# FILED
October 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9611-CR-00428 Appellee, ) ) ANDERSON COUNTY VS. ) ) HON. D. KELLY TH OMAS, JR., JAMES DA

VID HARRIS, ) JUDGE ) Appellant. ) (Assault with intent to commit first-degree murder)

FOR THE APPE LLANT: FOR THE APPELLEE:
MART S. CIZ EK JOHN KNOX WALKUP 245 North Main St., Suite 100 Attorney General & Repor ter Clinton, TN 37716 (On appeal) TIM OTH Y F. B EHAN Asst. Attorney General TOM MARSHALL 450 Jame s Roberts on Pkwy. District Public Defender Nashville, TN 37243-0493 101 S. Main St. Clinton, TN 37716 JAMES N. RA MSEY (At trial) District Attorney General JAN HICKS Asst. District Attor

ney General Anderson County Courthouse Clinton, TN 37716

OPINION FILED:____________________

CONVICTION A FFIRMED; REMANDED FOR RESENTENCING JOHN H. PEAY, Judge1 The defendant was charged with “malici ously, deliber ately and premeditatedl

y mak[ing] an ass ault u pon the b ody of [the vic tim] w ith the felon ious inten t then and t here to un lawfu lly, felon ious ly, maliciousl y, del iberatel y and premeditat

edly t o killand murder the [vi ctim] and to commit t he crime of murder in the first degree by use of a deadly weapon , to wit: a knife, and did thereby cause bodily i njury to the victim . . . all in violation of TC A 39-2- 103.” T .C.A. § 39 -2-103 ( Repl. 19 82) is titled “As sault with intent to murder” and prov ides “(a) Whoever shall felon iously and with mali ce aforethought assault any person, with intent

to commit murder in the f irst degr ee, . . . though deat h shall not ensue, shall , on convicti on, be imprisone d in the st ate penit

entiary for not l ess than fi ve (5) nor more than twenty- five (25) years. (b) If bodily

injury to the vict im occurs as a result of such an assault in violation of subsection (a), the punishmen t shall be a determinate sentence of con finement in the state penitentiary for life or for a perio d of n ot les s tha n five (5) yea rs. (c ) In the cas e of b odily inj ury to th e victim , the o ffen se de fined in subse ction (b) of this section is a Class X felony.” 2 O P I N I O N

Th e defendant was initially convicted in 1988 of attempted firs t- degre e murder with bodily injury. He was granted post-conviction relief in June 1991 on the basis of ineffective assistance of counsel. Following the State’s appeal through our Supreme Court of that decision

and appoi ntment of

a new trial judge, he was retried in N ovember 1995 and convicted of assault with intent to commit first-degree murder. 1 After a hearing he was sentenced as a Range I standard offender to twenty-thre e y ears incarceration. In this appeal as of right, he raises the following issues:

1. The trial court abused its dis creti on when it rejected his plea bargain; 2. The fo ur and one-half year delay between the grant of post-conviction relief and his second trial violated his ri gh t to a speedy trial; 3. The trial court erred in its instruction to the j ury about the range of his punishment for the indi cted offense; and 4. The trial co urt erred i n sentencing him. After our review of the rec ord, we find no merit to the fir st t hree of the defendant’s contentions. However, because the trial cour

t erred in s

entencing h im, we remand this matter for res entencing.

O n Oc tober 19, 1987, the defendant and the vi ctim, his ex-wife, h ad a custody hearing in conjunction w ith their divorce. Following the hearing, the victi m went3

to the offices of the pediatric dentist for whom she worked as a dental assistant. While she was preparing

to treat a five-year old gir l who was seated in the dental chair, the defendant entered the area and attacked the vi ctim with a knife. He cut the victim’s neck, causing a wound approximately five inches long and at least an inch deep. The dentist, hearing the commotion , came in and disarmed the defendant. The police arrived shortly thereafter.

Prior

to the first trial, the State made a plea bargain offer

to the defendant’s attorney of aggravated assault with a sentence of five y ears incarceration. This plea offer
was never communicated to the defendant. Upon trial, the jury con victed the defendant of attempted first-degree murder with bodily injury and he was sentenced to thirty-fiv e years incarceration. The defendant was subsequently granted post-convic tion relief on the basis that his lawy

er was ineffective for faili ng to present the plea o ffer to him, and that he was thereby prejudice d. Followi ng the State’s appeals, our Supreme Court ordered “[t]he cause . . . remanded to the trial court for a hearing by a new judge in which the State is directed

to reinstate its original guilty plea offer and negotiate in good faith. If accep ted by def endant, the trial c ourt may u tilize its discretion to accept or reject this
o rany othe r plea agreement which may be negotiated. Otherw ise, the case will s

tand fortrial in due course.” The State did as ordered, the defendant accepted the plea of fer, and it was presented to a new trial judge who, after

a hearing, rejected it.The defendant was then retried and rec onvicted.

