State v. Wilkerson
| Decision Date | 21 August 1995 |
| Citation | 905 S.W.2d 933 |
| Parties | STATE of Tennessee, Plaintiff-Appellee, v. Timothy Michael WILKERSON, Defendant-Appellant. |
| Court | Tennessee Supreme Court |
Charles W. Burson, Attorney General and Reporter, Kimbra R. Spann, Assistant Attorney
General, Nashville, C. Phillip Bivens, District Attorney General, Dyersburg, Rose Mary Drake, Assistant District Attorney General, Nashville, for plaintiff-appellee.
Martin L. Howie, Charles Agee, Jr., Dyersburg, for defendant-appellant.
Timothy Michael Wilkerson appeals his classification as a dangerous offender upon pleas of guilty to driving a motor vehicle on a revoked license, vehicular homicide, and four charges of vehicular assault, and the imposition of a consecutive sentence for the vehicular homicide conviction. The case is remanded to the trial court for resentencing.
Even though the appellant agreed to stipulate at the sentencing hearing that he was a dangerous offender within the meaning of Tenn.Code Ann. § 40-35-115(4) (1990), the trial judge found him to be a dangerous offender on the proof, and sentenced him to serve 20 days on the charge of driving on a revoked license, three years on each charge of vehicular assault, to be served concurrently, and four years as a standard offender, Range I, on the charge of vehicular homicide, to be served consecutive to the vehicular assault sentences. The total effective sentence was seven years.
The appellant contends that the record does not support the finding that he is a dangerous offender, and, therefore, the trial judge erred in imposing a consecutive sentence. He relies on State v. Woods, 814 S.W.2d 378 (Tenn.Crim.App.1991). The State responds that Woods should be overruled as contrary to the statute, and further, that the appellant fits the definition of dangerous offender even under Woods. The burden of showing that the sentence is improper is upon the appellant. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.1991).
This Court's review of sentencing is prescribed by the Criminal Sentencing Reform Act of 1989. Tenn.Code Ann. § 40-35-117 (1990). The procedure was summarized in State v. Jones, 883 S.W.2d 597, 599-600 (Tenn.1994):
To facilitate meaningful appellate review, the Act provides that the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. Tenn.Code Ann. § 40-35-210(f) (1990).... Where the trial court has complied with these provisions of the statute, the sentence is reviewed de novo with a presumption of correctness. Tenn.Code Ann. § 40-35-401(d) (1990).
The trial judge in this case performed on the record a careful analysis of the facts, the enhancing and mitigating factors, and the principles of sentencing. Accordingly, review by this Court is de novo with a presumption of correctness under Section 40-35-401(d), which states,
When reviewing sentencing issues ... the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.
The presumption of correctness imposes upon the appealing party the burden of showing that the sentence rendered is improper. The Sentencing Commission Comments to Section 40-35-401 state,
The primary change from prior law is that appellate review, while still de novo, must be conducted with "a presumption that the determinations made by the court from which the appeal is taken are correct." Therefore, the burden of showing that the sentence is improper is upon the appealing party.
In reviewing the sentence imposed, the Court must review separately the factual findings and the legal conclusions of the trial court. Appropriate deference must be given to the trial court's factual determinations based on the testimony of witnesses heard in open court. However, the appellate court must make an independent analysis of the relevant legal issues and the conclusions of fact and law. Unless this review and analysis of the record show that the punishment imposed is improper, the judgment of the trial court will be affirmed. If the reviewing court finds, as in this case, that the sentencing principles applicable to the facts and circumstances of the case were not considered by the trial judge, remand for resentencing is the appropriate relief.
Prior to passage of the Tennessee Criminal Sentencing Reform Act of 1989, there were no statutory guidelines for a trial judge to use in determining whether to impose concurrent or consecutive sentences. Consequently, the Court in Gray v. State, 538 S.W.2d 391 (Tenn.1976), set forth some standards for imposing consecutive sentences. The Court, relying upon provisions of the Model Penal Code, began by stating the underlying principle:
Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.
Id. at 393. In Gray, the Court defined five classifications of offenders for which consecutive sentencing should be reserved: persistent offenders, professional criminals, multiple offenders, dangerous mentally abnormal persons, and dangerous offenders. The Court defined a "dangerous offender" as one whose crimes,
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.
Id. However, the Court stated further:
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.
Id. Consequently, under Gray, a defendant could be found to be a dangerous offender subject to consecutive sentencing only upon the initial finding that consecutive sentences are necessary to accomplish the underlying purpose of protecting the public from further criminal conduct by the defendant, and the further findings that the defendant's offenses 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," and that the offenses involve aggravating circumstances in addition to the fact that two or more dangerous crimes were committed.
In State v. Taylor, 739 S.W.2d 227, 230 (Tenn.1987), the Court expanded the classifications appropriate for consecutive sentencing to include "defendants convicted of two or more statutory offenses that involve sexual abuse of minors." The Court held:
Trial courts should weigh the aggravating circumstances arising from the relationship between defendant and the victim or victims, the age of the 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 and determine the appropriate use of consecutive sentencing accordingly, bearing in mind the general objectives set forth in Gray.
Id. The Court then added the cautionary note applicable to all cases:
Obviously, no rigid formula for application to such cases would be appropriate, but we caution that consecutive sentences should not routinely be imposed in sexual abuse cases, or in other cases, and that the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved. See ABA Standards for Criminal Justice, Second Edition § 18-4.5.
These decisions, Gray and Taylor, were the only guidance available for imposing consecutive sentences until the enactment of the Criminal Sentencing Reform Act of 1989. The Act set forth the statutory criteria for concurrent and consecutive sentencing found in Section 40-35-115.
(a) If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section.
(b) The court may order sentences to run consecutively if the court finds by a preponderance of the evidence that:
(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 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.
(c) The finding concerning the imposition of consecutive or concurrent sentences is appealable by either party.
(d) Sentences shall be ordered to run concurrently, if the criteria noted previously in this section are not met, unless consecutive sentences are specifically required by statute or the Tennessee Rules...
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