State of Tennessee v. Gustavo Chavez

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 11, 2005

STATE OF TENNESSEE v. GUSTAVO CHAVEZ

Direct Appeal from the Circuit Court for Decatur County

No. 03-CR-140 C. Creed McGinley, Judge

No. W2004-01154-CCA-R3-CD - Filed March 17, 2005

The defendant, Gustavo Chavez, pled guilty to one count of aggravated sexual battery, a Class B

felony. After conducting a sentencing hearing, the trial court classified him as a Range I offender

and imposed a ten year sentence at 100% service in the Department of Correction. On appeal, the

defendant challenges the length of the sentence imposed by the trial court. After reviewing the

record and the applicable law, we affirm the defendant’s conviction. However, in light of Blakely

v. Washington, 542 U.S. ----, 124 S. Ct. 2531 (2004), we modify the defendant’s sentence to an

effective sentence of eight years at 100% service. We, therefore, remand the case for entry of a

judgment that is consistent with this opinion.

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

Modified

J.C. MCLIN , J., delivered the opinion of the court, in which John Everett Williams, J., joined. DAVID

G. HAYES, J., filed a dissenting opinion.

Guy T. Wilkinson, District Public Defender; Richard W. DeBerry, Assistant District Public

Defender, for the appellant, Gustavo Chavez.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;

Robert Radford, District Attorney General; and Jerry W. Wallace, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural Background

In February 2004, the defendant pled guilty to one count of aggravated sexual battery. At the

hearing on the plea, the State recited the following facts: “the Defendant . . . on or about the 2nd day

of January, 2003, here in Decatur County, did have unlawful sexual contact with a victim, the victim

being under the age of thirteen years.” The record does not reflect that any additional facts

underlying the offense were introduced at the hearing.

In April 2004 the trial court conducted a sentencing hearing. The defendant requested that

the trial judge mitigate his sentence because “there was no physical injury or physical harm.” The

State requested that the trial judge enhance the defendant’s sentence due to the defendant’s alleged

relationship to the child: “the mother of the child was a girlfriend of the Defendant, and the child was

within the home, and the Defendant was also there in the home.” The State further submitted that,

due to the age of the victim, the potential for bodily injury warranted additional enhancement.

The trial court stated:

[The defendant] has pled guilty to a reduced charge of aggravated sexual battery,

which is a Class B felony. He is classified as a Range I offender. . . .

The State has suggested enhancing factors of number eight, which this Court

specifically rejects. . . . The law, quite simply, is not very settled in this, and the

Court at this particular point does not feel that sufficient evidence exists upon this

record to demonstrate that [point] . . . .

The Court finds that [enhancement factor] number sixteen does apply.

Apparently, [the defendant] was a paramour with the mother of the victim. It puts

him in an authority-type position, and it’s quite obvious that [the defendant] used this

in the commission of the offense.

[Enhancement factor] [n]umber seventeen, I don’t feel that it, once again, is

appropriate, that the very nature of this offense would be potential for bodily injury

to a victim. I see that more as applying with the use of firearms and things like that.

I am not - - I do not feel that number one, the mitigating factor that has been

suggested, would apply. I don’t think you can say that it neither caused nor

threatened bodily injury because, when you’re speaking of sexual offenses with

someone that’s eight or nine years old, the Court’s just not compelled to accept that

[argument], that it does not threaten serious bodily injury because it threatens serious

bodily injury, it threatens serious mental injury, and there’s a host of problems that

result . . . .

....

We’ve got one enhancing factor and probably I could apply eight, but with

the state of flux with the appellate court system, I’m reluctant to do that. I don’t want

to revisit this at a later date.

Having said that, there’s an eight-to-twelve-year range. The Court feels that

the appropriate sentence in this case is ten years.

I’ve considered the case, and despite the fact that there’s no prior record concerning

the circumstances of this offense, the very young age of the child, the Court feels for

reason of deterrence as well as the mere fact that I do not feel that it would serve the

ends of justice to place him on alternative correction, I feel that it would send entirely

the wrong message concerning the victimization of a very, very young victim, and

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I don’t feel it’s appropriate. It would depreciate the seriousness of this offense,

which the Court views as being very serious. Therefore, ten years, DOC.

This appeal timely followed.

II. Analysis

In this appeal, the defendant challenges whether or not the trial court correctly applied the

enhancement factor in setting the length of his sentence. He also asserts that the trial court should

have mitigated the sentence due to lack of physical injury. “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.” Tenn. Code Ann. § 40-35-401(d) (2003). “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 conducting a de novo

review, we are to consider: (a) any evidence received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d)

the nature and characteristics of the offense; (e) evidence offered by the parties on any mitigating or

enhancement factors; (f) any statements made by the defendant on his or her own behalf about

sentencing; and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. See

Tenn. Code Ann. § 40-35-210(b) (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.

