IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JUNE 1999 SESSION July 19, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9804-CR-00160 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, DONNIE DEAN ROLIN, ) JUDGE ) Appellant. ) (Statutory Rape and Incest)
FOR THE APPELLANT: FOR THE APPELLEE:
V. MICHAEL FOX PAUL G. SUMMERS 315 Deaderick Street Attorney General and Reporter First American Center, 20th Floor Nashville, TN 37238-2075 LUCIAN D. GEISE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
VICTOR S. JOHNSON III District Attorney General
ROGER D. MOORE Assistant District Attorney General Washington Square 222-2nd Avenue North, Suite 500 Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant pled guilty to two counts of statutory rape, Class E felonies, and
three counts of incest, Class C felonies, with no agreement as to sentencing. The
trial court sentenced defendant to two years for each count of statutory rape and
five years for each count of incest with all counts running consecutively for an
effective sentence of nineteen years. In this appeal as of right, defendant
challenges only the imposition of consecutive sentencing. A thorough review of the
record reveals no error by the trial court. Therefore, the judgment of the trial court
is AFFIRMED.
I. BACKGROUND
Defendant gained custody of his minor daughter, C.R.,1 in December 1995
and brought her to live with him and his ex-wife in Pulaski, Tennessee. From
January to October 1996, defendant engaged in sexual acts (penile-vaginal, penile-
anal, and oral) with C.R. two to three times a week.
Defendant took C.R. out of school in February 1996. She accompanied him
on his long-haul trucking trips until May 1996. Then, defendant and C.R. moved out
of the Pulaski home and went to live with relatives in the Nashville area. In August
1996, they set up a household of their own where C.R. was responsible for all the
household chores: cooking, cleaning, laundry, etc. Defendant never re-enrolled
C.R. in school, and from August until October when C.R. ran away, defendant
effectively treated her as his wife.
A Davidson County grand jury indicted defendant on seven counts of
1 It is this Court’s policy not to reveal the names of minor sexual abuse victims.
2 statutory rape, eight counts of incest, and one count of rape. Pursuant to an
agreement with the state, defendant pled guilty to two counts of statutory rape,
Class E felonies, and three counts of incest, Class C felonies. All other counts were
dismissed. Sentencing was left to the trial court.
II. SENTENCING HEARING
The trial court conducted a sentencing hearing to decide the appropriate
length and manner of service of the sentences. After reviewing the proper
sentencing considerations, enhancement and mitigating factors, all testimony and
evidence presented, and arguments by counsel, the trial court imposed two-year
sentences for each count of statutory rape and five-year sentences for each count
of incest.
Next, the trial court reviewed the considerations relating to alternative and
consecutive sentencing and determined incarceration and the imposition of
consecutive sentences to be appropriate. It denied alternative sentencing and
ordered all defendant’s sentences to run consecutively, resulting in a nineteen-year
prison sentence.
Defendant neither challenges the length of each sentence nor the denial of
alternative sentencing. Further, defendant concedes the applicability of Tenn. Code
Ann. § 40-35-115(b)(5) which provides that a court may order sentences to run
consecutively if it finds by a preponderance of the evidence that:
[t]he defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims.
3 Nevertheless, defendant asserts that the total sentence is not reasonably related
to the severity of the offenses.
III. STANDARD OF REVIEW
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the
factors and principles set out under sentencing law, and 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
789 (Tenn. Crim. App. 1991).
Our review reveals that the trial court conducted a thorough analysis of the
appropriate sentencing considerations, enhancement and mitigating factors, and the
evidence in its decision to impose an effective nineteen-year sentence.
IV. CONSECUTIVE SENTENCING
4 Once a trial court determines that a defendant is statutorily eligible for
consecutive sentencing, see Tenn. Code Ann. § 40-35-115(b), it should also
determine whether the consecutive sentences (1) are reasonably related to the
severity of the offenses committed; (2) serve to protect the public from further
criminal conduct by the offender; and (3) are congruent with general principles of
sentencing. Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments;
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).2 Once again, the trial court
in this case complied with these statutory and precedential mandates.
The trial court first determined that consecutive sentences were appropriate
for this defendant given the applicability of Tenn. Code Ann. § 40-35-115(b)(5)
(consecutive sentencing appropriate for a defendant convicted of two or more
statutory offenses involving sexual abuse of a minor). The court also expressly
stated that:
“I’m also considering State v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JUNE 1999 SESSION July 19, 1999
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9804-CR-00160 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, DONNIE DEAN ROLIN, ) JUDGE ) Appellant. ) (Statutory Rape and Incest)
FOR THE APPELLANT: FOR THE APPELLEE:
V. MICHAEL FOX PAUL G. SUMMERS 315 Deaderick Street Attorney General and Reporter First American Center, 20th Floor Nashville, TN 37238-2075 LUCIAN D. GEISE Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
VICTOR S. JOHNSON III District Attorney General
ROGER D. MOORE Assistant District Attorney General Washington Square 222-2nd Avenue North, Suite 500 Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant pled guilty to two counts of statutory rape, Class E felonies, and
three counts of incest, Class C felonies, with no agreement as to sentencing. The
trial court sentenced defendant to two years for each count of statutory rape and
five years for each count of incest with all counts running consecutively for an
effective sentence of nineteen years. In this appeal as of right, defendant
challenges only the imposition of consecutive sentencing. A thorough review of the
record reveals no error by the trial court. Therefore, the judgment of the trial court
is AFFIRMED.
