State of Tennessee v. John Brandon Gold

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 10, 2015
STATE OF TENNESSEE v. JOHN BRANDON GOLD
Appeal from the Circuit Court for Bedford County
No. 17878 Franklin Lee Russell, Judge
No. M2014-02017-CCA-R3-CD – Filed September 25, 2015
The Defendant, John Brandon Gold, pleaded guilty to violating the sex offender registry,
a Class E felony. The trial court sentenced the Defendant, a Range II persistent offender,
to five years plus ninety days, to be served at 45%. The trial court denied the Defendant
an alternative sentence. On appeal, the Defendant contends that his sentence is excessive.
After a thorough review of the record and applicable authorities, we affirm the trial
court‟s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J. delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J. joined.
Donna Orr Hargrove, District Public Defender, and Michael Jonothan Collins, Assistant
Public Defender, Shelbyville, Tennessee, for the appellant, John Brandon Gold.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert James Carter, District Attorney General; and Michael David Randles, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises out of the Defendant‟s violation of the sex offender registry. On
June 16, 2014, a Bedford County grand jury indicted the Defendant for one count of
violating the sex offender registry by changing his address without timely registering
with the registry. On August 15, 2014, the Defendant entered a plea of guilty to this
charge, with the trial court to determine the length and manner of service of his sentence.
During the guilty plea hearing, the Defendant ensured that he understood his rights and
the rights that he was waiving by entering a guilty plea to the charge against him. He
agreed that, had the case gone to trial, the facts, as outlined by the State, would have
shown:
[I]n March of 2009 the [D]efendant was convicted of sexual battery, and as
a result, placed on the sex offender registry. Moving forward up into the
beginning of 2014, . . . for a time, he was listed as homeless, which
required that, I think, you report monthly to the registering authority, in this
case, the Bedford County Sheriff‟s Department.
In February of 2014, he listed that he had moved in at an address on
Enon Church Road here in Bedford County and was required to report
between March 1st and April 1st, 2014. He failed to report, and so,
Detective Charles Kimbril went looking for him and went to that residence
and the folks there said, No, he had moved, he had not been there in, I
believe, it was several weeks by that point in time.
The [D]efendant was ultimately located and he admitted to the
detective that he knew he should have come and seen the detective,
reported, and updated his information.
The Defendant agreed that these facts were accurate. The trial court found that the
Defendant was entering his guilty plea knowingly and voluntarily, and it accepted his
guilty plea to one count of violating the sex offender registry. The parties agreed to allow
the trial court to set the Defendant‟s sentence at a subsequent hearing.
At the sentencing hearing, the trial court noted that it appeared from the
presentence report that the Defendant had four convictions in 2011 of violating the sex
offender registry, all on separate dates. The Defendant also had a conviction in 2011 of
drug paraphernalia and in 2010 of contributing to the delinquency of a minor. The
Defendant was convicted in 2009 of sexual battery, a felony.
The State then argued that the Defendant was a Range III offender based upon his
having five prior felony convictions. The applicable sentencing range, it argued, was
four to six years to be served at 45%. The State asked the trial court to apply two
enhancement factors: (1) that the Defendant had a previous history of criminal
convictions or behavior in addition to that necessary to establish his range; and (8) that he
had failed to comply with conditions of a sentence involving release into the community.
T.C.A. § 40-35-114 (1), (8) (2014).
The Defendant‟s counsel agreed that the Defendant was a Range III offender and
he agreed that enhancement factors (1) and (8) applied. He contended however that the
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trial court should give those enhancement factors very little weight. He further contended
that mitigating factor (1), that the conviction did not cause or threaten bodily injury,
applied.
The trial court found:
Apparently, we have an agreement on all of the issues until we reach
where he‟s going to be within the range. So, we agree that he‟s Range III.
We agree that the range is four to six years at 45 percent. So, if we do
begin with the minimum, I just don‟t believe we have to, but if we do begin
with the four years, then we look at the enhancing factors, and I find that
two are present, number one.
But all that‟s left after we‟ve established the range of four to six is
the two misdemeanors. In addition, now, I think that enhancing factor
number (8) is present. He had a violation of probation on the sexual
battery. In looking at his record, four of those felonies are for consecutive
months, which doesn‟t make it less serious, but it‟s not spread over quite as
long a time period.
I‟m going to enhance him from four up to five and three and 90
days. Five years plus 90 days, at 45 percent. He‟s definitely not an
appropriate candidate for alternative sentencing, given the extent of his past
criminal record overall. And the fact that he does have a tendency to repeat
sexually related offenses. So, I don‟t find him at all a candidate for
alternative sentencing. There‟s very little hope of rehabilitation except to
lock him up.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that his sentence is excessive and contrary to
law. He asserts his sentence of five years and three months in jail is not reasonable given
the “totality of the circumstances.” The State counters that the Defendant‟s sentence is
presumptively reasonable and he is not entitled to relief because the trial court imposed a
sentence within the applicable range of punishment, stated its reasons for its decision on
the record, and those reasons are supported by the evidence.
The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments
describe the process for determining the appropriate length of a defendant‟s sentence and
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the manner of service of that sentence. In State v. Bise, the Tennessee Supreme Court
reviewed changes in sentencing law and the impact on appellate review of sentencing
decisions. 380 S.W.3d 682 (Tenn. 2012). The Tennessee Supreme Court announced that
“sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a „presumption of reasonableness.‟”
Id. A finding of abuse of discretion “„reflects that the trial court‟s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal
principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn.
2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of
discretion, the record must be void of any substantial evidence that would support the
trial court‟s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.
Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold
the sentence “so long as it is within the appropriate range and the record demonstrates
that the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the
appropriate range and properly applies the purposes and principles of the Sentencing Act,
its decision will be granted a presumption of reasonableness. Id. at 707. We are to also
recognize that the defendant bears “the burden of demonstrating that the sentence is
improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In determining the proper sentence, the trial court must consider: (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 Tennessee Code
Annotated sections 40-35-113 and -114 (2014); (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 made in the defendant‟s own behalf
about sentencing. See T.C.A. ' 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001).
We conclude that the Defendant in this case has not met the burden of
demonstrating that his sentence is improper. The Defendant admitted that he was a
Range III, persistent offender. As such, his applicable sentencing range for the Class E
felony to which he pled guilty was four to six years. T.C.A. § 40-35-112 (c)(5) (2014).
The trial court found applicable two enhancement factors, neither of which the Defendant
contends are error. The trial court sentenced the Defendant within his range, and the
record is not void of support for its decision. As such, we affirm the Defendant‟s
sentence.
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III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court‟s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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