2001). We must further consider that the defendant bears “the burden of showing that the sentence

is improper.” Ashby, 823 S.W.2d at 169.

A review of the transcript of the sentencing hearing indicates ample evidence that the trial

court considered the sentencing principles and the relevant facts and circumstances. Therefore, we

review its decision de novo with a presumption of correctness. Generally, so long as the trial court

complied with the purposes and procedures of the 1989 Sentencing Act and its findings are

supported by the record, this Court cannot disturb the sentence even if we would have preferred a

different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, the

continuing validity of our current sentencing scheme is called into question by the United States

Supreme Court opinion in Blakely, 124 S. Ct. at 2531. Therefore, we must first address the impact

of Blakely in conducting our review of the defendant’s sentence.

In Blakely, the Court applied the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), to

strike down a provision of Washington’s sentencing guidelines that permitted a trial judge to impose

an “exceptional sentence” upon the finding of certain statutorily enumerated enhancement factors.

124 S. Ct. at 2537. The Court reversed and remanded the case, holding that the sentence violated

the defendant’s Sixth Amendment right to a jury trial because the facts supporting the defendant’s

“exceptional sentence” were neither admitted by him nor found by a jury. Id.

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The emergence of Blakely signals certain infirmities in Tennessee’s sentencing scheme. In

Tennessee, the presumptive length of a defendant’s sentence is prescribed through particular ranges

of punishment as set by the 1989 Sentencing Act. The presumptive sentence for a Range I offender

that commits a Class B felony is “not less than eight (8) years nor more than twelve (12) years.”

Tenn. Code Ann. § 40-35-112(a)(2) (2003). Pursuant to Tennessee Code Annotated section 40-35-

210, the trial court may impose a sentence in excess of the presumptive minimum when it finds the

existence of one or more enumerated factors in Tennessee Code Annotated section 40-35-114.

Pursuant to Blakely, sentence enhancement based upon factor sixteen in Tennessee Code

Annotated section 40-35-114, that the defendant abused a position of trust, requires a jury finding

or an admittance by the defendant. In the present case, the trial judge relied solely upon factor

sixteen to increase the defendant’s sentence beyond the presumptive minimum. However, no facts

establishing the defendant’s relationship to the victim were presented at the guilty plea hearing. The

record does not contain an admittance by the defendant of his relationship to the victim or that

enhancement factor sixteen is appropriate. Consequently, such a finding should be made by a jury

under Blakely. Accordingly, we must disregard the imposition of this enhancement factor and

modify the defendant’s sentence to the presumptive minimum, eight years, at 100% service.

The defendant’s additional argument is that the trial court should have applied mitigating

factor one in Tennessee Code Annotated section 40-35-113, that his conduct neither caused nor

threatened serious bodily injury. This Court has held that “the Blakely rule is not linked to eligibility

for sentence mitigation; it is tied to a judge finding factual standards to justify increasing the

sentence beyond the ‘maximum’ or presumptive sentence.” State v. Linda H. Overholt, No. E2003-

01881-CCA-R3-CD, 2005 WL 123483, at *14 (Tenn. Crim. App., at Knoxville, Jan. 21, 2005).

Having found that Blakely is inapplicable and that the trial court considered sentencing principles

and the relevant facts, we review this argument de novo with a presumption of correctness.

The trial court considered the defendant’s argument that this mitigating factor should apply

because “there was no physical injury or physical harm in this case.” However, the trial court

recognized the young age of the victim and that this conduct “threatens serious bodily injury, it

threatens serious mental injury, and there’s a host of problems that result.” Tennessee Code

Annotated section 39-11-106(a)(34) defines “serious bodily injury” to include substantial impairment

of a mental faculty. This Court has held that “[p]sychological problems can constitute serious bodily

injury.” State v. William Marvin Brown, No. M2001-02287-CCA-R3-CD, 2002 WL 31852853, at

*7 (Tenn. Crim. App., at Nashville, Dec. 18, 2002) (citing State v. Smith, 910 S.W.2d 457, 461

(Tenn. Crim. App. 1995)). This Court has further held that “every sexual offense is physically and

mentally injurious to the victim.” State v. Johnny Shields, No. W2001-01554-CCA-R3-CD, 2002

WL 927606, at *4 (Tenn. Crim. App., at Jackson, May 3, 2002) (citing State v. Kissinger, 922

S.W.2d 482, 487 (Tenn. 1996)). Accordingly, we conclude that mitigating factor one is inapplicable

in this case.

III. Conclusion

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In accordance with the foregoing reasoning and authorities, we affirm the defendant’s

conviction, modify the defendant’s sentence to an effective sentence of eight years at 100% service,

and remand the case for entry of a judgment of conviction that is consistent with this opinion.

___________________________________

J.C. McLIN, JUDGE

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