IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED APRIL SESSION, 1998 September 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705-CR-00166 )
Appellee, )
)
) POLK COUNTY
VS. )
) HON. MAYO MASHBURN
MICHAEL SCOTT FARNER, ) JUDGE )
Appe llant. ) (Delayed Appea l)
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY H. SUMMERS JOHN KNOX WALKUP 500 Lindsay Street Attorney General and Reporter Chattanooga, TN 37402-1490 MICH AEL J . FAHE Y, II
TIMOTHY W. JONES Assistant Attorney General Ogle & Wa llace 425 Fifth Avenu e North Court Place, Suite 1 Nashville, TN 37243 121 Court Avenue Sevierville, TN 37862 JERRY N. ESTES District Attorney General
SHARI TAYLOE
Assistant District Attorney P. O. Box 1351
Cleveland, TN 37364-1351
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
On March 31, 1988, Appellant, Michael Scott Farner, pled guilty to second degree murde r, assault w ith intent to commit first degree murder, and second degree burglary. After a sentencing hearing, Appellant was sentenced as a standard Range I offender to 35 years for the second degree murder conviction, 32 years fo r the as sault w ith inten t to com mit murder, and 9 years for the second degree burglary. All sentences were ordered to run consecutively. Appellant waived his right to appeal, and Appellant’s court-appointed counsel was relieved from further representation of Appellant. On May 29, 1992, Appellant filed a pro se Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Tennessee. Counsel an d a Guard ian Ad Litem were appointed. On September 25, 1996, Appellant’s petition for Habeas Corpus was dismissed for failure to exhaust state remedies. On February 10, 1997, Appellant filed a motion for a delayed appeal to this Court. On M ay 28, 1997 , this Court granted the motion for a delayed appeal. Appellant appeals from the trial court’s imposition of an effective sentence of 72 years incarceration, raising two issues:
1) whether Appellant should receive less than the maximum sentence in the range upon conviction of an offense when no enhancing factors may be properly applied and w here two m itigating factors should be applied; and
2) whether Appellant should be sentenced to concurrent prison terms when the record indicates that his confinement is not necessary for the protection of the pub lic, when h e may b e ame nable to rehabilitation, and when he canno t be properly labeled as a “dangerou s offender”.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
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FACTS
Appellant in this case was 20 years old at the time of the offense. He suffers from bo th physical and mental handicaps in that since birth he has been unab le to hea r or spe ak. His intellige nce le vel is only slightly above mental retardation, and he is functionally illiterate. Proof was presented in the pre- sentence report that, as a youth, Appellant suffered severe physical abuse at the hands of his grandparents.
On July 21 , 1987 , Appe llant entered the home of Andrew and Agnes Danisewicz without permission. He forced Ms. Danisewicz into the bathroom with a hunting knife, where he then stabbed her four times. Mr. Danisewicz returned home and interrupted the attack upon Ms. Danisewicz; Appellant turne d on Mr. Danisewicz, enabling Ms. Danisewicz to flee for help. Appe llant stabbed M r. Danisewicz 17 times, killing him.
After his arrest on July 22, 1987, Appellant gave a statement to the police through the means of an interpreter. Appellant stated that he was mad on the day of the murde r, becau se his m other ha d mad e him lea ve hom e. He w ent to a pool hall, got two six-pac ks of b eer, an d dran k all 12. He then went to the victims’ home with the intent to kill them, because he felt that they always looked at him like they were mad at him.
Appellant was in dicted for first de gree m urder , assa ult with intent to c omm it first degree murder, and second degree burglary. He pled to a reduced charge of second degree murder, and to the other charges.
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I. Length of Sentence
Appellant argues that the trial court erred in imposing the maximum sentence within the applicable ra nges, conte nding that non e of the statutory enhancement factors may properly be applied and that two m itigating factors shou ld have been applie d. Bec ause both A ppella nt’s crime and his trial occurred prior to the 1989 Sentencing Reform act, the 1982 sentencing act applies. Under the holding o f State v. Poo le, 845 S.W.2d 171 (Tenn. 1992) and Sills v. State , 884 S.W.2d 139 (Tenn. Crim. App. 1994), when a sentence is merely readjusted or when the individual components of the sentence are reviewed, but the sentence is not set aside on substantive or procedural flaw or due to a lack of jurisdiction, the same statute applies to the re-sentencing as did in the original sentence. Here, had Appellant’s appeal not been an out of time appeal, the 1982 act would have applied. We see no reason to stray from the rule of State v. Poole .
When a defendant, convicted under the law applicable in this case, complains of his or her sentence, we must conduct a de novo review of the sentence. Tenn. Code Ann. § 40-35-401(d)(S upp. 1988 )(repealed by Criminal Sentencing Reform Act of 1989, Acts 1989, ch 591, §6). This review is without a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)(Supp. 1988)(repealed by Criminal Sentencing Reform Act of 1989, Acts 1989, ch 591, §6); State v. Boling, 806 S.W .2d 202 (Te nn. Crim. Ap p. 1990).
The Sentencing Reform Act of 1982 established specific procedures which must be followed in sentencing. These procedures, codified at Tennessee Code
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Annotated § 40-35-21 0 (1982)(repealed by Criminal Sentencing Reform Act of 1989, Acts 1989, ch 591, §6), mandated the court’s consideration of the following:
(1) The eviden ce, if any, received at the trial and the sentencing hearing; (2) [t]he presen tence re port; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and c harac teristics of the criminal cond uct invo lved; (5 ) [e]vide nce a nd info rmatio n offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his ow n beh alf about sentencing.
Tenn. Code Ann. § 40-35-210.
Under the 198 2 Sente ncing A ct, there is no presumption that a defendant will be sentenced to the minimum sentence in the applicable range as there is under current law. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). After determining the appropriate range for sentencing, the court was then to weigh the enhancing and m itigating factors found in Tennessee Code Annotated §§ 40-35- 110 and 40-35-111 to arrive at a sentence which was “the least severe me asure necessa ry to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-3 5-103(4)(Su pp. 1988)(repealed by Crim inal Sentencin g Reform Act of 1989, A cts 1989, ch 5 91, §6).
The 1982 Sente ncing Refo rm A ct also provid ed tha t the trial c ourt sh all place on the record either orally or in writing what enhancement or mitigating factors it found, if any. These findings are crucial for appellate review of the trial court’s decision. In the matter sub judice, the trial court found two mitigating
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factors: under T ennes see Co de Ann otated § 40-35-1 10 (7), the defend ant, because of his yo uth, lac ked s ubsta ntial jud gme nt in committing the offense, and under Tennessee Code Annotated § 40-35-110(9) the defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offense. The trial court also found several enhancement factors, namely: under Tennessee Code Annotated § 40-35-111(1) that the defendant had a previous history of criminal behavior; under Tennessee Code Annotated § 40-35-111(3) the offense involved more than one victim; under Tennessee Code Annotated § 40-35-111(4) the victim was p articula rly vulne rable because of age or physical or mental disability; under Tennessee Code Annotated § 40-35-111(5) the defendant treated the victim with “almost unbelievable cruelty” during the commission of the offense; under Tennessee Code Annotated § 40-35-111(6) the injury inflicted upon the victims was particularly great; under Tennessee Code Annotated § 40-35-111(9) the defendant possesse d and emp loyed a dead ly weapon in the commission of the offense; under Tennessee Code Annotated § 40-35-111(10) the defendant had no hesitation about comm itting a crime whe re the risk to hum an life was high. In its brief, the State concedes that Tennessee Code Annotated § 40-35-111(3) and (10) were misapp lied to Ap pellan t’s sentence.1
1 The State concedes that Tennessee Code Annotated § 40-35-111(10) does not apply to either the second degree murder conviction or to the assault with intent to commit second degree murder, but argues that it properly applies to the burglary conviction.
