State v. Terrence T. Wiggins ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
July 1, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9806-CR-00241
Appellee, )
) Davidson County
V. )
) Honorable Steve R. Dozier, Judge
)
TERRENCE T. WIGGINS, ) (Attempted Voluntary Manslaughter;
) Reckless Endangerment)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
JEFFREY A. DEVASHER LUCIAN D. GEISE
LAURA C. DYKES Assistant Attorney General
Assistant Public Defenders 425 Fifth Avenue North
1202 Stahlman Building Nashville, TN 37243
Nashville, TN 37201
VICTOR S. (TORRY) JOHNSON III
District Attorney General
MARIAN FORDYCE
MARY CAMPBELL
Assistant District Attorneys General
222 Second Avenue North, Suite 500
Nashville, TN 37201
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Terrence T. W iggins, was convicted of attempt to commit
voluntary manslaughter and felony reckless endangerment and sentenced to
concurrent terms of seven and three years, respectively. The trial court then
ordered split confinement with twenty-one months confinement and the balance
on probation. On this appeal, the defendant argues that the trial court
misapplied certain enhancement factors and that his sentences are, therefore,
excessive. He further asserts that his confinement violates Tennessee Code
Annotated § 40-35-306(a). We AFFIRM the judgment of the trial court.
BACKGROUND
On April 4, 1996, Kevin Ezzell observed the defendant quarreling with
Fatima Mattox, the defendant’s former girlfriend, in a parking lot near Ezzell’s
workplace. Ezzell intervened, and the defendant pulled a handgun from his
pocket and pointed it at Ezzell. When the defendant looked away for a moment,
Ezzell punched him in the face and tried to subdue him. The defendant wrestled
free and fired several shots at Ezzell. He then forced Mattox into his car and fled
the parking lot.
Ezzell followed in his own car, attempting to get the defendant’s license
plate number. During the chase, the defendant reloaded and fired several more
shots at Ezzell. Ezzell testified that the defendant also pointed the gun at Mattox
and that she repeatedly opened the passenger-side door of the defendant’s
moving vehicle in apparent attempts to escape. Police officers ultimately joined
the pursuit and apprehended the defendant when he turned onto a dead-end
street.
The defendant was indicted on twelve counts, ranging from attempted
second degree murder to failure to possess a driver’s license. Four counts were
dismissed before trial, and the trial court granted judgment of acquittal on five
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additional counts following the state’s proof at trial. The remaining three counts--
attempted second degree murder and two counts of reckless endangerment--
were submitted to the jury. The jury returned guilty verdicts on both counts of
reckless endangerment and found the defendant guilty of attempted voluntary
manslaughter on the attempt charge. The trial court subsequently granted the
defendant’s motion for arrest of judgment on one of the reckless endangerment
counts, thus leaving convictions of one count each attempted voluntary
manslaughter and reckless endangerment.
At the defendant’s sentencing hearing, the trial court found five
enhancement factors applicable to both offenses:
The defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range, Tenn. Code Ann. § 40-35-114(1);
The defendant has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the
community, Tenn. Code Ann. § 40-35-114(8);
The defendant possessed or employed a firearm . . . during the
commission of the offense, Tenn. Code Ann. § 40-35-114(9);
The defendant had no hesitation about committing a crime when
the risk to human life was high, Tenn. Code Ann. § 40-35-114(10);
The crime was committed under circumstance under which the
potential for bodily injury to a victim was great, Tenn. Code Ann. §
40-35-114(16).
Partially offsetting these enhancements, the trial court found as mitigating factors
that the defendant had acted under strong provocation, see Tenn. Code Ann. §
40-35-113(2), and that the defendant had avoided trouble during the eleven
months immediately prior to his sentencing hearing. Based on these findings,
the trial court imposed a mid-range sentence of three years on the reckless
endangerment count and a sentence of seven years on the attempt count.1 The
1
Based on his convictions of two prior felonies, the trial court found the defendant to be a
range II of fender . Attem pted volun tary ma nslaugh ter is a Clas s D felon y, carrying a ran ge II
senten ce of fou r to eight years . See Tenn. Code Ann. §§ 39-12-101; 39-12-107(a); 39-13-211;
40-35-1 12(b). R eckles s enda ngerm ent com mitted w ith a dead ly weapon is a Class E felony, with
a range II sentenc e of two to four years . See Tenn . Code A nn. §§ 39 -13-103 (b); 40-35 -112(b) (5).
The presumptive sentence for a Class D or E felony is the minimum sentence in the range,
absen t enhanc eme nt or m itigating facto rs. See Tenn. Code A nn. § 40-35-210(c).
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court ordered these sentences to run concurrently and to be probated except for
a period, in addition to time served, of six months day-for-day confinement.
The defendant contests the imposed six-month period of confinement. He
further argues that his sentences are excessive due to misapplication of
enhancement factors (10) and (16) as to both offenses and misapplication of
factor (9) as to the reckless endangerment count. The defendant does not
challenge the applicability of enhancement factor (1) or (8) as to either offense or
of factor (9) as to the attempt conviction.
STANDARD OF REVIEW
When an accused challenges the length or manner of service of a
sentence, it is the duty of this Court to conduct a de novo review on the record
“with a presumption that the determinations made by the court from which the
appeal is taken 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 facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
appellant carries the burden of showing that the sentence is improper. See
Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,
929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
ANALYSIS
The defendant argues that the trial court erroneously applied
enhancement factor (9) to his conviction of felony reckless endangerment. We
agree. Use of a deadly weapon is an essential element of felony reckless
endangerment. See Tenn. Code Ann. § 39-13-103(b). As such, enhancement
factor (9) is inapplicable to that offense.
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Similarly, the defendant argues that factors (10) and (16) are essential
elements of both attempted voluntary manslaughter and reckless endangerment
and, therefore, could not properly enhance either offense. The trial court
recognized that these factors are inherent in both of the defendant’s convicted
offenses but nevertheless applied both factors based upon risk to others--
specifically, risk to other drivers and bystanders in the vicinity of the car chase
and gunshots. Each member of this panel agrees that the trial court properly
applied enhancement factor (10) to the facts of this case. However, the
defendant’s argument as to the application of factor (16) raises an issue as to
which this Court is divided.
My learned colleagues would hold that the trial court correctly applied
enhancement factor (16) to the facts of this case consistent with the holding of
State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). Sims holds that both
factors (10) and (16) may be applied in situations where individuals other than
the victim are in the area and are subject to injury. See id. at 50. I, on the other
hand, would differ and hold that the trial court incorrectly applied enhancement
factor (16) to the facts of this case consistent with the holdings of State v.
Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995). Bingham holds that
enhancement factor (16) may not be applied to a conviction for vehicular
homicide by recklessness. See id. at 452; see also State v. Charles Justin
Osborne, No. 01C01-9806-CC-00246 (Tenn. Crim. App. Filed, May 12, 1999, at
Nashville). I am in the minority on this panel when I conclude that factor (16) is
inapplicable to the defendant’s convictions based on risk to persons other than a
victim of the convicted offenses. This conclusion notwithstanding, I would not
require alteration of the defendant’s sentences.
For these reasons, this panel concludes that the trial court’s application of
enhancement factor (9) was erroneous as to the defendant’s reckless
endangerment conviction. A majority of this panel concludes that enhancement
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factors (10) and (16) are properly applied to both offenses. These conclusions,
however, do not require alteration of the defendant’s sentences. Five
enhancement factors remain on the attempt count and four enhancement factors
remain on the reckless endangerment count. The trial court did not indicate the
weight accorded to the various sentencing factors. This panel finds that
enhancement factors (1), (8), and (10) are each entitled to significant weight on
the facts of this case--more than sufficient to warrant maximum sentences on
both counts. In contrast, the mitigating factors allowed by the trial court are
slight. The imposed sentences are appropriate.
Finally, the appellant asserts that, considering his presentence jail credit,
the imposed period of confinement was greater that one year and, therefore,
violative of Tennessee Code Annotated § 40-35-306(a). Due to unusual delays,
the defendant had served four hundred and thirty-two days confinement and was
released prior to sentencing. At his sentencing hearing, the trial court ordered
that the defendant serve an additional six months day-for-day confinement.
Thus, the defendant’s effective period of confinement was approximately twenty-
one months, all of which the defendant completed prior to this appeal. Because
the defendant has served his entire period of confinement and there exists no
remedy for the alleged error, we find this issue moot.
CONCLUSION
The judgment of the trial court is AFFIRMED.
______________________________
JOHN EVERETT WILLIAMS, Judge
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CONCUR:
_______________________________
DAVID H. WELLES, Judge
_______________________________
JOE G. RILEY, Judge
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