State of Tennessee v. Bobby Joe Campbell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 12, 2015
STATE OF TENNESSEE v. BOBBY JOE CAMPBELL
Appeal from the Circuit Court for Marshall County
No. 13CR108 Lee Russell, Judge
No. M2015-00704-CCA-R3-CD – Filed February 23, 2016
The Defendant, Bobby Joe Campbell, entered guilty pleas to two counts of aggravated
assault, a Class C felony, and two counts of failure to appear, a Class E felony, with the
manner and service of his sentence to be determined by the trial court. See T.C.A. §§ 39-
13-102, -13-111, -16-609(e). The trial court merged the aggravated assault convictions
and imposed a consecutive term of five years‟ incarceration for aggravated assault and
one and a half years‟ incarceration for each count of failure to appear. Each count of
failure to appear was also ordered to be served consecutively to the other for an effective
sentence of eight years in the Tennessee Department of Correction. The sole issue
presented in this appeal is whether the Defendant‟s sentence is excessive and contrary to
law. Upon our review, we must remand this matter to the trial court for a new sentencing
hearing for the limited purpose of considering the factors outlined in State v. Wilkerson,
905 S.W.2d 933 (Tenn. 1995), and determining the propriety of consecutive sentencing
for the failure to appear convictions. In all other respects, we affirm the sentence
imposed by the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part and Remanded for Resentencing
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.
M. Wesley Hall, IV, Unionville, Tennessee, for the Defendant-Appellant, Bobby Joe
Campbell.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The Defendant and the victim, Cindy Mooneyham, were romantically involved
and on December 27, 2012, they were in a physical altercation in Marshall County,
Tennessee. As a result, on June 19, 2013, the Defendant was indicted for one count of
aggravated assault by attempting to cause bodily injury by strangulation and one count of
aggravated assault by causing serious bodily harm (Case No. 13-CR-108). While the
Defendant was on bond, he failed to appear in court on December 13, 2013, and at his
scheduled trial on January 21, 2015, which resulted in two additional charges for failure
to appear (Case Nos. 14-CR-1, 14-CR-2). The Defendant entered guilty pleas to all four
charges on January 22, 2015, leaving the manner and service of his sentence to be
determined by the trial court. At the plea hearing, the State summarized the facts
surrounding the offenses as follows:
[Case No.] 13-CR-108 is a two-count indictment, Count 1,
aggravated assault by strangulation; Count 2, aggravated assault with
serious bodily injury. The facts are these that on the date here in Marshall
County, Tennessee, December 27th, 2012, officers responded to an
apartment complex here in the city about an altercation that had taken place
between [the Defendant] and Ms. Mooneyham, who had a relationship. I
would describe it in old talk, a girlfriend type relationship.
....
The defendant was spoken to by law enforcement first. His
statement in short form was basically that Ms. Mooneyham got physical,
struck him under the eye. However, the officer would testify, if he was
allowed to, that he saw a mark under the defendant‟s eye and he did not
believe it was consistent with what the defendant described. Then, Ms.
Mooneyham was spoken to. She stated that Mr. Campbell had awoken her,
wanted to have certain intentions. She did [not] want to. He then struck
her in the jaw with his fist, picked her up, slammed her into the wall. Then,
he began to choke her with his hands to the point where she was having
trouble breathing. The officers looked at her. They saw marks, saw
swelling, I think, on the left side of her face. If my memory is correct, it
was consistent with what she said. Then, they saw red marks on her throat,
which was consistent with what they said. We have photographs of all that.
And after the incident was over, Mr. Campbell had been taken into custody.
At some point, she went to the hospital, had X-rays, and her jaw was
broken.
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And [Case No.] 14-CR-101. These charges were pending on [the
Defendant], and we had court here in circuit court. You were the judge.
December 13th, 2013, the defendant failed to show for that court
appearance, and we later took out charges on him for failure to appear, and
he was on bond.
And, then, in [Case No.] 14-CR-2, on January 21st here in Marshall
County, Tennessee, the [D]efendant had another appearance, and while still
on bond, he failed to appear for that appearance and charges were taken out.
That‟s short form.
