The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2016
STATE OF TENNESSEE v. KAVONDA RENEE WATERS
Appeal from the Circuit Court for Williamson County
No. IICR017036, IICR058059 Deanna B. Johnson, Judge
No. M2015-00324-CCA-R3-CD – Filed May 25, 2016
_____________________________
Defendant, Kavonda Renee Waters, pleaded guilty to a Class A misdemeanor failure to
appear in case number II-CR017036 and a Class E felony failure to appear offense in
case number II-CR058059. The trial court imposed sentences of eleven months, twenty-
nine days for failure to appear in case number II-CR017036 and two years for felony
failure to appear in case number II-CR058059. On appeal, Defendant argues that her
sentence is excessive and that the trial court erred by ordering her to serve her sentence in
confinement. After review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. ROGER A. PAGE, J., not participating.
Dana M. Ausbrooks, Franklin, Tennessee, for the Appellant, Kavonda Renee Waters.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
and Kim R. Helpher, District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background
At the sentencing hearing, the only proof presented by the State was the
presentence report that was admitted without any objection by Defendant. The
presentence report reflects that the twenty-six-year-old Defendant has six convictions for
driving on a suspended license, eight convictions for violating the driver‟s license law,
two convictions for theft of property over $1,000, three convictions for theft less than
$500, and two convictions for criminal trespass. She also has convictions for reckless
endangerment with a deadly weapon, possession of a weapon, and casual exchange.
There were seven additional charges that were either dismissed or retired.
The presentence report also reflects that Defendant has been granted some form of
alternative sentencing on ten of her prior convictions. On one occasion, Defendant‟s
probation was revoked and then reinstated after time served. At the time that the
presentence report was completed, Defendant had a pending charge for an aggravated
assault that she allegedly committed on January 12, 2014. The report also indicates that
Defendant was on probation for a theft committed in Sevier County on October 8, 2013,
at the time she committed the felony failure to appear in this case and at the time of the
pending aggravated assault charge. Defendant also reported that she began using
marijuana at the age of fourteen and continued using the drug until she was twenty-one.
She “specified that she used it „occasionally‟ and quit because, „it just wasn‟t for me
anymore.‟”
With respect to the offenses that are the subject of this appeal, in case number II-
CR017036, Defendant was indicted for failure to report to jail but she entered an open
plea of guilty to an amended charge of failure to appear, a Class A misdemeanor. The
presentence report contains the following information concerning the offense:
On 10/31/12, the Defendant pled guilty in Williamson County General
Sessions Case 12-CR-5603 to driving on a suspended license. She was
fined $50 and was ordered to serve 30 days at 75%. She was to report on
11/30/12 to serve her sentence, but she failed to do so.
In case number II-CR05809, Defendant was indicted for felony failure to appear at
the hearing in case number II-CR017036. She entered an open plea of guilty to the
charge, a Class E felony. The presentence report contains the following statement by
Defendant concerning the offense:
In Nov[ember] 2012 I was suppose[d] to report to jail to do 22 days. I
take full responsibility for not showing up when I was suppose[d] to. At
the time, I had a niece that was on her death bed and I just had a heavy
heart at the time. So when I came to jail in Aug 2013 they made me
serve my 22 days and still charged me with a failure to report. So I made
bond on that charge. I came to every court date that I had while out on
bond. In April, 2014 I was due in court but didn‟t show. At the time a
month before I had court I found out my son was being touched by a
friend of mine and I wanted to be there to protect him at any cost. I
know I was wrong but my heart was so broken I cried every single day
for a whole month and was blaming myself for something I knew
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nothing about. I[‟]m 26 years old I take my responsibility of knowing I
was wrong for not showing up.
Defendant‟s great aunt, Barbara Brown, testified that she is also Defendant‟s
adoptive mother. She first received custody of Defendant from Defendant‟s birth mother
in 1988 because Defendant‟s birth mother was “on drugs real bad.” Defendant was three
months old at the time. Ms. Brown did not know Defendant‟s father. Ms. Brown
testified that Defendant was a nice child growing up who was respectful and attended
church. She said that Defendant received “pretty fair” grades and graduated from high
school.
Ms. Brown testified that Defendant has a ten-year-old son whom Defendant loves.
Ms. Brown testified that she has noticed changes in Defendant‟s son since Defendant has
been incarcerated and that he wants to be with his mother. Ms. Brown hoped that the
trial court would place Defendant on probation so that Defendant could be with her son.
Ms. Brown testified that she would help Defendant emotionally and with a place to live if
Defendant was released on probation. She said that Defendant is a hard worker and
would have no problem finding a job.
On cross-examination, Ms. Brown testified that she was unaware that Defendant
was serving a seven-year sentence of probation out of Sevier County. She also did not
know that Defendant was incarcerated in the Davidson County Jail for a theft that
occurred at Dillard‟s in the Rivergate Mall.
Patria Crowell testified that she is Defendant‟s friend and girlfriend. They have
been in a relationship for seven years, and she is currently the primary caregiver for
Defendant‟s son. Ms. Crowell testified that Defendant‟s son is having difficulty in
school and is currently in counseling. She thought that his behavior was due to
Defendant‟s incarceration. Ms. Crowell testified that she would help support Defendant
and provide transportation if Defendant were to be released on probation.
