our 

Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). A trial court abuses its discretion when it applies an incorrect legal 

standard, reaches an illogical conclusion, bases its decision on a clearly erroneous 

assessment of the evidence, or employs reasoning that causes an injustice to the 
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complaining party.” State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014) (citing State v. 

Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). “[A] trial court‟s misapplication of an 

enhancement or mitigating factor does not remove the presumption of reasonableness 

from its sentencing determination.” Bise 380 S.W.3d at 709. Moreover, this court may 

not disturb the sentence even if it had preferred a different result. See State v. Carter, 254 

S.W.3d 335, 346 (Tenn. 2008). The same standard applies when a defendant challenges 

the denial of probation or other alternative sentence. State v. Caudle, 388 S.W.3d 273, 

278-79 (Tenn. 2012). 

To facilitate meaningful appellate review, the trial court must state on the record 

the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-

35-210(e) (2010); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the 

articulation of the reasons for imposing a particular sentence . . . should not negate the 

presumption [of reasonableness].” Id. at 705-06. The party appealing the sentence has 

the burden of demonstrating its impropriety. T.C.A. § 40-35-401 (2010), Sent‟g Comm‟n 

Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

Administrative Office of the Courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf 

about sentencing. See T.C.A. § 40-35-210(b) (2010); State v. Taylor, 63 S.W.3d 400, 

411 (Tenn. Crim. App. 2001). The trial court should also consider the potential or lack of 

potential for rehabilitation or treatment of the defendant in determining the sentence 

alternative or length of a term to be imposed. T.C.A. § 40-35-103(5) (2010).

In determining a specific sentence within a range of punishment, the trial court 

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the sentence 

that should be imposed, because the general assembly set the minimum 

length of sentence for each felony class to reflect the relative seriousness of 

each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate, 

by the presence or absence of mitigating and enhancement factors set out in 

§§ 40-35-113 and 40-35-114.
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T.C.A. § 40-35-210(c) (2010).

Although the trial court should consider enhancement and mitigating factors, the 

statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2010 & Supp. 

2013); see also Bise, 380 S.W.3d at 699 n. 33, 704; Carter, 254 S.W.3d at 343. “[A] trial 

court‟s weighing of various mitigating and enhancement factors [is] left to the trial 

court‟s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is 

free to select any sentence within the applicable range so long as the length of the 

sentence is „consistent with the purposes and principles of [the Sentencing Act].‟” Id. at 

343. “[Appellate courts are] bound by a trial court‟s decision as to the length of the 

sentence imposed so long as it is imposed in a manner consistent with the purposes and 

principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

In this case, the trial court properly applied the principles and purposes of 

sentencing and explained its reasoning in its Sentencing Memorandum. As such, we 

review the trial court‟s sentencing decision for an abuse of discretion with a presumption 

of reasonableness. 

The record supports the trial court‟s application of three enhancement factors. The 

presentence report and the testimony presented at the sentencing hearing establish that the 

Defendant had “a previous history of criminal convictions or criminal behavior, in 

addition to those necessary to establish the appropriate range.” T.C.A.§ 40-35-114(1). In 

addition to six prior felony convictions required by Tennessee Code Annotated section 

40-35-108(3) to establish that the Defendant was a career offender for Class D felony 

attempted aggravated assault or the five or more felony convictions within the same class 

or the next two lower classes required by Tennessee Code Annotated section 40-35-

107(1) to establish that the Defendant was a persistent offender for the Class C felony 

aggravated assault, the Defendant had five class A misdemeanor convictions, including 

two for assault. In the section of the presentence report concerning alcohol and drug 

usage, the Defendant was asked, “[D]o or have you used any non-prescribed or illegal 

drugs?” The Defendant‟s response was “everything but heroine [sic][.]” No information 

was provided as to when the Defendant first used drugs, how much and how often the 

Defendant used drugs, when he last used drugs, and why he quit using drugs.

The second enhancement factor found by the trial court was that the Defendant 

“before trial or sentencing, has failed to comply with the conditions of a sentence 

involving release into the community[.]” T.C.A. § 40-35-114(8). The Defendant‟s 

presentence report and the testimony of the probation officer show that the Defendant‟s 

alternative sentences have been revoked numerous times, including revocations of 

probation, community corrections, and parole.
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The third enhancement factor found by the trial court was that “[a]t the time the 

felony was committed” the Defendant was “released on probation.” T.C.A. § 40-35-

114(13)(C). The Defendant‟s probation officer testified that the Defendant was on 

probation when he committed the five assaults for which he was convicted. 