The trial court accepted the Defendant‟s guilty pleas and set the matter for
sentencing.
Sentencing Hearing. At the March 13, 2015 sentencing hearing, the trial court
merged the Defendant‟s aggravated assault convictions. The Defendant‟s presentence
report was introduced without objection. The Defendant‟s criminal history included
convictions for simple assault in August 2002 and possession of a handgun while under
the influence in December 2007. The parties agreed that the Defendant was a Range I,
standard offender and that the applicable sentence ranges were three to six years at thirty
percent for aggravated assault and one to two years at thirty percent for failure to appear.
The victim testified that she had been seeing the Defendant romantically for nine
months prior to the assault. The victim suffered from physical disabilities and had been
using a walker for five or six years. She explained that she had developed zinc poisoning
from using denture cream and that, due to this ailment, she had difficulty walking and
picking up things and could not drive. She also said that because of her physical
condition, she had difficulty fighting the Defendant off during the assault.
The victim testified that on the night of the assault, the Defendant was upset about
a telephone call with his ex-wife, and she felt like he took his anger out on her. She said
that she was asleep at her apartment when the conflict arose. She stated that the
Defendant strangled her to the point where she could not breathe and hit her with his
“horseshoe diamond ring,” which fractured her jaw. She sought immediate medical
attention at the emergency room. The next morning, she was sent to Vanderbilt Hospital
where she was told that her jaw would “heal up on its own, because the break . . . was too
close to [her] facial nerve to have surgery done on it.” It took six to seven months for her
jaw to heal, and she was limited to a liquid diet during that time. She also identified a
photograph taken after the assault that showed bruising under her chin and around her
mouth.
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On cross-examination, the victim testified that she had been arrested once for
violating probation. She also admitted that her prior, fifteen-year relationship involved
instances of violence and physical confrontations. However, she claimed that these
incidents had occurred several years ago and no longer affected her emotionally. She
denied that she ever threw whiskey bottles at the Defendant or that she ever struck him
other than during the assault. She also stated that she was bipolar but did not take
medication for it. She admitted that on the night she was assaulted, she had two shots of
alcohol at about 8:30 p.m. and had taken a Tylenol Cold pill earlier that afternoon.
Although she knew the medicine should not be taken with alcohol, she said that she took
it anyway because she had not slept in three days. She said that she went to bed around
9:00 p.m. and had been asleep around three hours before the assault occurred. She agreed
that she had previously attended Spectrum Pain Clinic, where she received medication
and shots for back pain. However, she stated that the last time she had taken pain
medication was in 2004. The victim also testified that she had never fallen or had
difficulty while getting up during the night to use the rest room.
The trial court questioned the victim briefly regarding the nature and extent of her
physical disabilities. She noted that she had trouble raising her hands due to the zinc
poisoning and agreed that her physical condition was the same as at the time of the
assault.
Dr. Jon Garrison, a clinical psychologist and forensic evaluator, testified that his
job duties generally consisted of assessing the mental competency and capacity of
criminal defendants. Dr. Garrison conducted a forensic evaluation of the Defendant on
August 29, 2014, and his report was introduced into evidence. He testified that he used
the police report, the Defendant‟s and victim‟s statements, and two tests, a competency
test and the Miller Forensic Assessment of Symptoms Test, to conduct the evaluation.
The “MENTAL STATUS/BEHAVIORAL OBSERVATIONS” section of Dr. Garrison‟s
report read, in pertinent part, as follows:
[The Defendant] was dressed in correctional institution attire including
shackles, and he gave the appearance of being cooperative with interview
and testing procedures. Speech was within normal limits in regard to rate
and volume, and vocabulary suggested low average to average intelligence.
His mood was dysphoric and affect was congruent. He denied
suicidal/homicidal ideation. The defendant was oriented to person, place,
purpose and time. There was no evidence of a formal thought disorder, and
though he claimed a history of psychosis, malingering testing undercut this
assertion. The defendant acknowledged a history of alcohol or drug
problems. Memory was within normal limits. History suggests judgment
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and impulse control has often been poor. Concentration was adequate
during the interview.
