IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1997 July 23, 1997
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9601-CR-00013 ) Appellee, ) ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT JOHN L. GOODW IN, III, ) JUDGE ) Appellant. ) (Sentencing & Habeas Corpus)
ON APPEAL FROM THE JUDGMENTS OF THE CRIMINAL COURT OF SUMNER COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN L. GOODW IN, III. JOHN KNOX W ALKUP Pro Se - Habeas Corpus Attorney General and Reporter
JOHN R. PHILLIPS, JR. KATHY MORANTE Attorney - Sentencing Assistant Attorney General 117 East Main Street 450 James Robertson Parkway Gallatin, TN 37066 Nashville, TN 37243
LAWRENCE RAY WHITLEY District Attorney General
DEE GAY Assistant District Attorney General 113 West Main Street Gallatin, TN 37066
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
This is an appeal as of right pursuant to Rule 3, Tennessee Rules of
Appellate Procedure. The Defendant appeals both his sentence and the trial
court’s denial of his petition for writ of habeas corpus. These separate appeals
were consolidated by the trial court and filed with one appellate record. The
Defendant raises the following issues regarding his sentence: (1) That the trial
court erred in classifying the Defendant as a Range II offender; (2) that the trial
court improperly sentenced him to consecutive terms for his two convictions; (3)
that the trial court misapplied sentence enhancement factors; and (4) that the trial
court erred by imposing a longer sentence upon remand. The Defendant also
raises the following issues pro-se regarding his petition for habeas corpus: (1)
That the trial court was biased against the Defendant; (2) that the trial court erred
by refusing to correct perjured testimony and that his due process rights were
violated by the State’s failure to produce exculpatory evidence; and (3) that the
trial court erred by denying his petition when the attorneys involved in his case
had formed a conspiracy to deprive the Defendant of his liberty. W e affirm the
judgments of the trial court.
The Defendant was convicted by a Sumner County jury on December 12,
1989, of second-degree burglary and assault with intent to commit rape.1 He was
sentenced to eight years on each count, to be served consecutively. The
Defendant initially waived an appeal, but filed a post-conviction petition and was
1 The Defendant was charged with offenses enumerated in the criminal code under the Criminal Sentencing Reform Act of 1982; for second-degree burglary, Tenn. Code Ann. § 39-3- 403 , and for as sau lt with intent to com m it rape, T enn . Code A nn. § 39-2 -608 (a).
-2- granted a delayed appeal to this Court. State v. Goodwin, 909 S.W .2d 35 (Tenn.
Crim. App. 1995). His convictions were affirmed, but the case was remanded for
resentencing because the record did not reflect that the trial court considered
both the 1982 and 1989 sentencing acts in consideration of the ex post facto
provisions of the United States and Tennessee constitutions. Id. at 45. W e also
remanded for the trial court to place on the record its consideration of
enhancement factors as well as its decision to impose consecutive sentences.
Id. at 45-46. On remand, the trial court sentenced the Defendant under the 1982
act as an especially aggravated offender to consecutive nine-year sentences for
the burglary and the attempted rape. The Defendant now appeals his sentences
imposed upon resentencing.
Prior to the hearing for resentencing, the Defendant submitted a petition
for habeas corpus relief. At the resentencing hearing on August 22, 1995, the
trial court denied the petition without a hearing. The Defendant filed an appeal
to this Court. Although represented by counsel on the sentencing issues, the
Defendant presents this appeal, on his habeas corpus petition, pro-se.
W e first address the Defendant’s petition for habeas corpus relief. He
alleges that relief is proper based on the following arguments. First, he contends
that the trial court failed to grant a hearing on his petition for habeas corpus
because the trial judge, as well as the Sumner County government, was biased
against him because he had sued the government in a civil matter and because
he sent letters to the jurors who had presided at his trial. Next, he argues that the
State failed to provide him with potentially exculpatory evidence contained in
statements made by the victim in this case, therefore depriving him of his
-3- constitutional right to cross-examine the witnesses against him. Third, he
contends that the prosecutors, the public defender, and his private attorney
conspired against him, resulting in what appears to be a claim of ineffective
assistance of counsel. The trial court denied the petition, finding that it was
rendered moot after the Defendant was resentenced. We agree that the petition
was properly denied, but for a different reason.
