IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2011

STATE OF TENNESSEE v. KENNETH HAYES

Direct Appeal from the Criminal Court for Shelby County

No. 09-02707 Lee V. Coffee, Judge

No. W2010-00309-CCA-R3-CD - Filed August 19, 2011

A Shelby County jury convicted the Defendant, Kenneth Hayes, of reckless aggravated

assault, two counts of aggravated assault, criminal attempt to commit the intentional killing

of an animal worth over $1000, theft of property over $1000, and evading arrest. The trial

court ordered the Defendant to serve an effective sentence of forty years, eleven months, and

twenty-nine days in the Tennessee Department of Correction. On appeal, the Defendant

argues that the trial court imposed an excessive sentence and that it erred when it denied him

alternative sentencing. After a thorough review of the record and the applicable law, we

affirm the trial court’s judgments.

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

ROBERTW.WEDEMEYER,J., delivered the opinion of the court, in which ALAN E. GLENN and

CAMILLE R. MCMULLEN, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the Appellant, Kenneth Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; William L. Gibbons, District Attorney General; Doug Carriker and Kate Edmands,

Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Trial

1
A Shelby County grand jury indicted the Defendant for attempt to commit the

intentional killing of an animal worth over $1000, felon in possession of a handgun, theft of

property over $1000, evading arrest, and three counts of aggravated assault. A trial was held

on these charges, and the following is a summary of the evidence presented.

1

On January 21, 2009, at approximately 1:00 a.m., the owner of Broadway Pizza,

Dewana Ishee, received a phone call from the security company alerting her that a break-in

had occurred at her family business in Memphis, Tennessee. Mrs. Ishee and her husband,

Denny Ishee, immediately drove to Broadway Pizza where they saw the Defendant’s van

backed up to the front door of their restaurant and two men carrying the Ishees’s 62" Samsung

television from the building. The Ishees exited their vehicle and confronted the men, ordering

them to set the television down. The men complied, but the Defendant’s co-defendant pulled

out a pistol as he approached Mr. Ishee. In response, Mr. Ishee fired a gun that he was

carrying with him at the time. The co-defendant fled the scene. While this was occurring, the

Defendant had taken steps toward Mrs. Ishee, which she interpreted as aggressive movement.

She moved forward and grabbed the Defendant around the shoulders and held on to him.

During this altercation, the Defendant got into his van with Mrs. Ishee still holding on,

halfway in the vehicle with her feet still touching the ground. Meanwhile, two police officers

arrived on the scene and saw the van with the Defendant behind the wheel and Mrs. Ishee’s

legs protruding from the driver side door. The Defendant put the car in drive and accelerated

forward, ramming into the police car that had just arrived. Two police officers, at the time,

were trying to exit the vehicle. One of the police officers, Officer Jackson, was able to get

back into the police car before impact. Officer Watson, however, was unable to get back in

to the vehicle quickly enough, and, as a result of the impact, he injured his wrist and fingers.

After the impact, Officer Jackson got out of the police car and approached the van with his

weapon drawn. Mrs. Ishee had maintained her grasp on the Defendant but released him when

Officer Jackson instructed her to do so. Upon being released, the Defendant fled the scene.

Officer Jackson followed the Defendant as far as he could and notified the dispatcher of the

direction in which the Defendant was fleeing.

Based on Officer Jackson’s report, a helicopter and canine unit, comprised of Officer

Twilley and his canine partner Gunner, were dispatched to the area of Overton Park. A

helicopter unit located the Defendant crouched down in a thickly wooded area and guided

Officer Twilley and Gunner to within ten feet of the Defendant’s location. After notifying the

Defendant, Officer Twilley released Gunner to apprehend the Defendant. Several seconds

Because the Defendant does not challenge the sufficiency of the evidence, the factual summary

1

is presented in the light most favorable to the State.

2
after Gunner’s release, Officer Twilley heard Gunner make a yelping sound the officer had

never before heard. Officer Twilley approached and called Gunner off of the Defendant.

Officer Twilley ordered the Defendant to show his hands, but the Defendant refused to

comply. Officer Twilley struck the Defendant multiple times on the shoulder and the

Defendant still refused to comply so Officer Twilley engaged Gunner again and once Gunner

had the Defendant on the ground, Officer Twilley could see the Defendant’s hands to ensure

he was unarmed. After the Defendant was taken into custody, police officers recovered from

the scene a pistol and a knife covered with blood and dog hair. Officer Twilley also found

that Gunner was bleeding extensively and immediately transported him to an emergency

center for treatment of ten stab wounds. After several weeks of treatment and recuperation

from the stab wounds, the canine officer returned to active duty.

After the Defendant was apprehended, police officers transported him back to

Broadway Pizza, and the Ishees positively identified the Defendant as one of the two men who

had been in possession of their television. A search of the Defendant’s vehicle, which the

Defendant had abandoned at the Broadway Pizza, revealed a loaded handgun located on the

floorboard of the passenger side of the vehicle.

Based upon this evidence, a jury convicted the Defendant of reckless aggravated

assault, two counts of aggravated assault, criminal attempt to commit the intentional killing

of an animal worth over $1000, theft of property over $1000, and evading arrest.

B. Sentencing Hearing

At the Defendant’s sentencing hearing, the State entered into evidence the Presentence

Investigative Report and a victim impact letter from Officer Watson, the officer who was

injured when the Defendant rammed his van into the officer’s police cruiser. In the letter,

Officer Watson noted that the Defendant was “reckless without regard to the lives of several

police officers whose lives were in jeopardy,” that he “caused several thousands of dollars

worth of damage to government and private property,” and that the injuries Officer Watson

sustained from this incident caused him “to be off work for several days and on partial duty

for over a month.” Officer Watson requested that the Defendant be sentenced to the

maximum punishment for his crimes and that consecutive sentencing be imposed.

Mrs. Dewana Ishee testified that, as a result of this incident, she had changed the way

her business operates, closing hours, and employee schedules and that she was considering

moving her business to a safer area. Mrs. Ishee said that she personally worked at the

restaurant every night until closing to ensure her employees are safe and that she carried her

gun. She requested that the Defendant receive the maximum sentence in order to convey to

business owners in the community that they will be protected. Mrs. Ishee also stated that a

3
maximum sentence would show that all the effort and time put forth by the police in

apprehending the Defendant was not wasted.

Mr. Ishee testified that he felt “terrified” and “helpless” as he witnessed his wife being

“dragged on the asphalt with her legs hanging out of the van” while the Defendant accelerated

his van forward. He reflected that, “[O]ur whole family could have just ended that day and

it’s just a terrible experience and I hope nobody has to go through that.” Mr. Ishee described

the atmosphere at work now as filled with “apprehension” and work is no longer “fun.” He

requested the trial court order the Defendant to serve the maximum sentence.