I. BACKGROUND
Defendant gained custody of his minor daughter, C.R.,1 in December 1995
and brought her to live with him and his ex-wife in Pulaski, Tennessee. From
January to October 1996, defendant engaged in sexual acts (penile-vaginal, penile-
anal, and oral) with C.R. two to three times a week.
Defendant took C.R. out of school in February 1996. She accompanied him
on his long-haul trucking trips until May 1996. Then, defendant and C.R. moved out
of the Pulaski home and went to live with relatives in the Nashville area. In August
1996, they set up a household of their own where C.R. was responsible for all the
household chores: cooking, cleaning, laundry, etc. Defendant never re-enrolled
C.R. in school, and from August until October when C.R. ran away, defendant
effectively treated her as his wife.
A Davidson County grand jury indicted defendant on seven counts of
1 It is this Court’s policy not to reveal the names of minor sexual abuse victims.
2 statutory rape, eight counts of incest, and one count of rape. Pursuant to an
agreement with the state, defendant pled guilty to two counts of statutory rape,
Class E felonies, and three counts of incest, Class C felonies. All other counts were
dismissed. Sentencing was left to the trial court.
II. SENTENCING HEARING
The trial court conducted a sentencing hearing to decide the appropriate
length and manner of service of the sentences. After reviewing the proper
sentencing considerations, enhancement and mitigating factors, all testimony and
evidence presented, and arguments by counsel, the trial court imposed two-year
sentences for each count of statutory rape and five-year sentences for each count
of incest.
Next, the trial court reviewed the considerations relating to alternative and
consecutive sentencing and determined incarceration and the imposition of
consecutive sentences to be appropriate. It denied alternative sentencing and
ordered all defendant’s sentences to run consecutively, resulting in a nineteen-year
prison sentence.
Defendant neither challenges the length of each sentence nor the denial of
alternative sentencing. Further, defendant concedes the applicability of Tenn. Code
Ann. § 40-35-115(b)(5) which provides that a court may order sentences to run
consecutively if it finds by a preponderance of the evidence that:
[t]he defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims.
3 Nevertheless, defendant asserts that the total sentence is not reasonably related
to the severity of the offenses.
III. STANDARD OF REVIEW
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after giving due consideration and proper weight to the
factors and principles set out under sentencing law, and 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
789 (Tenn. Crim. App. 1991).
Our review reveals that the trial court conducted a thorough analysis of the
appropriate sentencing considerations, enhancement and mitigating factors, and the
evidence in its decision to impose an effective nineteen-year sentence.
IV. CONSECUTIVE SENTENCING
4 Once a trial court determines that a defendant is statutorily eligible for
consecutive sentencing, see Tenn. Code Ann. § 40-35-115(b), it should also
determine whether the consecutive sentences (1) are reasonably related to the
severity of the offenses committed; (2) serve to protect the public from further
criminal conduct by the offender; and (3) are congruent with general principles of
sentencing. Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments;
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).2 Once again, the trial court
in this case complied with these statutory and precedential mandates.
The trial court first determined that consecutive sentences were appropriate
for this defendant given the applicability of Tenn. Code Ann. § 40-35-115(b)(5)
(consecutive sentencing appropriate for a defendant convicted of two or more
statutory offenses involving sexual abuse of a minor). The court also expressly
stated that:
“I’m also considering State v. Wilkerson, which indicates I have to consider the aggregate term and whether or not it is necessary to protect the public from further serious conduct by the defendant.
Given the nature of these, the fact that he has just recently gotten into treatment, I’m going to find that each one of these convictions is going to run consecutive to another, for a total effective sentence of 19 years.”3 (Emphasis added).
This statement clearly indicates that the trial court considered the Wilkerson
factors in its imposition of an aggregate sentence of nineteen years. The court’s
findings sufficiently support the imposition of the consecutive sentences. Defendant
has failed to show that the sentence was improper.
CONCLUSION
2 We recognize that the applicability of the Wilkerson factors to categories other than dangerous offenders has not been fully resolved. See State v. David Keith Lane, C.C.A. No. 03C01-9607-CC-00259, Bradley County (Tenn. Crim. App. filed June 18, 1997, at Knoxville), perm. to app. granted (Tenn. February 2, 1998). 3 The record reflects that defendant’s first counseling session was on February 10, 1997, six days after the sentencing hearing was originally scheduled.
5 Based upon the foregoing, the judgment of the trial court is AFFIRMED.
____________________________ JOE G. RILEY, JUDGE
CONCUR:
____________________________ JOSEPH M. TIPTON, JUDGE
____________________________ ALAN E. GLENN, JUDGE