In his first issue, the defenda nt conte nds that the trial court abus ed its discretion when it rejected the p lea a greement of aggravated as sault with a five y

ear sentence of incarceration. The defendant is particularly concerned with the tri al court’s reliance on facts which would not have been available at the time the original plea offer4

was made. At the plea hearing, the victim testified that, foll owing the defendant’s release
on bond upon his successful bid for pos t-conviction relie

f, he had harassed her over the phone and had “tr ied to perform oral sex” on their mi nor daughter. In taking the plea b argain under consideration, the trial court stated, “I think it has to be analyzed in part from the situation as it would have ex isted back at that time and then I think also there’s
a certain amount of the present facts that have to be considered in dec iding whatstill is in the best interest of the people in volved in this cas

e and . . . the overall administration of justice and the best interes t of the public.”

In then rejecting the pl ea bargain, the trial court stated: I would not h ave accept ed a guilty plea to a felony like this

reduced as much as this one was had the victim not come in and reallypersuaded me

that her best interest[s] were more important than the overal l interes t of soci ety i n hav ing cases such as this prosecuted if there’s reasonable gr ounds to support the indictment. And I don’t thi nkthat [the victim] back then would have been successful with that and I don’t thi nk she woul d have tried too hard fro m what I’ve h eard her s ay here tod ay.

. . . [I]t is not in the best interest of society or the public that [the defendant] go back to the penitentiary and as soon as the paperworkis completed be released under no supervi sion. That ma kes him free to pursue any sort of conduct that h e wants t o pursue short o

f cri minal activity and he has shown from the testimony

I’v e hear d here today that that’s ex actly what he intends to do. And that’s not, that can’t be tol erated, that’s just a lesser version of the same

state of mind that caused this situation to occur in the first p lace. I mean, it’s a dangerous, dang erous thing. It shows that no real closure to this case has happened in his mind, no real rehabilitati on as far as his attitude abo ut his former wife is concerned by thi s whole offense. And I can’t say at all that it’s, would help the admi nistration of justice or the interest of the public to take thi s [five] year plea. And I’m not going to. Clearly, then, th e trial cou rt gave some consideration to event s which had occurred

after the defendant had been convicted in determi ning to reject the plea ag reement. However, we do not agree with the defendant that the trial court thereby abused its discretion.

This Court has previously held that, “[b]ecause a trial co urt is afforded5

discretion in the acceptance of a plea, the judgment cannot be set aside unless th ere has been a plain abus e of authority.” Goosby v. State , 917 S.W.2d 700, 705 (Tenn. Crim. App. 1995). Moreover, “[t]o find that a trial cour t has abused its authority, it mus t appear that no substantial evidence supp orts the conclusionof the trial judge.” Id. In the instant case, substantial evidence does support the trial court’ s conclusion. In response to being questioned about whether sh e had wanted to go through a trial initially, the victim testified that, prior

to the original trial , she “really didn’t know what [she] w

anted to do. [She] was scared, a nd . . . had two small children and . . . was concerned about how they would feel.” She admitted that the original plea barga in had initially been “ okay” with her. No further testimony indicativ

e of how the plea bargain would have served the victim’s “best interests” was elicited, from the v ictim or anyone else. On the other hand, the proof available prior to the original trial was that

the defendant had brutally attack ed the victim at her place of employment whi le in the presence o f a child. The trial court was concerned about the “overall inte rest of society” and the fact that the defenda nt’s charge of assault with intent to commit first-degree murder had been “reduced asmuch as this one.” That is, the trial court was concerned that the proposed plea bargain was simply too mild. Our Supreme Court has held that “[o]ne v alid reason for rejecting a plea agreementis that the proposed sentence i s considered too lenient under the circumstances.” State v. Hines , 919 S.W.2d 573, 578 (Tenn. 1995).

