IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 26, 2019

STATE OF TENNESSEE v. TOREY MARTEZ UNDERWOOD

Appeal from the Criminal Court for Knox County

No. 108578 Scott Green, Judge

No. E2018-00811-CCA-R3-CD

The defendant, Torey Martez Underwood, appeals the Knox County Criminal Court’s

denial of alternative sentencing for his guilty-pleaded conviction of attempted second

degree murder. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE, and D. KELLY THOMAS, JR., JJ., joined.

John Halstead, Assistant District Public Defender, for the appellant, Torey Martez

Underwood.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant 

Attorney General; Charme Allen, District Attorney General; and Leslie Nassios, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On November 20, 2017, the defendant, Torey Martez Underwood, pleaded 

guilty to one count of attempted second degree murder. Pursuant to the plea agreement, 

the defendant received an agreed-upon sentence of nine years as a Range I offender, and 

the State dismissed the charge of attempted first degree murder. After a sentencing 

hearing, the trial court ordered the defendant to serve the entire sentence in confinement. 

The defendant filed this timely appeal, asserting that the trial court erred by imposing a 

fully-incarcerative sentence.

At the plea submission hearing, the State provided the following summary 

of the offense:

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[T]he defendant was married to a woman named Jessica 

Underwood, who had a child with the victim in this case, 

Noel Djenini.

. . . [T]he parties had met at a location on East 

Magnolia on April the 23rd, 2016 in Knox County for the 

purpose of Mr. Djenini seeing his four year-old child. 

Apparently there was an argument between Mr. Djenini and 

Jessica Underwood. . . . Mr. Djenini was outside his vehicle, 

was in front of a business place. And . . . Jessica Underwood 

said some things to the defendant, . . . who was in the vehicle 

with her. He got out of the vehicle. The assault on Mr. 

Djenini was on video. The video . . . shows that Mr. Djenini 

ha[d] his back to the defendant. There [wa]s absolutely no 

conversation between them. No altercation. And the 

defendant jumped him.

The [defendant] . . . stabbed him four times causing 

serious bodily injury. He then fled the scene. Mr. Djenini 

received a stab wound to his heart that would have been lethal 

without medical intervention. He was stabbed behind the left 

ear. He was stabbed [in] another place in the back. It was not 

a life threatening injury. And he was stabbed very close to 

his spinal column in the back with the fourth wound. . . . 

[H]e was very close, . . . had he not received medical 

intervention[,] to death.

He was in the hospital for several days. After his 

discharge, he was out of work for about three and a half 

months. And had a very long, prolonged rehab. This was an 

unprovoked assault . . . according to the witnesses who were 

present at the case . . . .

The defendant added to the State’s summary that Ms. Underwood asked the 

defendant “what kind of man doesn’t stand up for his wife[?]” and “why didn’t you do 

anything?” The defendant stated that it was “after hearing his wife say all these things to 

him that [he] then went and committed this crime.”

At the sentencing hearing, the defendant made a brief statement, but neither 

the defendant nor the State called any witnesses. The victim was not present at the 
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hearing, but the presentence investigation report containing a victim impact statement 

was exhibited to the hearing. An enhanced probation report was also exhibited. The 

presentence investigation report showed that the defendant’s criminal history included 

only one misdemeanor conviction for a driving violation and a dismissed charge for 

domestic assault. The State requested a fully-incarcerative sentence, emphasizing that 

the defendant was deemed “a high risk for violence,” had few family connections, was 

not employed, did not graduate from high school, and had anger and mental health issues. 

The defendant argued for a split confinement sentence highlighting that his only prior 

conviction was for a driving offense, his limited cognitive abilities made it difficult for 

him to maintain stable employment, he suffered from “a heart problem,” and he 

committed the present offense only after Ms. Underwood provoked him. The defendant 

explained that he had arranged to receive treatment at Cherokee Health and to continue 

consulting with a social worker if he were granted an alternative sentence.

In rendering its decision to impose a fully-incarcerative sentence, the trial 

court considered the severity of the crime, the injury to the victim, and the fact that the 

crime was committed in front of the victim’s young child1and ordered the defendant to 

serve his full sentence in confinement.

The defendant appeals the imposition of a fully-incarcerative sentence, 

arguing that the defendant “was an appropriate candidate for alternative sentencing” but 

that the trial court “focused solely on the severity of the offense” without considering 

“the factors favoring alternative sentencing.” The defendant further asserts that his 

offense was “not an especially violent or horrifying attempted second degree murder.” 

The State contends that the trial court did not err.

Our supreme court has adopted an abuse of discretion standard of review 

for sentencing and has prescribed “a presumption of reasonableness to within-range 

sentencing decisions that reflect a proper application of the purposes and principles of our 

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of 

the purposes and principles of sentencing involves a consideration of “[t]he potential or 

lack of potential for the rehabilitation or treatment of the defendant . . . in determining the 

sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial 

courts are “required under the 2005 amendments to ‘place on the record, either orally or 

in writing, what enhancement or mitigating factors were considered, if any, as well as the 

reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380 

S.W.3d at 706 n. 41 (quoting T.C.A. § 40-35-210(e)). The abuse-of-discretion standard 

 

1 Although the trial court identified the victim’s son as being three years old at the time of the 

offense, the facts recited at the plea submission hearing indicated that the child was four years old.
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of review and the presumption of reasonableness also applies to “questions related to 

probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 

(Tenn. 2012).

Although the trial court must consider the defendant’s potential for 

rehabilitation in determining whether to impose an alternative sentence, see T.C.A. § 40-

35-103(5), “[c]onvicted felons committing the most severe offenses, possessing criminal 

histories evincing a clear disregard for the laws and morals of society and evincing failure 

of past efforts at rehabilitation” are not considered favorable candidates for alternative 

sentencing, id. § 40-35-102(5)-(6)(A).

When a trial court orders confinement and therefore rejects any form of 

alternative sentencing such as probation, split confinement, or periodic confinement, it 

must base the decision to confine the defendant upon the considerations set forth in Code 

section 40-35-103(1), which provides:

(1) Sentences involving confinement should be based on the 

following considerations:

(A) Confinement is necessary to protect society 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). When the circumstances of the offense serves as the sole basis 

for denying alternative sentencing, those circumstances must be “especially violent, 

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or 

exaggerated degree.” State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991).

In determining the manner of service of the defendant’s sentence, the trial 

court pointed to the severity of the offense, the serious injury to the victim, and that the 

offense was committed in the presence of the victim’s young son. The record supports 
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these findings. The defendant’s criminal record reveals only a prior conviction for a 

misdemeanor driving violation and a dismissed charge of domestic assault, and he has no 

prior violations of non-incarcerative sentences. As such, the denial of alternative 

sentencing in this case was based solely on the circumstances of the offense. The record 

shows that the defendant attacked the victim from behind, stabbing him four times and 

causing life-threatening injuries that required the victim to undergo open heart surgery. 

Committing such an offense in the presence of a four-year-old child satisfies the 

requirement that the offense be “especially violent, horrifying, shocking, reprehensible, 

[and] offensive.” See Hartley, 818 S.W.2d at 374. The circumstances of this offense 

support the trial court’s denial of alternative sentencing.

Accordingly, we discern no error in the trial court’s decision to impose a 

fully-incarcerative sentence, and we affirm the judgment of the trial court.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE