State v. Sutton

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 May 28, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00216 )

Appellee, )

) KNOX COUNTY

V. )

)

) HON . RICH ARD B AUM GART NER , REG INALD SUTT ON, ) JUDGE )

Appe llant. ) (HARASS ING CO MM UNICAT IONS)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

JAMIE L. NILAND SANDY C. PATRICK Assistant Public Defender Assistant Attorney General 1209 Euclid Avenue 2nd Floor, Cordell Hull Building Knoxville, TN 37921 425 Fifth Avenue North Nashville, TN 37243

RANDALL E. NICHOLS

District Attorn ey Ge neral

MARS HA SEL ECM AN

Assistant District Attorney General City-County Building

Knoxville, TN 37902

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Defe ndan t, Reg inald Sutto n, appeals from the sentencing order of the

Knox County Criminal Court. Defendant pled guilty to one count of making harassing telephone calls. Following the se ntencing he aring, the trial court sentenced Defendant to serve eleven (11) months and twenty-nine (29) days, to be served at seventy-five percent (75%). Defendan t appeals the sentence, arguing that it does not conform to the requirements of the Criminal Sentencing Reform Act of 1989, and that the sentence is excessive and should be reduced on appeal or remanded for a new senten cing hea ring. W e affirm the judgm ent of the tria l court.

When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to cond uct a de novo review of the sen tence w ith 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 fac ts and circ umsta nces.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this co urt must con sider: (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 chara cteristics of the criminal co nduct involved; (e) an y statutory mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

3

Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts 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 principles set out under the sentencing law; and made findings of fact adequately supported by the record, then we may no t modify the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

At the sentencing hearing, Doris Davenport, the victim, testified that she and the Defendant were living together on July 26, 199 5, and it was their so n’s birthday. Davenp ort had been requesting that the Defendant move out of her home because he “has kept [her] going through a lot of changes .” Whe n she got ho me from work that day, the Defendant came in her house and refused to give her his keys to the house. Defendant picked up the telephone, and Davenport demanded to know who he was calling. Defendant replied, “None of your dam n busine ss.” Davenport hung up the tele phon e, and Defe ndan t spit in her face. Davenport told Defendant, “That is it. Get out.”

When Davenport turned her back and walked toward the kitchen, Defendant grabbed her by her hair and threw her in the floor. Davenport described that Defendant held a knife in his hand an d cut her face w hile beating her in the floor. Davenp ort stated that her two (2) year old son was watching the altercation, and she kept repeating, “Do not beat me in front of my childre n.” Defendant kept beating her and said, “I am going to kill you, bitch.” Davenport stated that she did not know what

4

made him “snap back,” but that he said, “O h . . . look wha t you have made me do .”

Defendant grabbed a towel, wiped the floor and then her face becau se there was blood everywh ere in the kitchen. H e stated, “I am going to get the d amn p olice,” and ran ou t the do or. Da venpo rt did not see th e Defe ndant a fter that, and he did not call the police. Davenport called her brother who called an ambulance. She was treated at the hospital where she received stitches. Davenport displayed her remaining facial scars to the cou rt. She stated that she took a warrant out against the Defend ant the following da y.

Davenport stated that while she had formerly been convicted of armed robbery and has been on parole, she has chang ed her life and did not feel that she deserved to be treated this way. Following the above-described incident, Davenport received harassing messages from the Defendant on her answering machine. These messages were pla yed for the court. Davenpo rt described D efendant as being very insecure and previously accusing her of having an affair with a man at work. She believed that Defendant is “going to hurt somebody . . . and feels like he don’t [sic] have no respect for the Court or nobody else.” Davenport stated that Defendant could have killed her and felt like he “sh ould no t get a pat on the back [probation] for what he did.”

On cross-examination, Davenport admitted that she had been drinking the day of the ass ault, but sta ted that sh e was n ot drunk .

5

The Defendant stated that he dated Da venport for over two (2) years and that they had a child together. On the day of the assault, Defendant got off from work and drove to Davenport’s home, where he was living at the time. He was on the phone with his older son who called to ask for a ride home when Davenport came out of the k itchen and a sked who h e was talking to. W hen h e said that it wa s his son, Dave nport to ld him , “Tha t is a lie. That is a girl.” Davenport hung up the telephone and sta rted calling Defendant names, then she returned to the kitchen. Defendant followed her into the kitchen and as ked wh y she wa s upse t. Defendant believed she had been drinking and was trying to be reasonable as he believes she is a violent pe rson.

Davenp ort did not answer Defendant’s questio n, but s tarted c ursing at him and s pit in his face. De fendan t spit back in her face , and Da venport re ached onto the counter for a knife. Defendant took the knife out of her hand, and the two started fighting. He admitted that Davenport was bleeding, so he tried to wipe off her face. After Defendant tried to help Davenport clean up, she went into the living room and called her bro ther. D efend ant sta ted tha t he ha d see n the p olice d rive by, s o he to ld her he w ould ge t the police .

When questioned as regarding the harassing phone calls, Defendant stated that at the particular time he was upset with Davenport because he did care for her and was upset that she had him put in jail for protecting himself. Defendant stated that he was trying to let Davenport know that what she did to him was very wrong and that he w anted to take a warrant out ag ainst her.

6

The trial court sentenced the Defenda nt to serve eleven (1 1) months , twenty-

nine (29) days at a rate of s event y-five pe rcent (7 5%) r eleas e eligib ility date in the Knox Coun ty Penal Facility. If Defendant chose to attend the Domestic Violence program offered by the Knox County Sheriff’s Department while incarcerated, the trial court would co nsider an ea rly release upon successful completion of the program . The trial co urt mad e the follow ing statem ent:

W ell, you know, w e have heard different versions of what happened on July 26, 1995. I don’t know that, as in a lot of cases, we will ever know exactly what happened out there and exactly what precipitated it, but we know one thing for certain. That, as a result of that incident, Ms.

Davenport was beaten about the face. She was cut. She has a scar on her face, and this is a classic domestic violence, and it is a very, very serious prob lem that we h ave in our society.

For years, I think w e swe pt it under the rug, or we kept it quiet. It was a public embarrassment to the people involved in it. So they c hose to keep it quiet, and fo rtunately, I think that is changing. I consider it to be one of the most despicable and concerning aspects of our -- one of the problems we ha ve in our socie ty today, an d to the extent that I can do anything to have a positive effe ct on it, I intend to do that.

I have listened to this evidence here today. I have considered the presentence report. I have considered the conditions of the Sentencing Act here, again, including in particular the necessity to avo id depreciating the seriou sness o f the offens e. These things don’t happen just accide ntally. It is a pattern . It is a course of condu ct.

Ms. Davenport, you are right. The fact that you had prior convictions and are on parole does n’t mean that anybody has got the right to beat you. Mr. Sutton is currently, he says, employed, although here at the end, that he is not working because of some medical condition. He is forty-one years old. He is living w ith his mo ther. His e xpense s in life are an autom obile paym ent, and an amou nt he claim s he is pa ying to his mo ther as re nt.

I think you n eed to spend so me time in c ustody, Mr. Sutton. I am going to order tha t Mr. Sutton serve this s entence. I am going to order -- I can’t order, but I am going to advis e him that I thin k it is in his best interest that he attend and complete the Domestic Violence Program offered by the Knox County Sheriff’s Department at the Detention Facility.

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302 which provid es in part that the trial court shall impose a specific sentence

7

consistent with the purposes, principles and goals of the 1989 Criminal Sentencing Reform Act. See State v. Palmer, 902 S.W.2d 391, 393 (T enn. 19 95). In misdemeanor senten cing, a separate sentencing hearing is not mandatory, but the court is required to provide the Defe ndant w ith a reasona ble opportun ity to be heard as to the length and mann er of the se ntence . Tenn . Code Ann. § 4 0-35-30 2(a). In addition to setting the sentence based on the principles, purposes, and goals of the Act, the cour t must se t a release eligibility percentag e which can not exceed s eventy- five percent of the impo sed se ntence . Id. at (d); Palmer, 902 S.W.2d at 393. Alternatively, the trial court retains the authority to place the defendant on probation either imm ediate ly or afte r a time of perio dic or continuous confinement. Tenn. Code Ann. § 4 0-35-30 2(e).

Defendant argue s that th e only e videnc e the tria l court c onsid ered in sentencing him was evidence of another crime. The trial court specifically stated within the record that it considered the presentence report, the conditions of the Sentencing Act, and, in particular, the need to avoid depreciating the seriousness of this type of offense. Defendant did not object to the evidence of another crime during the sentencing hearing. The record reflects that the p arties and the trial court agreed in the plea a greem ent tha t the victim would be allo wed to desc ribe the details of the assault as well as the harassing communications during the sentencing hearing .

Defendant also complains that the sentence is excessive. Misdemeanor sente ncing is designed to provide the trial court with continuing jurisdiction and a great deal of flexibility. O ne con victed of a m isdem eanor, u nlike one convicted of a felony, is not entitled to the presumption of a minimum sentence. State v. Creasy,

8

885 S.W.2d 829, 832 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 199 4). Defendant received the maximum sentence as allowed by law due to the circumstances surrounding the offense and his prior record. T enn. C ode An n. § 40- 35-114(1) and (9 ). Altho ugh th e discu ssion of app licable mitigating and enhancing factors would be good for our review, it is not a requirement that those factors be set forth explicitly within the record. State v. McKnight, No. 01C01-9509-CC-00313, slip. op. at 2, Rutherfo rd County (T enn. Crim. App., at Nashville, June 11, 1996) perm. to appeal denied, (Tenn . 1997) (c itations om itted). In addition, the trial court provided for possible early release so long as the Defendant completed a program on dom estic violen ce.

Finally, the Defendant argues that the sentence should be reduced or remanded for a new sentencing hearing . As we have found no error in the trial court’s sentencing as according to the Sentencing Act under our de novo review, then we decline to modify th e sente nce im posed . This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

WILLIAM B. ACREE, JR., Special Judge