Habeas corpus relief is available only when it appears on the face of the
judgment that a conviction is void or when the petitioner's term of imprisonment
has expired. Tenn. Code Ann. § 29-21-101; State v. Archer, 851 S.W .2d 157,
164 (Tenn. 1993). It is well settled that where a judgment is not void, but is
merely voidable, such judgment may not be collaterally attacked in a suit for
habeas corpus relief. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994); Archer, 851 S.W.2d at 163. In the present case, the petitioner has not
alleged that he is being held upon an expired sentence or that the judgment
against him is void, and thus, the we affirm the trial court’s dismissal of the
petition.
W e note that the trial court could have treated the habeas corpus petition
as a post-conviction relief petition, Tenn. Code Ann. § 40-30-205 (c), however,
any petition for post-conviction relief would be premature, considering that the
Defendant has not exhausted his appeals. See Tenn. Code Ann. § 40-30-202(a).
Therefore, the trial court's dismissal of the petition without considering it as one
for post-conviction relief was entirely proper.
-4- W e now turn to the issues regarding the Defendant’s resentencing. When
an accused challenges the length, range, or the 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 court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstances." State v. Ashby, 823 S.W .2d 166, 169
(Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals 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 have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
-5- As an initial matter, we will briefly recount the facts in the case sub judice
as described in the opinion on the Defendant’s first appeal and will discuss
additional other facts when relevant to the issues in this appeal.
On August 3, 1989, the victim returned from work to her home, in Hendersonville, Tennessee, between 3:30 and 4:00 in the afternoon. She went back to her bedroom to lie down. While she was lying down, she heard a door slam. Thinking it was her daughter or husband, whom she was expecting, the victim got up to see who it was. Upon opening the door to her bedroom, she saw the Defendant standing in her hallway. She told him to get out of her house, but he grabbed her by the arms and pushed her into the adjacent guest bedroom. The victim stated at trial that the Defendant repeated, "You know you want it," several times. The victim attempted to fight the Defendant off. He pushed her onto the bed, ripped her blouse, tore her bra and pulled off her pantyhose.
As the victim and Defendant were fighting, they heard her husband's truck in the driveway. The Defendant got up and attempted to leave the house, but the victim's husband grabbed him as he was trying to walk out the door. The victim called the police, and the victim's husband got the Defendant's name and license plate number to "buy some time" until the police could get there. W hen the victim's husband thought the police should almost be at the house, he let the Defendant go. An officer arrived, radioed the license plate number to a back-up officer and the back-up officer picked up the Defendant.
State v. Goodwin, 909 S.W.2d 35, 38 (Tenn.Crim.App. 1995).
The Defendant asserts that the trial court erred by determining that he was
a Range II offender. This issue is intertwined with the determination of which
sentencing act to follow in sentencing the Defendant. W e articulated this problem
in his first appeal:
The Defendant committed the crime in August of 1989. He was convicted in December of 1989. He was sentenced February 8, 1990, under the 1989 Sentencing Act as a Range II offender to eight years on both counts to run consecutively to each other for an effective sentence of sixteen years. The 1989 Sentencing Act went into effect November 1, 1989. The trial court was able to sentence the Defendant under the
-6- new sentencing act because, Tennessee Code Annotated section 40-35-117 states, "Unless prohibited by the United States or Tennessee constitution, any person sentenced on or after November 1, 1989, for an offense committed between July 1, 1982 and November 1, 1989, shall be sentenced under the provisions of this chapter." Tenn.Code Ann. § 40-35-117(b).
The Sentencing Commission Comments following Tennessee Code Annotated section 40-35-117 state "[b]ecause of the ex post facto provisions of the Tennessee and United States constitutions, a defendant sentenced after November 1, 1989, for an offense committed between July 1, 1982, and November 1, 1989, may not receive a greater punishment than he would have received under the prior law."
Goodwin, 909 S.W .2d at 45.
On remand, the trial court considered both sentencing acts, but determined
that, because the 1989 act contains sentence enhancement factors that are not
present in the 1982 act, their use could subject the Defendant to punishment in
violation of the ex post facto provisions. See Tenn. Code Ann. § 40-35-114;
Tenn. Code Ann. § 40-35-111 (repealed). 2 Our supreme court has held that the
trial court must com pute the Defendant's sentences under both the 1989
sentencing act and the pre-1989 sentencing act in this situation. State v.
Pearson, 858 S.W .2d 879, 884 (Tenn.1993). Rather than considering specific
elements used in calculating a sentence, the trial court “must calculate the
appropriate sentence[s] under both the 1982 statute and the 1989 statute, in their
entirety, and then impose the lesser sentence of the two.” Id.