On cross-examination, Ms. Crowell testified that Defendant was using Ms.
Crowell‟s vehicle during the theft at Dillard‟s. She was unaware that Defendant planned
to use the vehicle to steal anything. Ms. Crowell acknowledged that Defendant has
continued to commit crimes while on probation.
Ms. Crowell testified that Defendant failed to report to jail in 2012 because she
wanted to spend Christmas with her son and celebrate his birthday. However, she said
that Defendant still missed both occasions. Ms. Crowell testified that Defendant did not
commit the aggravated assault that was pending against her because Defendant was with
Ms. Crowell at the time.
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Defendant gave an allocution at the sentencing hearing admitting that she was
“wrong for not showing up when [she] was supposed to.” She also stated that she had
made some “bad choices” in her life and that she was responsible for her actions.
Defendant told the trial court that she was a good mother to her son and daughter to her
mother. She also stated that she needed to “get [her] life together for the sake of [herself]
and [her] son.” Defendant told the trial court that she had “learned [her] lesson” while
incarcerated. She hoped that if placed on probation she could resume her former job and
begin “barber college.”
Analysis
Defendant argues that her sentence is excessive and that the trial court erred by
ordering her sentences to be served consecutively in confinement. We disagree.
Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In
sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the 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 involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in her own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‟n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory 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.
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T.C.A. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “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].‟” Id. at 343 (emphasis added). Appellate courts are “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 sections -102 and -103 of
the Sentencing Act.” Id. at 346.
Although the Tennessee Supreme Court has not addressed whether the Bise
standard of review applies to misdemeanor sentencing, this court has applied the abuse of
discretion with a presumption of reasonableness standard of review in misdemeanor
sentencing cases. See e.g. State v. Michael Glen Walsh, No. E2012-00805-CCA-R3-CD,
2013 WL 1636661, at *4 (Tenn. Crim. App. April 17, 2013); and State v. Sue Ann
Christopher, No. E2012-01090-CCA-R3-Cd, 2013 WL 1088341, at *7 (Tenn. Crim.
App. Mar. 14, 2013). We note that the supreme court has also held that the trial court is
entitled to considerable latitude is misdemeanor sentencing. State v. Johnson, 15 S.W.3d
515, 518 (Tenn. Crim. App. 1998)(citing State v. Troutman, 979 S.W.2d 271, 273 (Tenn.
1998)).
In her brief, Defendant states that her sentence is excessive and contrary to law.
She also asserts: “[T]hat the trial court erred, in imposing an effective sentence of two
years, eleven months and twenty-nine days, because the trial court failed to consider that
much of her prior criminal history consisted of misdemeanor driving offenses [ ], and
her skills allowed her to find work immediately upon being released.” Defendant further
states that “the trial court placed too much weight on the enhancement factors regarding
her criminal record, probation violations, and probationary status at the time of the
offense.”
The applicable sentencing range for a Range I offender convicted of a Class E
felony is one to two years The trial court imposed a sentence of two years for
Defendant‟s felony failure to appear conviction and a sentence of eleven months, twenty-
nine days for the misdemeanor failure to appear conviction. The trial court stated on the
record its findings regarding applicable enhancement and mitigating factors. The trial
court found three enhancement factors applicable to Defendant: (1) that Defendant has a
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previous history of criminal convictions or behavior, in addition to those necessary to
establish the appropriate range; (2) that Defendant before trial or sentencing, failed to
comply with the conditions of a sentence involving release into the community; and (3)
that Defendant was on probation for theft when she committed the felony failure to
appear, and she was also on bail for the misdemeanor failure to appear at the time that she
committed the felony failure to appear. T.C.A. § 40-35-114 (1), (8), and (13)(A)(C). The
trial court found one mitigating factor applicable: that Defendant‟s criminal conduct
neither caused not threatened serious bodily injury. T.C.A. § 40-35-113(1).
In Bise our supreme court held:
We hold, therefore, that a trial court‟s misapplication of an enhancement
or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by
the trial court within the appropriate range should be upheld.
Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.
Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or the maximum sentence imposed even if no statutory
enhancement factors are applicable, as long as the sentence is within the correct range
and the sentence complies with other sentencing purposes and principles.
Having reviewed the record before us, we conclude that the trial court clearly
stated on the record its reasons for the sentences imposed, and all of Defendant‟s
sentences are within the appropriate ranges. The record reflects that the trial court
considered the purposes and principles of the Sentencing Act. Therefore, the trial court‟s
imposition of an effective sentence of two years and eleven months, twenty-nine days is
presumed reasonable.
Our supreme court has also extended the standard of review enunciated in State v.
Bise, abuse of discretion with a presumption of reasonableness, to consecutive sentencing
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determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). Tennessee Code
Annotated section 40-35-115 sets forth the factors that are relevant in determining
whether sentences should run concurrently or consecutively. The trial court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of
the seven statutory factors exist. Id. § -115(b). Imposition of consecutive sentences must
be “justly deserved in relation to the seriousness of the offense.” T.C.A. § 40-35-102(1).
