IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 10, 2003

STATE OF TENNESSEE v. JOHN LEMONT PIERCE, a.k.a. JAMES

OWENS, a.k.a. JOHN LAMONTE PIERCE

Direct Appeal from the Criminal Court for Davidson County

No. 2001-C-1336 Cheryl Blackburn, Judge

No. M2002-02979-CCA-R3-CD - Filed June 16, 2004

The defendant, John Lemont Pierce, indicted for two counts of especially aggravated kidnapping,

three counts of aggravated assault, and simple assault, entered a guilty plea to one count of

aggravated assault. The trial court imposed a fifteen-year sentence to be served consecutively to a

prior six-year sentence. In this appeal, the defendant contends that the trial court erred by ordering

a maximum sentence of 15 years and requiring consecutive service. The judgment of the trial court

is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.

HAYES, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, John Lemont Pierce.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

and Bret T. Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

A transcript of the guilty plea hearing is not included in the record. The presentence report

provides that on March 7, 2001, the defendant entered the residence of the victim, Verisa Gooch, and

struck her in the forehead with a closed fist. He then grabbed a board, which had protruding nails,

and struck her several times, causing a 1 1⁄2 inch laceration to her head, two large bumps on her head,

and two bumps on her right arm. The victim's upper right thigh was swollen. She was in severe pain

and had difficulty walking. The defendant transported the victim to a house on Arthur Street and

then an unknown location where an unidentified female provided the victim with medical treatment.

When the defendant entered the house, the victim’s grandmother, seventy-six-year-old Mary

Thomas, had attempted to escape to call police. The defendant grabbed her, placed his arms around

her waist, and threw her to the couch. Ms. Thomas suffered pain to the hip and buttock area.
These factors were renumbered by the General Assembly effective July 1, 2002. See Tenn. Code Ann. § 40- 1

35-114 (Supp. 2002).

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At the sentencing hearing, Detective Chris Polk, a member of the Nashville Police

Department’s domestic violence division, met with the victim shortly after the assault. He

photographed the victim’s injuries, describing the laceration on the victim’s scalp as an inch to an

inch and one-half in length. The detective recalled that the initial warrants included a kidnapping

charge because the victim had been removed from her residence against her will.

Cordelia Foster, who had known the defendant for approximately nine years, confirmed that

he had a stable work history, sometimes holding more than one job at a time. The defendant had

helped Ms. Foster with her grandchildren and provided her with financial assistance.

The defendant, who had dated the victim for approximately ten years, was the father of two

of her children. A third had died of drug abuse. He described the victim as a prostitute who, despite

his protests, “insisted on prostituting and doing drugs.” The defendant explained that he had

assaulted the victim because she “had been out with someone else.” He described the offense, for

which he claimed to be truly remorseful, as follows:

[The victim] went out all night and stayed getting high, and then she come home to

me . . . . [S]he lied to me about it, and I just went off. I hit her in the head with a

little stick. It was a little stick about that little (indicating). It wasn’t nothing to just

really kill her. She didn’t have to be hospitalized or anything of that nature. . . . She

didn’t even receive no stitches or anything . . . .

The defendant, who worked two jobs, had obtained his GED and completed one semester of college

while in jail. The defendant asked for treatment for a drug addiction and also requested anger

management classes. At the time of the offenses, the defendant was on probation for a 1999

aggravated assault conviction involving the victim. 

The victim testified that the defendant had assaulted her throughout their entire ten-year

relationship. She stated that the defendant walked into the residence as though he were heading for

the restroom, “came back, picked up the telephone, jerked it out of the wall, and that’s when he hit

me in my face with his fist.” She testified that he struck her with the stick eight or nine times.

The trial court applied the following enhancement factors: (1) that the defendant has a

previous history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range; (8) that the defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community; (11) that the felony

resulted in death or bodily injury and the defendant had previously been convicted of a felony that

resulted in death or bodily injury; and (13) that the offense was committed while the defendant was

on probation. See Tenn. Code Ann. § 40-35-114(1), (8), (11), (13) (1997). No mitigating factors 1

were found to be applicable. The trial court ordered a fifteen-year Range III sentence to be served
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consecutively to the six-year sentence for which the defendant was on probation at the time of

offense.

Initially, the defendant complains that the trial court erred by ordering a maximum sentence

of fifteen years. When there is a challenge to the length, range, or manner of service of a sentence,

it is the duty of this court to conduct a de novo review with a presumption that the determinations

made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is

“conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “f the trial court applies inappropriate

factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.”

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

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

relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). 

The defendant does not challenge the enhancement factors applied by the trial court, but

instead contends that the trial court erred by failing to apply mitigating factors (2) that he acted under

strong provocation; (3) that substantial grounds exist tending to excuse or justify his criminal

conduct, though failing to establish a defense; (11) that the offense was committed under such

unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the

conduct; and (13) he has a good work history and performed good works for others. See Tenn. Code

Ann. § 40-35-113(2), (3), (11), (13). The state argues that the record supports the trial court’s

rejection of those factors. 

