State of Tennessee v. Darrell Sanderlin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 13, 2004 Session

STATE OF TENNESSEE v. DARRELL SANDERLIN

Direct Appeal from the Circuit Court for Haywood County

No. 4900B Clayburn L. Peeples, Judge

No. W2003-01546-CCA-R3-CD - Filed May 27, 2004

The Appellant, Darrell Sanderlin, appeals from the sentencing decision of the Haywood County

Circuit Court. Sanderlin pled guilty to one count of child abuse of his six-year-old son, a class D

felony. Pursuant to a negotiated plea agreement, he was sentenced as a Range I, standard offender,

with the length and manner of service to be determined by the trial court. Following a sentencing

hearing, the trial court imposed a sentence of four years incarceration. On appeal, Sanderlin argues

that the trial court erred by ordering a sentence of total confinement rather than a less restrictive

alternative. After review, the sentencing decision is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and

NORMA MCGEE OGLE, J.J., joined.

David M. Livingston, Brownsville, Tennessee, (on appeal); and David Camp, Jackson, Tennessee,

(at trial), for the Appellant, Darrell Sanderlin.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,

Assistant Attorney General; Garry Brown, District Attorney General; and Larry Hardister and Elaine

Todd, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On February 26, 2003, the Appellant, a Range I, standard offender, pled guilty to one count

of child abuse, with the length and manner of service to be determined by the trial court.

The pre-sentence report contains the following information which was prepared by Deputy

Kim Williams with the Haywood County Sheriff’s Department:

On September 26, 2001, I received information from Lt. Kelvin Evans that

he had received a phone call from the grandmother of [the victim], stating that [the

victim’s] father, Darrell Sanderlin, had physically abused him. Upon speaking with

the grandmother, Investigator Melvin Bonds, and myself went to the residence of Mr.

Sanderlin’s mother who lives on Dupree Street in Brownsville, Tennessee. Mr.

Darrell Sanderlin met us at the back door, and after advising him we needed to see

[the victim] he told us that [the victim] was in Stanton. Mr. Sanderlin advised us he

would meet us at the sheriff’s department in approximately 15 to 20 minutes with

[the victim]. Mr. Sanderlin met us within about 10 minutes. . . . We then proceeded

in telling Mr. Sanderlin that we needed to speak to [the victim] alone. Myself,

Investigator Bonds and Renae Pullen (DCS) interviewed [the victim]. [The victim]

was very nervous and would not speak against either his mother or father. When we

asked to see [the victim’s] back he advised us that his dad had told him not to let us

look at him without his presence. At this time we did pull [the victim’s] shirt up and

observed numerous injuries, which covered his back, legs and arms. Some of these

injuries were scabbed over, and some were whelps. At this time I spoke with Mr.

Darrell Sanderlin, who advised me that he had disciplined his son as he had been

disciplined as a child, and he did not think that this was wrong. Mr. Sanderlin did

not show any remorse at all for the injuries that he had inflicted on his son. Mr.

Sanderlin did not wish to make any further statements and was charged with

aggravated child abuse and transported to the Haywood County Jail.

Later this same date Mrs. Pullen and myself spoke with [the victim’s] mother

Angela Sanderlin. Mrs. Sanderlin stated to us that her husband had whipped [the

victim] with switches. She also advised he had whipped him before, and that she had

asked him not to, but he had done so anyway.

At the sentencing hearing, Renae Pullen, a case manager with the Department of Children’s

Services, testified that the victim told her that he received a spanking because he had gotten in

trouble at school. Mrs. Pullen’s notes regarding this case were also admitted into evidence. Her

notes reflect that the Appellant also spanked the victim’s one-year-old sister “but that he only popped

her legs.” Moreover, according to Mrs. Pullen, Angela Sanderlin admitted that she too was “abused”

by the Appellant and had left him “more than once[.]” Upon examination by the court, Mrs. Pullen

testified that child abuse was an increasing problem in the county and “we’ve gone from one to one

and half workers to two full-time workers in Haywood County.” Along with the testimony of Kim

Williams and Renae Pullen, the State also introduced the victim’s medical records, which indicated

that “[t]here is evidence of old and new injury suggestive of repeated abuse.”

The Appellant called four witnesses on his behalf, Bernice Taylor, a counselor at Pathways;

Lakisha Barbee, a social worker with the Carl Perkins Center; Stephanie Lovelace, the home case

manager for the Department of Children’s Services; and Aretha Taylor, the victim’s foster parent.

According to theses witnesses, the Appellant was remorseful for his conduct, the Appellant and his

wife had been involved in parenting counseling, and the Appellant and the victim had a strong bond.

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The Appellant also testified at the sentencing hearing. He testified that he was gainfully

employed as a brick mason and that he and his wife had been married for eight years. The Appellant

stated, “I realize that it was a little excessive and through parenting and counseling I have learned

a lot about different methods to take as far as punishment and how to deal with behavioral problems

in children.” The Appellant explained that, while he was trying to spank the victim, he was “running

and jumping around the room[,]” which caused the Appellant “to miss angles and miss his buttocks.”

At the conclusion of the hearing, the trial court sentenced the Appellant to a term of four

years in the Department of Correction. This timely appeal followed.

ANALYSIS

As his only assignment of error, the Appellant asserts that his sentence “should have been

probated or [he] should have been sentenced alternatively to the community correction program[.]”

When the sentencing court properly considers the relevant sentencing considerations, this court

conducts a de novo review with the presumption that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Because the Appellant was convicted of a class D felony, he is entitled to the presumption

that he is a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6) (2003).

We note, however, that “the determination of whether the Appellant is entitled to an alternative

sentence and whether the Appellant is entitled to full probation are different inquiries.” State v.

Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1996). Where a

defendant is entitled to the statutory presumption of alternative sentencing, the State has the burden

of overcoming the presumption of evidence to the contrary. State v. Bingham, 910 S.W.2d 448, 455

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), overruled on other grounds, State v.

Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Conversely, the defendant has the burden of establishing his

suitability for full probation, even if the defendant is entitled to the statutory presumption of

alternative sentencing. Id.; see Boggs, 932 S.W.2d at 477.

When imposing a sentence of total confinement, the trial court should base its decision on

the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or

confinement is particularly suited to provide an effective deterrence to others likely

to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the defendant.

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Tenn. Code Ann. § 40-35-103(1) (2003). Additionally, the potential or lack of potential for

rehabilitation of a defendant should be considered in determining whether he or she should be

granted an alternative sentence. Tenn. Code Ann. § 40-35-103(5).

In concluding that total confinement was appropriate, the trial court found that:

I also find that child abuse is an increasing problem in Haywood County. I

do not find this to be an excessive punishment case. I find this to be the case of a

vicious criminal attack, one that if it had occurred from a stranger would have

enraged the community and for some reason there are those who think that crimes

against people you’re supposed to love should be treated differently than those done

against a stranger.

I don’t think that any form of punishment other than confinement can be

handed out in this case if we are to avoid depreciating the seriousness of this offense.

I don’t think that less restrictive measures have worked with this Defendant and I do

feel that the appropriate sentence in this case is four years in the State Penitentiary

as a Standard Offender.

While we do not discount the trial court’s finding of a need for deterrence in the community, this

finding, we conclude, is overshadowed by the finding that a non-incarcerative sentence would

depreciate the seriousness of the Appellant’s conduct by trivializing the severity of the crime

committed.

The facts of this case clearly establish that the Appellant’s conduct was reprehensible,

offensive, and of an excessive degree. State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App.

1991). As noted by the trial court,

I find that even though the charge is child abuse, above and beyond that, this

child was treated with exceptional cruelty, both emotionally and physically over what

must have been a prolonged period of time because you couldn’t inflict that many

injuries in a short period of time. The injuries to this child I find were great. Even

six days after the fact photographs show bruises, they show welts, they show scars,

they show open wounds. Those wounds are all over his back, the back of his legs,

the front of his legs, the sides of his legs. I personally on the exhibit the State

presented counted over seventy marks. There were injuries on his legs, on the front

of his legs, literally going up to the line of his underwear at the point where his

underwear covered his genitals. There were injuries on the back of his arms. All of

this to a victim who was particularly vulnerable because of his age and also because

of the custodial parent/child relationship that existed.

See also State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996) (permitting use of enhancing

and mitigating factors as relevant to section 40-35-103(1) considerations). Moreover, the victim’s

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medical records indicated signs of prior abuse. The Appellant’s explanation at the sentencing

hearing that he only intended to strike the victim on his buttocks but missed because “he was doing

a lot of running and jumping around the room” was implausible given the extent and severity of the

wounds. The Appellant still failed to comprehend the severity of his actions, as he characterized his

discipline of his son as “a little excessive.”

Furthermore, measures less restrictive than confinement have frequently or recently been

applied unsuccessfully to the Appellant. Following a single criminal episode, the Appellant was

convicted of five counts of burglary, one count of burglary other than a habitation, two counts of

theft of property between $500 and $1,000, and two counts of theft of property under $500. For

these offenses he was placed on community corrections and probation. Indeed, the pre-sentence

report1 reflects that:

Defendant was placed on Community Corrections out of Lauderdale County

Circuit Court on June 19, 1999 for a period of two years. He received a conviction

in Dyer Circuit Court and was placed on Community Corrections for a period of one

year to run concurrent with the Lauderdale Convictions. He completed all

requirements of his behavior contract on February 1, 2000 and was transferred to

supervised probation. He was discharged from probation on May 24, 2001[.]

Upon de novo review, we agree with the trial court’s determination that confinement is

necessary to avoid depreciating the seriousness of the offense and that measures less restrictive than

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

amply supports the trial court’s decision in denying all forms of alternative sentencing, including

probation. This issue is without merit.

CONCLUSION

For the above stated reasons, we affirm the sentencing decision of the Haywood County

Circuit Court, ordering the Appellant to serve his four-year sentence in the Department of

Correction.

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DAVID G. HAYES, JUDGE

1

The pre-sentence report shall be considered for sentencing purposes by the court. Tenn. Code Ann. § 40-35-

210(b)(2).

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