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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE OCTOBER SESSION, 1999 FILED December 15, 1999 Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) M1999-01740-CCA-R3-CD ) Appe llant, ) ) CHEATHAM COUNTY V. ) ) ) HON. LEONARD W. MARTIN, JUDGE RICKY DALE LANGFORD, ) ) Appellee. ) (THREE COUNTS RAPE OF A CHILD) FOR THE APPELLEE: FOR THE APPELLANT: WILL IAM B. (J AKE) L OCK ERT , III PAUL G. SUMMERS District Public Defender Attorney General & Reporter STEVE STACK LUCIAN D. GEISE Assistant Public Defender Assistant Attorney General P.O. Box 464 2nd Floor, Cordell Hull Building Ashland City, TN 37015 425 Fifth Avenue North Nashville, TN 37243 DAN M. ALSOBROOKS District Attorn ey Ge neral JAMES W. KIRBY Assis tant D istrict Atto rney G enera l 105 Sycamore Street Ashland City, TN 37015-1806 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE -2- OPINION The Ch eatham County G rand Jury indicted Defenda nt Ricky Dale L angford for three counts of rape of a child and one count of incest. Defe ndan t subs eque ntly pled guilty to three counts of rape of a child and the incest charge was nolled. Following a sentencing hearing, the trial court imposed three concurrent sentences of twenty yea rs. The S tate contends that the trial court should have imposed consecu tive sentencing. After a review of the record, we affirm the judgment of the trial court. FACTS Defendant began sexually abusing his eleven year old daughter in March of 1997. For ap proxim ately nin e mo nths, D efend ant en gage d in vag inal, anal, and oral sex with his da ughter. D efenda nt adm itted to Barbara Wallace of the Department of Children’s Services that he had engaged in eight acts of penile penetration and eight acts of oral sex with his daughter, in addition to several incidents of fondling or kissing. According to Wallace, Defendant is an untreatable pedophile with a mode rate to high risk of re-offending. As a result o f the se xual ab use, D efend ant’s daughter has pa rticipated in c ounse ling in orde r to learn ho w to differentiate between love and sex a nd how to co ntrol various “sexua lly acting out behaviors ”. -3- ANALY SIS The State contends that the trial court abused its discretion when it imposed concurrent sentencing. We disagree. When the State challenges a defendant's sentence, the State has the burden of showin g that the s entenc e is impro per. State v. Blouvet,
965 S.W.2d 489, 494 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-35-401(d) (1997) (Sentencing Commission Com men ts). In ad dition, o ur revie w is de novo with a presumption that the trial court’s sentencing determinations were correct. Blouvet, 965 S.W.2d at 494; Tenn. Code Ann. § 4 0-35-40 2(d) (Su pp. 1999). H owev er, this p resum ption "is conditioned upon the affirm ative show ing in the record that the trial court considered the sentencing principles and all rele vant facts and circu mstan ces." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). Consec utive sentencing is governed by Tennessee Code Annotated section 40-35-115 (b), which provides that “[t]he [trial] co urt may order sentences to run cons ecutive ly if the court finds by a preponderance of the evidence that” one or more of the required statu tory criteria exist. Tenn. Code Ann. § 40-35-115(b) (1997) (emp hasis added). “Whether sentences are to be served concurrently or cons ecutive ly is a matte r addres sed to the soun d discretio n of the trial co urt. State v. Adams, 973 S.W .2d 224 , 230–3 1 (Ten n. Crim. A pp. 199 7). During the sente ncing he aring, the tria l court state d that it recognized that because Defendant had been convicted of two or more sexual offenses with a minor victim, the court could impose consecutive sentencin g bas ed on Defe ndan t’s -4- relation ship with the victim, the time sp an of the activity, the nature o f the activity, and the residu al dam age to the victim. See Tenn. Code Ann. § 40-35-115 (b)(6) (1997). The trial co urt then d iscusse d the na ture of the o ffenses, the injury to the victim, the testimony that was presented during the hearing, Defendant’s age, and the fact that Defendant would be required to serve 100% of a twenty year sentence. The trial court then ruled that based on all of these considerations, a total sentence of twenty years to be served at 100% was the proper and just result in this case. W e conclude that wh ile the tria l court p robab ly would have b een ju stified in imposing consecutive senten cing in this c ase, the tria l court did n ot abus e its discretion in imposing concurrent sentencing. Section 40-35-115(b) provides that the trial court may, rather than must, impo se consec utive sentencing if one or more of the enumerated factors is present. In this case, the trial court properly considered all of the relevant sentencing criteria and exercised its discretion to impose concu rrent, rather than con secutive sentencing. Because our review indicates that the trial court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law and the trial court's findings are adequately supported by the record, we may not modify the sentence even if we wou ld have p referred a different res ult. State v. Fletcher,
805 S.W.2d 785, 791 (T enn. C rim. App . 1991). In s hort, the S tate has failed to mee t its burden of sho wing th at the s enten ce is improper. Accordingly, the judgment of the trial court is AFFIRMED. ____________________________________ THOMAS T. W OODALL, Judge -5- CONCUR: ___________________________________ JOE G. RILEY, JR., Judge ___________________________________ JAMES CURW OOD W ITT, JR., Judge -6-
Document Info
Docket Number: M1999-01740-CCA-R3-CD
Filed Date: 12/15/1999
Precedential Status: Precedential
Modified Date: 4/17/2021