# FILED December 4, 2001 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON OCTOBER SE SSION, 1996

STA TE OF TENN ESSEE , ) ) No. 02C01-9605- CC-00178 Appellee ) ) HARD IN CO UNTY vs. ) ) Hon. C. Cre ed McGinl ey, Judge ROBERT WIL LIS CHA NCE, JR ., ) ) (Second Degree Murder; Appellant ) Attempted First Degree Murder)
For the Appell ant : For the Appell ee : James T. "Jim" Sander son Charles W. Burson & Associates, P.C. Attorney Gen eral and Repor ter Stephen L. Hale William G. Hatton W illiam David Bridgers Attorneys for Appellant Assistant Att orney Gener al P. O. Box 331 Criminal J ustice Div ision Bolivar, TN 38008 450 James Roberts on Parkway Nashvil le, TN 37243-0493
G. Robert Radford Distric t Attorney General John Overto n Asst. Dist rict Attor ney General 601 Main Street Savannah, TN 3837 2

OPINION FILE D: AFFIRMED

David G . Hayes Judge2 OPINION
The appellant, Rober

t Willis Chance, pled g uilty to one count of second degree murder

and one count of attempted fir st degree mur

der. Pursuant to the plea agreement, the sent ences were to be served concurrently. The Hardin County Circuit Court imposed a sentence of twenty-three years for each conviction. In his sole issue, the appellant cont ends that the trial court erred in imposing twenty-threeyear sente nces because of the mi sapplication of Tenn. CodeAnn. § 40- 35-2 10 ( 1995Supp .), reg ardi ng t he presum ptiv e sen tenc e of a class A felony

.
Upon revi ew, weaffirm the judgment of thetrial cour t.

I. Background
On the night of July 9, 1995, the ap pellant walked into the woods near his family's home ar med with an SK S assault ri fle and with t he intention of committing s uicide. Later , when his parents could not locate him, t hey began searching the woods. Hidden by t he foliage, the ap pellant heard hi s father "belittling " him to his mother . Inflamed by thes e remarks, the appellant emerg ed from the woods and stated "Daddy , you've hurt mama around thi rty years. And you're not going to hurt no [sic] more." The app ellant then began firing his weapon. His mother was hit once in the leg. His father was shot four times, which resulted in his

death. Concer ned for his mother' s welfare, the appellant telephoned 911 to obtain assistance. He informe d the operator that he an d his parents wer

e "under fire" by

an "unknown" as sailant. The appel lant later abandoned this st ory and admit ted his gui lt. The appellant was indi cted on one count of first deg ree murder and one count of attempted first degree murder

.1 Specif ical ly , t he tr ial court found t hat ( 1) t he appel lanthas a hi story of cri minal convi cti ons or cr iminal behavi or; (9) t he appel lantemployed a fi rearm duri ng the commission of the of fense; and, app li cable o nly to t he att empted fir st degr ee murder convi cti on, t hat ( 6) t he personal inj uri es inf li cted upon the vi cti m were parti cular ly great . Tenn. Code Ann. § 40- 35-114 (1995 Su pp.). The only mitigating factor appli ed was Tenn . Code A nn. § 40-35-11 3(8) (1990), that the app ellant w as s uffe ring fro m a m enta l cond ition that s ignifica ntly redu ced his cu lpab ility

. In hi s appeal , t he appel lantdoes not contestthe appl icabi li ty of t hese fact ors.
2 The tri al court st ated,

As I re ad the l aw on a cl ass A sentence, the court i s to st art wit h a pres um ptive s ente nce at the m idpo int of the rang e. . . . Th at's as opp ose d to Class B, C, D, and E wher e you start at t he minimal sent ence and work up and then down. On a class A f elony , t he sentence, pursuantto t he ter ms of Section 40-35-210 , Subsect ion C, the pr esumptive sent ence starts atthe midpoi nt of the range. And then the Court applies enhan cing factors and then m iti gating factors from there.

. . . And th e m idpo int of his rang e, it wou ld be f ifteen to twe nty-five. [ See T en n. C od e A nn . § 4 0- 35 -1 12 (a )(1 ) (1 99 0) .] So ob vio us ly, the m ath em atic ally equati on len ds it selfto a twenty year sentence t o star t wi th. Neit her si de enter ed any object ion t o thi s procedur e. 3 On December 4, 199 5, the appellant p led guilty to one count of second degree murder and to one count of attempted first degree murder . A sentencing hearing was held on Januar y 11, 1996.
At the sentencinghearing, t he proof reveal ed that the appell ant had a troubled rel ationship w ith his father t hat had stemmed from years of physi cal and emotional abuse. Moreover, the ap pellant's psychiatric history involved chronic depression, relationship di fficulties, slee ping proble ms, a vari ety of neurolog ical complaints, "sui cidal ideati ons," and borderl ine personali ty disor der. The trial court found two

enhancement factors and one mitigati ng factor appli cable to the appellant's second degree m urder conviction and three enhance ment factors and one mitigat ing factor appl icable to his attempted first deg ree murder convicti on. 1 To determine the appr opriate leng th of the appellant's sentence, the trial cour t began at the mi dpoint of the applicable range. 2 Applying this procedure, the trial court imposed twenty-three year sentences for each convicti on.

