IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 1997 SESSION August 19, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9610-CR-00321 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, ) JUDGE KERWIN L. WALTON, ) ) (Sentencing-Reckless Homicide) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON JOHN KNOX WALKUP (of counsel on appeal) Attorney General & Reporter Shelby County Public Defender JANIS L. TURNER W. MARK WARD Assistant Attorney General (on appeal) 450 James Robertson Parkway Assistant Public Defender Nashville, Tennessee 37243-0493 147 Jefferson, Ste. 900 Memphis, Tennessee 38103 WILLIAM L. GIBBONS District Attorney General BETTY THOMAS (at trial) KEVIN RARDIN Assistant Public Defender KAREN COOK Shelby County Public Defender’s Office Assistant District Attorneys General 201 Poplar Ave. - Second Floor 201 Poplar Ave. Ste. 301 Memphis, Tennessee 38103 Memphis, Tennessee 38103-1947
OPINION FILED: __________________
AFFIRMED
JOE G. RILEY, JUDGE
OPINION The defendant, Kerwin L. Walton, appeals as of right from the sentence imposed
by the Shelby County Criminal Court. He was convicted of reckless homicide, a Class
D felony. As a Range I, Standard Offender, the trial court sentenced the defendant to
four (4) years incarceration, to run consecutively to a twenty-five (25) year sentence for
aggravated arson arising out of the same incident. In challenging the sentence for
reckless homicide, defendant presents two (2) issues for review: (1) whether the trial
court imposed an excessive sentence by relying upon non-statutory enhancement
factors; and (2) whether the trial court erred by ordering his sentence to be served
consecutively. The judgment of the trial court is AFFIRMED.
FACTS
The tragic facts of this case involve the death of an infant, thirteen (13) months
of age, as a result of blunt trauma to the stomach. Briefly, the evidence at trial
established that at the time of the offense the defendant was the boyfriend of the
victim’s mother. The night the victim died, the mother had left the child under the
supervision of the defendant. The infant would not stop crying and the defendant struck
him in the stomach, ultimately causing his death. Defendant set the house on fire in an
effort to conceal the death. He was subsequently charged with aggravated arson and
murder in the first degree based on aggravated child abuse.
The defendant was convicted of aggravated arson and received a twenty-five (25)
year sentence.1 In a separate trial, the defendant was convicted of reckless homicide.
He received four (4) years incarceration to be served consecutively to the aggravated
arson sentence, an effective sentence of twenty-nine (29) years.
At the sentencing hearing, the trial court enhanced the defendant’s sentence
based on the following factors: (1) the victim was particularly vulnerable because of age;
1 The conviction and sentence in the aggravated arson case are not at issue in the present appeal.
2 (2) the defendant was on misdemeanor probation at the time of the offense; and (3)
there was an abuse of the corpse to conceal the homicide. Finding no applicable
mitigating factors, the court imposed the maximum four (4) year sentence. The court
noted that the defendant was a risk to society and was a dangerous offender; therefore
the trial court ordered the sentence to be served consecutively to the aggravated arson
sentence.
I. Excessive Sentence
The defendant argues that the trial court imposed an excessive sentence by
improperly relying upon non-statutory enhancement factors.
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. In conducting our review, we are required, pursuant to Tenn. Code Ann.
§ 40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information 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 own behalf about sentencing.
If no mitigating or enhancement factors for sentencing are present, Tenn. Code
Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum
sentence within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn.
Crim. App. 1991). However, if such factors do exist, a trial court should start at the
minimum sentence, enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn.
3 Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long
as its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 240 (Tenn.
1986); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see also Tenn.
Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should
there be no mitigating factors, but enhancement factors are present, a trial court may
set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-
210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).
The defendant was convicted of reckless homicide, a Class D felony. The
sentence range for a Range I, Standard Offender, is two (2) to four (4) years. The trial
court enhanced defendant’s sentence based on one (1) statutory enhancement factor,
the victim was particularly vulnerable because of age, and two (2) non-statutory
enhancement factors, that the defendant was on misdemeanor probation and abuse of
the corpse. The court found no mitigating factors and imposed the maximum sentence
within the range.
The state concedes and we agree that the trial court erroneously relied upon the
above two non-statutory enhancement factors. See State v. Strickland, 885 S.W.2d 85
(Tenn. Crim. App. 1993). Upon our de novo review, however, we find the record
establishes that the victim was treated with exceptional cruelty. Tenn. Code Ann.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED JULY 1997 SESSION August 19, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9610-CR-00321 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, ) JUDGE KERWIN L. WALTON, ) ) (Sentencing-Reckless Homicide) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON JOHN KNOX WALKUP (of counsel on appeal) Attorney General & Reporter Shelby County Public Defender JANIS L. TURNER W. MARK WARD Assistant Attorney General (on appeal) 450 James Robertson Parkway Assistant Public Defender Nashville, Tennessee 37243-0493 147 Jefferson, Ste. 900 Memphis, Tennessee 38103 WILLIAM L. GIBBONS District Attorney General BETTY THOMAS (at trial) KEVIN RARDIN Assistant Public Defender KAREN COOK Shelby County Public Defender’s Office Assistant District Attorneys General 201 Poplar Ave. - Second Floor 201 Poplar Ave. Ste. 301 Memphis, Tennessee 38103 Memphis, Tennessee 38103-1947
OPINION FILED: __________________
AFFIRMED
JOE G. RILEY, JUDGE
OPINION The defendant, Kerwin L. Walton, appeals as of right from the sentence imposed
by the Shelby County Criminal Court. He was convicted of reckless homicide, a Class
D felony. As a Range I, Standard Offender, the trial court sentenced the defendant to
four (4) years incarceration, to run consecutively to a twenty-five (25) year sentence for
aggravated arson arising out of the same incident. In challenging the sentence for
reckless homicide, defendant presents two (2) issues for review: (1) whether the trial
court imposed an excessive sentence by relying upon non-statutory enhancement
factors; and (2) whether the trial court erred by ordering his sentence to be served
consecutively. The judgment of the trial court is AFFIRMED.