The length of the resulting sentence must be “no greater than that deserved for the
offense committed.” T.C.A. § 40-35-103(2).
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may
order sentences to be served consecutively if it finds any one of the following criteria by
a preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an investigation
prior to sentencing that the defendant‟s criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior with
heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little
or no regard for human life, and no hesitation about committing a crime
in which the risk to human life is high;
(5) The 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;
(6) The defendant is sentenced for an offense committed while on
probation;
or
(7) The defendant is sentenced for criminal contempt.
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T.C.A. § 40-35-115(b).
In Pollard, the court reiterated that “[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” 432 S.W.3d at 862. “So long as a trial
court properly articulates its reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id.; Bise, 380 S.W.3d
at 705.
In this case, the trial court found two statutory factors. The trial court found that
Defendant is an offender whose record of criminal activity is extensive and that
Defendant was sentenced for an offense committed while on probation.
Defendant‟s criminal record is indeed extensive. A stated above, the twenty-six-
year-old Defendant has six convictions for driving on a suspended license, eight
convictions for violating the driver‟s license law, two convictions for theft of property
over $1,000, three convictions for theft less than $500, and two convictions for criminal
trespass. She also has convictions for reckless endangerment with a deadly weapon,
possession of a weapon, and casual exchange. There were seven additional charges that
were either dismissed or retired. At the time that the presentence report was completed,
Defendant had a pending charge for an aggravated assault that she allegedly committed
on January 12, 2014. Defendant also reported on the presentence report that she began
using marijuana at the age of fourteen and continued using the drug until she was twenty-
one.
Defendant contends that the trial court improperly applied this factor because her
record of criminal history is not excessive and does not involve violence, and many of her
prior misdemeanor convictions “involved a violation of the driver‟s license law or driving
on a suspended driver‟s license.” However, this court has previously found that even a
criminal record consisting only of misdemeanors supports the imposition of consecutive
sentencing. State v. Marquon Lanorris Green, No. W2012-01654-CCA-R3-CD, 2013
WL 2405217, at *7 (Tenn. Crim. App. May 30, 2013). Defendant‟s record in this case
consists of more than just misdemeanor convictions, and contrary to her assertions, the
conviction for reckless endangerment with a deadly weapon involves violence.
Moreover, there is no question that Defendant was on probation for theft when she
committed the felony failure to appear. This factor alone supports consecutive
sentencing.
As for Defendant‟s argument concerning alternative sentencing, “the abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to . . .
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questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). In determining whether to grant or deny probation, a
trial court should consider the circumstances of the offense, the defendant‟s criminal
record, the defendant‟s social history and present condition, the need for deterrence, and
the best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978). “[T]he burden of establishing suitability for probation rests with the
defendant.” T.C.A. § 40-35-303(b). “This burden includes demonstrating that probation
will „subserve the ends of justice and the best interest of both the public and the
defendant.‟” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008) (quoting State v.
Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). A trial judge must
consider the following factors before imposing a sentence of incarceration:
(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.
T.C.A. § 40-35-103(1). Additionally, the sentence imposed should be the least severe
measure necessary to achieve its purpose, and the defendant‟s potential for rehabilitation,
or lack thereof, should be considered when determining whether to grant alternative
sentencing. T.C.A. 40-35-103(4) and (5). Trial judges are encouraged to use alternative
sentencing when appropriate. T.C.A. § 40-35-103(6).
In this case, the trial court stated the following concerning an alternative sentence:
As for the manner of service, in 40-35-103 the Court believes that factor
1(A) applies; confinement is necessary to protect society while retraining
a defendant who has a long history of criminal conduct. And 1(C)
measures less restrictive than confinement have frequently or recently
been unsuccessfully to the defendant. Those two factors apply, so the
sentences will be served in confinement.
The record shows that the trial court considered the relevant sentencing
considerations, and Defendant has not established that the trial court abused its discretion
in denying her request for probation or “otherwise overcome the presumption of
reasonableness afforded sentences [that] reflect a proper application of the purposes and
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principles of our statutory scheme.” See Caudle, 388 S.W.3d at 280. As noted above in
this opinion, Defendant has a long history of criminal conduct. The presentence report
also reflects that Defendant has been granted some form of alternative sentencing on ten
of her prior convictions. On one occasion, Defendant‟s probation was revoked and then
reinstated after time served. At the time that the presentence report was completed,
Defendant had a pending charge for an aggravated assault that she allegedly committed
on January 12, 2014. The report also indicates that Defendant was on probation for a
theft committed in Sevier County on October 8, 2013, at the time she committed the
felony failure to appear in this case and at the time of the pending aggravated assault
charge. This demonstrates that although Defendant has been granted alternative
sentencing numerous times, she continues to commit crimes. Defendant is not entitled to
relief.
We conclude that the trial court did not abuse its discretion in sentencing
Defendant to an effective sentence of incarceration for two years, eleven months, and
twenty-nine days for her two convictions for failure to appear.
___________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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