The court found no mitigating factors.

The sentence range for a Range III persistent offender convicted of Class C 

aggravated assault is ten to fifteen years at 45% service. T.C.A. § 40-35-112(c)(3). The 

trial court sentenced the Defendant to thirteen years at 45% service. The mandatory 

sentence for a career offender convicted of Class D attempted aggravated assault is 

twelve years at 60% service. T.C.A. §§ 40-35-108(c), -112(c)(4). The trial court 

sentenced the Defendant to twelve years at 60% service. The trial court did not abuse its 

discretion in sentencing the Defendant within the appropriate range.

Consecutive sentences

The Defendant claims that the trial court abused its discretion in ordering the two 

felony convictions to be served consecutively. The State argues that the trial court did 

not abuse its discretion in ordering the two felony sentences to be served consecutively. 

We agree with the State. 

The Tennessee Supreme Court has expanded the standard of review in Bise to trial 

courts‟ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851, 

859 (Tenn. 2013). “So long as a trial court properly articulates reasons for ordering 

consecutive sentences, thereby providing a basis for meaningful appellate review, the 

sentences will be presumed reasonable and, absent an abuse of discretion, upheld on 

appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). 

Tennessee Code Annotated section 40-35-115 sets forth seven different criteria for the 

trial court to consider in deciding whether or not to impose consecutive sentencing. Two 

of those criteria were properly articulated by the trial court in its Sentencing 

Memorandum: that “the defendant is an offender whose record of criminal activity is 

extensive,” T.C.A. § 40-35-115(b)(2), and that “the defendant is sentenced for an offense 

committed while on probation[.]” T.C.A. § 40-35-115(b)(6). Those two criteria are 

supported by the presentence report and the testimony at the sentencing hearing. The 

trial court did not abuse its discretion in ordering consecutive sentences.

Cruel and unusual punishment

Finally, the Defendant claims that consecutive sentencing of the Defendant 

violated the Defendant‟s right against cruel and unusual punishment. In State v. Harris, 

our supreme court stated:
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Although the language of Article I, Section 16, of the Tennessee 

Constitution is virtually identical to that of the Eighth Amendment, this 

does not foreclose a more expansive interpretation of the Tennessee 

constitutional provision. See State v. Black, 815 S.W.2d 166, 188 (Tenn.

1991). We therefore examine the scope of the Tennessee provision before 

turning to Defendant‟s State constitutional challenge.

We hold that the proper means by which to evaluate a defendant‟s 

proportionality challenge under the Tennessee Constitution is that set forth 

by Justice Kennedy in Harmelin, [501 U.S. 957, 996 (1991)] (Kennedy, J., 

concurring in part). Under this methodology, the sentence imposed is 

initially compared with the crime committed. Unless this threshold 

comparison leads to an inference of gross disproportionality, the inquiry 

ends—the sentence is constitutional. In those rare cases where this 

inference does arise, the analysis proceeds by comparing (1) the sentences 

imposed on other criminals in the same jurisdiction, and (2) the sentences 

imposed for commission of the same crime in other jurisdictions.

State v. Harris, 844 S.W.2d 601, 602-03 (Tenn. 1992).

We determine that the imposition of consecutive sentences for the two felony 

convictions is not grossly disproportional and does not constitute cruel and unusual 

punishment under Article I, Section 16, of the Tennessee Constitution, or the Eighth 

Amendment of the United States Constitution. The Defendant‟s extensive history of 

prior felony convictions making him a persistent offender for the Class C felony 

aggravated assault and a career offender for the Class D felony attempted aggravated 

assault is the reason his sentences are the length they are and the reason his release 

eligibility dates are what they are. The Defendant‟s extensive record of criminal activity

and the fact that he committed these offenses while on probation are the reasons the trial 

court ordered his sentences to be served consecutively. 

Conclusion

The Defendant was represented by counsel at the Rule 35 motion hearing. The 

Defendant‟s claim that he was forced to proceed pro se is baseless. The trial court did not 

abuse its discretion in sentencing the Defendant, either in setting the term of years of 
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service for each conviction or in ordering the sentences to be served consecutively, and 

the effective sentence does not constitute cruel and unusual punishment. The judgments

of the trial court are affirmed.

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THOMAS T. WOODALL, PRESIDING JUDGE