State of Tennessee v. Terry Wayne Hawkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 22, 2009

STATE OF TENNESSEE v. TERRY WAYNE HAWKINS

Appeal from the Criminal Court for Monroe County

No. 08133 Amy Reedy, Judge

No. E2009-00044-CCA-R3-CD - Filed March 24, 2010

The Defendant, Terry Wayne Hawkins, was convicted by a Monroe County jury of

aggravated sexual battery and was sentenced to eleven years as a Range I, violent offender.

In this appeal as of right, he contends that the trial court imposed an excessive sentence.

Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER, J., joined. J AMES C URWOOD W ITT, J R., J., filed a separate concurring opinion.

Steven B. Ward, Madisonville, Tennessee, attorney for appellant, Terry Wayne Hawkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Amy Tarkington, Deputy Attorney

General; R. Steven Bebb, District Attorney General; and Andrew Freiberg, Assistant District

Attorney General, attorneys for appellee, State of Tennessee.

OPINION

The Defendant was convicted of the aggravated sexual battery of his live-in

girlfriend’s twelve-year-old daughter. The victim testified that she and her baby brother (the

Defendant’s child with the victim’s mother) would often be left in the Defendant’s care for

a week or longer while her mother worked out of town as an electrician. One favorite

activity of the family would be to ride all-terrain vehicles (“four-wheelers”) together. The

victim testified that the Defendant touched her breasts over her clothing several times while

they rode four-wheelers together. She described the touching as “squeezing and kind of

grab[bing].” The victim reported the touching to her grandmother because she wanted it to

stop. When the family learned of her report, the victim’s older brothers, eighteen-year-old

twins, beat the Defendant.

Captain Michael Morgan of the Monroe County Sheriff’s Office testified that the

Defendant appeared at his office on October 18, 2007 at approximately 8:30 in the evening.

He recalled that the Defendant had been beaten. The Defendant told Captain Morgan that

the victim’s brothers had beaten him because he had been accused of touching the victim.

Upon further questioning, the Defendant admitted that he had fondled the victim’s breasts

over her clothing. He explained that he did not want to have sex with the victim and that he

was “tempted” but was now embarrassed by his actions and did not “want this hanging over

[his] head all his life.” Detective Jennifer Monroe testified that the Defendant also admitted

his actions to her and that he stated that the touching was not accidental.

The Defendant testified that the victim was upset with him because he had asked her

to start doing more work around the house while her mother was out of town working. The

Defendant stated that he never asked the victim to ride the four-wheeler but that her brother

would not go without her. He claimed that he touched the victim accidentally several times

because “she would about jerk [him] off the back of [the four-wheeler]” when she drove.

He denied that he touched the victim in a sexual manner. He testified that the victim’s

brothers beat him and called him a “pervert” when they learned of her report to their

grandmother. He claimed that Captain Morgan tricked him into admitting to touching the

victim by asking him such questions as “did she have a nice rack?” – questions Captain

Morgan denied asking during his testimony.

Based upon this evidence, the jury convicted the Defendant of aggravated sexual

battery. At the sentencing hearing, Danny Isbill with the Tennessee Board of Probation and

Parole testified that the thirty-one year old Defendant does not have any history of criminal

convictions. However, relevant to this offense, the Defendant declined to give a statement

for the presentence report. Mr. Isbill also reported that the Defendant refused to complete

the psycho-sexual consultation required of all convicted sex offenders. He testified that the

Defendant told the counselor that “he was not interested in completing the paperwork and

that he felt that he knew right from wrong and did not need treatment.”

The State acknowledged that none of the enhancement factors applied but argued that

the enhancement factors are merely advisory and that the trial court could, in its discretion,

determine the sentence based upon other considerations within the principles of the

Sentencing Act. The State argued that the Defendant’s lack of remorse in light of his

previous confession to the authorities and his unwillingness to comply with the sex offender

evaluation process warranted significant punishment. The State then asked the trial court to

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impose a sentence of ten years. The Defendant argued that he has no history of criminal

convictions and that the sexual offender evaluation process improperly requires him to admit

something he is not willing to admit. The presentence report reflects that the Defendant has

no prior convictions and had maintained long-term employment with the same company for

eight years prior to his arrest for this offense.

The trial court stated that the Defendant’s “refusal to cooperate with something that

is required is, it’s a remorseless act on his part.” The trial court noted the Defendant’s lack

of prior record but stated that “he has shown me through his lack of cooperation that he is

a remorseless offender. I do not find mitigation, I do not find any enhancement factors other

than the remorselessness that I have seen here by his failure to cooperate.” Based upon these

findings, the trial court imposed a sentence of eleven years to be served at one hundred

percent. See Tenn. Code Ann. § 40-35-501(i).

