Saeger v. State

O’BRIEN, Judge,

concurring in part dissenting in part.

I cannot agree with the majority opinion insofar as it affirms consecutive sentences for a total of thirty (30) years imprisonment in these cases.

The entire statement of the trial judge relative to consecutive sentencing is contained in the Bill of Exceptions as follows:

“As to whether or not the sentences should run consecutively or concurrently — under Gray v. State, under the fifth (5th) factor, dangerous offender, ‘If the crime for which he is convicted indicated he has little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high — ’, and of course, the Court goes on further and says that the object ‘to use consecutive sentences where appropriate to protect society from those who are unwilling to lead a productive life and resort to criminal activity in furtherance of their antisocial life style.’

The Court feels that under all the circumstances in this case, gentlemen, that the sentences should and must run consecutively, and that is the order — judgment of this Court. . . .”

While the order in the Technical Record fixing the sentences to run consecutively explicitly states the reason to be, “(Gray v. State, # 5).” The record does not in any fashion include those factors which the trial judge considered in ordering the sentences to be served consecutively. In the Gray case the Court specifically states:

“A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently dangerous are involved should be based upon the presence of aggravating circumstances and not merely on the fact that two or more dangerous crimes were committed. However, this does not preclude the trial court from imposing consecutive sentencing for the commission of dangerous offenses where no aggravating circumstances are present if evidence indicates that the defendant should be sentenced under one of the other classifications.”

The language used by the Court in Gray in reference to aggravating circumstances means those circumstances attendant on the particular crime for which defendant was convicted. This view is sustained by the decision in Wiley v. State, 552 S.W.2d 410 (Tenn.Cr.App.1977), in which this Court found that although the record did not contain an expression by the trial judge of his reasons for ordering consecutive sentences the evidence supported the decision. In that case the victims were struck in the head and left for dead in an apparent effort to kill them in the course of an armed robbery. The same is true in Jones v. State, 553 S.W.2d 920 (Tenn.Cr.App.1977), in which the defendants were convicted of assault and battery, crime against nature, and abduction of a female with consecutive sentences ordered in each case. The abuse of a sixteen-year-old female in the course of consummating the various offenses was held to be sufficient reason to classify them as dangerous offenders.

In this case there were no aggravating circumstances beyond the fact that three armed robberies were committed. The circumstances of their commission were admitted by the defendant and not contradicted in any fashion. The Director of Psychotherapy and Mental Hygiene at the Veteran’s Administration Hospital in Murfrees-boro, and a respected and eminent psychiatrist testified in behalf of defendant. Their testimony was generally favorable. The first, noting that defendant was participating in psycho-therapy, recommended continued psycho-therapy and very strict conditions of probation in the event of defendant’s release. The other, though dwelling in a somewhat esoteric fashion on the probability and possibilities of defendant’s rehabilitation based on his examinations of defendant, stated that he had the potential after a reasonable period of incarceration to avoid further difficulties with the law under the proper parole supervision. The State offered nothing particularly derogatory of the defendant. There is no indication that the evidence presented to the Court placed him in the category of dangerous offender in any of the several hearings on the matter in the trial court. The Court relied solely upon the dangerous offender classification as did the trial judge in Peabody v. State, 556 S.W.2d 547 (Tenn.Cr.App.1977). This did not comply with the criteria in Gray. I would modify the judgment and fix the sentences to b¿ served concurrently. In all else I concur with the majority.