The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
April 21, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9803-CR-00100
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN,
LESLIE HEREFORD, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
LIONEL R. BARRETT, JR. JOHN KNOX WALKUP
Washington Square, Suite 418 Attorney General and Reporter
222 Second Avenue North
Nashville, TN 37201 ELIZABETH B. MARNEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
VICTOR S. JOHNSON III
District Attorney General
WILLIAM R. REED
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Leslie Hereford, pled guilty to four counts of rape, Class B
felonies. The trial court sentenced defendant to eight years as a Range I standard
offender on each count.1 The court ordered three of the counts to run consecutively
for an effective sentence of twenty-four years. Defendant appeals the imposition
of three consecutive sentences and asks this Court to modify the trial court’s
decision to reflect an effective sentence within the range of twelve to sixteen years.
We decline to do so and AFFIRM the sentence as imposed by the trial court.
FACTS
Over a period of at least two years, defendant molested six children staying
in his household by placing his penis in their mouths while they were sleeping.
When one of his victims reported the abuse, defendant admitted his offenses to his
church elders and sought counseling. At his church elders’ recommendation, he
also reported himself to law enforcement.
At sentencing, the state urged the trial court to apply several statutory
enhancement factors and argued the appropriateness of consecutive sentencing
pursuant to both the sentencing statute and State v. Wilkerson, 905 S.W.2d 933
(Tenn. 1995). The defense conceded the appropriateness of some consecutive
sentencing, but asked the court to consider in mitigation the defendant’s age (53 at
the time of sentencing), honorable military service (defendant received a Purple
Heart for his combat service in Vietnam), history of gainful employment, and the
likelihood that the parole board would refuse early release in this case.
The trial court declined to speculate about any future decision by the parole
board and determined the length of defendant’s sentences based upon its
consideration of the statutory sentencing principles. The trial court imposed the
minimum sentence of eight years for each conviction, and ordered three of the four
counts to run consecutively, for an effective sentence of twenty-four years.
1
Since the offenses were committed prior to July 1, 1995, the prohibition of a
release eligibility date does not apply. See Tenn. Code Ann. § 40-35-501(i)(1).
2
SENTENCING
Defendant challenges the imposition of consecutive sentencing resulting in
twenty-four years of incarceration. He contends that the trial court completely
overlooked his amenability to rehabilitation, and that the effective sentence is
excessive. Defendant asks this Court to reduce the effective sentence.
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that “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.” Tenn. Code Ann. § 40-35-115(b)(5). Furthermore,
the court is required to determine whether the consecutive sentences (1) are
reasonably related to the severity of the offenses committed; (2) serve to protect the
public from further criminal conduct by the offender; and (3) are congruent with
general principles of sentencing. Wilkerson, 905 S.W.2d at 939.
First, the trial court specifically found that consecutive sentencing was
allowed per Tenn. Code Ann. § 40-35-115(b)(5). Second, it cited the psychosexual
evaluation indicating a likelihood of reoffense by defendant given the opportunity.
Finally, the court considered the ages of the victims and the number of victims as
relevant to its determination that consecutive sentencing was necessary in
defendant’s case.
The actual sentencing range in this case, depending upon the length of
sentences and the application of consecutive sentencing, was from eight to forty-
eight years. The trial court made the necessary findings and determinations to
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support its imposition of a twenty-four year sentence. Where our review, as here,
reflects that the trial court followed the statutory sentencing procedure, imposed a
lawful sentence after giving due consideration and proper weight to the factors and
principles set out under sentencing law, and the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if
we would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 788
(Tenn. Crim. App. 1991). We conclude the effective sentence of twenty-four years
is reasonably related to the severity of the offense and is necessary to protect the
public from further criminal conduct by the defendant. Thus, we see no reason to
modify the sentences imposed.
CONCLUSION
Based upon the foregoing, we AFFIRM the sentences imposed by the trial
court.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
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____________________________
DAVID H. WELLES, JUDGE
____________________________
JOHN EVERETT WILLIAMS, JUDGE
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