State of Tennessee v. Mickey Earl Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Jackson March 2, 2010

STATE OF TENNESSEE v. MICKEY EARL BROWN

Appeal from the Criminal Court for Davidson County

No. 2008-A-538 Cheryl Blackburn, Judge

No. M2009-00786-CCA-R3-CD - Filed June 21, 2010

The Defendant, Mickey Earl Brown, appeals his conviction upon a guilty plea in the

Davidson County Criminal Court for aggravated assault, a Class C felony. The trial court

sentenced the Defendant as a Range III, persistent offender to eleven years in the Department

of Correction, to be served consecutively to a prior six-year sentence. On appeal, the

Defendant contends that his sentence is excessive and that the trial court erred in imposing

consecutive sentencing and in denying alternative sentencing. After review, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT

W ILLIAMS and A LAN E. G LENN, JJ., joined.

Charles E. Walker, Nashville, Tennessee, for the appellant, Mickey Earl Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Jeff Preston Burks,

Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

This case arises from the Defendant’s stabbing two victims, Adrianne Tellmer and

Sheryl Ann Walker, with a box cutter on November 1, 2007. He was indicted for two counts

of aggravated assault, with one count later being dismissed.

At the sentencing hearing, Sheryl Ann Walker, testified that on November 1, 2007,

she, the Defendant, and others were at Adrianne Tellmer’s house in Nashville “partying” and

acknowledged that they had used drugs the previous day. Walker said that she and Tellmer

were upstairs in Tellmer’s bedroom when the Defendant came in the room with “something

behind his back.” Walker described what happened next:

And I was sitting on the bed. And when I looked up he c[a]me

across my face with whatever it was and blood shot everywhere.

And I began to lose conscious[ness]. He started hitting the other

girl Adrianne and she swung off of him some kind of way. And

he came back over towards me and went to stick me in my neck.

I turned my hand up this way. It cut my finger half off. And she

crawled to the door and started running I assume because I was

in and out. And when I got to the top of the stairs I tumbled

down the 15 flights of stairs. She made it to the back door

where he proceeded to stab her in the neck numerous amounts

of times. And she was screaming, “You’re going to kill me.”

So when he looked to see me going out the front door he ran

towards me and started sticking me in my chest. And I was

pushing back, holding up against the wall. Finally I made it out

the front door and ran, tumbled down the hill to the neighbor’s

house. And that’s when I called 911 and . . . they kept saying I

was dead because I was losing so much blood. When the police

finally came and got me out of the house he had already stabbed

her in her chest and I think about nine times in her neck. He cut

me here three times in the chest.

Walker said that she received stitches to her face, lip, and nose and that she underwent

surgery for her finger which was “unfixable” because the tendon and nerve had been

“damaged from the cut.” She said that she suffered seizures as a result of the trauma to her

head and was prescribed antidepressant medication. She said she still experienced

nightmares and was receiving psychiatric treatment. Walker said that she wanted the court

to impose the maximum sentence and did not want the Defendant to receive probation

because “[h]e’s going to get back out and do the same thing.”

The Defendant testified that “everything was fogged up” for about three or four weeks

before the incident because he had not been taking his medication. He said that he felt he

had been drugged that day because he had hallucinations and “felt like [the victims] were

both out to get [him].” He said that he “couldn’t concentrate . . . couldn’t think. I just felt

like [the victims] were going to do something to me. Like they were going to hurt me.” The

Defendant said that since his incarceration, he had been prescribed Prozac and Zyprexa and

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had completed rehabilitation programs, including anger management, Project Return, and

Lifeline.

On cross-examination, the Defendant acknowledged that he was on probation when

he committed the offense in this case. He admitted that he, along with others at Tellmer’s

house, had used cocaine the day of the incident, although he later denied using cocaine.

Asked to explain why the incident with the victims had happened, the Defendant said, “I

wasn’t on my medicine. We were all having problems with money. [Walker] kept saying

that I owed her money. . . . And then she kept going up on the price of the money.” The

Defendant acknowledged that he had been convicted of forgery in 1992 in Mississippi, for

which he received a five-year sentence.

Bobby Aylward, the addictions treatment manager for the Lifeline Therapeutic

Community at Corrections Corporation of America, testified that the Defendant had been

“very calm” and cooperative while in the program. He described an altercation that occurred

in December 2008 in which the Defendant did not fight back. Asked to compare the

Defendant with other offenders who had been in the program, Aylward said that he would

place the Defendant in “the top five percent.”

Barry Suk, a volunteer at Corrections Corporation of America, testified that he had

known the Defendant for about five or six months and had agreed to be his sponsor. He said

that he had no reservations about the Defendant being released into the community.

Aolar Hart testified that she had known the Defendant since 1997 and that he had

lived with her until his incarceration. She said that the Defendant had been treated for

schizophrenia and that he did not take his medication when he was not with her. When the

Defendant did not take his medication, he was “paranoid” and thought “somebody was trying

to do something to him.”

At the conclusion of the hearing, the trial court sentenced the Defendant as a Range

III, persistent offender to eleven years in the Department of Correction. Finding that the

Defendant had committed the offense while on probation for a previous offense, the court

ordered that the Defendant’s sentence be served consecutively to the prior sentence.

ANALYSIS

On appeal, the Defendant contends that the trial court “should have sentenced him to

ten years as a persistent offender concurrent with [his prior sentence] and granted him

alternative sentencing.” The State argues that the trial court properly sentenced the

Defendant. Initially, we note that the Defendant is not presumed a favorable candidate for

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probation. Although convicted of a Class C felony, the Defendant was sentenced as a Range

III, persistent offender and was not entitled to be considered a favorable candidate for

alternative sentencing. See T.C.A. § 40-35-102(6).

Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. T.C.A. § 40-35-401(d) (2006). This presumption of

correctness is conditioned upon the affirmative showing that the trial court considered the

relevant facts, circumstances, and sentencing principles. State v. Carter, 254 S.W.3d 335,

344-45 (2008); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the Sentencing

Commission Comments to section 40-35-401(d) note, the burden is on the appealing party

to show that the sentence is improper.

However, “the presumption of correctness which accompanies the trial court’s action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.” Ashby, 823 S.W.2d at 169.

In this respect, for the purpose of meaningful appellate review,

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.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e).

Also, in conducting a de novo review, we must consider (1) the evidence, if any,

received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical

information as to sentencing practices for similar offenses in Tennessee, (7) any statement

that the Defendant made on his or her own behalf, and (8) the potential for rehabilitation or

treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss,

727 S.W.2d 229 (Tenn. 1986).

In imposing a specific sentence within the appropriate range of punishment for the

defendant:

[T]he court shall consider, but is not bound by, the following advisory

sentencing guidelines:

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(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c). The weighing of the various mitigating and enhancement factors is

“left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345.

When determining if confinement is appropriate, the trial court should consider

whether (1) confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct, (2) confinement is necessary to avoid depreciating the

seriousness of the offense or confinement is particularly suited to provide an effective

deterrence to people likely to commit similar offenses, or (3) measures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the defendant.

T.C.A.§ 40-35-103(1)(A)-(C). The trial court may also consider a defendant’s potential or

lack of potential for rehabilitation and the mitigating and enhancement factors set forth in

Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§ 40-35-103(5),

-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The sentence

imposed should be the least severe measure necessary to achieve the purpose for which the

sentence is imposed. T.C.A. § 40-35-103(4). If a defendant is an especially mitigated or

standard offender convicted of a Class C, D, or E felony, he or she should be considered as

a favorable candidate for alternative sentencing in the absence of evidence to the contrary.

T.C.A. § 40-35-102(6).

As a Range III, persistent offender convicted of a Class C felony, the possible range

of punishment for the Defendant was ten to fifteen years. See T.C.A. § 40-35-112(c)(3). In

imposing the eleven-year sentence, the trial court based its decision upon the following

enhancement factors: (1) the Defendant has a previous history of criminal convictions or

criminal behavior, in addition to those necessary to establish the appropriate range; (2) the

offense involved more than one victim; (3) the Defendant has failed to comply with the

conditions of a sentence involving release into the community; and (4) the Defendant was

on probation when he committed the offense in the present case. See T.C.A. § 40-35-114(1),

(3), (8), (13) (2006). The court found one mitigating factor, the Defendant was suffering

from a mental or physical condition that significantly reduced his culpability for the offense.

See id. § 40-35-113(8). The Defendant does not contest application of any of the

enhancement factors, arguing only that the eleven-year sentence is excessive. Although we

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do not believe that the multiple victim factor can apply with this aggravated assault

conviction, we conclude that the eleven-year sentence remains fully justified.

Finding that the Defendant committed the present offense while on probation for a

previous offense, the trial court ordered that he serve the eleven-year sentence consecutively

to a prior sentence and denied alternative sentencing:

I’m as sympathetic as anyone else to anyone who has serious mental

conditions, but the nature of this offense is so violent and so uncalled for and

because [the Defendant] has so many prior convictions which the law indicates

that I have to set him as a persistent offender has sort of foreclosed any

alternative sentences or allowing him to be out in the community. And that’s

just based on the nature of the offense as well as his prior record. So 11 years

consecutive.

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),

which states in pertinent part that the court may order sentences to run consecutively if it

finds by a preponderance of the evidence that the defendant (2) is an offender whose record

of criminal activity is extensive, or (4) is a dangerous offender whose behavior indicates little

or no regard for human life, or (6) is sentenced for an offense committed while on probation.

and no hesitation about committing a crime in which the risk to human life is high. Here, the

court found that consecutive sentencing was appropriate because of the violent and uncalled

for nature of the crime and the defendant’s very lengthy record of prior convictions.

Rule 32(c)(1) of the Tennessee Rules of Criminal Procedure requires that the trial

court “specifically recite the reasons” behind its imposition of a consecutive sentence. See,

e.g., State v. Palmer, 10 S.W.3d 638, 647-48 (Tenn. Crim. App. 1999) (noting the

requirements of Rule 32(c)(1) for purposes of consecutive sentencing).

According to the presentence report, the forty-one-year-old Defendant’s criminal

history includes convictions spanning a fifteen-year time period for unlawful drug

paraphernalia, burglary of an automobile, resisting arrest, theft of property under $500,

vandalism under $500, evading arrest, prostitution, criminal impersonation, criminal

trespassing, first degree burglary, possession of drugs, and forgery. While the Defendant’s

criminal record is so extensive it is difficult to determine his exact number of convictions,

he has in excess of thirty felony and misdemeanor convictions in Tennessee and at least two

felony convictions in Mississippi. The Defendant’s criminal record and being on probation,

in addition to the brutal nature of his crime, easily support the imposition of consecutive

sentencing.

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CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

_______________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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