In his evaluation of the Defendant, Dr. Garrison noted that the Defendant had a
history of mental issues and diagnoses that included major depression, polysubstance
abuse, noncompliance with treatment, paranoid schizophrenia, and anxiety disorder. The
Defendant reported having medical issues including “cirrhosis of the liver, an unspecified
seizure disorder, hypertension, cerebral atrophy, arthritis, and degenerative disc issues.”
The Defendant further acknowledged a history of illegal drug and alcohol abuse and
“admitted he was „drinking heavily. . . guzzling‟ whiskey the night of the incident that
resulted in current charges[.]”
On cross-examination, Dr. Garrison clarified that he had not made a specific
finding of diminished capacity but advised defense counsel that there was a basis for
arguing diminished capacity in light of the Defendant‟s alcoholism. He noted, however,
that the basis for this argument was predicated upon the Defendant‟s own self-reporting
as to his mental condition and that the victim‟s statement did not confirm the Defendant‟s
claims.
Kimberly Goney, an officer of the Tennessee Probation and Parole Department,
testified that she had prepared the Defendant‟s presentence report. She said that she was
not qualified to investigate mitigating factors and did not include any in the presentence
report. She said that the Defendant “self-reported . . . that he was mentally and physically
disabled” and “began receiving disability in 1997 for . . . [cirrhosis] of the liver and
paranoid schizophrenia.” She agreed that the Defendant made a statement in the report
that read, “I‟m real sorry. I can‟t say that enough.”
Following arguments of counsel, the trial court enhanced the Defendant‟s sentence
based on factors (1), that the Defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range, and
(4), that a victim of the offense was particularly vulnerable because of age or physical or
mental disability. T.C.A. § 40-35-114(1), (4). The trial court declined to apply any
mitigation factors, and imposed a sentence of five years for aggravated assault and a one
year and six months sentence for each count of failure to appear. The court noted that
there was a statutory mandate requiring the failure to appear sentences to run consecutive
to the aggravated assault sentence. See T.C.A. § 39-16-609(f). The court ordered the
two failure to appear sentences to be served consecutively to each other after classifying
the Defendant as a dangerous offender. See T.C.A. § 40-35-115(b)(4). As a result, the
trial court imposed an effective sentence of eight years‟ incarceration with thirty percent
release eligibility to be served in the Tennessee Department of Correction. This timely
appeal followed.
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ANALYSIS
The Defendant argues that the trial court erred by imposing a sentence that is
“excessive and contrary to law.” He also contends that he is entitled to a mitigated or
alternative sentence based upon the sentencing principles and the record as a whole. The
State responds that the trial court properly exercised its discretion in sentencing the
Defendant. We agree.
The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing.” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012).
In light of this broader discretion, “sentences should be upheld so long as the statutory
purposes and principles, along with any applicable enhancement and mitigating factors,
have been properly addressed.” Id. at 706. Moreover, “a trial court‟s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. Therefore, this court reviews a trial court‟s sentencing
determinations under “an abuse of discretion standard of review, granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. The defendant has the
burden of showing the impropriety of the sentence on appeal. T.C.A. § 40-35-401(d),
Sentencing Comm‟n Cmts.
A trial court must consider the following when determining a defendant‟s specific
sentence and the appropriate combination of sentencing alternatives: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; and (7) any statement the
defendant wishes to make in the defendant‟s own behalf about sentencing. Id. § 40-35-
210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining the sentence alternative
or length of a term to be imposed.” Id. § 40-35-103(5). The court must impose a
sentence “no greater than that deserved for the offense committed” and “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. §§
40-35-103(2), (4).
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Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee Code
Annotated section 40-35-102(6)(A) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard
offender convicted of a Class C, D or E felony, should be considered as a favorable
candidate for alternative sentencing options in the absence of evidence to the contrary[.]”
However, a trial court “shall consider, but is not bound by, the advisory sentencing
guideline” in section 40-35-102(6)(A). Id. § 40-35-102(6)(D). In determining whether to
deny alternative sentencing and impose a sentence of total confinement, the trial court
should consider whether:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement 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) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Tennessee Code Annotated section 40-35-102(5) gives courts guidance regarding the
types of defendants who should be required to serve their sentences in confinement:
In recognition that state prison capacities and the funds to build and
maintain them are limited, convicted felons committing the most severe
offenses, possessing criminal histories evincing a clear disregard for the
laws and morals of society and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving
incarceration[.]