FACTS
The tragic facts of this case involve the death of an infant, thirteen (13) months
of age, as a result of blunt trauma to the stomach. Briefly, the evidence at trial
established that at the time of the offense the defendant was the boyfriend of the
victim’s mother. The night the victim died, the mother had left the child under the
supervision of the defendant. The infant would not stop crying and the defendant struck
him in the stomach, ultimately causing his death. Defendant set the house on fire in an
effort to conceal the death. He was subsequently charged with aggravated arson and
murder in the first degree based on aggravated child abuse.
The defendant was convicted of aggravated arson and received a twenty-five (25)
year sentence.1 In a separate trial, the defendant was convicted of reckless homicide.
He received four (4) years incarceration to be served consecutively to the aggravated
arson sentence, an effective sentence of twenty-nine (29) years.
At the sentencing hearing, the trial court enhanced the defendant’s sentence
based on the following factors: (1) the victim was particularly vulnerable because of age;
1 The conviction and sentence in the aggravated arson case are not at issue in the present appeal.
2 (2) the defendant was on misdemeanor probation at the time of the offense; and (3)
there was an abuse of the corpse to conceal the homicide. Finding no applicable
mitigating factors, the court imposed the maximum four (4) year sentence. The court
noted that the defendant was a risk to society and was a dangerous offender; therefore
the trial court ordered the sentence to be served consecutively to the aggravated arson
sentence.
I. Excessive Sentence
The defendant argues that the trial court imposed an excessive sentence by
improperly relying upon non-statutory enhancement factors.
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. In conducting our review, we are required, pursuant to Tenn. Code Ann.
§ 40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5) [e]vidence and information 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 own behalf about sentencing.
If no mitigating or enhancement factors for sentencing are present, Tenn. Code
Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum
sentence within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn.
Crim. App. 1991). However, if such factors do exist, a trial court should start at the
minimum sentence, enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn.
3 Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long
as its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 240 (Tenn.
1986); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see also Tenn.
Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should
there be no mitigating factors, but enhancement factors are present, a trial court may
set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-
210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).
The defendant was convicted of reckless homicide, a Class D felony. The
sentence range for a Range I, Standard Offender, is two (2) to four (4) years. The trial
court enhanced defendant’s sentence based on one (1) statutory enhancement factor,
the victim was particularly vulnerable because of age, and two (2) non-statutory
enhancement factors, that the defendant was on misdemeanor probation and abuse of
the corpse. The court found no mitigating factors and imposed the maximum sentence
within the range.
The state concedes and we agree that the trial court erroneously relied upon the
above two non-statutory enhancement factors. See State v. Strickland, 885 S.W.2d 85
(Tenn. Crim. App. 1993). Upon our de novo review, however, we find the record
establishes that the victim was treated with exceptional cruelty. Tenn. Code Ann. § 40-
35-114(5). According to the medical examiner, the victim was left to suffer “the most
painful injury a human body can suffer” for a period up to six (6) hours. During this time,
the defendant did not seek medical assistance and chose to socialize with friends.
Based upon the enhancement factors and the absence of any mitigating factors, the
maximum sentence of four (4) years is clearly justified.
II. Consecutive Sentencing
4 The defendant argues the trial court erred in ordering a consecutive sentence.
Specifically, he contends that he is not a dangerous offender and that the trial court
failed to consider all of the applicable criteria as required by State v. Wilkerson, 905
S.W.2d 933 (Tenn. 1995).
Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115. The trial
court may order sentences to run consecutively if it finds by a preponderance of the
evidence that one or more of the required statutory criteria exist. State v. Black, 924
S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is required to
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. State v.
Wilkerson, 905 S.W.2d at 939.
The trial court specifically found the defendant to be a dangerous offender
under Tenn. Code Ann. § 40-35-115(b)(4). We agree, especially since other persons
besides the victim were put at great risk by setting fire to the residence. Furthermore,
consecutive sentencing is appropriate since the defendant was on probation at the time
of the instant offense. Tenn. Code Ann. § 40-35-115(b)(6). The trial court found
defendant to be a “risk to society” which, in essence, is a finding that consecutive
sentencing is necessary to protect the public from further criminal acts by the defendant.
Our de novo review also indicates that the consecutive sentence is reasonably related
to the severity of the offenses. An effective sentence of twenty-nine (29) years for
aggravated arson and reckless homicide is also congruent with the general principles
of sentencing. Accordingly, the consecutive sentences were properly imposed by the
trial court.
The judgment of the trial court is AFFIRMED.
5 JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE