IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 22, 2010

STATE OF TENNESSEE v. FRANK EDWARD NIXON

Appeal from the Criminal Court for Davidson County

No. 2007-B-1823 Randall J. Wyatt, Jr., Judge

No. M2009-01047-CCA-R3-CD - Filed September 29, 2010

Appellant, Frank Edward Nixon, Jr., was indicted by the Davidson County Grand Jury for

attempted first degree murder. Pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997); he

pled guilty to attempted voluntary manslaughter, a Class D felony, in exchange for a

negotiated, out-of-range sentence of eight years as a Range I, standard offender,. The trial

court held a sentencing hearing to determine the manner of service of the sentence. After the

hearing, the trial court denied alternative sentencing, finding that confinement was necessary:

(1) to avoid depreciating the seriousness of the offense; (2) to protect society from

Appellant’s conduct; and (3) because measures less restrictive than confinement had been

unsuccessfully applied to Appellant. Appellant filed a timely notice of appeal. On appeal,

Appellant contends that the trial court improperly denied alternative sentencing. After a

thorough review, we determine that the trial court properly denied alternative sentencing.

Accordingly, the judgment of the trial court is affirmed. However, the matter is remanded

to the trial court for entry of a corrected judgment to reflect that Appellant pled guilty to

attempted voluntary manslaughter, a Class D felony.

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

and Remanded

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Emma Rae Tennent, Assistant Public Defender, on appeal, and Jonathan F. Wing, Assistant

Public Defender, at trial, for appellant, Frank Edward Nixon.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Ben Ford, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

In April of 2007, Appellant was indicted by the Davidson County Grand Jury for the

attempted first degree murder of Joseph Mark Chandler on February 9, 2007. The incident

occurred at the Nashville Rescue Mission, where both men were staying at the time.

Appellant stabbed Mr. Chandler approximately fifty times with a knife.

On April 7, 2009, according to the transcript of the guilty plea hearing, Appellant pled

guilty to a reduced charged of attempted voluntary manslaughter, a Class D felony. As part

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of the plea agreement, Petitioner accepted an out-of-range sentence of eight years, pursuant

to Hicks. The manner of service of the sentence was to be determined by the trial court at

a later date.

At the guilt plea hearing, the facts were summarized by the State as follows:

[O]n February 9 of 2007, at 7:30, in the morning, [Appellant] entered the

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Rescue Mission at 639 Lafayette Street here in Davidson County. At that point

in time, he recognized the victim, Mark Chandler. He had had an incident

about a week or so prior. They both admit they had an altercation. They were

sitting in the t.v. room of the Rescue Mission. [Appellant] exited the Mission

to smoke a cigarette, re-entered the mission and went to his locker and

obtained a knife. At that point he left the mission again but returned and the

victim had actually fallen asleep in a chair and the defendant walked out to

him and began stabbing the victim and chasing him around the t.v. room. The

victim fell to the ground and continued [sic] to stab him in the back. Other

witnesses were able to detain [Appellant]. The police were called to the scene

and the victim was transported to Vanderbilt Hospital. The victim sustained

approximately fifty stab wounds. And he was in the hospital for about a week.

The judgmentform, however, reflects that Appellant pled guiltyto attempted second degreemurder,

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a Class B felony. At the hearing on the guilty plea and at the sentencing hearing, the trial court indicated that

Appellant pled guilty to attempted voluntary manslaughter, a class D felony. The judgment form lists “att

2 degree murder” as the conviction offense and Class B is circled. There is no amended judgment in the

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record. When there is a conflict between the transcript and the judgment form, the transcript controls. See,

e.g., State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). We must remand the matter for entry

of a corrected judgment. On remand, the trial court should enter a corrected judgment to reflect Appellant’s

conviction as attempted voluntary manslaughter, a Class D felony.

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The police interviewed [Appellant] at the station and [he] signed and admitted

to stabbing the victim. . . . The victim is happy with the settlement.

The trial court accepted the guilty plea at the conclusion of the hearing.

At a sentencing hearing, the trial court heard testimony from the victim, Mark

Chandler. At the time, he was thirty-six years old and lived at the Rescue Mission. Mr.

Chandler recalled meeting Appellant about two weeks prior to the stabbing during a drug

transaction. The two men got into a physical altercation regarding the price and amount of

marijuana Mr. Chandler was going to sell to Appellant. Mr. Chandler did not recall specifics

of the fight but contemplated that Appellant was the winner.

On the morning of the stabbing, Mr. Chandler fell asleep in a chair in the common

room of the Rescue Mission. When he awoke, he had the feeling that he was being punched

in the chest. When he opened his eyes, he saw Appellant stabbing him with a knife. Mr.

Chandler tried to run away; Appellant continued to stab him.

Mr. Chandler had surgery to repair his lungs and was in the intensive care unit for four

days. At the time of trial, he was still experiencing numbness in one of his hands.

Appellant took the stand at the hearing. Appellant testified that in early 2007 his

marriage was suffering. Appellant went to live at the Rescue Mission and started using drugs

again. Appellant met Mr. Chandler during a drug transaction on Murfreesboro Road.

Appellant tried to call off the deal during the transaction. According to Appellant, Mr.

Chandler got belligerent and refused to call off the deal. The men fought. Appellant testified

that Mr. Chandler and another man held him to the ground while beating him and searching

his pockets. Mr. Chandler stole Appellant’s wallet. Appellant’s glasses were also knocked

off during the altercation.

Appellant testified that he saw Mr. Chandler about three or four days later at the

Rescue Mission. When Appellant saw Mr. Chandler that morning, he felt nervous and

frightened. Appellant’s glasses and clothing were missing. Appellant claimed that he got

a knife from his locker because he was afraid of Mr. Chandler. Appellant stated that when

Mr. Chandler fell asleep, Appellant stabbed him.

Appellant introduced proof at the sentencing hearing to show that he was raised in

Georgia and entered the Air Force after high school. Appellant served in the Air Force for

four years before being honorably discharged. Appellant later served in the Air National

Guard. Appellant had several years of college from Savannah University but did not

graduate. Appellant testified that he started doing drugs while he was in the military in order

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to cope with “traumatic things that happened to [him] on Okinawa.” Appellant testified that

his drug use led to a theft conviction in 1990. Appellant also admitted that he had charges

for failure to pay chid support and assault.

In addition to his military background, Appellant has had several jobsin the restaurant

business, HVAC installation, a volunteer preacher, and mentor for children at the Juvenile

Justice Center.

Appellant has several health issues, including hypertension and Hepatitis. Appellant

sought help with these chronic conditions through Nashville Cares. Appellant had a

placement pending in a recovery house in the event that the trial court granted probation.

At the conclusion of the sentencing hearing, the trial court determined:

I’m not saying that this man right here, [Appellant], doesn’t have good

qualities. And I’m not saying that he doesn’t have some certificates. I’m not

saying he wasn’t a minister. I’m not saying that he didn’t have a nice lady.

And I’m not saying he’s not a good man and that his parents [are] probably as

good as they can be. God bless them. I’m not saying any of that is bad. . . .

This man was, apparently, either dozing off or resting or whatever and

this gentlemen did this act. Now, this happened on February the 9 ,

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apparently, of ‘07. In the year of ‘06, this man right here, [Appellant] I’ve

already said [had] some good qualities was convicted of assault and went to

[become] some kind of save[d] person. He was put on probation. He violated

probation. He went to Buffalo Valley for a couple of months and was

terminated. He was convicting [sic] in 2001 of assault, here, in Davidson

County. Got a nine month sentence at thirty percent, suspended all but ten

days, put in an anger management course. Later on, apparently, that was

revoked. He had a criminal trespass charge here.

He had all of these different charges. . . .

. . . .

But the Court is not of the opinion that this is a kind of case for

probation. But for the grace of God, who he professes to believe in. I take

him, clearly, at his word. I think he’s sincere about those things, this man

would have been dead. I mean, he was stabbed repeatedly, over and over,

again. . . .

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So the time he’s served in jail, obviously, he gets credit for anything.

And he’ll be probably paroled within a year or so. But to put him out on

probation after all of these different probation matters, when he’s been given

chances in General Sessions Court, two or three different times, and in other

courts, I don’t believe, is responsible for this Court. So I don’t intend to

depreciate the seriousness of this. . . .

In other words, the trial court denied probation. Appellant filed a timely notice of appeal,

challenging the denial of alternative sentencing.

Analysis

On appeal, Appellant argues that the trial court improperly denied alternative

sentencing. Specifically, Appellant argues that his sentence was “unwarranted and

unnecessary” because the trial court inappropriately weighed the “nature of the offense” in

denying probation. Further, Appellant argues that the trial court based its decision on

speculation that Appellant would receive probation “in a year or so.” Finally, Appellant

argues that the trial court ignored Appellant’s strong potential for rehabilitation. The State,

on the other hand, argues that the trial court properly denied alternative sentencing after a

consideration of all of the sentencing guidelines.

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo

review on the record of the issues. The review shall be conducted 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). “[T]he presumption of correctness ‘is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant

bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at

169.

With regard to alternative sentencing, Tennessee Code Annotated section

40-35-102(5) provides as follows:

In recognition that state prison capacities and the funds to build and maintain

them are limited, convicted felons committing the most severe offenses,

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possessing criminal histories evincing a clear disregard for the laws and morals

of society, and evincing failure of past efforts at rehabilitation shall be given

first priority regarding sentencing involving incarceration . . . .

A defendant who does not fall within this class of offenders:

[A]nd who is an especially mitigated offender 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 . . .

. A court shall consider, but is not bound by, this advisory sentencing

guideline.

T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. For offenses committed on or

after June 7, 2005, a defendant is eligible for probation if the sentence actually imposed is

ten years or less. See T.C.A. § 40-35-303(a) (2006).

All offenders who meet the criteria for alternative sentencing are not entitled to relief;

instead, sentencing issues must be determined by the facts and circumstances of each case.

See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727

S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate for alternative

sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court may deny

an alternative sentence because:

(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 . . . .

T.C.A. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial

court should also consider Tennessee Code Annotated section 40-35-103(5), which states,

in pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of the

defendant should be considered in determining the sentence alternative or length of a term

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to be imposed.” T.C.A. § 40-35-103(5); see also 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, the trial court stated that it did not want to depreciate the

seriousness of the offense, commenting specifically on the number of stab wounds and the

manner in which the attack occurred as well as the fact that the victim could have died. The

trial court concluded that this was not the “kind of case for probation.” Additionally, the

trial court noted that Appellant had previously failed on probation several times. The trial

court commented on Appellant’s criminal history and lack of success at previous attempts

at alternatives to incarceration. We conclude that the evidence presented supports the

decision of the trial court, and the trial court did not abuse its discretion in ordering Appellant

to serve the sentence in confinement. The evidence at the sentencing hearing showed that

Appellant had several prior assault convictions and the victim suffered over fifty stab wounds

during the attack. Further, Appellant had at least one instance of a probation violation and

one instance of a revocation of probation. The trial court based its decision on all three

subsections of Tennessee Code Annotated section 40-35-103(1). We find no evidence to

support the reversal of the trial court’s denial of full probation. Therefore, this issue is

without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. However, the

matter is remanded to the trial court for entry of a corrected judgment to reflect that

Appellant pled guilty to attempted voluntary manslaughter, a Class D felony.

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JERRY L. SMITH, JUDGE

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