Given the victim’s less than persuasive testimony about how the plea would have serve d her best interests, and g iven the trial court’ s stated concern with th e significant

reduction of the charge, w e find that the trial court did not abuse its discretion in rejecting the proposed pl ea agreement , irrespective of the cour t’s consideration of post-trial facts. This is

sue is without merit.2 The Sixth Amendment to the Unit ed States Constitutionprovides, “In all criminal pr

osecutions, the acc used s hall enjoy the rig ht to a spe edy and p ublic trial . . . .” This righ t has bee n applied to state crimina l prosec utions thro ugh the F ourteen th Am endm ent to the U .S. Con stitution. Klopfer v . North Carolina , 386 U.S. 213 ( 1967). The Tennessee Consti tutionsimilarl y provi des “That in al l criminal prosecutions [by indictment or presentm ent], the accused hath the right to . . . a speedy public trial . . . ” Art. I , Sec. 9. 6

The defendant next contends that his right to a speedy tr ial was violated following his successful bid for post-conviction re lief. On June 3, 1991, the court which heard the defendant’s petition for post-c onviction relief entered an orde r vacating his conviction andgranting relief “as specified at the postconviction hearing.” On June 27, 1991, the State filed its notice of appeal from this order. This Court affirmed th e postconviction court’s decision by order filed June 3, 19 92. On November 30, 1992, our SupremeCourt granted the State’s application for permi ssion to appeal from this Court’s order. On April 18, 1994, our Supr eme Court affirmed this Court on the i ssu e of ineffe ctive assistance of counsel and remanded the matter to the trial court as set forth abo ve. Following the low er court’s rejection of the reinstated plea bargain, the defendant’s new trial beganin mid-November, 1995. Thus,the defendant waited for a period of almost four

and one-half years for his s econd trial while the State pursued its appeals.

In United St ates v. Lo ud Hawk , 474 U.S. 302 (1986), the Unite d State s S upremeCourt was faced with the issue of whether delays caused by interl ocutory appeals of certain pretrial deci sions violated the defendant’s constitutional right to a speedy trial. 2 To determine the issue, the Cour t adopted the four-part balancing test set forth in Barker v. Wi ngo , 4 07 U. S. 514 (1972). That test includ es four factors: a) the length ofthe delay; b) the reason for the delay; c) the defendant’s ass ertion of his right to a speedy

trial; and d) prejudice to the defendant resulting from the de lay. Id. at 530. See also State v. Bishop , 493 S.W .2d 81 (Tenn. 1973). Although Loud Hawk dealt with interlocutory appeals rather than an appeal foll owing the g r ant of post-conviction (or7

habeas corpus) relief, we thi nk the same approach is appropri ate here. Thus, we a nalyze the defendant’s claim using the Barker test.

A delay of four and one-half years is, we think, “cl early sufficient to trigger an inquiry into the r

emaining threefactor s.” State v. Wallace , 648 S.W.2d 264, 266 (Tenn. Crim. App. 1980). See also Doggett v. United Stat es , 505 U.S. 647, 652 n. 1(1992) (recognizing that a delay approaching one y ear “marks the point at which [lower] courts [generally] deem the del ay unreasonable en ough to trigger the Barker inquiry”); State v. James Sylvester Coure , C.C.A. No. 85-149-III,Perry County (Tenn. Crim. App. filed Nov. 21, 1985, at Nashv ille) (“delay of ov

er three and one-half (3 1⁄2) y ea rs fro m indictment

to trial is unusual and r equires us to examine th e other three (3) factors set forth in Barker .”) Thus, we must exa mine the reason(s ) for the delay.

Most of the delay, from June of 1991 to April of 1994, resulted from the State’s decision to appeal from the post-convicti on cou rt’s order granting relief. The defendant contends that this appeal was “weak fro m the ons et,” “fruitless, nonmeritorious, tangential and therefore frivolous.” In support of his co ntenti on, the def endant points to a letter from the assi stant attorney general to the pr osecutin g attorney requesting her to dis miss the appeal on the g rounds that, in his opinion, “pursuing an appeal on this record is futile.” The State responds that th e author ofthe letter “did not understand the two pronged analysis for inef fective assistance of counsel claims ” and rh etorically asks, “if the issue is so meritless, why did our Supreme Court grant the State’s Rule 11 application on the prejudice issue?”