Under the 1982 act, the sentence for assault with intent to commit rape for
a Range I offender is 2 to 6 years and for a Range II offender is 6 to 10 years.
2 The 19 82 act provides for ten (10) enh ancem ent factors unde r § 40-3 5-11 1. The c urrent version of the 1989 ac t under § 40-35-114 contains twenty-one (21) enhancement factors.
-7- Tenn. Code Ann. § 39-2-608(a); §§ 40-35-109(a), (b) (repealed). Second-
degree burglary carries 3 to 9 years for a Range I offender and 9 to 15 years for
Range II. Tenn. Code Ann. § 39-3-403(b)(1); § 40-35-109(a), (b) (repealed).
Under the 1989 act, assault with intent to commit rape is a Class C felony and
has a sentence of 3 to 6 years for a range I offender and 6 to 10 years for Range
II. Tenn. Code Ann. § 40-35-118; § 40-35-111(b)(3); §§ 40-35-112(a)(3), (b)(3).
Second-degree burglary is a Class C felony, punishable with 3 to 6 years for
Range I and 6 to 10 years for Range II. Tenn. Code Ann. § 40-35-118; § 40-35-
11(b)(3); §§ 40-35-112(a)(3), (b)(3).
W e first consider the Defendant’s sentences in accordance with the 1982
act. Under the act, a defendant must be sentenced as a Range II offender upon
proof of an especially aggravated offense. Tenn. Code Ann. § 40-35-107; § 40-
35-109(c) (repealed). An especially aggravated offense is “ a felony resulting in
death or bodily injury or involving the threat of death or bodily injury to another
person where the defendant has previously been convicted of a felony that
resulted in death or bodily injury.” Tenn. Code Ann. § 40-35-107 (repealed). In
the case at bar, the Defendant was convicted of burglary and rape in 1981. The
victim submitted a statement of the incident in which the Defendant and two
others stopped her car and robbed her. She stated that the Defendant hit her
about the face and pulled her hair to force her to comply with his demands, then
forcibly raped her in the car. The investigating officer testified that he observed
red marks on the victim’s face. The trial court found this to be sufficient proof of
bodily injury in the previous incident. Indeed, bodily injury may include “a cut,
abrasion, bruise, burn, or disfigurement; physical pain; illness or impairment of
the function of a bodily member, organ or mental faculty.” Tenn. Code Ann. § 40-
-8- 35-107(5)(A) (repealed). W e believe the red marks on the victim’s face suffice
to show she sustained bodily injury when the Defendant hit her. See State v.
W alter R. Callahan, C.C.A. No. 03C01-9303-CR-00085, Hamilton County (Tenn.
Crim. App., Knoxville, June 27, 1994).
As for the current convictions, the victim testified that she sustained
scratches on her back in the form of red marks where the Defendant had forcibly
pulled off her bra. Again, we agree with the trial court that this constitutes bodily
injury. See State v. Locke, 771 S.W .2d 132, 135 (Tenn. Crim. App. 1988).
Therefore, this amply supports the finding that the attempted rape was an
especially aggravated offense meriting the imposition of Range II sentencing.
Accordingly, Range II sentencing of 6 to 10 years for the assault with intent to
commit rape and 9 to 15 years for the burglary conviction is appropriate.
W e now consider the applicable enhancement factors. The trial court
found no mitigating factors and the Defendant is not challenging this conclusion.
The trial court applied two enhancement factors to each offense; factor (10), that
the defendant had no hesitation about committing a crime where the risk to
human life was high, and factor (6) the personal injuries inflicted upon or the
amount of damage to property sustained by the victim was particularly great.
Tenn. Code Ann. §§ 40-35-111(6), (10) (repealed).
Regarding factor (6), there is evidence that the victim underwent emotional
trauma and engaged in ongoing counseling beginning shortly after the incident.
"Personal injury" as expressed in enhancement factor (6) encompasses
emotional and psychological injuries as well as physical injuries sustained by the
-9- victim. State v. Hoyt, 928 S.W .2d 935, 948 (Tenn. Crim. App. 1995); State v.