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Enhance ment Facto rs
In the matter sub judice, we find that the trial court correctly enhanced each sentence with respect to Tennessee Code Annotated § 40-35-111(1). The presentence report contains ample undisputed evidence of previous violence, drug abus e, and illegal destruction of property. All sentences were also appropriately enhanced with Tennessee Code Ann otated § 40-35-111(9) since it is clear Appellant used a deadly weapon, i.e., a hunting knife to commit his crime. In addition the trial court properly enhanced all three sentences pursuant to Tennessee C ode Ann otated § 40-3 5-111(5). Ap pellant chose to attack Mr. and Mrs. Danisewicz in a particularly vicious m anner, i.e., b y using a k nife to inflict multiple stab and slash wounds, rather than quickly accomplishing his gris ly mission. Mrs. Danisewicz was stabbed four (4) times as she pleaded for her life and escaped only because Appellant turned his wrath onto Mr. Danisewicz wounding him se vente en (17 ) times eventu ally killing him as he too pleaded for his life. By his own a dmis sion, A ppella nt burg led the Danis ewicz ’s hom e with h is knife in han d for the exclusive purpose of killing the couple. Under these circumstances we have n o troub le conclud ing that the victims we re treated with exceptional cruelty. In addition to the above , we ho ld that the trial cou rt prop erly applied Tenn essee Code Annota ted § 40 -35-111 (6) to Appellant’s conviction for aggravated burglary. The injury to b oth Mr. and Mrs. Danisewicz during the burglary was very g reat. In addition as a resu lt of her husband ’s death, Mr. Danisewicz lost con sidera ble fina ncial support. Application of this factor to the burglary sentence was appropriate.
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Appe llant’s burglary sentence was also properly enhanced with Tennessee Code Annotated § 40-35-111(10), no hesitation about committing a crime where risk to human life is high. Clearly a home invasion burglary for the express purpose of killing the occupants is s uch a crim e. See, State v. Edwards, 868 S.W .2d 682, 702 (Tenn. Crim . App. 1993 ).
However, there was some misapplication of enhancement factors. The State concedes and we agree that Tennessee Code Annotated § 40-35-11 1(3), the crime involved more than one victim, does not apply to any of the convictions in this case. See, State v. Clabo, 905 S.W.2d 197 (Tenn. Crim. App. 1995) (holding separa te convictions with respect to each victim in a case precludes use of this aggra vating facto r). The State also concedes and we agree that Tennessee Code Annotated § 40-35-111(10), no hesitation about committing a crime where risk to human life is high, was inapplicable to the murder and attempted murde r conviction s. See, State v. Sim s, 909 S.W .2d 46, 50 (Tenn. Crim. App. 19 95); State v. Makoka, 885, S.W.2d 366 (Tenn. Crim. App. 1994). Also the ag e of the victim without proof of special vulnerability as a result thereof is insufficient to warrant application of Tennessee Code Annotated § 40-35-111 (4). State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993)2
2 Although State v. Adams deals with the Sentencing Reform Act of 1989, its reasoning should be equally applicable to the identical provision of the 1982 Act, i.e., it is particular vulnerability rather than age above which is the focus of § 40-35-111(4). Any other citations in this opinion to cases arising after the adoption of the 198 9 Sente ncing A ct are m ade in the belief that su ch holdin gs are e qually applica ble to analogo us prov isions of th e 1982 Senten cing Ac t.
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Mitigating Factors
The State does not contest the applicability of mitigating factors found at Tennessee Code Annotated §§ 40-35-110(7) and (9). These factors deal respe ctively with a lack of judgment because of youth and reduced culpability due to a mental or physical conditions. The trial judge however, as was his prerogative gave little weight to these factors in view of the circumstances of Appe llant’s crime and the gravity of the num erous enh ancem ent factors applicable in this case.