When considerin g the in terlocutory appeals before it in the Loud Hawk case, the Supreme Court stated that suc h an appeal “ordinarily is a valid re ason that8

justifiesdelay.” 474 U.S. at 315. The Court continued: “In assessing the purpose and reasonableness of such an appeal, courts may consider several

factors. These include the strength of the Government’s position on the appealed issue, the import ance of the issue in the posture of the case, and -- i n some cas es -- the seriousness of the crime. For example, a delay res ulting fr om an app eal would we igh heavi ly agai nst the Government

if the issue were clearly tangential or frivolous.” Id. at 315-16 ( citation omitted). In the case sub judice , the importance of the issue in the posture of the case was profound: unless it successfull y appealed, the State

lost a conviction

of attempted first -degree murder and faced the unhappy prospec t of having to try the defenda nt a second time. Likewise, the seriousness of the crime w as extreme. It was undi sputed that the defendan t attacked the victim w hile at her place of employment and slit her throat , all in the presence of a five-yea r old child. Both of these factor s weigh in favor of the reasonableness of the State’s appeal.

With respect to the strength of the State’s position, we r espectfully disagree with both the defendant and the assistant attorney general who

advised the prosecuting attorney to dismiss her

appeal. As pointe d out by th e State, a claim of ineffe ctive assistance of counsel involves tw o issues, both of whic h must be proved by the def endant. First, the defendant must prov e that his lawyer fai led to render competen t legal representation. Once the defendant proves incompetence, he must then prove that the incompetent representation prej udiced him to the extent of undermining confidence in the outcom e of t he trial. See Strickland v. Washington , 466 U.S. 668 (1984). Obviously, the post-conviction co urt was satisfied that the defendan t in this case had proved both prongs of the Strickland test. The Statecontended on appeal, however, that the post-conviction cour t had erred in its

determination of the prejudice i ssue. As it states in its brief, “The State

maintained that [the defendant] suffered no prejudice because the9

original trial judge stated he w ould not have accepted the ple a.” That is, even if the defendant’s lawye r had c onveyed the plea offer to him, and e ven if the defendant had accepted it, the original tr ial court would have re

jected it. Therefore, the State reasoned, the defendant lost nothing by hi s lawyer’s mist ake.

In its opinion affirmingthe post-conviction court’s decision, this Court said simply, “Albeit im plicitly, the trial judge found that Harris was prejudiced by [his lawyer’s] ineffectiveness. We agree .” Our Sup reme Court, however,decided that this issue merited further consideration. Thus, i t granted the State ’s R ule 11 application in order to determine, in part, “whether the petitio ner e stablished the necessary prejudice to sustain a claim of ineffective assi stance of counsel.” Harris v. State , 875 S.W.2d 662, 66 3 (Tenn. 1 994). We ag ree with the St ate that the Supr

eme Cour

t’s gr ant of i ts Rul e 11 application in order to add ress this very i ssue indi cates that its appeal was neither meritless nor frivol ous notwi th standing the State’s eventual defeat. Nor has the defendant shown any bad faith or di latory purpose on the part of the State in pursuing its appeal. See Loud Hawk , 474 U.S. at 316. Therefore we fin d that the reason for the initial period of delay w as justified under the circumstances of this case.

The four and one-half year period of delay also includes a fifteen month delay between our

SupremeCourt’s order that the or iginal plea offer be reinstate d and the eventual presentation of that offer to the new trial court. The record does not reveal the reasons(s) for this delay, but both the defendant and the State proffer the explanation that there was some difficulty in finding a judge unfamiliar with the case.

In Wallace , this Court recognized “three ca te gories into which a delay between indictment

and trial might fall: ( 1) deliberateattempt to delay the trial in order1 0

to hamper the defense . . . ; (2) a mor e neutral reason such as neg lig ence or overcrowdeddockets; and (3) a vali d reason, such as a missing witness, which should
serve to justify appropriate delay.” 648 S.W.2d at 269 (i nt er na l q uota ti on s o mi tt ed ). We think the fifteen month delay in this case falls within either the second or third category. “[I]n dealing with the sec ond categ ory, tha t is, with a qu estion of negligent delay, Tennessee law requires a det ermination of the necessity of that delay, or .

. . whether it
was reasonably avoidable.” Id. (internal quotations omitted) (emphasis in orig inal). The initial trial judge in thi s case recused himself upon the peti tion for post-conviction relief because “[he] kn[e]w, in retr ospect, that [he] would hav e rejected t he p lea agreement addressed in the Post Conviction Petition and thus put the defendant to trial.” Therefore, it was in the defe ndant’ s best interest to have a new judge appointed to cons ider the proposed plea bargain. There is no proof in the record as to why it took so l ong to find
a j udge, b ut we are painfully aware of the overcrowded nature of most trial courts’ dockets. We find, therefore, that this delay was nec essary, n ot reasonably avoidabl e, and/or for a valid reason.

