State v. Lamont McDonald

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED NOVEMBER 1998 SESSION December 30, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9708-CR-00383 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, LAMONT McDONALD, ) JUDGE ) Appellant. ) (Motion to Reduce Sentence)

FOR THE APPELLANT: FOR THE APPELLEE:

KARL DEAN JOHN KNOX WALKUP Public Defender Attorney General and Reporter

JEFFREY A. DeVASHER TIMOTHY BEHAN ROSS E. ALDERMAN Assistant Attorney General Asst. Public Defenders Cordell Hull Building, 2nd Floor 1202 Stahlman Building 425 Fifth Avenue North 211 Union Street Nashville, TN 37243-0493 Nashville, TN 37201-5066 VICTOR S. JOHNSON III District Attorney General

KYMBERLY HAAS Assistant District Attorney General Washington Square Building 222 Second Avenue North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant, Lamont McDonald, appeals the trial court's denial of his

Tenn. R. Crim. P. 35(b) motion to reduce sentence. He originally pled guilty to

second degree murder and received an agreed sentence of twenty-three (23)

years as a Range I, standard offender. On appeal, the defendant claims the trial

court abused its discretion in denying the motion. Finding no abuse of discretion,

we affirm the judgment of the trial court.

I.

Although indicted for first degree murder, the defendant pled guilty on

April 23, 1997, to second degree murder. He entered into plea negotiations and

agreed to a twenty-three (23) year sentence as a Range I, standard offender. 1

On June 10, 1997, the defendant timely filed a Tenn. R. Crim. P. 35(b)

motion. The defendant's motion requests his sentence be reduced to twenty

(20) years. The trial court denied the motion after a hearing. Defendant now

contends his sentence should be reduced based upon his "spotless institutional

record, his desire to obtain vocational and computer training, his age, his lack of

a prior record, and the harshness of his sentence when compared to those of his

co-defendants who entered negotiated pleas."

II.

Under Tenn. R. Crim. P. 35(b), a sentence may be reduced if the trial

court determines it is in the “interests of justice.” See Committee Comment. In

1 Tenn. Code Ann. § 40-35-501(i) provides that those committing second degree murder on or after July 1, 1995, are ineligible for parole and can only receive sentencing credits not to exceed 15%. This offense was committed January 11, 1995; therefore, Tenn. Code Ann. § 40-35-501(i) is not applicable.

2 contrast to the de novo standard of review applicable to sentencing appeals

perfected under Tenn. Code Ann. § 40-35-401(d), appeals of Rule 35(b)

decisions are reviewed simply to determine if there has been an abuse of

discretion by the trial court. State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim.

App. 1993). A trial court should not modify an agreed sentence imposed from a

Tenn. R. Crim. P. 11(e)(1)(C) guilty plea absent unusual and unforeseen post-

sentencing developments. State v. McDonald, 893 S.W.2d 945, 947 (Tenn.

Crim. App. 1994).

The defendant's attempts at rehabilitation are admirable. Likewise, his

youth and lack of prior criminal involvement are positive factors. However, his

co-defendant who actually fired the fatal shot received a life sentence. Even

though the two other co-defendants received sentences substantially less than

the defendant’s sentence, their involvement was much less than the defendant’s

involvement. Thus, defendant’s sentence does not appear unduly harsh. In the

final analysis, we are unable to conclude that the trial court abused its discretion

in denying the motion.

Accordingly, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ PAUL G. SUMMERS, JUDGE

____________________________ L. T. LAFFERTY, SENIOR JUDGE