Melvin, 913 S.W.2d 195 (Tenn. Crim. App. 1995)(citing State v. Sm ith, 891
S.W.2d 922 (Tenn. Crim. App. 1994)). However, before this factor may be
applied, the State has the burden of establishing that the emotional injuries and
psychological scarring are "particularly great." Id. Here, there is testimony in the
record that the victim’s life was severely disrupted. She was unable to return to
live in her home because of the incident and later sold the house because of her
emotional impairment. We believe that such severe consequences for the victim
constituted injuries that were “particularly great.” See State v. Williams, 920
S.W.2d 247, 259-60 (Tenn. Crim. App. 1995). The trial court properly applied
this enhancement factor to both the burglary and attempted rape convictions.
Next, the trial court applied enhancement factor (10), that the defendant
had no hesitation about committing a crime when the risk to human life was high.
The Defendant followed the victim from thirty to fifty miles from her place of
business in Brentwood to her home in Hendersonville. He observed the victim
enter her home and he entered the house knowing she, and possibly others,
were inside. This has been sufficient proof to enhance a burglary conviction
using factor (10). See State v. Jimmy Ray Potter, C.C.A. No. 01C01-9301-CC-
00021, Fentress County, (Tenn. Crim. App, Nashville, Mar. 17, 1994); cf. State
v. Avery, 818 S.W .2d 365, 369 (Tenn. Crim. App. 1991). In addition, we also find
this factor applicable to the attempted rape. Even though the victim informed the
Defendant that her husband would arrive, which he did, the Defendant ignored
this and continued to pursue the assault upon the victim. There was a great risk
that a confrontation and injuries could have resulted. Therefore, factor (10) was
appropriately applied.
-10- The Defendant is subject to a 6 to 10 year sentence for the attempted rape
and 9 to 15 years for second-degree burglary. The trial court sentenced him to
nine years for each offense based on classifying the Defendant as a Range II
offender. We agree that the record supports the imposition of nine years for the
attempted rape and burglary convictions as a Range II offender because the
Defendant can be classified as an especially aggravated offender.
Yet, this does not end our inquiry. W e must also consider the sentences
under the 1989 sentencing act. In order to establish the Defendant as a Range
II offender, the State must prove him to be a multiple offender. Tenn. Code Ann.
§ 40-35-106. This requires that a defendant have “[a] minimum of two (2) but not
more than four (4) prior felony convictions within the conviction class, a higher
class, or within the next two (2) lower felony classes.” Tenn. Code Ann. § 40-35-
106(a)(1). However, “[c]onvictions for multiple felonies committed as part of a
single course of conduct within twenty-four (24) hours, constitute one (1)
conviction for the purpose of determining prior convictions; however, acts
resulting in bodily injury or threatened bodily injury to the victim or victims shall
not be construed to be a single course of conduct.” Tenn. Code Ann. §
40-35-106.
The Defendant was convicted in 1981 of rape, a Class B felony, and
robbery, a Class C felony. See Tenn. Code Ann. § 40-35-118 (classification of
prior felony offenses). Both occurred during the same course of conduct, but the
rape involved bodily injury, which would ordinarily satisfy a finding that the
Defendant is a multiple offender. However, this Court has held that the twenty-
four hour merger rule exception requires “more than one previous act involving
-11- bodily injury or threatened bodily injury.” State v. Horton, 880 S.W .2d 732, 736
(Tenn. Crim. App. 1994). We believe that in addition to the bodily injury suffered
by the victim during the rape, there was a threat of bodily injury in perpetration of
the robbery. The victim was driving her car when the Defendant and his
accomplices approached in their vehicle. They bumped the victim’s car several
times, then blocked the road to make her stop. Intentionally colliding with another
vehicle from behind and forcing a confrontation by blocking the road provides a
distinct threat of bodily injury. Therefore, we agree that the Defendant may
properly be classified as a Range II offender. This subjects him to a sentence of
6 to 10 years each for the burglary and attempted rape. W e have discussed two
enhancement factors, which also exist under the 1989 act, and we conclude that
they are applicable to the offenses in question. As a result, we find the record
supports sentences of nine years for each conviction.
Our calculations of both the 1982 and 1989 sentencing acts reveal that the
trial court was permitted to sentence under the 1989 act without implicating the
ex post facto provisions. We note that the appropriate sentence range for the
assault with intent to commit rape as a Range II offender is 6 to 10 years under
both acts. However, second-degree burglary carries a 9 to 15 year sentence as
Range II under the 1982 and 6 to 10 years as Range II under the 1989 act.