The Defendant acknowledged that he has had “problems” in Louisiana prior to these

incidents. As to his conduct in this case, he said, “I apologize for everything that happened

that night even if I did or didn’t have nothing to do with it. I apologize.” The Defendant

maintained that he never intended to hurt anyone and never intended to run into the police car.

The Defendant further stated that he never intended to injure the police dog. The Defendant

said that he learned a lot during this incarceration and that, given the chance, he would never

put himself in a position that would return him to court.

On cross-examination, the Defendant denied that police ever spoke to him or warned

him that a police dog was to be released. The Defendant said that he did not know that the

animal attacking him was a police dog. He said that, if police had told him they were going

to release a dog, he would have surrendered himself. He said he only stabbed the police dog

in an attempt to protect himself.

The Defendant acknowledged that he had previously pled guilty to burglary, possession

of cocaine, and battery of a police officer and was sentenced to three years probation. He also

acknowledged that this probation sentence was revoked at some point, and that he was

required to serve the remainder of his sentence.

At the conclusion of the hearing, the trial court sentenced the Defendant to eight years

confinement for the reckless aggravated assault conviction, to ten years each for his two

aggravated assault convictions, to four yearsfor the criminal attempt to commit the intentional

killing of an animal worth over $1000, to eight years for the theft of property over $1000

conviction, and to eleven months and twenty-nine days for the evading arrest conviction. The

trial court then ordered that all of the sentences run consecutively to one another for an

effective sentence of forty years, eleven months and twenty-nine days confinement in the

Tennessee Department of Correction. It is from these judgments that the Defendant now

appeals.

II. Analysis

4
On appeal, the Defendant claims that the trial court’s sentence is excessive.

Specifically, he contests the application of certain enhancement factors, the manner in which

he was ordered to serve his sentence, and the alignment of the sentences. Further, the

Defendant contends that a forty-year sentence in this case is so extreme as to constitute “cruel

and unusual punishment” in violation of the United States and Tennessee Constitutions. The

State responds that the trial court acted within its discretion and that the Defendant has failed

to show an improper sentence.

When a defendant challenges the length, range or manner of service of a sentence, this

Court must conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-

35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden

is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,

Sentencing Comm’n Cmts (2009). This means that if the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record,

and gave due consideration to the factors and principles relevant to sentencing under the

Sentencing Act, the appellate court may not disturb the sentence even if a different result was

preferred. T. C A. § 40-35-103 (2009); State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The

presumption does not apply to the legal conclusions reached by the trial court in sentencing

a defendant or to the determinations made by the trial court which are predicated upon

uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v.

Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929

(Tenn. Crim. App. 1994).

As we will explain in detail below, we conclude that the trial court improperly applied

certain enhancement factors to some of the Defendant’s sentences. As such, we review the

Defendant’s sentence de novo with no presumption of correctness. See Ashby, 823 S.W.2d

at 169.

A. Enhancement and Mitigating Factors

The Defendant claims that the trial court failed “to properly identify and weigh

enhancement and mitigating factors.”

1. Enhancement Factors

The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe

the process for determining the appropriate length of a defendant’s sentence. Under the Act,

a trial court may impose a sentence within the applicable range as long as the imposed

5
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)

(2009); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The Tennessee Code allows

a sentencing court to consider the following enhancement factors, as relevant to this case,

when determining whether to enhance a defendant’s sentence:

(1) The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range;

(2) The defendant was a leader in the commission of an offense involving two

. . . or more criminal actors; . . .

(5) The Defendant treated, or allowed a victim to be treated, with exceptional

cruelty during the commission of the offense;

(6) The personal injuries inflicted upon, or the amount of damage to property

sustained by or taken from, the victim was particularly great; . . .

(8) The defendant, before trial or sentencing, failed to comply with the

conditions of a sentence involving release into the community;

(9) The defendant possessed or employed a firearm, explosive device, or other

deadly weapon during the commission of the offense; . . .

(10) The defendant had no hesitation about committing a crime when the risk

to human life was high;

(19) If a defendant is convicted of the offense of aggravated assault pursuant

to § 39-13-102, the victim of the aggravated assault was a law enforcement

officer, . . . provided, that the victim was performing an official duty and the

defendant knew or should have known that the victim was such an officer or

employee;

T.C.A. § 40-35-114(1), (2), (5), (6), (8), (9), (10) and (19) (2006). If an enhancement factor

is not already an essential element of the offense and is appropriate for the offense, then a

court may consider the enhancement factor in its length of sentence determination. T.C.A.

§ 40-35-114 (2009). In order to ensure “fair and consistent sentencing,” the trial court must

“place on the record” what, if any, enhancement and mitigating factors it considered as well

as its “reasons for the sentence.” T.C.A. § 40-35-210(e). Before the 2005 amendments to the

Sentencing Act, both the State and a defendant could appeal the manner in which a trial court

weighed enhancement and mitigating factors it found to apply to the defendant. T.C.A. §

6
40-35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a

claim that the trial court did not properly weigh the enhancement and mitigating factors. See

2005 Tenn. Pub. Acts ch. 353, §§ 8-9. In summary, although this Court cannot review a trial

court’s weighing of enhancement factors, we can review the trial court’s application of those

enhancement factors. T.C.A. § 40-35-401(d) (2009); Carter, 254 S.W.3d at 343.

The trial court stated that it considered the pre-sentence report, notices filed by the

State, testimony at trial and the sentencing hearing, stipulations made by the parties as to the

Defendant’s criminal history, the facts and circumstances of the offenses, and all other factors

listed in Tennessee Code Annotated section 40-35-210 in determining the Defendant’s

sentence in this case. The trial court then considered the Defendant’s honesty as it related to

whether the Defendant was capable of rehabilitation and found that the Defendant’s denial

and insistence that he was an innocent “bystander” “in the wrong place at the wrong time”

indicated a poor potential for rehabilitation. The trial court found no mitigating factors

applicable. Based upon these findings, the trial court enhanced the Defendant’s sentence for

each of the convictions to the maximum within the range.

The following chart depicts the Defendant’s convictions, potential sentence for him

as a Range II offender, the enhancement factors the trial court applied to each conviction, and

the sentence he received.

Conviction Sentence Range

for Range II

offender

Enhancement

Factors Applied

Sentence

Imposed

Reckless Aggravated Assault

Officer Watson (Class D Felony)

4-8 years (1), (2), (8), (9), (19) 8 years

Aggravated Assault of Officer

Jackson (Class C Felony)

6-10 years (1), (2), (8), (9), (19) 10 years

Aggravated Assault of Mrs. Ishee

(Class C Felony)

6-10 years (1), (2), (5), (8), (9),

(10)

10 years

Attempt to commit the Intentional

Killing of an animal worth over

$1000 (Class E Felony)

2-4 years (1), (2), (5), (6), (8),

(9)

4 years

Theft of Property Valued over

$1000 (Class D Felony) 

4-8 years (1), (2), (5), (6), (8),

(9), (10)

8 years

Evading Arrest (Class A

Misdemeanor)

maximum of 11

months 29 days

(1), (2), (8), (9) 11 months 29

days

7
See T.C.A. § 40-35-112(b)(3), (4), and (5) (2006); T.C.A. § 40-35-111(e) (1) (2006).

The Defendant generally disputes the trial court’s application and weighing of

enhancement factors although he specifically addresses only enhancement factor (1) in his

appellate brief. As we have already stated, we cannot review a trial court’s weighing of

enhancement factors. We may, however, review the trial court’s application of enhancement

factors. Because the Defendant challenges the length of his sentence, we will review the trial

court’s application of enhancement factors. See T.C.A. § 40-35-401(d) (2009); Carter, 254

S.W.3d at 343.

a. Enhancement Factor (1)

The Defendant states in his brief that “while [his] prior convictions may provide

enhancement factors in determining the appropriate sentences, the trial court erred in giving

them great weight.” As previously stated, we cannot review the trial court’s weighing of

enhancement factor (1), but we will consider whether it was correctly applied.

Our review of the record reveals that the trial court correctly applied enhancement

factor (1), that the Defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range. The Defendant,

who was sentenced as a Range II offender, had five prior felony convictions. Only two of

those felony convictions were necessary to establish him as a Range II offender. The

2

additional three convictions were, therefore, properly considered as previous criminal

convictions in addition to those necessary to establish his range. Additionally, the Defendant

had one misdemeanor conviction, and he admitted during his interview for the presentence

report that he had used illegal drugs. This criminal conduct demonstrates that the Defendant

had a “previous history of criminal convictions or criminal behavior, in addition to those

necessary to establish the appropriate range.” See T.C.A. § 40-35-114(1). As such, the trial

court properly applied enhancement factor (1) to all the Defendant’s sentences.

b. Enhancement Factor (2)

Enhancement factor (2), which the trial court applied to all the Defendant’s sentences,

applies where the defendant is a leader in the commission of an offense that involves two or

more criminal actors. T.C.A. § 40-35-114(2). As to this factor, the trial court made the

following findings:

 At least two of the five prior felonies were sufficient to qualify the Defendant, pursuant 2

to Tenn. Code Ann. § 40-35-106, as a Range II offender for each of his convictions in this case. 

8
This Court also finds specifically that [the Defendant] was a leader in the

commission of an offense involving two or more criminal actors. That finding

does not mean that [the Defendant] was the leader or that he was more

responsible th[a]n anyone else. If you believe Mr. Bush, he was. If you believe

[the Defendant], he wasn’t. Tennessee law indicates you can have more than

one leader in the commission of a criminal offense and this Court does find that

[the Defendant] was a leader in the commission of these offenses involving two

or more criminal actors and the Court gives significant weight to that finding.

Our review of the record reveals that the Defendant and his co-defendant were

unlawfully taking a large screen television from Broadway Pizza when the Ishees arrived and

told the men to put down the television. The men complied, but the Defendant approached

Mrs. Ishee while his co-defendant approached Mr. Ishee, each doing so in a threatening

manner. In response, Mr. Ishee fired his weapon, and the co-defendant fled the scene.

Meanwhile, Mrs. Ishee grabbed the Defendant around the shoulders, and the two ended up

in the Defendant’s van. The Defendant accelerated the vehicle and rammed it into a police

car that had arrived on the scene. The Defendant then fled on foot and hid in Overton Park

where a police helicopter tracked him down and instructed him to surrender. The Defendant

refused, and an officer, accompanied by a canine officer, ordered the Defendant to come out

of the wooded area or the officer would release the canine officer. Again, the Defendant

refused. When the canine officer attempted to apprehend the Defendant, he stabbed the

canine officer ten times in the mouth, chest, and face.

Nothing in the record in this case suggests that the Defendant directed the co-defendant

to enter the Broadway Pizza or take the television set. See State v. Freeman, 943 S.W.2d 25,

(Tenn. Crim. App. 1996) (Defendant who had been arguing with occupants of automobile

when his uncle called out to him, and who then was handed rifle by uncle and began shooting

at automobile, was not “leader” in commission of offenses, for purposes of statutory

enhancement fact; State v. Eddrick Devon Pewitte, W2008-00747-CCA-R3-CD, 2009 WL

29891, at *10 (Tenn. Crim. App., at Jackson, Jan. 5, 2009), no Tenn. R. App. P. 11 application

filed (Defendant’s role in holding the gun, standing at door as lookout, and making

threatening statements to victim sufficient evidence defendant is leader of the offense); .

Moreover, nothing in the record suggests that, after his co-defendant’s departure, the

Defendant acted in any way to instruct or lead his co-defendant. While there was proof that

more than one person was involved in the theft, there was no proof that anyone else was

involved in the additional crimes the Defendant committed that night. Thus, there were no

others involved for the Defendant to “lead.” See State v. Alexander, 957 S.W.2d 1, 6 (Tenn.

Crim. App. 1997). We recognize that enhancement factor (2) does not require the Defendant

be the sole leader but rather that he be a “leader,” and that, as a result, two criminal actors may

qualify for enhancement under this factor. See State v. Hicks, 868 S.W.2d 729, 731 (Tenn.

9
Crim. App. 1993). Under the facts of the present case, however, the evidence does not

suggest that the Defendant was a leader in the commission of the offenses according to

Tennessee Code Annotated section 40-35-114(2). As such, the trial court improperly applied

enhancement factor (2) to all of the Defendant’s convictions.

c. Enhancement Factor (5)

The trial court applied enhancement factor (5), that the Defendant treated, or allowed

a victim to be treated, with exceptional cruelty during the commission of the offense to the

following three of the Defendant’s convictions: criminal attempt to commit the intentional

killing of an animal; the aggravated assault of Mrs. Ishee; and theft of property over $1000.

At the sentencing hearing, the trial court addressed enhancement factor (5) as it applied

to the Defendant’s criminal attempt to commit the intentional killing of an animal conviction:

[The Defendant] did treat Gunner with exceptional cruelty at the time

that he attempted to kill that dog. He stabbed that dog many, many times.

Stabbed the dog in his mouth. Stabbed him in his face. Stabbed the dog in his

neck. This dog almost bled to death. Even after this dog had been stabbed and

almost died, this dog continued to do his job and [the Defendant] continued to

attack this dog. This dog, but for great, great work that was done by

veterinarians, there’s no reason that Gunner should in fact be alive. They had

to do a blood transfusion, a total blood transfusion in order to save that dog and

the dog was off work for a number of weeks before he was able to go back to

work.