The next factor is whether the defendant asserted his right to a speedy trial. He did not. However, a def en dant does not waive his or her right to a speedy trial by failing to assert it. Rather, the defendant’s assertion of, or f ailure to assert, this right is
a factor in the balancing test

. Barker , 407 U.S. at 528. Since the State has the burden of proving guilt be

yond a rea sonable doubt, delay will often help rather than hurt the defendant. Thus, the defendant may not necessarily want a speedy trial

and may make
a t a ctical decision not to ass ert his right to it.As a consequence, failure to assert the right to a speedy trial wil l make it difficult for the defendant to l ater prove that this ri ght was denied. Id. at 532.3 Indeed, t he record contai ns an August 3, 1995,letter from the defendant to his l awyer stat ing, among other things,“It i s my thoughts tha t avoidi ng trial

is the best

way for al l parti es involv ed. I have a num ber of idea s to kee p a trial delayed for a perio d of time .” 1 1 In this cas e, the defendant was not merely trying to avoid a speedy trial: he was trying to avoid atrial altogether because he wished to plead guil ty pursuant to the
or ig in al pl ea

of fe r. We think his raising of the issue at this late date is a direc t result of the fact that

his plea barga in was

reject ed and he was con

victed again o f t he indicte d offense. That is, there is no indic ation that he wanted a

speedy trial until the slow trial he eventuallygo t resu lted in a conviction and a twenty-three y ear sentence. 3 While we certainlydo not fault his appellate attorne y for raisi ng this iss ue, we think the defendant’s failure to raise it until appeal weighs against hi m under the circumstances of this case.
Finally, we must det

ermine what, if a ny, prejudice the defendant suffered
as a result of the delay in his second trial. He admits that his ability to conduct his defense was not impaired and that he was out on bond throughout th e four and one-half year period but contends that he w as prejudiced by a “cl oud of anxiety accompanying the unresolved criminal charges” and by the curtailment of cer tain liberties as a condition of bond. Specifically, he could not leave the state and his personal assoc iations were curtailed. However, if giv en the opportunity, the defendant w ou ld have p led guilty to aggravatedassault pursuant to the plea offer. Hence, the cause for his anxiety was

not the fear of a criminal conviction (which he wanted) , but the fear that a new jury would again convict him of the mor e serious crime with which he was char ged.
Overall, the factors when taken t ogethe r weigh against the defendant’s claim that his constitutional r ight to a speedy trial

was violated. The minor prejudice he suffered while awaiting trial is outweig hed by the fact that there were valid re asons to justify the delay. An importan t public interest was serv ed by permitting the Stat e to1 2

appeal a legitimate issue in a case as serious as this o ne, and the defen dant’s ri ghts
were protected by the effort to find an impartial judge to decide whether to accep t the reinstated plea. This issue is without merit.

In this third issue, the defendant contends that th e trial court erred when it instructed the juryt hat the punishment for assault w ith intent to commit first-deg ree murder ranged from five to twenty-five years. At sentencing, the court determined that the minimum sentence for this crime w as twenty

years. Thus, the

defendant contends, he was “subjected to

punishment not known or contemplated by his conv icting jurors” and that, since the jurywas “misinstructed that the actual consequences of their verdict w[ere] less severe than they actually were ,” the er roneous instruction “had a dramatic [e]ffect
o n their verd ict.” Tha t is, had t he jury bee n properl y instruct ed, it like ly would have convicted him of a lesser offense.

We think the defendant’s allegati on of error is misplaced. This crime w as committed in 1987; the defendant was sentenced in

1995. Our Su preme Court has ruled that, in order to comply with the ex po st facto prohibitions of the

U.S. and Tennessee Constitutions, tr ial court judges imposing sentenc

es after the effe ct ive date of the 1989 statute, for crimes committed prior thereto, must calculate the appropriatesentence under both the 1982 statute and the 1989 statute, in their entirety , and then impose th e lesser sentence of the two. State v. Pearson , 858 S.W.2d 879, 884 (Tenn. 1993) (emphasis added). Under the 1982 Act, the defendant was subject to “ a determinate sentence of confinement in the state penitentiary for life or for a period of not less than five ( 5) years.” T.C.A. §

39-2-103(b)4 The m aximum sentence to which the defenda nt is subject under the 1982 Act is life imprisonment rather

than twent

y-fi ve years because his assault wi th intent to commit fi rst-degree murder resulted in bodily injury to the vic tim. See T.C.A. §39-2-103(b) (Re pl. 1982).