In support of his claim of mitigating factors, the defendant argues that “[t]o have the mother

of your child be out all night with another man, taking drugs, is strong provocation.” Aside from the

defendant’s statements, however, there is no corroborative proof of his allegations. If, in fact, the

victim had a lengthy, ongoing history of drug use and prostitution, any such behavior which preceded

the assault should not have been unusual, shocking, or particularly provocative. Finally, the record

demonstrates that the defendant has been physically abusive towards the victim throughout their

relationship and, in fact, has a prior conviction in connection therewith. Under those circumstances,

it is our view that the trial court properly declined to apply mitigating factors (2), (3), and (11).

With regard to mitigating factor (13), the catchall provision, the presentence report indicates

that the defendant claimed to have worked at “B and R Development Company for five years as a

house renovator.” The officer that prepared the report, however, was unable to verify the claim.
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While the defendant may have been a good friend to Ms. Cordelia Foster, who complimented his

work record, this mitigating factor, even if applicable, would not serve to lessen the sentence in light

of the several enhancement factors. 

Intentional aggravated assault is defined by our code as a Class C felony. Tenn. Code Ann.

§ 39-13-102(d)(1). In calculating the sentence for a Class B, C, D, or E felony conviction, the

presumptive sentence is the minimum in the range ifthere are no enhancement or mitigating factors.

Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court

may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-

210(d). A sentence involving both enhancement and mitigating factors requires an assignment of

relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann.

§ 40-35-210(e). The sentence should then be reduced within the range by any weight assigned to the

mitigating factors present. Id.

A Range III sentence for a Class C felony offense is ten to fifteen years. Tenn. Code Ann.

§ 40-35-112(c). In summary, there are four applicable enhancement factors in this case: (1) that the

defendant has a previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range; (8) that the defendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the community; (11)

that the felony resulted in death or bodily injury and the defendant has previously been convicted of

a felony that resulted in death or bodily injury; and (13) that the offense was committed while the

defendant was on probation. See Tenn. Code Ann. § 40-35-114(1), (8), (11), (13) (1997). There is

arguably one mitigating factor. The trial court did not specify the weight to be accorded the various

enhancement factors. In our view, however, factor (1) is entitled to great weight. The presentence

report indicates that the forty-seven-year-old defendant has at least forty-seven prior convictions for

offenses (including attempted armed robbery, robbery, aggravated assault, assault, attempted

kidnapping, automobile larceny, petit larceny, theft, criminal impersonation, shoplifting, criminal

trespass, possession of cocaine with intent to resell, possession of drug paraphernalia, disorderly

conduct, evading arrest, and resisting stop and frisk). It is our view that the previous history of

criminal convictions and behavior would, in and of itself, merit the maximum sentence of fifteen

years.

The defendant also contends that the trial court erred by ordering that his sentence be served

consecutively to his previous six-year sentence for the aggravated assault of the victim. The state

disagrees. 

Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited

classifications for the imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d

391, 393 (Tenn. 1976). In that case our supreme court ruled that aggravating circumstances must

be present before placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d

227 (Tenn. 1987), the court established an additional category for those defendants convicted of two

or more statutoryoffenses involving sexual abuse of minors. There were, however, additional words

of caution: 
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony

2

convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,

Sentencing Commission Comments.

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[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate

maximum of consecutive terms must be reasonably related to the severity of the

offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary

language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the discretion of the trial

court only upon a determination that one or more of the following criteria exist: 2

(1) The defendant is a professional criminal who has knowingly devoted himself to

criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant's criminal conduct has been characterized by a pattern

of repetitive or compulsive behavior with heedless indifference to consequences;

(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; 

(5) The defendant is convicted oftwo (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating circumstances arising from

the relationship between the defendant and victim or victims, the time span of

defendant's undetected sexual activity, the nature and scope of the sexual acts and the

extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation;

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be “justly deserved in relation

to the seriousness of the offense,” Tenn. Code Ann. § 40-35-102(1), and “no greater than that

deserved” under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456

(Tenn. 1999).

In Gray, our supreme court ruled that before consecutive sentencing could be imposed

upon the dangerous offender, considered the most subjective of the classifications and the most

difficult to apply, other conditions must be present: (a) that the crimes involved aggravating

circumstances; (b) that consecutive sentences are a necessary means to protect the public from the

defendant; and (c) that the term reasonably relates to the severity of the offenses. In State v.
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Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding

that consecutive sentences cannot be required of the dangerous offender “unless the terms reasonably

relate[] to the severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated criminal conduct.”

The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive

sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described

sentencing as a “human process that neither can nor should be reduced to a set of fixed and

mechanical rules.” Wilkerson, 905 S.W.2d at 938. 

In ordering an incarcerative sentence, the trial court made the following findings:

With regard to consecutive or concurrent sentences, I’m going to find that he

is both a dangerous offender [with] little or no regard for human life, and he has no

hesitation about committing a crime in which the risk to human life is high. . . .

[A]lso the aggregate term reasonably relates to the severity of the offenses, and it’s

necessary in order to protect the public from further serious conduct by the defendant.

He is one of these individuals who[m] . . . they describe as ha[ving] knocked the top

out of the range. I mean, his behavior is so offensive clearly nothing is going to stop

him . . . . Not only that, he was on probation [at the time of the offense]. 

In our view, the record supports the finding that the defendant qualified for consecutive

sentencing for two reasons: because he was on probation for aggravated assault at the time that he

committed the offense and because he qualifies as a dangerous offender.

Accordingly, the judgment is affirmed.

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GARY R. WADE, PRESIDING JUDGE