State v. Walter Gaines ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY 1999 SESSION March 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9806-CC-00172
Appellee, )
) TIPTON COUNTY
VS. )
) HON. JOSEPH H. WALKER,
WALTER LEE GAINES, JR., ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
J. THOMAS CALDWELL JOHN KNOX WALKUP
114 Jefferson Street Attorney General and Reporter
Ripley, TN 38063
GEORGIA BLYTHE FELNER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
JAMES W. FREELAND, JR.
Assistant District Attorney General
302 E. Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY,
JUDGE
OPINION
A Tipton County jury convicted defendant, Walter Lee Gaines, Jr., of reckless
homicide, possession of a prohibited weapon, and filing a false report. The trial
court sentenced him as a Range I standard offender to serve 3½ years for reckless
homicide, a Class D felony; 1½ years for possession of a prohibited weapon, a
Class E felony; and 11 months and 29 days at 75% for filing a false report, a Class
A misdemeanor. The court ordered the weapon and false report sentences to run
concurrently, but consecutively to the reckless homicide sentence, for an effective
sentence of five years. The sole issue in this appeal as of right is the propriety of
these sentences. Upon our de novo review, we AFFIRM the length of sentences
imposed and the denial of probation; but MODIFY the sentences so as to run them
concurrently rather than consecutively.
FACTS
On February 20, 1997, defendant and his friend, the victim, were playing with
a sawed-off shotgun at the home of defendant’s fiancée. At some point, defendant
pulled the trigger and the gun went off, killing the victim.
Defendant denied shooting the victim and claimed that Willie Holland
murdered his friend. He adhered to this story for several hours and gave the
Covington Police two statements to that effect. Holland was then interrogated, and
the police confirmed Holland was not present at the time of the killing. After
Investigator Ricky Chandler’s suggestion that defendant submit to a gunshot
residue test in order to eliminate him as a suspect, defendant gave a third statement
admitting his culpability in the victim’s death.
The state charged defendant with second degree murder, possession of a
prohibited weapon, and filing a false report. Defendant admitted in his testimony
the possession of the weapon and filing a false report. The jury found him guilty of
those offenses, as well as the lesser offense of reckless homicide.
At sentencing, defendant submitted five factors in mitigation which were
considered by the trial court: (1) defendant is gainfully employed and has been
2
during his adult life; (2) defendant is the sole provider for his wife and three small
children; (3) defendant has no significant record of criminal conduct; (4) defendant
expressed genuine remorse for his actions; and (5) defendant committed the
offense under such unusual circumstances that it is unlikely that a sustained intent
to violate the law motivated his conduct. See Tenn. Code Ann. § 40-35-113(11),
(13).
The trial court found one enhancement factor applicable to all charges:
defendant was on probation at the time of the offense. Tenn. Code Ann. § 40-35-
114(13). In relation to the reckless homicide charge, the court found two additional
enhancement factors: the defendant employed a deadly weapon during the
commission of the offense; and the offense was committed under circumstances
where the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-
114(9),(16). In relation to the misdemeanor false report charge, the trial court
considered that defendant’s false implication of Willie Holland as the killer could
have carried dire repercussions.
The trial judge found the enhancement factors clearly outweighed the
mitigating factors and chose to enhance the sentence for each conviction. The
court sentenced defendant as a Range I standard offender to 3½ years for reckless
homicide and 1½ years for possession of a prohibited weapon. For filing a false
report, defendant received 11 months and 29 days at 75%. Although the weapon
offense and false report offense were run concurrently, they ran consecutively to the
reckless homicide for an effective sentence of five years.
SENTENCING
Defendant challenges the sentences imposed in this case. He asserts the
trial court erred in its application of the enhancement and mitigating factors; its
application of consecutive sentencing; and its denial of probation.
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
3
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
Defendant argues that the trial court failed to apply all appropriate mitigating
factors. However, the trial court specifically recognized the applicability of the
mitigating factors submitted by defendant.
We note that the trial court improperly applied the enhancement factor for a
felony committed while on probation. See Tenn. Code Ann. § 40-35-114(13). At
the time of these offenses, defendant was on misdemeanor probation. In order for
that statutory enhancement factor to apply, release status must be from a prior
felony conviction. Id. We further note that the court improperly applied to the
reckless homicide conviction the enhancement factor for a crime committed when
there is great potential for bodily injury. See Tenn. Code Ann. § 40-35-114(16);
State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995)(holding this
enhancement factor may not be applied to vehicular homicide by recklessness).
A. Length of Sentence
Due to the misapplication of enhancement factors, we review the sentences
de novo without a presumption of correctness. The record actually supports the
application of two enhancement factors to the reckless homicide conviction:
defendant’s previous conviction for vandalism and the employment of a sawed-off
shotgun in the commission of the offense. See Tenn. Code Ann. § 40-35-
114(1),(9). The record also supports the application of three enhancement factors
to the conviction for possession of a prohibited weapon: defendant’s vandalism
conviction; a lack of hesitation about possessing a sawed-off shotgun where the risk
to human life was high; and circumstances surrounding the possession of the gun
that day obviously carried a great potential for bodily injury to a victim. See Tenn.
Code Ann. § 40-35-114(1),(10),(16).
Although this Court assigns little weight to the first enhancement factor, we
4
find that its combination with the other factors causes the enhancement factors to
outweigh the mitigating factors in each instance. Thus, we conclude under our de
novo review that 3½ years is an appropriate sentence for the reckless homicide;
and 1½ years is appropriate for possession of the sawed-off shotgun.
With regard to the sentence for filing a false report, we note the Tennessee
Supreme Court’s decision in State v. Troutman, 979 S.W.2d 271 (Tenn.
1998)(emphasizing the flexibility and discretion vested in the trial court for purposes
of misdemeanor sentencing). The record amply supports the trial judge’s findings
in support of enhancement. The misdemeanor was committed while defendant was
on probation for another misdemeanor, and the report carried potentially dire
repercussions in that defendant falsely accused an innocent man of murder. The
trial court did not abuse its discretion in finding 11 months and 29 days at 75% to
be an appropriate sentence under these circumstances.
B. Consecutive Sentencing
The trial court cited Tenn. Code Ann. § 40-35-115(6) as the basis for
applying consecutive sentencing to defendant’s convictions. A court may order
sentences to run consecutively if the court finds by a preponderance of the
evidence that “the defendant is sentenced for an offense committed while on
probation.” Tenn. Code Ann. § 40-35-115(b)(6). However, the court must also
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 933, 939 (Tenn. 1995).
In this instance, the trial court recognized a proper statutory basis for the
implementation of consecutive sentencing in Tenn. Code Ann. § 40-35-115(b)(6).
However, the court failed to recite any of the factors required by Wilkerson, and our
de novo review fails to reveal the presence of the second Wilkerson factor.
Therefore, consecutive sentencing is improper.
5
C. Denial of Probation
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-35-
103(1):
(A) [c]onfinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an
effective deterrence to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.
Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
The trial court made specific findings at sentencing that confinement is
necessary to avoid depreciating the seriousness of the offenses, and measures less
restrictive had recently been applied unsuccessfully to the defendant. We conclude
the trial court did not err in denying probation.
CONCLUSION
Based upon the foregoing, we AFFIRM the length of sentences imposed by
the trial court and its denial of probation. However, we MODIFY the sentences such
that they all run concurrently rather than consecutively. The case is remanded to
the trial court for entry of modified judgments.
____________________________
JOE G. RILEY, JUDGE
6
CONCUR:
____________________________
JOHN H. PEAY, JUDGE
____________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE
7