State v. Karl Shields

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1998 SESSION
August 25, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9707-CR-00239
Appellee, * DAVIDSON COUNTY
VS. * Hon. Seth Norman, Judge
KARL SHIELDS, * (Two Counts of Rape of a Child)
Appellant. *
For Appellant: For Appellee:
Marian C. Fordyce, Attorney John Knox Walkup
Washington Square, Suite 500 Attorney General and Reporter
129 Second Avenue North
Nashville, TN 37201 Deborah A. Tullis
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243
William R. Reed
and Diane Lance
Assistant District Attorneys General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Karl Shields, after being indicted on three counts of
rape of a child and two counts of aggravated sexual battery, entered a negotiated
plea of guilt to two counts of rape of a child. The trial court imposed a fifteen-year
sentence on each count and ordered the sentences to be served consecutively.
In this appeal of right, the defendant complains that the sentences
should not have been ordered to be served consecutively. We affirm the judgment
of the trial court.
It was stipulated that the proof at trial would have established that in
the spring or early summer of 1995, the defendant undressed his twelve-year-old
daughter, touched her unclothed body, and placed his hands and mouth on her
breast and vagina. Thereafter, he penetrated her vagina with his penis.
On a second occasion, the defendant punished his daughter by
undressing her and then penetrating her vagina with his penis, causing her pain.
The victim's mother was not at home on either of these occasions.
The defendant complains that more than a year had elapsed before
the state returned indictments. He asserts that during that period, he had lived in
the family residence without any further unlawful activity. The victim was afflicted
with chlamydia as a result of the defendant's behavior and was on medication for
seven to ten days in order to relieve the infection. While there was testimony that
there could be undetectable secondary effects depending upon the length of the
infection, the genital and rectal areas of the victim were otherwise normal. The
defendant asserts that the victim did not suffer in her performance at school as a
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result of the sexual contact.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for a Class A felony conviction at the time
of these offenses, the presumptive sentence is the minimum within the range if there
are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c)
(amended July 1, 1995, changing the presumptive sentence for a Class A felony to
the midpoint in the range). If there are enhancement factors but no mitigating
factors, the trial court may set the sentence above the minimum. Tenn. Code Ann.
§ 40-35-210(d). A sentence involving both enhancement and mitigating factors
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requires an assignment of relative weight for the enhancement factors as a means
of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence may then
be reduced within the range by any weight assigned to the mitigating factors
present. Id.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989,
the limited classifications for the imposition of consecutive sentences were set out in
Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court
ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the
court established an additional category for those defendants convicted of two or
more statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution:
[C]onsecutive sentences should not be routinely imposed
... and ... the aggregate maximum of consecutive terms
must be reasonably related to the severity of the
offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court only upon a determination that one or
more of the following criteria1 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
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The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.
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person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court had ruled that before consecutive
sentencing could be imposed upon the dangerous offender, as now defined by
subsection (b)(4) in the statute, other conditions must be present: (a) that the
crimes involved aggravating circumstances; (b) that consecutive sentences are a
necessary means to protect the public from the defendant; and (c) that the term
reasonably relates to the severity of the offenses.
In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court
reaffirmed those principles and ruled that consecutive sentences cannot be required
for any of the classifications "unless the terms reasonably relate to the severity of
the offenses committed and are necessary in order to protect the public from further
serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision,
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which modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.
Crim. App. 1991), governing the sentencing of dangerous offenders, described
sentencing as "a human process that neither can nor should be reduced to a set of
fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).
The defendant, now thirty-four years of age, was convicted in 1995 for
felony possession of cocaine. He was placed on probation for a period of three
years. The presentence report indicates that probation was revoked on July 19,
1996, due to these offenses. The report indicates that the defendant has two other
daughters and a son who range in age from three to nine. The report described his
family as supportive. The defendant had been employed for almost three years as a
dock worker for a trucking company.
Although the length of each of the sentences is not at issue, the trial
court found no mitigating factors and two enhancement factors. The trial judge
determined that consecutive sentencing was appropriate under Tenn. Code Ann. §
40-35-115(b)(5), due to the presence of "two or more statutory offenses involving
sexual abuse of a minor."
While consecutive sentences should not be routinely imposed, the
imposition of consecutive sentencing is within the discretion of the trial court when
one or more statutory criterion is present. In determining whether there has been a
proper exercise of discretion, the overriding concern is the fairness of the result
under all of the circumstances. These crimes are serious and statutorily qualify the
defendant for a consecutive sentence. That the defendant had failed to benefit by
his prior grant of probation is not only a concern but also a second statutory ground.
See Tenn. Code Ann. § 40-35-115(b)(6). While the defendant has shown some
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rehabilitative qualities, the entirety of the circumstances, including the nature and
seriousness of these crimes, warranted consecutive sentencing.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
David G. Hayes, Judge
_____________________________
Jerry L. Smith, Judge
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