We note that a trial court‟s determination of whether the defendant is entitled to an
alternative sentence and whether the defendant is a suitable candidate for full probation
are different inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467,
477 (Tenn. Crim. App. 1996). “A defendant‟s sentence is based on „the nature of the
offense and the totality of the circumstances in which it was committed, including the
defendant‟s background.‟” State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006) (quoting
Ashby, 823 S.W.2d at 168). The seriousness of the offense alone may justify a trial
court‟s denial of alternative sentencing. See Trotter, 201 S.W.3d at 655. Following the
2005 amendments to the Sentencing Act, a defendant is no longer entitled to a
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presumption that he or she is a favorable candidate for alternative sentencing. State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008).
Here, the Defendant was eligible for probation because each sentence was ten
years or less and because the offenses were not specifically excluded by statute. See
T.C.A. § 40-35-303(a); State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986)
(concluding that a defendant is eligible for probation if each of the sentences is ten years
or less regardless of the effective sentence). However, an eligible defendant “is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing
Comm‟n Cmts. Although the trial court shall automatically consider probation as a
sentencing alternative for eligible defendants, the defendant bears the burden of proving
his or her suitability for probation. Id. § 40-35-303(b). The defendant must demonstrate
that probation would serve “the ends of justice and the best interests of both the public
and the defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002)
(citations omitted). When considering probation, the trial court should consider the
nature and circumstances of the offense, the defendant‟s criminal record, the defendant‟s
background and social history, the defendant‟s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). “[A] trial court‟s
decision to grant or deny probation will not be invalidated unless the trial court wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, — S.W.3d — , No. W2012-00716-SC-R11-CD, 2014 WL 2466054, at *3
(Tenn. 2014).
As a Range I, standard offender convicted of aggravated assault, a Class C felony,
the Defendant was subject to a sentence range of three to six years. For his convictions
for failure to appear, a Class E felony, he was subject to a sentence range of one to two
years. Thus, the sentences imposed by the trial court were within the appropriate
statutory ranges. In determining the appropriate length of the Defendant‟s sentences, the
trial court applied two enhancement factors. The record supports the trial court‟s
application of factor (1), as the Defendant‟s presentence report lists two prior convictions
and an extensive history of drug and alcohol abuse. The Defendant does not dispute his
criminal history or history of ongoing substance abuse. Furthermore, the record supports
the trial court‟s application of factor (4), that the victim of the offense was particularly
vulnerable because of age or physical or mental disability. Here, the victim testified to
the nature and extent of her physical disabilities, noting that at the time of the assault, she
was using a walker and had difficulty raising her arms. The trial court was particularly
troubled by the severity of the victim‟s physical vulnerability, emphasizing:
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The victim . . . is physically in bad shape. And has every reason to
believe that based on this exposure to zinc, that she was at the time of this
incident, which is what we [are] concerned about here, she was particularly
vulnerable due to her physical condition.
We also know she had a mental condition diagnosed as bi-polar. But
the physical is so readily apparent here today. And the reason I asked her
to separate out what she thought was nerves, with what I was seeing was
she was [not] even able to stand up initially, and get out of her chair.
And then she could not raise her hands -- her right hand to respond
to the oath. She responded, but without raising her hand.
....
[H]er difficulty in walking, her inability to raise her hands, appear
to me to be as a result of the health problem with the zinc. And I think that
[is] consistent with everything she said, consistent with all of the evidence
in this particular record.
Although the Defendant asserts that the “punishment imposed does not fit the crime or
the offender,” we conclude that the record supports the trial court‟s application of
enhancement factors (1) and (4).
The Defendant also argues that the trial court failed to apply any of the mitigating
factors raised at sentencing given the Defendant‟s “history of substance abuse, major
depression, and paranoid schizophrenia.” In declining to mitigate the Defendant‟s
sentences on mental health grounds, the trial court reasoned that any potential mental
impairment suffered by the Defendant was “contributed to very heavily . . . by his
substance abuse.” The trial court recognized that voluntary intoxication is an exception
to mitigation based on mental condition. See T.C.A. § 40-35-113(8). Furthermore, while
Dr. Garrison testified that diminished capacity based on the Defendant‟s alcoholism
could be argued, Dr. Garrison fell short of concluding that the Defendant suffered from
diminished capacity. The record supports the length of the sentences imposed by the trial
court, and the Defendant is not entitled to relief on this issue.
Next, the Defendant argues his current sentence “fails to take into account the trial
court‟s duty to consider the economic impact of the sentence as a fiduciary of the State.”
The Defendant cites State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) for the proposition
that “[g]iven the great need to preserve the State‟s limited resources, the minimum
sentence available under the law is sufficient to ensure all of the interests of the
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Sentencing Reform Act are met.” In light of these assertions, the Defendant claims that
he should have received some type of alternative sentence. According to the Defendant,
“the Court should have sentenced the defendant to a substantially reduced sentence
and/or ordered some sort of split confinement requiring drug treatment and
rehabilitation” based on the sentencing principles and record as a whole.
As an initial matter, we note that the Defendant did not request alternative
sentencing or present proof in support of his suitability for alternative sentencing at the
sentencing hearing. Notwithstanding this omission, the Defendant fails to demonstrate
that the trial court abused its discretion in sentencing him to confinement. In reaching its
sentencing decision, the trial court expressly considered the factors in Tennessee Code
Annotated section 40-35-210 and the sentencing principles in Tennessee Code Annotated
sections 40-35-102 and -103. The trial court was particularly concerned with the nature
and seriousness of the Defendant‟s aggravated assault in light of the victim‟s physical
disabilities. See T.C.A. § 40-35-103(1)(B). The trial court thoroughly considered the
Defendant‟s substance abuse issues and determined that incarceration was appropriate
given the victim‟s frailty at the time of the assault. Furthermore, the Defendant‟s
suitability for alternative sentencing is belied by the fact that he failed to appear in two
separate court proceedings related to the aggravated assault offense. Because the record
reveals that the trial court carefully considered the evidence, the enhancement and
mitigating factors, and the principles of sentencing prior to imposing a sentence of
confinement, we conclude that the Defendant was not entitled to an alternative sentence.
Lastly, while the Defendant does not explicitly challenge the trial court‟s
imposition of consecutive failure to appear sentences, this Court is compelled to address
the issue. Where a defendant is convicted of one or more offenses, the trial court has
discretion to decide whether the sentences shall be served concurrently or consecutively.
T.C.A. § 40-35-115(a). The Tennessee Supreme Court has held, “[T]he abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to
consecutive sentencing determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn.
2013). A trial court may order multiple offenses to be served consecutively if it finds by
a preponderance of the evidence that a defendant fits into at least one of seven categories
enumerated in code section 40-35-115(b). Those categories include:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
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(3) The defendant is a dangerous mentally abnormal 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.
T.C.A. § 40-35-115(b). An order of consecutive sentencing must be “justly deserved in
relation to the seriousness of the offense.” Id. ' 40-35-102(1); see State v. Imfeld, 70
S.W.3d 698, 708 (Tenn. 2002). In addition, the length of a consecutive sentence must be
“no greater than that deserved for the offense committed.” T.C.A. ' 40-35-103(2); see
Imfeld, 70 S.W.3d at 708.
Here, the trial court imposed consecutive sentencing after finding that the
Defendant was a dangerous offender whose behavior indicated little or no regard for
human life and no hesitation about committing a crime in which the risk to human life
was high. See T.C.A. § 40-35-115(b)(4). In reaching this decision, the court made the
following findings:
[T]hen we get to the question of whether these are consecutive or
concurrent. There is a presumption in favor of concurrent sentencing, but
in this case when we have failure to appear[,] . . . the failure to appear
sentences would be consecutive . . . to the underlying felony for which he
didn‟t show up, which is this.
....
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So our question then is, is whether or not the two failure to appear
sentences would be consecutive to one another. Because we know they‟re
consecutive, each one is consecutive to the underlying felony[.]
So we look to whether or not there are one of seven factors present,
and sufficient to overcome the presumption in favor of concurrent
sentencing.
And No. 1 is not present, certainly the professional criminal. And
No. 2 is not present: The extensive criminal record.
The committed while on probation doesn‟t apply. The abuse of
children doesn‟t apply. Criminal intent doesn‟t apply.
So the question is, is he dangerously mentally abnormal, which is the
third one at least on my list. Or is he dangerous and has little regard for
human life, where there‟s no hesitation, where the risk of life is great. And
I do find that No. 4 is present here. So I make the two E felonies
consecutive to one another.
Not only was there an aggravated assault, there was an aggravated
assault on someone who is extremely vulnerable; unable to fight back;
unable to even raise her hands to fight back. So, I‟m going to make each of
these consecutive to the others.
When imposing consecutive sentencing pursuant to the dangerous offender
classification, two additional findings must be made by the trial court:
“Proof that an offender‟s behavior indicated little or no regard for human
life and no hesitation about committing a crime in which the risk to human
life was high, is proof that the offender is a dangerous offender, but it may
not be sufficient to sustain consecutive sentences. Every offender
convicted of two or more dangerous crimes is not a dangerous offender
subject to consecutive sentences; consequently, the provisions of [s]ection
40-35-115 cannot be read in isolation from the other provisions of the Act.
The proof must also establish that the terms imposed are reasonably related
to the severity of the offenses committed and are necessary in order to
protect the public from further criminal acts by the offender. In addition,
the Sentencing Reform Act [of 1989] requires the application of the
sentencing principles set forth in the Act applicable in all cases. The Act
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requires a principled justification for every sentence, including, of course,
consecutive sentences.”
Pollard, 432 S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.
1995)). Therefore, when imposing consecutive sentences pursuant to the dangerous
offender classification, the trial court must find that the proof establishes that the
aggregate sentence is “reasonably related to the severity of the offenses” and “necessary
in order to protect the public from further criminal acts.” Id. (quoting Wilkerson, 905
S.W.2d at 938). Unlike the other six subsections, the trial court must make additional
findings for the dangerous offender classification because it is “the most subjective and
hardest to apply.” State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
Upon review of the record, we conclude that the trial court failed to expressly
articulate the requisite components of the dangerous offender classification as outlined in
Wilkerson. Although the trial court found that the aggregate sentence was “reasonably
related to the severity of the offenses,” it failed to determine based on the proof whether
consecutive sentencing of the failure to appear convictions to one another was “necessary
in order to protect the public from further criminal acts.” See Wilkerson, 905 S.W.2d at
938. As previously noted, both components must be present to justify consecutive
sentencing under the dangerous offender classification. Thus, as determined by the
Tennessee Supreme Court in Pollard, this Court has two options:
Where, as here, the trial court fails to provide adequate reasons on the
record for imposing consecutive sentences, the appellate court should
neither presume that the consecutive sentences are reasonable nor defer to
the trial court‟s exercise of its discretionary authority. Faced
with this situation, the appellate court has two options: (1) conduct a de
novo review to determine whether there is an adequate basis for imposing
consecutive sentences; or (2) remand for the trial court to consider the
requisite factors in determining whether to impose consecutive sentences.
See Bise, 380 S.W.3d at 705 & n.41.
{ "pageset": "S98
Pollard, 432 S.W.3d at 863-64. The Pollard court concluded that “because
the considerations required under Wilkerson involve a fact-intensive inquiry . . . the
better course is to remand to the trial court for consideration of the Wilkerson
requirements in determining the propriety of consecutive sentencing.” Id. at 864. In light
of the court‟s decision in Pollard, we remand this matter to the trial court for a new
sentencing hearing to consider whether the evidence in this case establishes the
Wilkerson factors.
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CONCLUSION
For the aforementioned reasons, we remand the cause to the trial court for a new
sentencing hearing. This hearing is limited to consideration of the factors outlined in
State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In all other respects, the judgment of
the trial court is affirmed.
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CAMILLE R. McMULLEN, JUDGE
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