Length of Sentence
As stated earlier there is no presumptive minimum sentence with respect to sentences under the 1982 Sente ncing Act. In th is case which falls under the provisions of that act three (3) enhancement factors are applicable to the murder sentence, four (4) such fac tors are ap plicable to th e assa ult with the inte nt to com mit murder, and five (5) enhancers properly pertain to the burglary sentence. The trial court, within the scop e of his discretion, gave little weight to the applic able mitigating factors. U nder the circums tances we can not say th e length of the sentenc es impos ed are imp roper.
II. Consecutive Sentencing
Appellant conte nds th at the tria l court erred in impos ing consec utive sentences, arguing that his confinement is not necessary for the protection of the
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public, that he may be amenable to rehabilitation, and that he cannot properly be labeled as a “d ange rous o ffende r” or a “d ange rous, m entally abnormal person .” We disagree.
In Gray v. S tate, 538 S.W.2d 391 (Tenn. 1976), the Supreme Court set out criteria by which a defendant is evaluated in deciding whe ther consec utive senten cing is ap propriate :
Types of offenders for which consecutive sentencing shou ld be reserved may be classified as follows: (1) the persistent offender, defined as one who ha s previo usly been convicted of two felonies or of one felony and two misdem eanors committed at different times when he was over eighteen (18) years of age; (2) the professional crimin al, one who has knowingly devoted him self to criminal acts as a major source of livelihood or who has substantial income or resources not shown to be derived from a source other than crimin al activity; (3) the m ultiple offender, one w hose record of crim inal ac tivity is extensive; (4) the dangerous mentally abnormal person, so declared by a competent psychiatrist who concludes as a result of a presentence investigation that the defen dant's crimin al conduct has been characterized by a pattern of repetitive or compulsive behavior or by persistent aggressive behavio r with hee dless ind ifference to consequences; and (5) the dangero us offender, hereinafter defined.
The prior record of the p ersiste nt offen der will indicate that he is one not likely to be rehabilitated and shou ld be incarcerated under consecutive sentences for the protection of the public. The same may be said for the professional crimina l. The p rior record of th e mu ltiple offender may have been good, but the crimes for which he has been convicted indicate criminal ac tivity so extensive and contin uing for such a period of time as to warrant consecutive sentencing. See Sentencing Alternatives and Procedures, § 3.4, Comment C; Model Penal Code, § 7.03. The object is to use consecutive s entencing, wh ere appropriate, to prote ct socie ty from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their anti-societal lifestyle.
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A defendant may be classified as a dangerous offender if the crime s for which he is con victed indic ate that he has little or n o regard for hum an life, and no hesitation about committing a crime in which th e risk to human life is high . This does not mean that all defen dants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced.
Even though arm ed robbery is a d angerous offense, there are increase d pena lties for that crim e. The d ecision to impose consecutive s entences w hen crime s inherently dangerous are involved should be based upon the presence of aggravating circumstances and not merely on the fact that two or more dangerous crimes were committed. Howeve r, this does not prec lude the trial court from imposing consecutive sentencing for the commission of dangerous offenses where no aggravatin g circumstances are present if evidence indicates that the defendant should be sentenced under one of the other classifications.
Gray v. State, 538 S.W .2d 391 , 393-39 4 (Ten n. 1976 ). In the matter sub judice, the trial court sentenced Appellant to consecutive sentences upon finding that Appellant was a dangerously mental abnormal person, but the record does not reflect any evaluation b y a compe tent psychiatrist as requ ired under Gray. Howeve r, based upon A ppellant’s past violen t behavior documented in the presentence report, and his lack of hesitation in committing a home invasion w ith a view toward killing the occupants because of how he thought they looked at him, we believe that society must be protected from Ap pellant, and a ccord ingly find that App ellant me ets the criteria set out in Gray to be classified as a dangerous offend er. Th e trial co urt’s im positio n of co nsec utive se ntenc es is affirmed.
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For the aforementioned reasons, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
CONCUR:
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PAUL G. SUMMERS, JUDGE
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CURWOOD WITT, JR., JUDGE