### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 2000 Session

STATE OF TEN

NESSEE v. J

AMES HENRY

DAVIS

Appeal from the Criminal Court for White County No. CR 247 Leon Burns, Jr., Judge

No. M1999-02467-CCA-R3-CD - Filed August 2, 2000

The Defendant pleaded guilty to the offense of second deg ree mur der. Sentencing was left to the discretion of the trial court. Following a sentencing hearing, the trial judge sentenced the Defendant
to twenty-four years in the Department of Correction. On appeal, the Defendant challenges the length of his sente

nce. We modify the

sentence to twen

ty-two years.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Trial Court

Modified.

D AVID H. W ELLES , J., delivered the opinion of the court, in

which A LAN E. G LENN , J., and C ORNELIA A. C LARK , S P

. J., joined.

John B. Nisbett, III

, Cookeville, Tenn

essee, for the a

ppellant, James He

nry Davis.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; Bill Gibson, District Attorney General; William M. Locke, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant, James Henry Davis, h as a long histo ry of mental illness. At the time the victim was killed, she and the Defen dant had be en “dating,” although the record is unclear concerning the duration or nature of their relationship. On August 11, 1997, the victim returned to her home from the White

County Hospital,

where she was employed. She arrived at her home a few minutes after eleven p.m. Her daughter, who was about fourteen years

old at the time, was at

home when she returned. Hearing her mother arrive at the house,the victim's daughter turned on the porch light and went

to the door to meet her

mother. At that time, the Defendant, who apparently had been waitin g for the victim's return, came running up to the victim and viciously attacked her with a butcher knife. The victim attempted to defend herself, but she was stabbed and slashed numerous times about her face

, arms and torso. She died shortly thereafter. Immediately after the attack, the Defendant

r an from the scene. A short time after the killing, the Defendant apparently turned himself in at the Wh

ite County Sheriff' s Department.-2-

The Defendant was indicted for the premeditated first degree murd er of the victim. Following a mental evaluation and treatment, and after numerous pretrial motions, the D efendant entered into a negotiated ple a agreement, under which he pleaded guilty to the lesser-included offense of second degree murder. After a senten cing he aring, the trial ju dge sentenced hi

m to twenty-four

years in the Depa

rtment of Correc

tion, which is

one year less

than the twenty-five year maximum sentence for a Class A felony. It is from the sentence imposed by the trial judge that the Defendant appe

als.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial c

ourt are corre

ct. Tenn. Code An n. § 40-35-401(d) . This presumption is “conditioned upon the affirmative s howing in the record that the trial court considered the sentencing principles and al

l relevant facts and

circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sent ence, this Court mus

t consider: (a) the evidence, if any, received at the trial and sentencing h earing; (b) the presentence report; (c) the principles of sentencing and arguments a s to sentencing a

lternatives; (d)

the nature and c

haracteristics of th e criminal conduc t involved ; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defend ant regar ding sentencing; and (g) the potential or lack of potential for rehabilitation or

treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

The presumptive sentence for a C lass A felony is the mid-point of the range if there are no enhancement

and mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are mitigating and enhancement

factors, the sentencing cour t must start at the middle of the range, enhance the sentence based upon applicable enhancement factors, and then reduce the sentence ba sed upon a pplicable mitigating factors. Id. § 40-35-210(e). The weight to be giv en to each facto

r is within the discretion of the sentencing co

urt so long as the re

cord supports

the court's findings and the court complie s with the 1989 Sentencing Ac

t. See State v. Shropshire , 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993).

If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence a fter ha ving given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sentence even if we would ha ve preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The presentence re

port reflects tha

t at the time of sent

encing, the Defe

ndant was forty- six
years old and divorced, with two children. He dro

pped out of school i

n the ninth grade. He had not been employed during the sixteen years preceding his arrest on this charge, and during this time he had been receiving

social security d

isabilit y p ayments. He had no prior record of arrests or convictions.-3-

Attached to the presentence report were various records concerning the Defendant's mental illness and history of mental health treatment. The Defendant was apparently hospitalized and/or treated at several institutions beginning in approximately 1981 and continuing until the time of his incarceration. He was hospitalized and/or treated at the Plateau Mental Health Center in Cookeville, the Middle

Tennessee Mental Health Center in Nashville, the HCA Parthenon Pavilion in Nashville, the Parkvie w Medical Ce nter in Nashville a

nd the Mocassin Ben

d Mental Health In

stitute in Chattanooga. His diagnoses include d schizophrenia

, “chronic psych

iatric disease, possibly related to organic brain s

yndrome,” and pos sible “manic depr essive” type illne

sses.

Dr. William T. Kenner, a medical doctor who specializes in p sychiatry, testified for the defense. He stated that the Defendant had a long, seventeen-year hist ory of mental illness. He testified that he had reviewed the Defendant's medical records and had seen the Defendant on two separate occasions. He sta

ted the Defenda

nt had been diagno

sed as psychotic

and that in the course of his treatment and hospitalization at the Parthenon Pavilion, Vanderbilt Hospital, M id dle Tennessee Mental Heal th Ins titute, Mocassin Bend Mental Health Institute and Plateau Mental Health Center, the Defendant's diagnosis had remained as that of schizophrenia. He stated that early during the course

of the Defendan

t's illness, he was d

iagnosed as para

noid schizophrenic,

but as his illness progresse

d, the diagnosis had moved on toward “un differentiated schizophrenia w

ith paranoid features.” He said this change was typical with individuals who are schizop hreni c in that they experience

“a grad ual and severe deterioration in their overall personality.” He testified that the Defendant

was hospitalized at

Mocassin Bend just two months before the crime, and at that time he

was again described

as schizophrenic

and quite disorganized, and “his ability to function then was extremely poor.” He stated that when the Defendant stayed on his prescribed medications he would get better, but

that his medication had detrimental side effects, and the Defendant, like many other patients, would sometimes stop taking his medication. Dr. Kenner testified that in his opinion, at the time the victim was murdered, the Defenda nt's mental condition would have supported and merited an insanity defense.

In arriving at the Defendant's s entence, the trial court applied four enhancement factors which he found would be sufficient to raise the sentence to the maximum of twenty-five years: (1) the Defendant

treated or allowed

a victim to be treated with exceptional cruelty during the commission of an offense; (2) the personal injuries inflicted upon the victim were p articularly great; (3) the Defendant

possessed or employed a deadly weapon during the commission of the offense; and (4)
t he Defendant had no hesitation about committing a crime when the risk to human life was high

. See Tenn. Code Ann. § 40-35-114(5), (6), (9), (10).

As mitigating factor

s, the trial court fi

rst found as the “s

trongest of all the

mitigating factor

s” that the Defendant was suffering from a mental condition that significantly reduced his culp

ability for the offense. See id. § 40-35-113(8). W hile the judge state

d that he did not know

the extent to which the Defendant's culpability was reduced due to his mental condition, the court clearly found that this mitigating factor should be applied. As additional mitigating factors, the court stated that it was considering the Defendant's lack of a ny history of

previous criminal behavior or criminal convictions and the Defendant's good reputation in the community. See id. § 40-35-113(13).1 According to t he transcr

ipt, t he court repor

ter's recording devi

ce malfuncti

oned, and the last one m inute of the trial cour t's ruling wa s not availa ble as a par t of the transc ript.

-4- After weighing the mitigating factors against the enhancemen

t factors, the trial court set the Defendant's sentence at

twenty-four yea

rs, which was one

year less than the maximum. It appears that the trial court found the four enhancement factors were sufficient to enhance the sentence to the maximum and that the mitigating factors were sufficient to reduce the sentence one year below the maximum. 1

Although the Defe

ndant does not spec

ifically contest

the applicability of

the enhancement factors, based on our de novo review we must conclude that the trial judge erred in its application of two of the enhanc

eme nt fac tors. Enhancement factors may not be considered if the factors themselves are essential elements of the offense. See id. § 40-35-11 4. In a homic ide case, the personal injuries inflicted upon the homicide victim are by definition “particularly great.” The killing of a person necessarily includes the infliction of g reat bodi ly injury. For this reason, enhancement

factor (6) is inapplicable. See State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). Likewise, we must conclude that the trial court erred in applying as an enhancement factor that the Defendant had no hesitation about com mittin g a crime when the risk to human life

was high. This enhancement factor cannot be used to e

nhance the Defe

ndant's sentence

because it is in herent in the offense of second degree murder. State v. Belser , 945 S.W.2d 776, 792 (Tenn

. Crim. App. 1996); see also S tate v. Butler , 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994). Although this factor may be applicable to a sentence for a homicide if a defendant created a high risk
to a life other than that of the victim, see State v. Bingham , 910 S.W.2d 448, 452 -53 (Tenn. Crim. App. 1995), in the case

at bar, there is n

o evidence in the

record to suppor

t a fin ding that the Defendant's actions created a high risk to the life of the victim's daughter, who was the only other person present. She testified that she did not know if the Defendant even saw her.

In the c ase a t bar, the trial court found that the four enhancement factors it applied were sufficient to raise the sentence from the presumptive starting point of twenty years to the maximum of twenty-five yea

rs. Because we have concluded that the trial court erred in its application of two of the four factor

s, we believe the

remaining enhanc

ement factors jus

tify raising the se

ntence to twenty-three years. At the sentencing hearing, the State argued that the Defendant 's mental c ondition

was a factor which was considered in allowing the Defendant to plead guilty to second degree murder instead of facing trial for first degree murd er . We recognize that a trial court may look behind a plea agreement and consider the nature of the offense committed. See State v. Hollingsworth

, 647 S.W.2d 937, 939 (Tenn . 1983); State v. Biggs , 769 S.W.2d 506, 507 (Tenn. Crim. App. 1998 ). In this case, the trial judge determined that the Defendant's mental condition should be considered as a mitigating factor. Se e T enn. Code Ann. § 40-35-113(8). Based on our review of the record, we agree with the trial court's finding in that regard. We also note that the trial
court gave some consideration to other factors in mitigation. See id. § 40-35-113(13). Based on our de novo review of the record in this case, we modify the Defendant's sentence by ordering that he serve twenty-two years in the Department of Correction.-5- ___________________________________ DAVID H. WELLES, JUDGE