5 Assault

with i ntent t

o commit fir

st-degr ee murder is

a Class A felony

under th e 1989 Act, T.C.A. § 40-35 -118 (S upp. 199 5), and the defend ant was senten ced as a Rang e I offend er.

6 As pointed out

in Judge Tipt

on’s concurri ng opinion,it i s possible that, under the 1982 Act, t he trial court may find the defendant to have com mitted an “especially aggravated offense.” See T.C.A . § 40-35-107. I f the court below fi nds him to have committed an especi ally aggravated of

fense, then he would recei ve a Range II sent ence under the 1982 Act . T.C.A. § 40- 35-107(7). A Range II sentence for the crime of assault with intent to commit first

-degree murder, accompanied by bodily injury , would be thirt y-thr ee years. T.C.A. §§ 40-35- 109(b),(d) (1) and (e)( 2); 39-2-103 (b). Thus, i f the court

below determ ines the d efenda nt to have com mitted a n espe cially aggrava ted offen se, then w e agree with Judge Tipton that no further Pearson analysi s is necessary . However, we di sagree with Ju dge Tipton that this Co urt shou ld mak e the initial finding th at the defe ndant c omm itted such an offen se.. 1 3 (Repl. 1982). 4 Under the 1989 Act, he was subje ct to a range o f fifte en to twen ty-five years. T.C.A § 40-35-112(a)(1) (Repl. 1990). 5 Because the defendant was entitl ed to the lesser of the two sentences calculated under each act, his minimum sentenc e was five years and his maximum sentence was twenty-five y

ears. Thus, the trial cour t’s instruction to the jury was cor

rect.
However, the trial court did commit error when it calculated the defendant’s
se ntence solely under the 1989 Act.Therefore, this matter must be reman ded fo r resentencing in accordanc e with our Supreme Court’s opinion in Pearson

. 6

The defendant also cont ends that the court below err ed when, in calculating his sentence under the 1989 Act, it d etermined the pres umptive sen tence to be the midpoint of the range rather than minimum. The court below found both enhancement and mitigating factors. Accordingly, the 1989 Act re quired the c ourt to “start at the minimum sentence in the range, enhance the sentence within the range as appropriate forthe enhancement factors, and then reduce the sen tence wit hin the range as appropriateforthe mitigating factors.” T.C.A. § 40-35-210(e) (Supp.1995). As argued bythe defendant, the court below appea rs to have begun at the mid-range pointof twenty7 Chapter 493 of the Te nnessee Pub lic Acts amended this sec tion of the code to provide for a mid-range presumptive sentence for Cl ass A feloni es occurring on or after Jul y 1, 1995.
8 The titl e to thi s section of the defendant ’s brief also i ncludes as error the court’ s applicat ion as an enhancement factor, “no hesitation when t here was a high risk to othe rs.” The defendant did not brief t his factor , however, a nd it i s therefore waived. Ct . Crim. App. R. 10(b). We note that the sen tenc ing co urt did apply a s an e nha nce me nt fac tor tha t “[t]he re w[e re] ris ks to othe r indiv iduals .” Th is is not an e nhanc eme nt factor listed in either the 1 982 or 1 989 Ac t. See T.C .A. §§ 40-3 5-11 1 (Re pl. 1982) a nd 40-3 5-114 (S upp. 199 5). On re man d, we su ggest tha t the sente ncing co urt set forth its findings o f enhan cem ent facto rs in the lang uage o f the statute

.

9 “During the

commission of the fel ony, t he defendant wi llful ly i nflict ed bodily

injury upon another person, or the actions of the defendant resulted in the death of or serious bo dily inj ury to a victim or a person other than the intende d victim.” 1 4 years. This was error. 7 On remand, assuming the sentenc ing cour t againfi nds both enhancementand mitigating factors, i t shall start at the minimum s entenc e of fiftee n years when calculating the defendant’s sentence under the 1989 Act.

Finally, the defend ant conte nds that the sentencing court erred when it applied as enhancement factors under the 1989 Ac t tha t he had a history of criminal behavior and that the injur ies to the victim w

ere particularly g reat. 8 See T.C.A. § 40-35-114(1) and (6) (Supp. 1995). He contends that partic ularly g reat personal injuriesto the victi m are an element of the offense committed and therefore cannot be used to enhance his sentence, rely ing on State v. Makoka , 885 S.W.2d 366 (Tenn.Crim. App. 1994). We disagree. The def endant was convicted of assault with intent to commit first-degree

murder. Because the crime resulted in bodilyinjury -- whi ch was both alleged in the indictment and proved at trial -- it w as a Class X felony. T.C .A. §39-2-103(c) (Repl. 1982). The comparable offense under current law isattempted firstdegree murder, a Class A felony.T.C.A. § 40- 35-110, Sen tencing Commission Com ments. I n Makoka , a panel of this Court ruled that the enhancement factor for serious bodily injury r

esulting from the defendant’s ac tion s, T.C.A. § 40-35-114(12) 9 , should not be applied to an attempt t o commit first-degree murder on the basis that it would constitute double enhancement. 885 S .W.2 d at 374 (Tenn. Crim. App. 1994). However, in State v. Freeman , 943 S.W.2d 25 (Tenn. Crim. App. 1996), another panel1 5

of this Court disagreed

with Makoka on the basis of our Supreme Court’ s finding in State
v. Trusty that “an attempted murder does not necessarily require either contact with the victim or bodily injury.” 919 S.W.2d 305, 313 n.7 (Tenn. 1996).

In Freeman , this Court held “that because bodily injury is not an essential element of the offens e of attempted second-degree murder, the trial cou rt properly enhanced the defendant’s sentence for that offense wi th regard to the victi m who w as actuallywounded.” 943 S.W.2d at 32. W e think the same reasoning should apply in this
case. The victim of an attempted murder do es not necessarily suffer par ticularly great personal injuries. According ly, there is no double enhancement from the application of this factor w

here the victi m does suffer such injuri es. Ther

efore, if on remand the sentencing court finds that the victim in this case suffered such injuries, application of this factor would be appropriate under the 1989 Act.

With respect to calculatingthe defendant’s sentence under the 1982 Act, it also provides for

certain enhancement factors. See T.C.A. § 40-35-111(Repl. 1982). One of them is that “[t]he personal injuries infli cted upon . . . the victim [were] particularly great.” T.C.A. § 40-35-11 1(6) (Repl. 1982). The cr ime of assault with intent to murder is a utomatically enhanced under T.C.A. § 39-2-103(b) and (c) (Repl. 1982 ) “[i]f bodil y injuryto the victim occurs as a result” of the assault. Particular ly great personal

injuries
are significa ntly g r eater in degree than simple bodily injury. Accordingly, this
e nhancement factor i s not a necessar y eleme nt of the o

ffense. N or is it one of t h e criteria for establishing an especially aggravated offense. See T.C.A. § 40-35-107 (Supp. 1987). Therefore, we find that this enhancement f actor, if supported by the proof at the resentencing hearing, may properly be appli ed in this case in determini ng the
defendant’s sentence under the 1982 Act.1 6 The court below

also found as an enhancement factor “a history of criminal behavior.”

This is an e nhancement factor under both the 1982 and 1989 A cts. See T.C.A. § 40-35-111(1) (Repl. 1982); T.C.A. § 40-35-114(1) (Supp. 1995 ). The court did not specify what this history consisted of, other than to note “[ a ] lso t hose [two misdemeanor] co nvictions ” (emphasis

added). Obv

iously, the court had i n mind some historyother than the two misdemeanor convictions, which it stated “don’t weigh very heavily,” but its findings are ins ufficient for this Court to determi ne whether that history
was appropriately consider ed or not. On remand, we remind the sentencing court that it “shall place on the recor d either orally or i n writing what enhanc ement or mitigating factors it found, if any, as well as [specific] findings of fact [upon which application of the sentenc ing principles was based .]” T.C.A. §§ 40-35-210(f) (Supp. 1995). See a ls o T.C.A. §§ 40-35-209(c) (Supp. 1987) (“The record of the sentencing hearing is part of

the record of the case and shall includ e specific fin dings of fact upon which application of the sentencing principles w[as] based”) and 40-35-210(c) (Repl. 1982) (“Whenever the court imposes a sentence, it shall place on the record either orally or in writing its findings of fact and reasons as required by § 40-35-209”).

The defendant’s conviction is a ffirmed and his sentence is vacated. This matter is remanded for resentenci ng in accordance with this opinion.

_______ _____________________ ____ _ JOHN H. PEAY, Judge1 7

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ CURWOOD W ITT, Judge18 

# FILED
October 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1997 SES SION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9611-CR-00428

) ) Anderson County v. ) ) Honorable D. Kelly Thomas , Jr., Judge ) JAMES DAVID HARRIS, ) (Assault with intent to commit ) first degree murder) Appellant. )

CONCURRING OPINION

I concur in the remand of this cas e, but I do not believe that further r eview under

the Pearson guidelines is necessar y. This is because the mini mum sentence that cou ld b e imposed under the pre-1989 sentencing law is gr eater than the maximum sentence available under the 1989 Sentenc ing Act.

Under T.C.A. § 40-35-107(2) (re pe ale d 1989), a Range II, especial ly aggravated offenderis defined as one who willfully inflicts serious bodily

injury upon another pers on. In sub section (5)(B) of section -107, serious bodily injury includes “bodily injury which involves a substantial risk of death; u nc ons ciousness; extreme phy sical pain; protracted
an d obvious disfigurement; or protracted loss or impairment of the f unction of a bodil y member or organ.”

The evidence in the record reflects that the victim r eceived a deep, five- inch cut in her neckthat the treati ng physician called life threaten ing, essentially because of it s depth and location. Shehas a permanent scar on her neck. Also, the victim had tendons cut in10 In fact, this court affirmed the def

endant’s Range I I, especi ally aggravated of

fender sentence in the direct a ppeal afte r the defe ndant’s firs t conviction in this case

. See State v. Jam es D avid H arris , No. 211 , Anders on Co unty (Ten n. Crim . App. Fe b. 27, 199 0), app. denied (Tenn. Aug. 27, 1990). 19 two of her fingers, one of which remains functionally impaired. Under these circumstances and the facts surrounding the offense, I would conclude beyond a reasonable doubt that the defendant willfully inflicted serious bodily injury so as to w arrant him being sentenced as a Range II, especially aggravated offender. 10

This means that under the pre-1989 law, the defendant is exposed to a sent encing range of thirty-four years to life in prison. See T.C.A. § 39-2-103(b); 40-35-109(b), (c) and (e)(2) (repeale d 1989). Thus, give n the fa ct that th e maxi mum se ntence to which the defendant is exposed under the 1989 Act is twenty-five years, no Pearson analysis is needed. In fact, the trial court indi cated that it actually di d the Pearson analysis by its statement that the defendant, under the new act, was subject to “less than the minimum were he sentenced under the old act anyway.”

As for the sentence that was actu ally imposed, the trial court found that the following enhancement factors, as listed in T.C.A. § 40-35-114, applied:

(1) Prev ious history of criminal convictions or criminal behavior; (6 ) Infliction of particularly great personal injuri es upon th e victim; (9) Possession of

a deadly weapon during commission of the offense; and (10) No hesitation abou t commit ting a crime when the r isk to human life was high. The trial court stated that factor (1) applied because the defendant had two old misdemeanor convictions, al though it did not weig h the factor heavily. I t found that factor (6) applied, not so much for the lasting injuries , but for the great risk of death that was involved acc

ording to the proof. As for factor (9), the trial court stated that it did not weigh heavily

in its determinations. F inally, the trial c ourt stated that factor (10) appl ied because other persons, inclu ding a child, were at risk by the defendant’s as sault upon20

the victim, although it indicated that these facts did n ot “weigh as heavi ly” in its consideration. The trial court also determined that his work record “weighed lightly in mitigation” and that his ment al and physical conditi on were grounds for miti gation but did not significantly reduce his culpability. The trial court sentenced the defendant to twenty-three year

s as a Range I, standard offender.
As the majority opinion notes, though, the record reflects that the trial court’s sentencing process began with a starting poi nt of twenty years, n ot fifteen years as required by law. Thus, the presumption of correctness that attaches to trial court sentencing det erminations f alls and we are to revie w the sentencing de novo . However, the present

ence report is not in the r ecord on appeal, thereby pr eventing us from considering all matter s required for sentencing

. See T.C.A. § 40-35-210(b). Thus, I concur in the case being remanded for resentencing, with the presumpt ive sentence being the minimum sentence of fifteen year s.

____________________________ Joseph M. Tipton, Judge