1 The indi ctmen t al lege d the off ense date as Apri l 21, 2002. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Decem ber 14, 200 4 Session

STATE OF TENN ESSEE v. GEORGE LEBR ON JOHNSON
Appeal from the Criminal Court for Hamilton County No. 241881 Douglas A. Meyer, Judge

No. E2004-00834-CCA-R3-CD - Filed Marc h 1, 2005

The Hamilton County Criminal Court Grand Jury indicted the defend ant, G eorge Lebron Johnson,
on two counts of attempt

to commit first degree murder. He ente red into a n agre ement wit

h the state to plead g

uilty to two cou

nts of aggr avated assault in exchange for concur rent six-year, Rang e I sentenc es. The agreement provided that the trial court would determine the manner of service of the effective six-year sentence

. On January 9, 2004, the trial court ordered him to serve the effe ctive sentence in confinement. On February 6, 2004, the defendant moved the court to a

llow him to withdrawhis guilty pleas and for a ne w trial on the issue of the ma nner of s ervice

of his sentenc es. The trial court denied

both m otion s, an d the

defe ndan t has a ppea led. We affirm the judgments of the trial court.
Tenn. R. App. P. 3; Judg ments o f the Crim inal Court

are Affirm ed; Case

Remande d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Melanie R. Snipes, Chattanooga, Tennessee, for the Appe llant, George L ebron Johnson.

Paul G. Summers, Attorne y Genera l & Repor

ter; Rene e W. Turne

r, Assista nt Attorne

y G eneral ; William H. Cox, I II , Distric t Attorne y G eneral ; and L ila

Statom, Ass istant Dist

rict Attor ney Genera l, for the Appellee, State of Tennessee.

OPINION

At the sente ncing heari ng, the victim Terrance Brow n testified that on April 22, 2002, 1 he was driving his car and was ac companied by Tiff any McCrary a

nd another female, when the defenda

nt “swer ved in fr ont” of Mr . Brown ’s car a nd force d him

to stop. He testified that the defendant then j um ped out of

his car a nd “unloa ded his we apon into m

y ve hicle [and

] hit me six times.” As a r

esult of his gunshot wo

unds, Mr. B rown

was h ospitalize d for abo ut si x weeks. He-2-

testified that a bullet is still located in his neck in a precarious place and that neurolog ical pro blems could result from “horseplay ing and all that.”

The officer who investigated the shooting testified at the sentencing hearing that the defendant admitted to shooting the victim. The defendan t had claim ed that the shooting was the result of Mr. Brown’s dispute with a friend of the defe ndant over some “hub caps.” The officer testified that when the defendant fired upon Mr. Brow n’s car, a female

in the car was shot in the thigh.

The presentence report revea led that the 31-y ear-ol d defendant had previously been convicted of auto burglary

(1991); theft (1991); criminal trespass (1991); attempted larceny (1991); possession of drug paraphernalia (1991) ; possession of cocai ne (1991); sale of cocaine (1992); possession of cocaine (1992); violation of driver’s license law

(1994); d riving on a revok

ed licen se (1994); disorderly c onduct (1995); unlawful possession of a weapon (1995); driving on a revoked licens e (1996); possession of cocaine (1996); failure to appea r (1997); and assault (1998). On at least two occasions, the defendant was appar ently on probation when he re-offended.

The defendant’s wife tes t ified on his behalf. She stated that she and the defendant had been married since 1996 and had three children. She testified that both she and the defe ndant
are employed and that the de fendant stays a t home when he is not working. The defendant’s mother testified about his positive qualities of industry and family devotion.

Inconsideri ng the manner of service of the de fendant’s sentence, the trial court appl ied the following enhancement factors: The de fendant had a previous history of criminal convictions or criminal behavior in addition to that necessary

to establish the appropriate sentencing range, Tenn. Code Ann. § 40-35-114(2) (2003); the offense involved more than one victim, id. § 40- 35-114(4); the pers onal injur ies inflicted upon the victim were particularly

great, id. § 40-35-114(7); the defe ndant had a previo us history of unwilli

ngness to comply

with the conditions of

a sentence involving release in the community , id. § 40-35-114(9); and the crime was committed un dercircumstanc es under

which the

potentia l for bodi ly

injury to a victim was great, id. § 40-35-114(17). Inmitigation, the trial court fou nd that s ince the offense in question, the defendant has exhibited responsi ble behavior

to wa rd his family. The cour t concluded that the enhancement factors fa r outweighed

the mitigating factor

and comme

nted that “any one who f ires a weapon a t somebody

else should serve active time.” On Januar y 9, 2004, the

court en tered its judgment ordering the defenda nt to serve his six-year sentenc e in incarceration.