Thus, because the Defendant is not exposed to a greater punishment under the
1989 provisions, sentencing under this act is required. Tenn.Code Ann. §
40-35-117(b). Therefore, we conclude that, although the trial judge erred by
sentencing the Defendant under the 1982, the error was harmless. The nine-
year sentences were within the sentencing range under the 1989 act and are
-12- supported by the record. Therefore, we affirm the sentence imposed by the trial
court.
In a related issue, the Defendant asserts that the trial court erred by basing
its resentencing decision upon proof basically the same as that offered in the
previous sentencing hearing. He notes that this Court vacated that previous
sentence. However, we remanded because the trial court (1) did not compare
the 1982 and 1989 sentencing acts; and (2) did not adequately place on the
record the basis for enhancing the Defendant’s sentence and for imposing
consecutive sentences. This does not equate with the proof being insufficient to
support the trial court’s decisions, but that the record was insufficient to allow
review of the sentence. However, we do acknowledge the Defendant’s argument
that the trial judge on resentencing found fewer enhancement factors but
sentenced him to an increased sentence. He contends that a presumption of
vindictiveness may arise when the same sentencing authority imposes a higher
sentence on remand from a successful appeal, thus implicating due process
concerns. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); State v. Russell, 800 S.W .2d 169, 174 (Tenn. 1990). Our supreme
court has addressed the vindictiveness issue, citing Alabama v. Smith, 490 U.S.
794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989):
As we explained in Texas v. McCullough, “the evil the [Pearce] Court sought to prevent” was not the imposition of “enlarged sentences after a new trial” but “vindictiveness of a sentencing judge.” . . . Such circumstances are those in which there is a “reasonable likelihood,” that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.
Russell, 800 S.W.2d at 174. (citations omitted).
-13- In the case sub judice, a reasonable likelihood that Judge W heatcraft,
upon resentencing this case, had a vindictive motive is not evident. We note first
that a different judge, Judge Kelly, presided at the original sentencing hearing,
and thus, any risk of vindictiveness by that trial judge being confronted by
resentencing is nonexistent. Absent evidence that a likelihood of vindictiveness
is present by Judge W heatcraft, the Defendant must demonstrate actual
vindictiveness. A trial judge is vested with discretion when fixing a sentence for
an offense and when a different judge presides in a new proceeding, differing
results may reasonably occur. W e find nothing in the record that suggests actual
vindictiveness from the trial judge presiding at the resentencing hearing. Thus,
we cannot conclude that the Defendant’s due process rights have been violated.
This issue is without merit.
Finally, the Defendant argues that the trial court erred in sentencing him
to consecutive terms. The trial court found that the Defendant was a dangerous
offender, which requires that an offender’s “behavior indicates little or no regard
for human life, and no hesitation about committing a crime in which the risk to
human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). Beyond this, it must be
shown that “an extended sentence is necessary to protect the public against
further criminal conduct by the defendant and that the consecutive sentences
must reasonably relate to the severity of the offenses comm itted.” State v.
W ilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Taylor, 739 S.W.2d
227, 230 (Tenn. 1987); Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976).
The trial court found that the Defendant was a dangerous offender, stating
that he had a history of mental illness and hospitalizations, a history of violence
-14- such as beating people up, and admits he is full of rage. The trial judge also
noted that the Defendant lied to others and lied to the court about his education.
He demonstrated no remorse for the offenses committed in 1981 and 1989 and
showed little chance of rehabilitation. He had a poor military and employment
record, never holding down a job for long and also being terminated from his last
job for inappropriate behavior toward a female employee.
The trial court also found that the circumstances of the offense were
aggravated because the Defendant premeditated the crime by following the victim
across the Nashville area to her hom e in a remote subdivision. In addition, when
he was arrested, he had a “hit list” of ten women, some with asterisks by their
names, and he could not substantiate a legitimate purpose for such a list. The
trial judge also found the mental anguish suffered by the victim aggravated the
offense. As a result, she determined that the sentences imposed reasonably
related to the seriousness of the offenses and that the previous factors
demonstrated that society needed to be protected from the Defendant’s behavior.
W e believe that the trial court carefully considered the attendant facts in
addition to proof of the dangerousness of the Defendant’s behavior and that they
justify a need to protect society from his future actions. Therefore, we cannot
conclude that the trial court erred in consecutively sentencing the Defendant.
Accordingly, we affirm the judgment of the trial court.
-15- ____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ JOE G. RILEY, JUDGE
-16-