State v. Larry Watkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1998 SESSION
August 20, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9710-CR-00449
Appellee, )
) Wilson County
V. )
) Honorable J. O. Bond, Judge
LARRY WATKINS, )
) (Sentencing)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
G. Wayne Davis John Knox Walkup
Attorney at Law Attorney General & Reporter
Suite 2121, Parkway Towers
Nashville, TN 37219 Georgia Blythe Felner
Counsel for the State
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Tom P. Thompson, Jr.
District Attorney General
David Earl Durham
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
On February 13, 1996, the appellant, Larry Watkins, was indicted for
second degree murder and conspiracy to commit second degree murder. On
April 4, 1997, he entered a best interest plea to criminal responsibility for
facilitation of second degree murder, which is a Class B felony. Following a
sentencing hearing on May 22, 1997, the trial court sentenced the appellant to
twelve years in the Tennessee Department of Correction as a Range I, standard
offender, although the appellant qualified for sentencing as a Range II, multiple
offender.
The appellant’s sole issue for our review is whether the trial court erred by
ordering him to serve an excessive sentence. We affirm.
The appellant argues that the trial court erred by imposing an excessive
sentence. He contends that the court erred in its characterization of his
behavior and that the court should have applied certain mitigating factors. First,
the appellant asserts that the following statement by the trial court was improper:
“People have a right to live free of violence. People have this right to know a
person should not be able to terrorize people, hurt people and get away with it.”
The appellant contends that there was no proof that he had terrorized anyone
and that the court erred by relying on this characterization because it is not one
of the statutory enhancement factors provided for in Tennessee Code Annotated
§ 40-35-114 (1997).
Second, the appellant argues that several mitigating factors, specifically 4,
6, 11, and 13, under Tennessee Code Annotated § 40-35-113 (1997) were
applicable: (4) the appellant played a minor role in the commission of the
offense; (6) the appellant, because of his age, lacked substantial judgment in
committing the offense; (11) the appellant committed the offense under unusual
-2-
circumstances that it is unlikely that a sustained intent to violate the law
motivated the appellant’s conduct; and (13) the “catchall” provision which
provides for any factor consistent with the purposes of this chapter. Therefore,
based on these mitigating factors, the appellant argues that he should have
received a sentence of eight years, not twelve.
The state contends that the trial court properly sentenced the appellant. It
argues that the trial court determined that there were no mitigating factors and at
least five enhancement factors. Regarding the trial court’s statement about the
appellant “terrorizing” people, the state maintains that the court was referring to
probation, not enhancement factors, when it made the statement. Furthermore,
the state submits that the appellant fails to cite any legal authority for his position
on the mitigating factors, and therefore, this Court should consider the issue
waived. The state also notes that the record reveals that none of the mitigating
factors cited by the appellant would be applicable.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1997). However, this presumption is conditioned on an affirmative
indication 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 bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and (f)
-3-
the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-103(5), -210(b) (1997).
The presentence report reveals that the appellant has a lengthy criminal
record. We also note that the appellant could have been sentenced as a
multiple offender, but based upon an agreement with the state, he was
sentenced as a standard offender. With regard to the trial court’s
characterization of the appellant’s behavior, we agree with the state that the trial
court was referring to probation and not to any enhancement of the appellant’s
sentence when it made the statement. The trial court provided not only oral
findings at the sentencing hearing, but also completed a sentencing form that
indicates the court’s findings. From our review of the record, we conclude that
the trial court followed the principles of sentencing in finding that at least five
enhancement factors and no mitigating factors were applicable.
Therefore, finding no error mandating reversal, we affirm the judgment of
the trial court.
-4-
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JERRY L. SMITH, Judge
-5-