OnFebruary

6, 2004, the defendant filed moti ons for a new tria l and for leave to withdrawhis guilty pleas. See Tenn. R. Crim. P. 33 (new trial), 32(f) (m otion to wit h draw g uilty plea). At the hearing on the motions, counsel for the defenda nt asserted that the defendant pleaded guilty believin g that he would re ceiv e probation . The state introduced the transcript of the defendant’s plea submission hearing. During the plea colloquy , t he trial court said, “[Y]our
s entencing

hearing could be put over to a later da te, the manner of y

our sentence, d etermine

th e manner of your sent

ence; is th at understood?” The defendant made no response. Following the-3-

argume nt of co unsel at the motions hearing, the trial court found that the defenda nt had not established

that his plea was based upon an understanding that he would r eceive pr oba tion. The court denied both motions, and the defendant timely appealed.

Alth ough the issue has not been raised by the parties, we take this opportunity to point outthat we ha

ve consid

ered wh ether th e tria l co urt had subject matter jurisdiction to enter convictions of aggravated assault. Count (1) o f the indic tment alle ged an

April 21, 2 002 attem

pt to kill Terrance Brown. Count (2) alleg ed an attempt on the same date to ki ll Tiffany Mc Crary. The indictmentlangua

ge con tained no allega tion of se rious bodi ly in

jury to either victim. Pur suant to Tennessee law, aggravated assa ult is not a lesser included offense of the charg ed offenses of attempt to commit first degree murder. State v. Tr usty , 919 S.W.2d 305, 312 (Tenn. 1996), overrule d in part byState v. Dominy , 6 S.W.3d 472 ( Tenn. 199 9); State v. Joshua Lee Williams , No. W2000-01435- CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Jackson, June 27, 2001); State v. Christopher Todd Brown , N o. M1999-00691-CCA- R3-CD, slip op. at 3-4 (Tenn. Crim. App., Nashville, Mar. 9, 2000); State v. Roscoe L. Graham , No. 02C01-9507-CR-00189, slip op. at 21 (Tenn. Crim. App., Jackson, Apr. 20, 1999). As such, aggrava ted assault is not charg ed in the in dictment. Nevertheless, our supreme court ha s held tha

t an amen

dment of a

n indictm en t for attempt to commit first degree murder results when the defendant enters into an agreement to plead guilty to aggravated assault and the judgment specifies that the charge d offense was amended to aggrava ted assault. State

v. Yoreck , 133 S.W.3d 606, 612 (Tenn. 2004). In thepresent case, the judgment for count (1) makes no specif

ic provision for amendment of the indictment, but the judgment for count (2) specifically recites that the charge i s amended to ag gravated assault. We conclude pursuant to Yorek that count (2) was amended to charge agg

ravated assault, and

moreover, we believe the facts of the case indica te that count (1) was e ffectiv ely

amended to charge aggravated assault as well. The indictment alleged that the offenses were committed on the same date; the singular plea ag reemen t embrac es pleas

on both counts; and the agreement prescr ibes conc urrent s ervice

of identic al sente

nces. We f

ind it diff icult to believe that the parties and the trial court did not intend to amend both counts. We will instruct the trial court to correct its judgment on count (1), but otherwise we shall proceed to adjudicate the defendant’s issues on his convictions of aggr avated assault.

Inhis first issue, the defendant claims that the trial court erred in deny ing an alternative sentence. When there is a challenge to the length, range, or manner of service of a sentence, it is the dut

y of this cour t to conduc

t a de novo review of the record with a presumption that the determinations made by the trial court are correc t. Tenn. Code Ann. § 40-35-401(d) (2003). This presumpt

ion is cond

itioned up on the af

firmativ e showing

in the re cord tha

t t he trial cou rt considered

the sentencing principles and all r elevant facts a nd circu mstance s. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the

event the record fails to demonstra te the required consideration by the trial court, review of the sentence is purel y de novo
. Id. If appellate re view reflects the trial court properl y considered all relevant factors and its finding s of fact are adequa tely supported by the record, this court must affirm the sentence, even if we would have preferred a

different result. State v. Bolling , 75 S.W.3d 418, 420 (Tenn. Crim. App. 2001).-4- Inmaking its sentencing determination, the trial court, at the “conclu sio n of the sentencinghearing” and after de termining the range of sentenc e and the specific s entence , th en determines the propriety of se ntencing alternatives by c onsidering (1) the evidence, if any , received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of se ntencing and argume nts as to sentencing alternatives; (4) the nature and characteristics of the crim inal conduct involved; (5) evidence and information offere d by the parties on the e nhancemen

t and mitig ating factor s; (6) any state ments the de fendan t wis hes to make i n the d efenda nt’s b ehalf a bout sente ncing; and (7) the potential for rehabilitation or treatment. Id. ; see Tenn. Code Ann. § 40-35-210(a), (b), -103 (5) (2003).

A defenda

nt who “is a

n especi ally

mitigate d or stand

ard off ender c onvicted

of a Class C, D, or E felony is pre sumed to be a favor able ca ndidate for alternative sentencing options in the absence of evidence to the contrary .” Tenn. Code Ann. § 40-35-102(6) (2003). Our sentencing law also provides

that “co nvicted f

elons c om mitting the most severe offenses, possessing criminal hist ories evinc ing a clear disregard for the laws and mora

ls of socie

ty, and evinc ing fai lure of p ast efforts at reha bilitation , shall be

given f irst prior ity r egard ing sent ences in volving incarceration.” Id. § 40-35-102(5) (2003). Thus, a defendant who mee ts the above criteria is presumed eligible for alternative sentenc ing unle ss suffic ient evid ence re buts the presumption. However, the Act does not provide that all offenders who meet the criteria ar e entitled t o su ch relief; rather, it requires that sentencingissues be determined by the f acts and circumstances presented in ea ch case. Bolling , 75 S.W.3d at 420.

