State v. Leslie Hereford

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1999
• Docket: 01C01-9803-CR-00100
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH 1999 SESSION April 21, 1999

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9803-CR-00100 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, LESLIE HEREFORD, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Washington Square, Suite 418 Attorney General and Reporter 222 Second Avenue North Nashville, TN 37201 ELIZABETH B. MARNEY Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

VICTOR S. JOHNSON III District Attorney General

WILLIAM R. REED Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE

OPINION Defendant, Leslie Hereford, pled guilty to four counts of rape, Class B

felonies. The trial court sentenced defendant to eight years as a Range I standard

offender on each count.1 The court ordered three of the counts to run consecutively

for an effective sentence of twenty-four years. Defendant appeals the imposition

of three consecutive sentences and asks this Court to modify the trial court’s

decision to reflect an effective sentence within the range of twelve to sixteen years.

We decline to do so and AFFIRM the sentence as imposed by the trial court.

FACTS

Over a period of at least two years, defendant molested six children staying

in his household by placing his penis in their mouths while they were sleeping.

When one of his victims reported the abuse, defendant admitted his offenses to his

church elders and sought counseling. At his church elders’ recommendation, he

also reported himself to law enforcement.

At sentencing, the state urged the trial court to apply several statutory

enhancement factors and argued the appropriateness of consecutive sentencing

pursuant to both the sentencing statute and State v. Wilkerson, 905 S.W.2d 933

(Tenn. 1995). The defense conceded the appropriateness of some consecutive

sentencing, but asked the court to consider in mitigation the defendant’s age (53 at

the time of sentencing), honorable military service (defendant received a Purple

Heart for his combat service in Vietnam), history of gainful employment, and the

likelihood that the parole board would refuse early release in this case.

The trial court declined to speculate about any future decision by the parole

board and determined the length of defendant’s sentences based upon its

consideration of the statutory sentencing principles. The trial court imposed the

minimum sentence of eight years for each conviction, and ordered three of the four

counts to run consecutively, for an effective sentence of twenty-four years.

1 Since the offenses were committed prior to July 1, 1995, the prohibition of a release eligibility date does not apply. See Tenn. Code Ann. § 40-35-501(i)(1).

2 SENTENCING

Defendant challenges the imposition of consecutive sentencing resulting in

twenty-four years of incarceration. He contends that the trial court completely

overlooked his amenability to rehabilitation, and that the effective sentence is

excessive. Defendant asks this Court to reduce the effective sentence.

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).

A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that “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.” Tenn. Code Ann. § 40-35-115(b)(5). 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. Wilkerson, 905 S.W.2d at 939.

First, the trial court specifically found that consecutive sentencing was

allowed per Tenn. Code Ann. § 40-35-115(b)(5). Second, it cited the psychosexual

evaluation indicating a likelihood of reoffense by defendant given the opportunity.

Finally, the court considered the ages of the victims and the number of victims as

relevant to its determination that consecutive sentencing was necessary in

defendant’s case.

The actual sentencing range in this case, depending upon the length of

sentences and the application of consecutive sentencing, was from eight to forty-

eight years. The trial court made the necessary findings and determinations to

3 support its imposition of a twenty-four year sentence. Where our review, as here,

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 785, 788

(Tenn. Crim. App. 1991). We conclude the effective sentence of twenty-four years

is reasonably related to the severity of the offense and is necessary to protect the

public from further criminal conduct by the defendant. Thus, we see no reason to

modify the sentences imposed.

CONCLUSION

Based upon the foregoing, we AFFIRM the sentences imposed by the trial

court.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

4 ____________________________ DAVID H. WELLES, JUDGE

____________________________ JOHN EVERETT WILLIAMS, JUDGE