In State v. Arnett, the Tennessee Supreme Court discussed the circumstances under

which enhancement factor (5) applies:

[P]roper application of enhancement factor (5) requires a finding of cruelty

under the statute “over and above” what is required to sustain a conviction for

an offense. See State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995);

see also Poole, 945 S.W.2d at 98 (requiring the facts in a case to “support a

finding of ‘exceptional cruelty’ that demonstrates a culpability distinct from and

appreciably greater than that incident to” the crime). In other words, such

evidence must “denote[] the infliction of pain or suffering for its own sake or

from the gratification derived therefrom, and not merely pain or suffering

inflicted as the means of accomplishing the crime charged.” State v. Haynes,

No. W1999-01485-CCA-R3-CD, 2000 WL 298744, at *3 (Tenn. Crim. App.

filed at Jackson, Mar. 14, 2000).

10
49 S.W.3d 250, 258-59 (Tenn. 2001). This Court has held that the infliction of multiple

wounds is, in some instances, sufficient to support the application of enhancement factor (5) .

3

See, e.g., State v. Darrin Bryant, No. W2000-01136-CCA-R3-CD, 2001 WL 792616, at *7

(Tenn. Crim. App., at Jackson, July 11, 2001) (finding that the defendant’s infliction of “up

to” eight stab wounds on the victim, who was asleep at the time of the attack, was sufficient

to warrant the application of enhancement factor (5) to the defendant’s conviction for

attempted first degree murder), perm. app. denied (Tenn. Dec. 10, 2001). Cf. State v. Leslie

Bryan Willis, No. M2001-00634-CCA-R3-CD, 2003 WL 21523250, at *30 (Tenn. Crim. App.,

at Nashville, June 30, 2003) (concluding that the trial court erred when it applied enhancement

factor (5) on the basis of “multiple stab wounds” because this evidence standing alone was not

adequate to satisfy this factor), perm. app. denied (Tenn. Jan. 26, 2004).

In the case under submission, we conclude that the evidence supports the application

of enhancement factor (5) to the Defendant’s sentence for his criminal attempt to intentionally

kill an animal valued at more than $1000. The evidence shows that Officer Twilley warned

the Defendant that a canine officer would be released to apprehend the Defendant. After the

opportunity to peaceably turn himself over to the police officers, the Defendant refused, and

Officer Twilley released the canine officer. The dog immediately yelped, but continued his

work and detained the Defendant. Officer Twilley arrived, forcibly restrained the Defendant,

and, thereafter, discovered the dog was bleeding excessively. The Defendant had stabbed the

canine officer ten times in the face, mouth, and chest. The Defendant repeatedly stabbed the

canine officer for the sole purpose of escaping apprehension by law enforcement officers and

with the knowledge that he could simply surrender and the dog would be removed. This

conduct indicates the infliction of pain and suffering for its own sake. Thus, the trial court

properly applied enhancement factor (5) to his conviction for criminal attempt to commit the

intentional killing of an animal.

At the sentencing hearing, the trial court did not orally address the application of

enhancement factor (5) to the Defendant’s convictions for the aggravated assault of Mrs. Ishee

and theft of property worth over $1000. Although the trial court did indicate the application

of this factor to these offenses in its written order, it did not state its reasoning for the

application as required by Tennessee Code Annotated section 40-35-210(e).

We note that the cases cited involve human victims as opposed to animal victims, however, the 3

 legal analysis is relevant as to both human and animal victims. The canine officer who sustained ten stab

wounds is a victim of the Defendant’s crime of the criminal intent to commit the intentional killing of an

animal. See T.C.A. § 39-14-210; see also, State v. William T. Davis, M2004-03060-CCA-R3-CD, 2005 WL

2255968, at *9 (Tenn. Crim. App., at Nashville, Sept. 15, 2005), no Tenn. R. App. P. 11 application filed. 

11
Our review of the record reveals no factsthat would support application of enhancement

factor (5) to the Defendant’s convictions for the aggravated assault of Mrs. Ishee and theft of

property worth over $1000. In order for this enhancement factor to apply, the facts must be

“over and above” what is required for the offense of aggravated assault for which the

Defendant is convicted. See Embry, 915 S.W.2d at 456. The Defendant’s act of accelerating

the van forward while Mrs. Ishee was still holding on to the Defendant and half outside of the

vehicle does not demonstrate “a culpability distinct from and appreciably greater than that

incident to” the crime. State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997).

Further, enhancement factor (5) was not properly applied to the Defendant’s theft

conviction. Since the fact that the Defendant had taken the property of the victims was utilized

to establish an element of the offense of theft, it should not have also been relied upon to

establish the enhancement factor. State v. Lavender, 967 S.W.2d 803, 808 (Tenn. 1998).

Moreover, there is no other evidence in the record to support application of the exceptional

cruelty enhancement factor in this case. Thus, we conclude that, whereas the trial court

properly applied enhancement factor (5) to the Defendant’s conviction for criminal attempt to

commit the intentional killing of an animal, it improperly applied this enhancement factor to

the Defendant’s convictions for the aggravated assault of Mrs. Ishee and theft of property

worth over $1000.

d. Enhancement Factor (6)

The trial court applied enhancement factor (6), that the personal injury inflicted upon,

or the amount of damage to property sustained by or taken from, the victim was particularly

great, to the Defendant’s conviction for theft of property worth over $1000 and to his

conviction for criminal attempt to commit the intentional killing of an animal valued at more

than $1000.

As to its application of this factor to the theft of property conviction, the trial court

stated the following:

The Court also finds that the personal injuries inflicted upon and the manner or

damage sustained to the Ishee’s in this case, during the theft of this property,

was in fact particularly great. Particularly great does not necessarily mean just

monetary damage. It also includes psychological and also emotional damage.

You have a woman who’s owned a business for thirty-two years. Family has

owned this business for a long time. Has been in an area of the city that some

people say is declining. An area that some people say, “you must be crazy,

Denny and Dewana Ishee, as to have a business there. Why don’t you take it

out to East Memphis? Why don’t you take it out to Germantown? Take it out

12
to Collierville. Take this business out to some other location that may be

safer,” and these folks, the Ishee[ ]s have kept a business in that community for

a long period of time. One of the oldest established business, not only in that

community, but in the city, in the County of Shelby and they have kept the

business there and they have told this Court that they have been terrorized by

what [the Defendant] and by what [co-defendant] Bush did to them to the extent

that they do not feel comfortable going to work. Work is not fun. They have

to arm themselves with guns to make sure that they and their employees get to

work and leave work in a safe condition. They have told the Court, Ms. Ishee

said that she is not [sic] considering whether or not it is an advisable thing to

keep that business there in Binghampton area, that she’s thinking about

relocating, that she’s thinking that maybe she ought to take the advice of friends

and family members and other business owners that are probably telling them,

“You got to be crazy. You got to be absolutely crazy to keep that business here.

Get the business out of here. Take it somewhere else. . .,” and this Court finds

that that psychological, that emotional damage, is particularly great and this

Court gives that factor great weight when the Court considers those

enhancement factors that apply to the theft of property.

Initially, with regard to the trial court’s application of this factor to the theft conviction,

we note that factor (6) may apply to psychological injuries as a result of the incident. See State

v. Hunter, 926 S.W.2d 744 (Tenn. Crim. App. 1995); State v. Smith, 891 S.W.2d 922 (Tenn.

Crim. App.1994). In this case, Mrs. Ishee testified that as a result of this criminal incident she

has changed the way she runs her business, the hours of operation, employee schedules, and

is considering moving her family business that has been in this location for thirty-two years.

Mr. Ishee testified that work is no longer enjoyable and that the atmosphere is filled with

“apprehension.” The record in this case supports the trial court’s finding that the injuries to

Mr. and Mrs. Ishee were particularly great. Thus, the record supports the trial court’s

application of enhancement factor (6) to the Defendant’s conviction for theft of property worth

over $1000.

The trial court did not discuss its application of enhancement factor (6) to the

Defendant’s conviction for criminal intent to commit the intentional killing of an animal during

sentencing. Instead, it noted in its sentencing order that enhancement factor (6) applied to the

Defendant’s conviction for the criminal intent to commit the intentional killing of an animal.

The canine officer was stabbed ten times in his face, mouth, and chest, requiring emergency

and ongoing medical treatment and only returned to active duty weeks after treatment and

rehabilitation from the stabbing. The record supports the trial court’s finding that the canine

officer suffered particularly great injury. See State v. Gary Edward Dougherty, No. E2009-

01782-CCA-RM-CD, 2010 WL 2134153, at *9 (Tenn. Crim. App., at Knoxville, May 27,

13
2010) (multiple stab wounds to the chest supported finding of particularly great injury), perm.

app. denied (Tenn. Nov. 10, 2010). Therefore, the trial court properly applied enhancement

factor (6) to the Defendant's conviction for criminal attempt to commit the intentional killing

of an animal.

e. Enhancement Factor (8)

The trial court found that the Defendant, before trial or sentencing, had failed to comply

with the conditions of release into the community, and applied this enhancement factor (8) to

all of the Defendant’s convictions:

[The Defendant] was placed on probation at least twice in Louisiana. Told the

Court that he violated his probation on the three year probation and was sent to

prison as a result of that violation and the Court does find that he did fail to

comply with the sentence involving release into the community on that

probation out of Louisiana.

The Defendant’s own testimony is that his previously probated sentence had been revoked and

that he had served the remainder of his three-year sentence. As such, the trial court properly

applied enhancement factor (8) to each of the Defendant’s convictions.

f. Enhancement Factor (9)

The trial court applied enhancement factor (9), that the Defendant possessed or

employed a firearm, explosive device, or other deadly weapon during the commission of the

offense, to all of the Defendant’s convictions. In so doing, the trial court stated:

[O]n all of these counts, this Court finds that the [D]efendant possessed or

employed a firearm, explosive device, or other deadly weapon during the

commission of this offense. The jury did not find [the Defendant] was a

convicted felon in possession of a handgun, but this Court has to consider all

the facts and circumstances of this case, not withstanding what a jury’s verdict

may have been and . . . this Court specifically finds that [the Defendant] did

possess two firearms when he committed these offenses.

Although the Defendant does not make a formal argument as to this issue, throughout

his brief the Defendant appears to infer that the trial court should not have made a finding that

the Defendant possessed a firearm, when the jury had acquitted the Defendant of felon in

possession of a weapon, which requires proof of a deadly weapon. A trial court applying pre2005 sentencing law cannot enhance a defendant’s sentence above the presumptive minimum

14
unless the facts relied upon to support the enhancement were found beyond a reasonable doubt

by a jury or trial court, if the defendant waived his right to jury determination. See State v.

Gomez, 239 S.W.3d 733 (Tenn. 2007). The sentencing laws used in this case, however, are

the 2005 amended sentencing laws that removed the requirement that trial courts make factual

findings before enhancing a sentence from the presumptive minimum sentence. T.C.A. § 40-

35-210 (2006). Under the new act, the trial court shall set a sentence within the range, and the

length should be adjusted for appropriate enhancement or mitigating factors. Id. In doing so,

the court “shall consider” advisory sentencing guidelines, such as adjustment for appropriate

mitigating and enhancement factors, but is “not bound by” them. Id. Thus, the fact that the

jury did not find beyond a reasonable doubt that the Defendant possessed a firearm does not

preclude the trial court from finding by a preponderance of the evidence that the Defendant

possessed a firearm during the commission of these offenses. Further, police testimony at trial

was that both the knife used to stab Gunner and a gun were found in the immediate area of the

Defendant’s apprehension. This evidence supports the application of this enhancement factor;

therefore, the Defendant is not entitled to relief.

g. Enhancement Factor (10)

The trial court applied enhancement factor (10), that the Defendant had no hesitation

about committing a crime when the risk to human life was high, to the Defendant’s convictions

for the aggravated assault of Mrs. Ishee and theft of property over $1000. As to the theft of

property over $1000 conviction, the trial court stated at the sentencing hearing:

[T]he Court finds that [the Defendant] had no hesitation committing a crime in

which the risk [to] human life was high when he committed this theft offense.

That [he] did employ or possess a firearm during the commission of this theft

offense. No hesitation of committing a crime in which the risk [to] human life

is high would be a necessary element of aggravated assault in attempt to kill a

police dog. It is not a necessary element of theft of property and the Court does

find that [the Defendant] had no hesitation in committing a crime in which the

risk [to] human life is high.

Enhancement factor (10) applies where the defendant “had no hesitation about committing a

crime when the risk to human life was high.” T.C.A. § 40-35-114(10). In general, factor (10)

applies only where the facts that establish that the defendant created a high risk to human life

also demonstrate a greater culpability than that incident to the offense underlying the

enhancement. State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994). As a result, where a high

risk to human life is inherent in the underlying conviction, enhancement factor (10) applies

only if the defendant disregarded a high risk to the life of a person other than the victim. State

v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997).

15
We conclude that the facts of this case do not support the application of enhancement

factor (10), that the Defendant had no hesitation about committing a crime when the risk to

human life was high, to the Defendant’s sentence for theft. The Defendant entered the

Broadway Pizza early in the morning under the cover of dark when the business was closed

and presumable no one would be there. See State v. Shannon Blaylock, No. 03C01-9412-CR00435, 1995 WL 739844, at *7 (Tenn. Crim. App., Dec. 13, 1995), no Tenn. R. App. P. 11

application filed (enhancement factor (10) inapplicable where Defendant planned burglary at

time when no one would be home); State v. David Keith Daugherty, No. 03C01-9203-CR00082, 1993 WL 330454, at *4 (Tenn. Crim. App., August 27, 1993), no Tenn. R. App. P. 11

application filed (enhancement factor (10) inapplicable to theft conviction where there was no

proof that customers or employees were expected or even likely to appear). He was exiting the

building with a television set when confronted by the Ishees who instructed the Defendant and

his co-defendant to set down the television, and they complied. The trial court is correct that

the risk to human life is not a necessary element of theft, however, we do not find the facts, as

they pertain to the Defendant’s theft conviction to support the application of enhancement

factor (10).

As to the conviction for the aggravated assault of Mrs. Ishee, enhancement factor (10)

is inherent in the offense of aggravated assault. State v. Tony Von Carruthers, No. 02-C-01-

9102-CR-00019, 1991 WL 147946 (Tenn. Crim. App., Jackson, August 7, 1991), no Tenn. R.

App. P. 11 application filed. As this Court said in State v. Kevin L. Gaskell, No. 285, 1991 WL

112275 (Tenn. Crim. App., Knoxville, June 26, 1991), no Tenn. R. App. P. 11 filed: “It is

difficult to discern a situation in which an offense committed with a deadly weapon would not

necessarily entail a risk to human life.” Id. at *6. In this case, the evidence supporting the

Defendant’s conviction for the aggravated assault of Mrs. Ishee proved the Defendant

accelerated his van while Mrs. Ishee was still partially outside the vehicle and rammed the van

into a police car. The Defendant was convicted of the aggravated assault of Mrs. Ishee for this

conduct.

Even though it is an element of the crime for the Defendant’s conviction for the

aggravated assault of Mrs. Ishee, enhancement factor (10) may be applied in situations where

persons other than the victim are in the area and subject to injury. See Zonge, 973 S.W.2d at

259; see also State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). Other persons in the

area at the time the Defendant rammed his vehicle in to the police car were Officer Watson,

Officer Jackson, and Mr. Ishee. The Defendant was convicted of the reckless assault of

Officer Watson and the aggravated assault of Officer Jackson for this conduct as it related to

the officers attempting to exit their vehicle at the time the van impacted the police car. The

record is void of any evidence that Mr. Ishee was in such close proximity that he was in danger

of being injured. Thus, the trial court should not have applied factor (10) to the Defendant’s

aggravated assault conviction.

16
h. Enhancement Factor (19)

The trial court applied enhancement factor (19), that the victims of the aggravated

assaults were law enforcement officers performing in their official duty, to the Defendant’s

convictions for the reckless aggravated assault against Officer Watson and the aggravated

assault against Officer Jackson.

The Defendant’s convictions for reckless aggravated assault and aggravated assault

were based upon his conduct toward Officer Watson and Officer Jackson who responded to

the report of a burglary at Broadway Pizza. Both officers were performing in their official duty

as law enforcement officers at the time of these crimes, and the Defendant knew or should

have known the two men were police officers. Thus, the record supports the trial court’s

application of enhancement factor (19) to these convictions.

2. Mitigating Factors

The Defendant generally asserts that the trial court failed to “properly identify and

weigh enhancement and mitigating factors,” but does notspecifically identify which mitigating

factors he believes should have been applied to his sentences or make an argument as to

mitigating factors. Tennessee Court of Criminal Appeals Rule 10(b)statesthat “[i]ssues which

are not supported by argument, citation to authorities, or appropriate references to the record

will be treated as waived in this court.” See also Tenn. R. App. P. 27(a)(7). Thus, issues that

are not adequately briefed are deemed waived. Based upon our de novo review of these

sentences, however, we will consider mitigating factors.

The Defendant did not submit any mitigating factors for consideration during

sentencing, and the trial court stated that it did not find any mitigating factors applicable to the

Defendant’s sentences. Our review of the record does not reveal that any of the mitigating

factors listed in Tennessee Code Annotated section 40-35-133 are applicable.

3. De Novo Review

In conducting our de novo review of the Defendant’s sentence, we consider the

Defendant’s presentence report, the victim impact letters, and statementsintroduced during his

sentencing hearing, the nature and circumstances of his crime, and the applicable enhancement

and mitigating enhancement factors. See T.C.A. § 40-35-210. The following chart indicates

the Defendant's convictions with the applicable enhancement factors based upon our review:

Conviction Sentence Range

for Range II

Enhancement

Factors Applied

Sentence

Imposed by Trial

17
offender Court

Reckless Aggravated Assault

Officer Watson (Class D Felony)

4-8 years (1), (8), (9), (19) 8 years

Aggravated Assault of Officer

Jackson (Class C Felony)

6-10 years (1), (8), (9), (19) 10 years

Aggravated Assault of Mrs. Ishee

(Class C Felony)

6-10 years (1), (8), (9) 10 years

Attempt to commit the Intentional

Killing of an animal worth over

$1000 (Class E Felony)

2-4 years (1), (5), (6), (8), (9) 4 years

Theft of Property Valued over

$1000 (Class D Felony) 

4-8 years (1), (6), (8), (9) 8 years

Evading Arrest (Class A

Misdemeanor)

maximum of 11

months 29 days

(1), (8), (9) 11 months 29

days

The trial court sentenced the Defendant as a Range II offender to forty years, eleven

months and twenty-nine days, for his convictions. See T.C.A. § 40-35-112(a)(1). The trial

court meticulously considered the appropriate sentencing considerations and the circumstances

of these offense. Although the trial court incorrectly applied certain enhancement factors when

it sentenced the Defendant, the enhancement factors that were correctly applied by the trial

court, together with the absence of mitigating factors and the nature and circumstances of the

Defendant’s crimes, resulted in sentences that are appropriate for these offenses. Accordingly,

we affirm the Defendant’s effective sentence of forty years, eleven months and twenty-nine

days for his convictions.

4. Alignment of Sentences

The Defendant contends the trial court erred in finding that he was a “dangerous

offender” and imposing consecutive sentencing on that basis. See T.C.A. § 40-35-115(4)

(2006). The State responds that trial court found the requisite factors under Wilkerson as to

each of the Defendant’s sentences. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

If an offender meets one or more statutory criteria in Tennessee Code Annotated section

40-35-115, whether or not he should be sentenced consecutively or concurrently is within the

sound discretion of the trial court. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim.

App.1984). A court may order multiple sentences to run consecutively if it finds, by a

preponderance of the evidence, that at least one of the following seven factors exists:

18
(1) The defendant is a professional criminal who has knowingly devoted such

defendant’s life 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 of two (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 the 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;

or

(7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b)(1)-(7). These criteria are stated in the alternative; therefore, only one

need exist in order to impose consecutive sentencing.

