A de f end ant ent ers an op en gui l t y plea where he o r she p l ead s gui l t y t o a charge but aut ho ri zes t he t ri al co urt 1

to d e te rm ine the len g th a n d m a n n e r o f t h e se n te n c e fo r th is c h a rg e

.

Fos t er doe s n ot ch al l en g e t h e s en t en ce s f or t h e pos s es s i on of

Sc h edu l e I V c on t r ol l ed s u bs t an ce or pos s es s i on 2

o f d ru g p a ra p h e rn a lia c o n v ic tio n s. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 9, 200 8

STATE OF TENNESS EE v . HERBE RT H. FOST ER, JR.

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. 07-241 Donald H. Allen, Ju dge

No. W2007-02636-C CA-R 3-CD - F iled Fe bruary 3, 2009

Def endant- Appellant, Herber t H. Foster, J r. (he reina fter “ Foster ”), a ppeals the se ntence imposed by the Madison County

Circuit Court as excessive. He e ntere d open g uilty pleas to th ree counts of

1 ag g ravated assault, one c ount of possession of a Sche dule I V controlled substanc e, and one count of pos s es s i o n o f d rug par apher nalia and w as sentenc ed to an e ffe ctive ter m of ten y ear s in the Tenne ssee De partment of Correc tion as a Rang e I I , multipl e off ender

. The sole issue f

or our r eview 2 is whether the t rial court sufficie ntly weig hed the pr oof off

ere d to miti g ate the se ntence . Following

our re vie w of the re c or d an d the a pp lic a ble a uth or iti e s, we a ff

ir m the jud g me nts of the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed C AM I L L E R. M C M UL L EN , J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J ., joined.

Gre g ory D. Gookin, Assistant Publi c De fende r, Jackson, Tennesse e, for the appe llan t , He rb ert H. Foster , J r.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; J. Ro ss Dy e r, As sis tant A tto rn e y Ge ne ra l; J ames (Jerry

) G. Woodall, District Attorney Gene ral; and Sha u n A. Brown Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F ACTUAL BACK GR OUNDT he i nd i ct m ent ref ers t o t hi s i nd i vi d ual as D ani el P aul l i n. 3

-2- A. G uilty Plea He aring. On Se pte mbe r 2 0, 20 07 , F os te r e nte re d open guil ty ple a s to a ll counts of the indictment. At the g uilty plea he aring , the State re cited the f ollowing f

acts in support of F os te r’ s c on vic tio ns :
[On ] Janu ary [12], 20 07 , [F os te r] w a s in the pa rk inglot a t Jac ks on

Ma dis on County Gene ral Hospital and the victim in C ount 1, Milt on Str ain, was backing out of a parkingspace

. He was allowing somebody else to pull int o that parkingspace and [Foster] pulled up. Mr. Strain explained to [Foster] that he was wa iting for someone
e lse wh o w a s c omi ngto t a ke that pa rk ingsp a c e

. Mr . Fr ank Whit e wa s in the ve hic le also. [F o s te r ] b e g anar g u in g w it h th e m a n d th e n[F o s te r ] p u ll e d

a k n if e and brandished a larg e knife and beg an waving that at Mr. Strain. Mr. Strain pulled out a baton a nd a ch em i ca l we ap on to defe nd himself. Mr. Strain worke d out there at leas t at t h e t i m e. [Foster] then fled that are a af ter he place d Mr. Strain in fea r of imminent bodil y

injury by the us e of that knife, but he was not hurt. Of c ourse, he notified secur ity

.
Mr. B ea re , the victim in Count 2, J ohn Be are , who is in security at the ho sp ita l c a me in c on ta c t w ith [F os te r] a s [F os te r] wa s e xitin g on e of the e ntr anc e s to the hospital on that same day and nig ht and, of c ourse, Mr. B ear e conf ronted [Foster]

and [F os te r] the n br and ish e d the same kn if e and [wave d] it at Mr . B e are c a us inghim to rea sonably

fea r imminent bodily

injury . I believe his unifor m was torn fr om that incident, but there [wer e] no serious injuries to him, but he fear ed injury and, of

course , he steppe d back into the b u i l d i n g once [Foster ] t hen beg an [waving ] t hat knife in orde r to avoid that situation.

Then Mr. Pollen, Da

niel Pollen, who is also with secur ity at the hospital, the 3 vic timin C ount 3 , c a me in c on ta c t w ith[F os te r] o uts ide that do or and the n wa s a

ble to s ub du e [F os te r], Ibe lie ve wi th a c he mic a l w e a

po n, and [ Fos ter ] wa s a lso brandishing the knife at Mr. Pollen and [waving ] t he knife but then dropped that kn if e on c e a c he mic a l w e a

po n w a s u se d. Sec ur ity

wa s th e n a

ble to t a ke him

int o custody afte r he pla ced Mr . Pollen in reasonable fea r o f i m m inent death or

serious bodily injury

.
Once [Foster] was taken into cus t o d y , there was a pill bott le that was

re c ov e re d f

ro m hi s p e rs on wh ic h c on ta ine d a c ra c k p ipe wh ic h w a s th e pa ra ph e rn a lia i nC o u n t5 t h a t h e d i d u n l aw f u l l y p o s s e s s

. A l s o , I b e l i e v e i t w a s s i x p i l l s - - I’ m s o r r y, Yo ur Ho no r, nin e pil ls, Yo ur Ho no r, that turn e d o ut t o b e Pr op oxy ph e ne [Da

rv oc e t] which is a Sche dule I V controlled substance as tested positive by the T.B .I . lab to be that substance. A ll of these off enses oc curr ed in Madison County , Tenne ssee.-3-

B. Sentencing Hearing. On Octobe r 22 , 2 007, and Nove mber 19, 2007, the tria l court conducte d sentenc ing hear ings. John Marlon Be are testified that he wor ked at Jackson Gene ral Ho sp ita l in

the se c ur ity

de pa rtme nt a nd wa s o ne of

the vic tim s in the c a se . A s a re su lt o f t he a ssa ult
, Be are stated that he “re ag g ravated [hi s] bac k and had to ha ve thera py on [hi s] bac k and [he] damag ed

a uniform and cell phone.” Although the cost of his the rapy was cover ed by hi s em p l o y er , Be are state d h is o ut o f p oc ke t lo ss w a s “ [j]ust [his ] uni fo rm pa

nts [that we re ] $3 5 an d $ 11 2 f or [his ] ce ll ph on e .” B e are c on c lud e d h is t e sti mony and e xpla ine d, “ [W]e we re ve ry fo rt un a te in the . . . s e ns e that w e ha d a

lot of c iv il ian s and

pe op le and

it c ou ld h a ve be e n a

lot wo rs e sit uatio n [si c ] tha

n it

wa s. ” He a dd e d, “ Yo u k

no w, the fa c t th a t th e pe rp e tr a tor wa s b lin dly

fl a ili ng his we a

po n tr y ingto injure any body he could hit with it . . . needs to be take n into consideration.”

Another vic tim, Daniel Pollen, testified that he was the secur ity supervi s o r at Jackson Gene ral Hospital and w as w o rk i n g on the date of the offe nse. Pollen stated he c ame into contac t with Foster “ [a] t the west front main entra nce of [t he hospital] .” As Foster drewhis knife and turne d toward Pollen, Pollen had alre ady draw n h i s chemica l spray . Foster “attempted to slash the knif e at [P ollen], [and Pollen] spray [ed] [Foster].” Foster “then thre w the knife in [ Pollen’s] direc tion.” Wit h the assistance of other deputies, Pollen wa s able to take Foster into custody . Although Pollen did not suffe r any

phy sical injury

or prope rty

damag e, he be lieved that F oster “show ed disreg ard f or human life” and “w ould be pre tty much a mena ce if

he [were ] allowed to stay out.”

Foster testified that “[w]hen [ he] was y oung er, [he] had a substanc e abuse problem.” H e explained that “[he] drank and [he] used marijuana a nd other drug s.” On the date of the of fense , he admitted to using “cra ck cocaine” and to possession of ni ne Darvoce t pills. He ex plained that he had been una ble to sustain employ

ment beca

use of injuries he rec eived f rom two prior ca

r wre cks. He stated that “[he saw ] seve ral c ounsellors [si c] when [he] was y oung er” beca use he ha d “an a

busive

a lc oh oli c fathe r. ” As a n a du lt, he we nt t o “ Pa thw ay ’s ” and dis c ov e re d h e su ff

e re d f ro m po sttraumatic stre ss disorder, de pression, and bip o l ar disorder. F oster stated, “ I t helped [him t o]

un de rs tand

[him ]se lf and may be g e t th is und e r c on tr ol i n th e futur e .” On the da y of the a ssa ult s, Foster was visiting his mother at the hos pital beca use she wa s suffer ing f

rom hea rt problems. Afte r the deputies “ spray ed [him] with the chemica l spray [Foster] was unable to se e and [] was afr aid [the deputies] would knock [hi m] down on t o p o f t he knife . . . so [he] threw [the knife] underha nded

awa y from [him] . . . .” He explained that “[the deputies] were close enoug h to [hi m and] if [he] had wished to hurt [them] , [he] could have done that.” A s a re sult of the arr es t , Fo s t er stated that he

“ w a s u n a b l e t o s l e e p o n[ h i s ] b a c k

o r s i td o w no r

r e a l l y w a l k

w e l l f o r a b o u tt h r e e m o n t h s

. ” F i n a l l y, F os te r t e sti fi e d th a t he wo uld be ne fi t f ro m a sp e c ia l ne e ds pla c e me nt p ro g ra m.

On cr oss-examination, Foster stated he drewthe knife beca use he felt threatened, g iven the number of de puties surrounding him. He admitted to the cr i m i n al historyas outlined in the presentenc e re port as we ll as to being on probation whe n the instant offe nses wer e committed.

Ve ro nic a F or tun e , F os te r’ s mo the r, te sti fi e d th a t sh e re a lize d F os te r n e e de d m ent al he a lth

c ouns e lin g a t th e a g e of

nin e or te n y e ars old

. She too k Fo ste r to the do c tor and he wa s “ pu t on

pil ls

e ve ry da y and on e sh ot a

we e k. ” She state d th a t a

sp e c ia l ne e ds tr e a tme nt p ro gram wou ld be ne fi t-4-

Foster beca use she ha d “see n him have [bipolar sy mptoms] two or three times.” She was c erta in that Foster “fe lt threatene d that night beca use they thought [she] was g oing to die a nd when something g oes wrongwith [ her], [Foster’s] kind of uncontrollable a ny way .”
The pre -sentenc e re port was a dmitted into evidence without objection. Af ter the hearing , the court co nsidered the proof, the pr e-se ntence repor t, and ar g uments of counse l. The cour t then

re vie we d F os te r’ s e xten siv e c ri min a l his tor y , wh ic h inc lud e d thr e e pr ior fe lony a g g ra vate d a ssa

ult s, possession of a we apon with intent to employ in the commission of a

felony , and thre e misdemea nor convictions for dr iving unde r the influenc e. F oster wa s also previously convicted of

various other misdemeanor of

fense s including f

ailure to stop and identify , public intox icati o n , p o s s ession of alcohol by a mi nor, resisting official detention, and two citations for driving on a revoked lice nse. The court noted that Foster was on probation for driving under the influence when he was c harg ed with another dr iving unde r the influenc e off ense. The court additionally observe d that Foster

was
on probation for

ag g ravated assault whe n he committed the instant offe nses. Acc ording ly , the trial court e nhance d Foster ’s sentenc e b ec au se he ( 1) had a n “extensive previous history of cr iminal convictions or cr iminal behavior in addition to those nece ssary to establish the appr opriate r ang e” and (2) had a “ previous history of unwillingne ss to com p l y with the conditions of a sente nce involving re lease in the community .” See T.C.A. § 40-35- 114(1), ( 8) (2006) . I n mitigation, the trial court c onsidered that Foster (1) had previously rec eived some “psy chiatric help,” (2) was addicted to p a in m e dic a tio n, (3 ) h a d s uf fe re d f ro m de pr e ssi on , a

nd (4 ) ha d some a lc oh ol a

nd dr ugpr ob le ms. Howeve r, the trial court aff orded the above mitigation proof “slig ht c onsideration” beca use it was

“ no t eno ug h to justi fy any of [F os te r’ s] ac tio ns .” Th e tr ia l c ourt se nte nc e d F os te r t o te n y e ars a s a Rang e I Ioffe nder for eac h of the three ag g ravated assault convictions. For the re maining of fense s of possession of a sc hedule I V controlled substance and possession of drug para

pherna lia, the trial court sente nced Foster to e leven months a nd twenty -nine day s and imposed fines of $750 and $150, respe ctively

. Pursuant to the plea a g ree ment, the trial cour t ordere d the above sentenc es to be ser ved

c o n c u r r e n t l y.

AN AL YSI S
The only issue Foster

prese nts for our r eview is whe ther the se nt en ce i m p o s ed by the trial court is excessive. He does not contest the enhanc ements based on his c riminal history and pre vious pr ob a tio n v iol a tio ns ; ho we ve r, he c on te nd s “ the mit ig a tio n o ff e re d at th e se nte nc inghe ari ngsh ou ld have be en af

forde d g reater we ight by the trial court.” I n response , the State cites to State v. Carte r and maintains “such a disag ree ment is not g rounds for reve rsal under the re vised SentencingAct.” See State v. Carte r, 254 S.W.3d 335, 345 (Tenn. 2008). We ag ree with the State.

I

. St a nd a r d o f R e v ie w. On appe al, we must review is sues reg arding the l eng th and manner of se rv ic e of a se nte nc e de no vo wi th a pr e su mpt ion

that th e tr ia l c ourt ’s de te rm inatio ns are c or re c t. T.C.A. § 40-35-401( d) (2006). Neve rtheless, “the presumption of corr ectne ss w hich ac companies the trial court’s action is c onditioned upon the aff irmative showing in the rec ord that the trial c ourt considere d the sentenc ing principles and all rele vant fac ts a nd circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). Our review is de novo, without a presumption of corre ctness, if theB l akel y v. W ashi ngt o n, 54 2 U

. S. 29 6 (20 0 4 ). 4

-5- trial court a

pplied inappropriate mitigatingor enha nceme nt fac tors or otherwise f ailed to follow the principles of the SentencingAct. Carte r, 254 S.W.3d at 345. The defe ndant, not the State, has the burden of showing the i m p ropriety of the sente nce. T .C.A. § 40-35-401(d) (2006), Sentenc ing Commi ssion Com ments.

Be fore a trial c ourt imposes a sentenc e upon a c onvicted cr imi n a l de fenda nt, it mus t consider: (1) the e vidence adduce d at the trial and the s entenc ing hear ing; (2) t he pre -sentenc e re port; (3) the principles of se ntencingand ar g uments as to sentenc ing a lternatives; (4) the nature and char acte ristics of the cr iminal c onduct involved; ( 5) evidenc e and information offe red by the par ties on the enha

nceme nt and mitigatin g fac tors set forth in Tenne ssee Code A nnotated sec tions 40-35-113 and 40-35-114; (6) any statistical inf ormation provided by the Administrative Offic e of the Courts as to Tenne ssee se ntencingprac tices for simil ar of

fense s; and (7) a

ny sta t em ent t he defe ndan t wi s h es t o make in the de fenda nt’s own beha lf about sentenc ing. See T.C.A. § 40-35-210( b); see a lso St ate v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002); State v. Osborne , 251 S.W .3d 1, 24 (Tenn. Crim. App. 2007)

.

I n State v. Carter , the Tennes s ee S upreme Court clarifie d the cha ng es in Tenne ssee sentenc ing la

w post-B lakely and stated: 4

[A] trial court’ s weig hing of various mitiga t i n g and enha nceme nt fac tors has bee n left to the t ri al co u rt’s sound discre tion. Si nce the Se nt e n c i n g A c th a s b e e nr e v i s e d t o r e n d e r

t h e s e f a c t o r s me re ly advisory , that discretion has be en b ro ad ened. Thus, even if a trial court re cog nizes and enunciates sever al applic ab le enha nceme nt fac tors, it doe s not a

buse its discr etion if it doe s not inc rea se the

se nte nc e be y on d th e min imum on the ba sis of

tho se fact or s. Simi larly
, i f t he trial c ourt rec og nizes and enunciates sever al applicable mitigating fac tors, it does not abuse its discre tion if it does

no t r e du c e the sen ten c e fr om t he ma ximumon

the ba sis of

tho se fac tors. The a

ppellate c ourts are there fore left wit h a narrowe r set of circ umstances in w hich they might find that a trial c ourt has abuse d its discretion in setting the leng th of a de fenda nt’s sentenc e.

Carter , 254 S.W .3d at 345-46.

Thus, a trial c ourt’s “f

ail[ure] t o appropr iately

adjust” a se ntence in light of a pplicable, but

me re ly a dv iso ry , mi tig a tin g or

e nh anc e me nt fa c tor s, is n o lo ng e r a n a pp ro pr ia te iss ue fo r a

pp e llate revie w. Carter , 254 S.W .3d at 345 (citing State v. Ba nks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Te n n

. C ri m

. Ap p., at J ackson, July 6, 2007) (noting that “[t] he 2005 amendment [to the Sentencing Act] deleted a ppellate r eview of

the weig hing of

the enha nceme nt and-6-

mitigating fac tors, as it rende red t h e en h an ceme nt and mitigatingfac tors mere ly advisory , not binding, on the tr ial courts”) ).

I n this case, the r ecor d shows that the s entenc ing court eng ag ed in an e x haustive re view of the proof, F oster’s c riminal history , arguments of counse l as well as va ri o u s en h an ceme nt and mit ig a tin g fa c tor s. Ad dit ion a lly , th e se nte nc ingc ourt state d th e fo llo wi ng :
Also, this pre-sente nce inve stigation report, the Court has r ev i ewe d this and will consider this for sente ncing purpos es along with the Principles of Sentenc ing. Certainly the C ourt will consider the nature and cha rac teristics of the c riminal conduct involved in this case

. . . .
The Court w ill also c onsider the e vidence and ar g uments that h av e been made he re toda y by counsel both as to mitigating a nd enhanc ing f

actor s. The defenda

nt has t estified here today in his own b e h a lf

. I w il l c o n s id e r th a t te s ti mo n y a lo n g w it h h is mother’s testimony . Certainly

the Court will consid er the def endant’ s
a me na bil ity to r e ha bil itatio n a

nd wi ll a lso c onsid e r a ll p os sib le alternative sentenc ing in this matter.

. . . .
As far as m itigating
, y ou know, i t does appear from t his report that Mr . F os te r s inc e the a g e of ten y ears ha s r e c e ive d p sy c hiatr ic help; appar ently

has had some p ro blems and suffe red some c ar
a c c ide nts wh e re by he re c e ive d some pr e tty se ri ou s in jur ie s a s a re su lt of these acc idents. He said that as a r esult of that, he be came addicted to this pain medication, this Darvo[c ] et , and also he suffe red f rom depre ssion in the past. You know, I take a ll of that into consideration to some ext ent to be mi tigating but ce rtainly not enoug h to justi fy

any of his actions on t his particular occa sion. I t’s kind of interesting that he ’s re po rt e d to the pr ob a tio n o ff ic e r t hat he ha s n o p rob le m w ith drug s or alcohol y et he testifies he re today that just a few hour s befor e the incidenc es occ urre d, he had use d cra ck coc aine a nd also, of

c ours e , h a d D arv o[c ]et

in h is p os se ssi on

a s w e ll. So, y ou kn ow, it

wo uld a pp e ar he do e s have so me dr ug and a lc oh ol pr ob lems in this

case . Now, I

will give that slight consideration for mitigating purp os e s.
Now, conside ring all of the fa cts and circumstances a s I ’ve talke d a b o u t an d e s p e c ia ll y th is c r im in a l r e c o r d an d s o f o rth , the Court finds that the appropr iate sentence would be som ething toward the top of

the ra ng e , w hic h is Rang e 2, so the Co urt is g oin g to-7- sentenc e him to 10 y ear s as a Rang e I Ioffe nder f or ea ch of the three differ ent counts. . . .

F os te r c ha lle ng e s th e we ig ht t he tr ia l c ourt

a ff or de d to the pr oo f he o ff

e re d to mit ig a te his sentenc e. Howe ver, pur suant to Carter, this is no longe r an issue f or appe llate re v i ew , and F oster is not entitl ed to re lief. See i d

. at 3 4 5

. T he re cord c lear ly shows that the trial cour

t followed the statutory sentenc ing proce dure, made finding s of fac ts that a re a dequate ly

supported in the re cord,

and g a ve du e c on sid e ratio n to th e princ ipl e s th a t are re le va nt t o s e nte nc ing . In s up po rt of his position, Foster mere ly

claims that his mental problems contributed to the instant offenses a nd that the te sti mony re g ard ing his me nta l he a lth sh ou ld have be e n g ive n g re a te r w e ig ht b y the tr ia l c ourt

. Howeve r, the sente ncing court c onsidered this mitig a ti n g te s ti mo ny a n d d eter mined it did not “just ify any of [Foster’s] a ctions” in the instant c ase. Foster has not ca

rried his burde n of showing that the trial court f

ailed to consider

the re l ev ant principles of the sentenc ing a ct. Ther efor e, we cannot conclude that the sentenc es imposed ar e excessive or inconsistent with the purposes of our sentenc ing la

ws. Acc ording ly , Foster

is not entitl ed to re lief.

Conclusion . Ba sed on the foreg oing rea sons, Foster ’s s entenc es are not excessive and the judgme nts of the trial cour t are aff irmed.

__________________________________

CAMI L L E R. McMUL L EN, JUDGE