ANALYSIS

On appeal, the Defendant urges the court to reverse the trial court’s sentencing

decision. He argues that “[t]he minimum sentence within the range of punishment is the

sentence that should be imposed . . .” and that the trial court could only adjust the sentence

based upon “the presence or absence of mitigating and enhancement factors set out in [Tenn.

Code Ann.] §§ 40-35-113 and 40-35-114.” Tenn. Code Ann. § 40-35-210(c)(1) and (2). He

contends that, in light of these standards, the trial court erred in not considering as mitigation

the Defendant’s lack of criminal record or lack of serious bodily injury inflicted upon the

victim. The State argues that the portions of the Sentencing Act cited by the Defendant are

“merely advisory” and not binding on the trial court and that the trial court acted within its

discretion in increasing the Defendant’s sentence based upon his unwillingness to comply

with the statutory mandate of the sexual offender registry which implicates a statutory

sentencing principle, namely his potential for rehabilitation.

An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the

Defendant to show that the sentence is improper. This means that if the trial court followed

the statutory sentencing procedure, made findings of fact that are adequately supported in the

record, and gave due consideration and proper weight to the factors and principles that are

relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence

even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991); see also State v. Carter, 254 S.W.3d 355 (Tenn. 2008).

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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.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

[T]he 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) (citation omitted); see Tenn. Code Ann.

§ 40-35-210(e).

Tennessee’s sentencing act provides:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(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.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

The weight to be afforded an enhancement or mitigating factor is left to the trial

court’s discretion so long as its use complies with the purposes and principles of the 1989

Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);

Carter, 254 S.W.3d at 342-43. “An appellate court is therefore bound by a trial court’s

decision as to the length of the sentence imposed so long as it is imposed in a manner

consistent with the purposes and principles set out in . . . the Sentencing Act.” Carter, 254

S.W.3d at 346. Accordingly, on appeal we may only review whether the enhancement and

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mitigating factors were supported by the record and their application was not otherwise

barred by statute. See id.

In conducting its de novo review, the appellate court 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) any statement that the defendant made on his own behalf, (7) the defendant’s potential

for rehabilitation or treatment, and (8) any statistical information provided by the

Administrative Office of the Courts as to sentencing practices for similar offenses in

Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;

State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

Significantly in this case, the trial court found no enhancement or mitigating factors

applicable but instead increased the Defendant’s sentence based upon the Defendant’s lack

of remorse – an indication of his low “potential for rehabilitation.” The Sentencing

Commission Comments to § 40-35-210(c) opine that “[i]f there are no enhancement or

mitigating factors, then the court must impose the minimum sentence within the appropriate

range.” However, we believe this comment predates the significant legislative changes

made to the Act in 2005 which now render the sentencing guidelines merely advisory. See

Tenn. Code Ann. § 40-35-210(c) (“the court shall consider, but is not bound by, the

following advisory sentencing guidelines. . .”).1 Indeed, as explained by our supreme court

in Carter, the 2005 amendments to the Sentencing Act now afford the trial court such greater

discretion that:

the trial court is free to select any sentence within the applicable range so long

as the length of the sentence is ‘consistent with the purposes and principles of

the [Sentencing Act].’”

Carter, 254 S.W.3d at 343 (citing Tenn. Code Ann. § 40-35-210(d)). Therefore, we conclude

that the Defendant’s argument that the trial court was required to begin at the minimum and

adjust the sentence based upon enhancement and mitigating factors must fail. Furthermore,

because the application of enhancement and mitigating factors to adjust a sentence was

rendered advisory by the 2005 amendment, we reiterate that the trial court may set a

sentence anywhere within the applicable range so long as the sentence is consistent with the

principles and purposes of the Act, regardless of the presence or absence of mitigating and

enhancement factors.

1

We note the Sentencing Commission Comments appear verbatim in the 1997 replacement.

Apparently the comment has not been addressed in light of the 2005 amendments.

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As for the propriety of the sentencing decision based upon the findings made by the

trial court in this case we note, once again, that the weight to be afforded an enhancement or

mitigating factor is left to the trial court’s discretion so long as its use complies with the

purposes and principles of the 1989 Sentencing Act and the court’s findings are adequately

supported by the record. Id. § (d)-(f); Carter, 254 S.W.3d at 342-43. Thus, the trial court’s

failure to give any weight to the Defendant’s proposed mitigating factors cannot be reviewed

by this court unless such failure exceeds compliance with the purposes and principles of the

Act. In this case, we conclude that it does not. We further conclude that the trial court’s

imposition of an eleven-year sentence based upon the Defendant’s lack of remorse and

noncompliance with the sexual offender registry requirements is supported by the record in

this case and comports with the purposes and principles of the Act. Accordingly, the

judgment of the trial court is affirmed.

CONCLUSION

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

trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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