II. A nalys is4 In his only

issue, the appel lant contends that , in arriv ing at twenty-three year sentences, the trial court misappl ied Tenn. Code Ann. § 40-35-210 by setting the presumptive sentence f or a class A felony, with applicable enhancement and mitig ating factors , at the midpoint of the range. H e insists t hat the "plain lang uage" of Tenn. Code Ann. § 40-35-210 directs sentencin g courts to set th e presum ptive sen tence f or a class A felon y at the mi dpoint of the range only if there are no e nhancement factors and n o mitigatin g factors. The State contends that such app lication of this section leads to a result that is clearly contrary to the legi slature's i ntent in amending Tenn. Code Ann. § 40- 35-210(c). We agree.
Tenn. Code Ann. § 40- 35-210 provi des, in parts pertinent to t his issue: (c) The pres umptive sentence for a Class B , C, D, and E felony shall be the mi nimum sentence in t he range if there are no enhancement or miti gating factor s. The presumptiv

e sentence for a Class A felony

shall be the mi dpoint of the rang e if there are no enhancement o r mitigating factors. (d) Should t here be enhancement but no mitigati ng factors, the n the court may s et the sentence abov e the minimum in that

range but still w ithin the rang e. (e) Should there be enhance ment and mitigating facto rs, the court must start at t he minimum sentence i n the range, en hance the sentence wi thin the rang e as appropriate for the enhancement factors, and then reduce the sentence w ithin the rang e as appropriate for t he mitigati ng factors.

W hen read alon e, T enn . Cod e Ann . § 40 -35- 210 (e) se ts th e pre sump tive sentence for a class A fe lony, where both enhancement a nd mitigating factors apply, at th e minimum sentence w ithin the rang e. However, when construing t he meaning of a statutor

y prov ision, cour

ts must ascert ain and give effect to the intent of the leg islature. Roseman v. R oseman , 890 S.W.2d 27, 29 (Tenn. 1994) (citation omi tted); Lyons v. Rasar , 872 S. W.2d 895, 897 ( citat ion omi tted). To determine leg islative intent, courts must look to the entire stat ute and to the overall purpose of the leg islation. Lyons , 872 S.W.2d at 897; see also W est5

American Ins. Co. v. Montgomery , 861 S.W.2d 230, 231 (Tenn. 1993) (ci tation omitted).

In 1995, the Tennessee l egislature amended Tenn. Code Ann. § 40-35- 210(c) by

adding that "[t]he presumptive sentence for a Cl ass A felony s hall be the midpoint of th e range if there are no enhan cement or mitigating factors." No similar ch ange was made to subsections (d) and (e) . Thus, apply ing the appellant's "pl ain languag e" reading of the statute, a clas s A felon who commits an offense where the trial cour t finds only enhancement factors or both enhancement and mitig ating factors applicable may

very well receive a s horter sentence than a felon committing a cl ass A offense invol ving no enhancement or mitigatingfactors. See Tenn. Code Ann. § 40-35 -210(c), (d), (e). This would produce an absurd result. W e presume that the legislature did no t intend such an absurdity

in enacting this statute. See McClell an v. Bd. of Reg ents of State , 921 S.W.2d 684, 689 (Tenn. 1996); Epstein v. State , 366 S.W.2d 914, 918 (Tenn. 1963). Accordingly , "such a resul t will b e avoided if the terms of the statute admit of it by a reasonab le construct ion." Epstein , 366 S.W.2d at 918. (emphasis added)

.

W ith consideration of the public's growing concern over violent crimes, def end ants comm ittin g clas s A fe loni es sh ould not b e ent itle d to a pres ump tive sentence at the min imum of the sentencing range. See Tenn. Code Ann. § 40- 35-210(c) ( retaining the presumptive sentence for cl ass B, C, D , and E felonies at the minimum but i ncreasing the presumptive sentence for cl ass A felonies to the midpoint of th e range). Moreover, it is difficult to conceive that the legislature would have intended a long er sentence for a class A felony without an enhancement factor than for a class A felony

with an enh ancement factor. Thus, we conclude that the presu mptive sentence for all class A feloni es is the3 Alt hough thi s issue has never specif ical ly been addressed by t he court s of t his st ate, our courts have s tated that, effecti ve July 1, 1995, the presum ptive sentence for all class A f eloni es sha ll be within th e m idpo int in the ra nge . See, e. g. , State v. Sm ith , 926 S. W .2d 267, 271 (Tenn. Crim . App . 199 5); Stat e v. Johnson , No. 01C01-9507-CC-00242 atnote 4 (Tenn. Cri m. App. at Na shv ille, Sept. 3 0, 19 96); State v. Boshears , No. 01C01-9412-CR-00402 ( Tenn. Cri m. App. at Na shv ille, Nov. 1 5, 19 95). 6 midpoint of the appli cable sentenci ng range. 3 Accordingly, the trial court's imposition of twenty-threeyear sente nces, in the i nstant case, are appropriate.
The judgment of the tr ial court i s affirmed.

____________________________________ DAVID G. HA YES, Judge
CONCUR:

____________________________ JOHN H. PEA Y, Judge

____________________________ PAUL G. S UMMERS, Ju dge