In addition to these criteria, consecutive sentencing is subject to the generalsentencing

principle that the length of a sentence should be “justly deserved in relation to the seriousness

of the offense” and “no greater than that deserved for the offense committed.” T.C.A. §

40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002)

Our Supreme Court has noted that the “dangerous offender” category isthe hardest and

most subjective to apply. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). Consequently, our

Supreme Court in State v. Wilkerson held that “particular facts” must show the following in

order to base consecutive sentencing on subsection 115(b)(4): (1) that an extended sentence

is necessary to protect the public against further criminal conduct by the defendant; and (2)

19
that the consecutive sentences reasonably relate to the severity of the offenses committed. Id.;

State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995); see State v. Robinson, 146 S.W.3d

469, 524 (Tenn. 2004). In discussing the applicability of the “dangerous offender” category

to the Defendant, the trial court stated the following:

[T]he Court does find that [the Defendant] is a dangerous offender and

his behavior indicated little or no regard for human life and that he had no

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

. . . When you break into a business at night and you’re loaded with guns, with

knives. You’re prepared to use those weapons to accomplish, to facilitate this

crime, you have no hesitation in committing a crime in which the risk [to]

human life is high. [The Defendant] and [co-defendant] were prepared to wage

war, not only with the owners of this business, but also with police officers,

should they be interrupted. . . .[The Defendant] dragged Ms. Ishee. Ms. Ishee

could have been run over by a car. She could have been damaged by a car. She

could have been shot by this gun that [the Defendant] was reaching for. He

slammed a car into a police cruiser, having absolutely no hesitation in injuring

those police officers. Had no hesitation in killing or putting those officers out

of commission for a long period of time. He fled on foot, hid out in the woods

and had no hesitation in attacking the dog or whoever else happened to get to

[the Defendant] before Gunner did so he absolutely had no hesitation in

committing [ ] crime[s] in which the risk [to] human life was high.

This Court finds that the circumstances surrounding the commission of

this offense are aggravated. I’ve already put those reasons on the record and

will not reiterate those reasons and the Court finds that the length of the

sentences are reasonably related to the severity of the offenses for which [the

Defendant] was found guilty by a jury and that consecutive sentences are

necessary to protect this public from further criminal act[s].

We conclude that the evidence supports the trial court’s imposition of consecutive

sentences. The evidence proved that the Defendant, who had previously committed similar

crimes, entered the Ishees’ restaurant without permission early in the morning hours. He and

his co-defendant took a television and were carrying it to the Defendant’s vehicle when the

Ishees arrived. The Defendant and co-defendant made aggressive movements toward the

Ishees. In response, Mrs. Ishee grabbed the Defendant around the shoulders in an attempt to

detain him until police arrived. The Defendant maneuvered himself into his van and

accelerated the van forward, ramming it into a police car while Mrs. Ishee maintained her

grasp, her legs partially outside the van. At the time of the impact, two officers were

attempting to exit the vehicle and one of the officers was injured due to the impact. The

20
Defendant fled on foot and hid in Overton Park, and, when canine Officer Gunner attempted

to apprehend the Defendant he stabbed Gunner repeatedly in the throat, mouth, and chest,

causing life-threatening injuries. Even after a jury found the Defendant guilty beyond a

reasonable doubt, the Defendant continued to deny his culpability at the sentencing hearing,

essentially claiming he was merely trying to help a friend re-possess a television. This

evidence supports the trial court’s finding that consecutive sentencing is necessary to protect

the public and that the sentence is reasonably related to the seriousness of the offenses

committed. The Defendant is not entitled to relief on this issue.

B. Manner of Service of Sentences

We now turn to the issue of alternative sentencing. Under the 2005 amendments to the

Sentencing Reform Act, a defendant is no longer presumed to be a favorable candidate for

alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing T.C.A. §

40-35-102(6) (2006)). Instead, a defendant not within “the parameters of subdivision (5) [of

T.C.A. § 40-35-102], and who is an especially mitigated or standard offender convicted of a

Class C, D or E felony, should be considered as a favorable candidate for alternative

sentencing options in the absence of evidence to the contrary.” Id. (footnote omitted). T.C.A.

§ 40-35-102(6); 2007 Tenn. Pub. Acts 512. Additionally, we note that a trial court is “not

bound” by the advisory sentencing guidelines; rather, it “shall consider ” them. T.C.A. §

40-35-102(6) (emphasis added).

A defendant seeking probation bears the burden of “establishing [his] suitability.”

T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even though

probation must be automatically considered as a sentencing option for eligible defendants, the

defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303

(2009), Sentencing Comm’n Cmts.

When sentencing the defendant to confinement, a trial court should consider whether:

(A) Confinement is necessary to protectsociety 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.

21
T.C.A. § 40-35-103(A)-(C)) (2009). In choosing among possible sentencing alternatives, the

trial court should also consider “[t]he potential or lack of potential for the rehabilitation or

treatment.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.

1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they

relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.

App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v. Zeolia,

928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69, 84 (Tenn.

Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

At the sentencing hearing in this case, the trial court sentenced the Defendant as a

Range II, multiple offender to a sentence of forty years, eleven months and twenty-nine days

of incarceration. While the Defendant’s aggregate sentence is forty years, eleven months and

twenty-nine days, none of his individual sentences is more than 10 years, so he is still eligible

for probation. See T.C.A. § 40-35-303 (2006). The trial court then set out to determine the

manner of service and made the following findings:

This Court is firmly of the opinion that confinement, in this case is

necessary for all three factors specified in 40-35-103, that measures less

restricted than confinement have been applied unsuccessfully to the Defendant

recently. He’s been on probation twice before, has violated probation at least

once.

This Court finds that [the Defendant] does not necessarily have a long

history of criminal conduct, but his conduct does go back to two different

states, Louisiana, and he’s now brought this lawlessness to the State of

Tennessee. Having been convicted in 1998, convicted in 2000 and he’s not

committing these offense[s] in Shelby County Tennessee, so he now has [ ]

several felony convictions on his history that go back to about the last nine or

ten years and this Court also finds that confinement is necessary to avoid

depreciating the seriousness of this offense and to serve as deterrence for other

folks similarly situated and the Court looks at deterrence under State versus

Cooper, 29 S.W.3d, page 1. It’s a 2000 Tennessee Supreme Court opinion.

There are five factors that the Court has to consider when the Court makes the

determination as to whether or not deterrence is appropriate in this case. First

factor is whether or not other incidences of this charged offense are

increasingly present in this community, in Shelby county, in this jurisdiction,

or as a state as a whole. Memphis, Shelby County Tennessee is the second

most violent, the second most dangerous metropolitan area in the country . .

.and part of that reason is because folks run around in this community with

guns, committing crimes with guns, invading houses, invading businesses and

22
these folks are carrying guns because they are prepared to use whatever force

necessary to help them accomplish these crimes. [The Defendant] has a history

of committing crimes with violence. . . .

Deterrence is particularly suitable in this case because folks in this

community are screaming at the police. They’re screaming at judges and at

prosecutors, “Please do something about folks breaking into houses, breaking

into business. Destroying what we’ve worked for all of our lives, labored for

all of our lives. These folks are taking property from us,” and in just a matter

of minutes, law abiding citizens in this community are having their lives ruined

because of thoughtless acts that [the co-defendant] and [the Defendant] and

similar folks, [are] committing in this neighborhood.

Second factor is whether or not this crime was a result of an intentional,

knowing, or reckless conduct. In all of these offenses, the jury found that [the

Defendant’s] actions were intentional, were knowing and or were reckless and

that applies as far as deterrence. The Court has to find whether or not the

defendant’s crime has received substantial publicity beyond that normally

expected in a typical case and for the record, this case has received a

tremendous amount of publicity, not only locally, but regionally. . . . This case

has received a lot of publicity and it’s not necessarily just because [the

Defendant] tried to kill a police dog. [The Defendant] tried to harm other

people, dragged a woman a great distance, rammed a police car and hid in a

public place that caused the police department to go in with helicopters and

other things to try to get [the Defendant] arrested and this case has received

and a lot of publicity. . . .

This Court does not find that [the Defendant] is a member of a criminal

enterprise . . . so that factor does not apply. The Court does find that the fifth

factor does apply, that the defendant has previously engaged in criminal

conduct of the same or similar offense for which he has now been found

guilty. He’s been found guilty once before. Unlawful entry into a business.

He’s been found guilty of an aggravated, what would amount to an aggravated

assault against a police officer in the State of Louisiana, so the Court finds that

deterrence issignificantly,significantly, an[d] [of] overwhelming importan[ce]

in this case.

Based upon its findings under Tennessee Code Annotated section 40-35-103, the trial court

denied the Defendant an alternative sentence.

23
The record does not preponderate against the trial court’s findings. The Defendant has

prior convictions for unlawful entry into a building and assault on an officer, which are similar

to his present convictions. The Defendant admitted that one of his previous sentences was

probated and subsequently revoked. The Defendant denied his involvement and role in these

criminal events and further denied any culpability in his previous charges maintaining that he

was merely in the wrong place at the wrong time, which was his basic premise as to the current

charges. The Defendant had multiple opportunities to submit to police authority peaceably;

however, he chose to continue to engage in criminal conduct endangering the lives of others,

expending significant police resources, and seriously injuring a police dog in the line of duty.

Thus, the record adequately supports the trial court’s findings that confinement is necessary

to avoid depreciating the seriousness of the offense, that a need for deterrence exists, and that

lessrestrictive meansthan confinement have been unsuccessful. We conclude that, in ordering

confinement, the trial court considered the pertinent facts of this case and appropriate

sentencing principles. As such, its denial of alternative sentencing is presumptively correct.

See T.C.A. § 40-35-401(d); Mencer, 798 S.W.2d at 549. The Defendant is not entitled to relief

on this issue.

C. Cruel and Unusual Punishment

Finally, the Defendant contends that the trial court’s imposition of a sentence of forty

years, eleven months, and twenty-nine days is so “extreme” that it is cruel and unusual

punishment in violation of the Tennessee Constitution. The State responds that the trial court

found a rational relationship between the seriousness of all the criminal behavior to the total

sentence imposed, and found that the sentence was no greater than that justly deserved by the

Defendant’s conduct.

Both the Eighth Amendment to the United States Constitution and Article 1, section 16

of the Tennessee Constitution prohibit the infliction of cruel and unusual punishment. U.S.

Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”); Tenn. Const. art. 1, § 16 (“That excessive bailshall

not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

Despite the nearly identical wording of the two provisions, our Supreme Court has consistently

afforded a more expansive interpretation to Article One, section sixteen than that afforded to

the Eighth Amendment. See State v. Harris, 844 S.W.2d 601, 602 (Tenn. 1992). Accordingly,

although the United States Supreme Court has held that the Eighth Amendment contains no

proportionality guarantee outside of sentencing for a capital offense, see Rummel v. Estelle,

445 U.S. 263, 274 (1980) (recognizing that “for crimes concededly classified and classifiable

as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary,

the length of the sentence actually imposed is purely a matter of legislative prerogative”);

Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (refusing to extend proportionality review

24
to non-capital offenses), our Supreme Court has concluded that the state constitution provides

for the proportionality review of non-capitalsentences. Harris, 844 S.W.2d at 602. Reviewing

courts, however, should grant substantial deference to the broad authority legislatures possess

in determining punishmentsfor particular crimes, “[o]utside the context of capital punishment,

successful challengesto the proportionality of particularsentences[will be] exceedingly rare.”

See Solem v. Helm, 463 U.S. 277, 289-90 (1983) (emphasis in original) (quoting Rummel v.

Estelle, 445 U.S. 263, 272 (1980)).

In Harris, the Tennessee Supreme Court adopted a proportionality analysis by which

courtsinitially compare the sentence imposed to the crime committed. Id. at 603 (citing Justice

Kennedy’s concurrence in Harmelin, 501 U.S. at 997-1009 (Kennedy, J., concurring in part

and concurring in the judgment)). “Unless this threshold comparison leads to an inference of

gross disproportionality, the inquiry ends--the sentence is constitutional.” Id. The factors

relevant in determining whether the sentence imposed for an offense raises an inference of

gross disproportionality include:

(1) the nature of the crime, including whether society views the crime as

serious or relatively minor and whether the crime is violent or non-violent; (2)

the circumstances of the crime, including the culpability of the offender, as

reflected by his intent and motive, and the magnitude of the crime; and (3) the

existence and nature of any prior felonies if used to enhance the defendant's

penalty.

State v. Smith, 48 S.W.3d 159, 171 (Tenn. Crim. App. 2000) (citing Solem v. Helm, 463 U.S.

277, 290-91 (1983)). “Factors relevant to the harshness of a penalty include the type of penalty

imposed and, if a term of imprisonment, the length of the term and the availability of parole

or other forms of early release.” Id.

After examining the Defendant’s sentence, as imposed by the trial court, of forty years,

eleven months, and twenty-nine days in light of the gravity of his offenses, we hold that no

inference of gross disproportionality arises. The Defendant’s initial crime of entering the

Ishees’ family business, with a weapon, to steal a television began a spree of criminal conduct

that endangered the lives of the owners of the restaurant, police officers, and a canine officer.

The Defendant was given multiple opportunities to surrender to which he refused and

continued on a dangerous course of criminal conduct. He rammed his vehicle into a police

car while Mrs. Ishee was dragged partially outside his van. Two police officers were

attempting to exit their police car when the Defendant accelerated his van into their vehicle,

injuring one of the police officers. The Defendant then fled on foot, hiding in a thickly

wooded area of Overton Park where he continued to refuse to comply with police authority.

When a canine officer was released to apprehend the Defendant, the Defendant repeatedly

25
stabbed the dog about the face and chest. Even when the Defendant was apprehended by the

canine officer, he still refused to submit to police commands to display his hands. The

Defendant’s conduct, the trial court specifically found, caused the victims mental suffering.

The Defendant’s crimes in this case were both serious and violent. The Defendant, although

initially joined by a co-defendant, was the sole actor in all but one of the multiple crimes he

committed that night. Further, the Defendant has prior felony criminal convictions for similar

behavior. In our view, a forty year, eleven month and twenty-nine day sentence is not an

unconstitutional punishment for these crimes.

III. Conclusion

Based upon the foregoing reasoning and authority, we affirm the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

26