Consideration of th e evidence and information offered on the enhancement and mitigati n g factors is relevant to determination of “the appropria te combination of sentencing alternatives that

shall be imposed on the defendant.” Tenn. Code Ann. § 40-35-210(b)(5) (2003);
see Bolling , 75 S.W.3d at 421; Donald Hig bee v. S tate , No. 0 3C01-9808 -CR-00286 , slip op. a t 7 (Tenn. Crim. App., Knoxville, Dec. 3, 1999).

Inthe present case, the defendant, a Rang e I offender , enjoyed the pre sumption of favora ble candida

cy for alte rnative sentenc ing for

his Class C felonie s. See Tenn. Code Ann. § 40-35-102(6) (2003). Moreover, he was eligible for probation. See id. § 40-35-303(a) (defendant receiving sentence of eig

ht years or le ss generally

eligible for probation).

Unlike the presumption of favorable candidacy for alternative sentencing in gene ral,
a defendant bears the burden of demonstrating the suitability of probation, in particular. State v. Bingha m , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by Stat e v

. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). To meet that burden, the defendant must show that probation will “subserve the ends of justice and the best interest of both the public and the defendant.” Id. at 456 (citatio n omitted) . In that reg ard, the trial cou rt appro priately considers the defendant’s candor and cr ed ib il it y, or lack thereof, as indicators of his potential for reha bilitation. See, e.g., State v. Nunley , 22 S.W.3d 282, 289 (Ten n. Crim. Ap

p. 1999); State v. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).-5- Inthe present case, the defendant establishe d no entitlement to full probation, and moreover, his statutory favorable candidacy

for alternative sentencing was ove rcom e by his long history of criminal conduct, see Tenn. Code Ann. § 40-35-103(1)(A) (2003) (conf inement may be based on necessity to “prote ct society by restraining a defendant who has a long history

of criminal
co nduct”), and his previous failure to complete terms of probation without re-offending , see id. § 40-35-10 3(1)(C)(confinement may be based upon the fact that “measures less re strictive than confinement

have frequently

or recently

been applied unsuccessfully to the defendant”). The record cogen tly supports the trial court’s determination that the d efendant should s erve the six-year sentence in incarceration.

Inhis next issue, the defendant claims that the trial court erred i n deny ing his motion to withdrawhis guilty plea. Af ter sentencing but before a trial c ourt’s judgment becomes final, the court “may set aside

the judgment of conviction and permit the de fe nd an t t o w it hd ra w t he [g ui lt y] plea” as a means of correcting “manife st

injustice .” Tenn. R. Crim. P. 32 (f). “T he term ‘ manifest injustice’ is not defined by either the rule or the cases that

have applied the rule. Whether there has been ‘manife st injustic e’ must be determined by

the trial courts a nd the app ellate c ourts on a case by case ba sis.” State v. Tu rner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).

A trial court may pe

r mi t the withd

rawal of a plea of

guilty to preve nt manife st injustice when it is established that the plea was the result of coe rcion, fraud, duress, mistake, or fear. Id. Manifest inj u stice may also re sult from a “gross misrepresentation” made by the prosecutor, the prose cutor’s withholdin

g of mat erial, exculpatory evidence that influences the entry of the plea, or from a plea of guilty that was not voluntarily, understanding ly, or knowingly

entered. Id. “Conversely, a

trial court will not, as a general rule, permit the withdraw al of a pl ea of g uilty to prevent ‘manife st injustice’ when the basis of the relie f is pr edicat ed upo n (a) an accuse d’s ‘ch ange of h eart,’ (b) the entry

of the plea to avoid harsher punishment, or (c) an a ccused’s dissatisfaction with the harsh punishment imposed by a trial cour t or a jury.” Id.

Si gn if ic an tl y, the accused

has the burden of establishing that the plea of g uilty should be withdrawn to prevent manifest injustice. Id.

To be sure, neither the written plea ag reement nor the pl ea submission colloquy explicitly mentioned that the trial judge would determine whether any or all of the effective six-y ear s ent ence would be served on probation. Thus, although the recor d may have c orroborated the defendant’s testimony that he believed probation was a component of the plea ag reement, the record without such testimony

does not establish that the defendant held this belief. The burden rested upon the defendant to show that manifest injustice existed. Because he did not testify or otherwise prove that he believed the state had agreed to probation, he faile d to estab lish in the t rial cou rt his cla im of manifest injustice. As a matter of appellate review, we discern no basis for

overturningthe trial court’s determination.

Accordingly , the judgments of the trial court are affir med.-6- ___________________________________ JAMES CURWOOD WITT, JR., JUDGE