State v. Terry Logan

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

JANUARY SESSION, 1997

STATE OF TE NNE SSE E, )

FILED

C.C.A. NO. 02C01-9609-CC-00297 ) April 10, 1997 Appellee, )

) FAYETTE COUNTY Cecil Crowson, Jr.

V. ) Appellate C ourt Clerk

) HON . JON K ERR Y BLA CKW OOD , TER RY LO GAN, ) JUDGE )

Appe llant. ) (SECOND DEGREE MURDER)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF FAYETTE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS CHARLES W. BURSON Attorney at Law Attorney General & Reporter 147 Jefferson Avenue, Suite 909 Memphis, TN 38103 DEB ORAH A. TULL IS Assistant Attorney General 450 Jam es Robe rtson Parkw ay Nashville, TN 37243-0493

ELIZABETH RICE

District Attorney General

CHRISTOPHER MARSHBURN

Assistant District Attorney General 302 Market Street

Somerville, TN 38068

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Appellant, Terry Loga n, pled guilty as charg ed in th e Circ uit Court of Fayette County to the offense of second degree murder of the victim, Michael Hood . Follow ing a s enten cing hearing, the trial court sentenced the Appellant to serve the presumptive sentence of twenty (20) years in the Department of Corrections as a Range I Standard Offender. On appeal, the Appellant subm its that th e sen tence is exce ssive. H e argu es thre e issue s in his appe al: (1) That an enhancement factor applied by the trial c ourt do es no t apply to his case; (2) that certa in mitigating factors we re not applied by the trial co urt; and (3) that the presumption of corre ctnes s norm ally afforded to sentencing by the trial court should not be applied in this case . Finding no error, we affirm the judgm ent of the tria l court.

In the early morning hours of October 21, 1995, the Appellant was drinking beer in his house along w ith the vic tim, Su san B ond, a nd Ap pellan t’s roommate, Johnny Logan. Logan and Appellant became involved in an argument over the rent and utility bills. During this argument, the victim got into a fist-fight with the Appe llant. Afte r the alte rcation ende d, the A ppella nt wen t into his bedroom and retrieved a wooden baseball bat. Appellant returned to the dining room, where the victim was located, and struck the victim in the head area with the baseball bat several times, leaving the victim unconscious on the floor. As the victim lay on the floor unconscious, Appellant stood over the victim and delivered another blow to the victim’s head with the base ball ba t. The victim was transported to a hospital and died the following day.

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Appellant told a deputy sheriff who arrived at the scene that “[the victim] hit me in my own house an d I beat his ass w ith a bat.” At the sentencing hearing, the Appellant admitted that he told the deputy that if Appellant had been in posse ssion of a firearm, h e would have sh ot the victim .

As an enhancement factor, the trial court found that the Appellant allowed the victim to be treated with exceptional cruelty during the commission of the offense. Tenn. Code Ann. § 40-35-114(5). The trial court found two (2) mitigating factors, that the Appellant acted under strong provocation and that he had ad mitted his guilt.

I.

In his first issue, Appellant submits that the presumption of correctness normally afforded to a sentence imposed by the trial court m ust fail in this case “due to lac k of spec ificity in the reco rd.”

When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with 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 rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

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In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects 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 principals set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify the sen tence even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ).

The Appellant complains that the trial court failed to follow proper sentencing procedures by failing to make specific findings of fact in the record. The comments of the trial court at the conclusion of the sentencing h earing are as follows:

THE COURT: Mr. Logan, w ill you stand, please, sir.

Upon entering a plea of guilty to Murder in the Second Degree, the Court finds tha t you allowe d the victim to be treated with exceptional cruelty, but you acted under strong provocation as a mitigating offender, and sentences you to the presumptive sentence of 20 years in the De partm ent of C orrect ions, as a Standard

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Offender, to serve 30 percent before you’ll be eligible for release classification .

You’ll be give n cred it for 186 days while in jail awaiting trial.

Thank you.

The sentencing order entered by the trial cou rt insofa r as it addresses enhancing and mitigating factors states as follows:

“And it appearing to the C ourt that there is an enhancement factor that the defendant allowed a victim to be treated with extreme cruelty, and the Court finds the mitigating factors that the defendant acted u nder stro ng provo cation an d he ha s adm itted his gu ilt.”

Tennessee Code Annotated Section 40-35-209(c) provides in part, “[T]he record of the sentencing hearing is part of the record of the case and shall include specific findings of fact upon which application of the sentencing principals was b ased.” (Em phasis add ed).

As correctly noted by the App ellant, State v. S mith, 910 S.W.2d 457 (Tenn. Crim. App.) cert. denied, id. (Tenn. 1995) stands for the proposition that the findings by the trial court in a sentencing hearing must be recorded in order to allow ad equate review on appea l. Smith , 910 S.W.2d at 460.

The presumption of correctness does not apply in this case.

Howeve r, even though the trial cou rt should have stated the specific findings of fact from the record to support application of the enhancement factors and mitigating factors found by the court, we do not find that the failure to do so requires a new sentencing hearing in this case or modification of the sentence.

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This issu e is withou t merit.

II.

In his second issue, the Appellant argues that the enhancement factor relied u pon b y the tria l court is an es sentia l elemen t of second degree murder and therefore, is not applicable in this case.

Second degree m urder is the knowing killing of another. Tenn. Code Ann. § 39-13-2 10(a)(1). Appellant maintains on appeal that the “malice” that caused Appellant’s crim e to be seco nd degree murder rath er than voluntary manslaughter cons titutes c ruelty, a nd the refore this enhancement factor cannot be use d. How ever, ma lice is no lon ger an e lemen t of secon d degre e murd er.

The record re flects that the Appellant struck the victim several times about his head with a wo oden b aseba ll bat until the victim fell to the floor unco nscio us. At that point, the Appellant then walked over to the victim and delivered anoth er blow to the vic tim’s head with the base ball ba t. The re is adequ ate evide nce in the record to support use of the enhancement factor that the Appellant treated the victim with exceptio nal cruelty during the commission of the offense. In addition, a s correctly pointed out by the State in its brief, the Appellant emp loyed a dead ly weap on, the base ball bat, during commission of the offense. Therefore, Tennessee Code Annotated Section 40-35-114(9) is an applic able enha ncem ent fac tor. Th is cour t is allow ed, in conducting its de novo review to consider any enhancement or mitigating factors supported by the

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record, even if it was not relied u pon by th e trial court. State v. Adams, 864 S.W .2d 31, 34 (Tenn . 1993); Smith , 910 S.W .2d at 460 .

Appe llant’s seco nd issue is without m erit.

III.

Appe llant’s third issue is, “Whether any mitiga ting factors apply to your Appella nt.” The tria l court did find two (2) mitigating factors, that the Appellant acted under strong provoc ation a nd tha t the Ap pellan t adm itted his guilt. In his appeal, the Appellant urges that the trial court sh ould have considered the following additional mitigating factors: (1) That the Appellant assisted the authorities in locating or recovering any property or person involved in the crim e; (2) th at the A ppella nt com mitted the offense under such unusual circumstances that it is un likely a s ustain ed inte nt to viola te the la w mo tivated his conduc t; and (3) that the Appellant, because of his youth, lacked substantial judgment in comm itting the o ffense. T enn. C ode An n. § 40-3 5-113(1 0),(11),& (16).

Appellant relies upon State v. Shelton, 854 S.W.2d 116 (Tenn. Crim.

App. 1992), perm. to appeal denied, id. (Tenn. 199 3), in support of his argument that the mitiga ting factor th at Appe llant lacked a sustain ed intent to violate the law shou ld be applicable. We have reviewed State v. Shelton and c onclu de tha t it is disting uisha ble from Appellant’s case. In Shelton, also a second degree murder case, the defe ndant killed his wife by u se of a firearm. T his Court held that the mitigating factor contained in Tennessee Code Annotated Section 40-35-113(11) was applicable because the trial court did not find that the domestic difficulties

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between the parties related to a sustained inten t to violate the law which motivate d the killing. Shelton, 854 S.W.2d at 123.

In Appellant’s case, he was involved in an altercation with the victim, left the altercation and went into his bedroom and retrieved a wooden baseball bat. He returned and hit the victim several times about the head area, and struck the victim at least one more time on the head after he had fallen to the floor unconscious. When the first law enforcement officer arrived, the Appellant came out of the house and yelled at the officer “(the victim] hit me in my own house and I beat his ass with a bat.” Appellant also admitted at the sentencing hearing that he told the officer that he would have shot the victim if he had had a gun . There is no error in the trial court not ap plying this mitigating factor.

Appellant urges that the trial court should have applied the mitigating factor that he assisted authorities in locating a person involved in a crime. Appellant called 911 following the incident. Wh ile we a gree th at this m itigating factor is ap plicable, w e afford it very little weight.

Finally, the Appellant argues that the mitigating factor that he lacked substantial judgment in committing the offense because of his youth shou ld have been applied by the trial court. The record reflects that the Appellant was one month shy of his twenty-first birthday when he comm itted the offense. Th ere is simply nothing in this record to indicate that this mitigating factor is applicable.

Although we find that the trial court should have applied the mitigating factor contained in Tennessee Code Annotated § 40-35-113(10), we

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find that this mitigating factor should be afforded little weight and do es not jus tify a mod ification of Ap pellant’s se ntence .

This issu e is withou t merit.

In conc lusion , we ha ve foun d that th e trial co urt pro perly applied one enhancement factor, and that an additional enhancement factor, use of a dea dly weapon in commission of the offense, is applicable in this case. Furthermore, we find that the trial court properly ap plied two (2) mitigating fa ctors, and fa iled to apply one (1) m itigating facto r, though it is entitled to little weight. Appellant was convicted of a Class A felony, and the presumptive sentence, if there are no enhancement or mitigating factors is 20 years. If there are enhan cemen t factors and mitigating factors, the court m ust start at the presumptive sentence in the range, enhance the sentence as appropriate for enhancement factors, and reduce the sente nce as approp riate for m itigating facto rs.

After a thorough review of the record, we have determined that the twenty-year senten ce imp osed b y the trial cou rt is approp riate. The judgment of the trial court is therefore affirmed.

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THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

PAUL G. SUMMERS , Judge

___________________________________

DAVID G. HAYES, Judge