# FILED
December 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9708-CR-00383 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, LAMONT McDONALD, ) JUDGE ) Appellant. ) (Motion to Reduce Sentence)

FOR THE APPELLANT : KARL D EAN Public Defender JEFFREY A. D

eVASHER ROS S E. ALDE RMAN Asst. Public Defenders 1202 Stahlman Building 211 Union Street Nashville, TN 37201-5066 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter TIM OTH Y BEH AN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General KYMB ERL Y HAAS Assistant

DistrictAttorney

General Washington Square Building 222 Second Avenue North Nashville, TN 37201-1649

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 Tenn. Code Ann. § 40-35-501(i) provides that those committing second

degree murde

r on or after July

1, 1995, are ineli

gible for parol

e and can only receive sentencing credits not to exceed 15%. This offense was committed January 11, 1995; therefore, Tenn. Code Ann. § 40-35-501(i) is not applicable. 2 OPINION
The defendant, Lamont McDona ld, appeals the trial court's denial of his Tenn. R. Crim. P. 35(b) motio n to reduce sentence. He ori ginally pled gui lty to second degree murder and rece ived an agreed sentence of tw enty-three (23) years as a Range I, s

tandard offender. On appeal, the defendant clai ms the trial court abused its discretion in denying the motion. Finding no abuse of discreti on, we affirm the judgment of the trial court.

I.
Although indicted for first degree murder, the defendant pled g uilty on April 23, 1997, to second degr ee murder. He entered into pl ea negotiations and agreed to a twenty-three (23) year sentence as a Range I, standard offender. 1
On June 10, 1997, the defendant timely filed a Tenn. R. Crim. P. 35(b) motion. The defendant's motion requests his sentence be reduced to tw enty (20) years. The trial

court denied the motion after a hear ing. Defendant now contends his sentence should be r educed based upon his "spotless i nstitutional record, his desire to obt ain vocational and computer training, his age, his lack of a prior record, and the harshness of his sentence when compared to those of his co-defendants who entered negoti ated pleas."

II.
Under Tenn. R. Crim. P. 35(b ), a sentence may be reduced i f the trial court determines it is in the “interests of justice.” See Committee Comment. In3

contrast to the de novo standard of review applicable to sentencing appeals perfected under Tenn. Code Ann. § 40-35- 401(d), appeals of Rule 35(b) decisions are review

ed simply to determine if ther e has been an abuse of discretion by the tri al court. State v. Irick , 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993). A

trial cour

t should not m odify an agr eed sentence i mposed from a Tenn. R. Crim. P. 11(e)(1) (C) guilty plea absent unusual and unforeseen postsentencing developments. State v. McDonald , 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994).
The defendant's attempts at reha bilitation are admirable. Likewise, his youth and lack of prior criminal involvement are positive factors. However, his co-defendant who actually fired the fatal shot received a life sentence. Even though the two other co-defendants received sentences s ubstantially less than the defendant’s sentence, their involvement was much less than th e defendant’s involvement. Thus, defendant’s sentence does not appear unduly harsh. In the final analysis, we ar

e unable to conclude that the tri al court abused its discr etion in denying the motion.
Accordingly, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE CONCUR:

____________________________ PAUL G. SUMM ERS, JUDGE

____________________________ L. T. LAFFER

TY, SENIOR JUDGE