State v. LeggsState v. Leggs
- Reporters:
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- Before:
- Smith
OPINION
SMITH, Judge.Appellant Dewaine Leggs pled guilty to aggravated assault in the Davidson County Criminal Court. As a Range I standard offender, Appellant received a sentence of six years in the workhouse. In this direct appeal, Appellant presents the following issue for review: whether his sentence is excessive.
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
On the evening of January 26, 1995, Mar-kus Goodwin, a severely mentally retarded resident at Clover Bottom Developmental Center in Nashville, was discovered to have suffered severe bruising to his buttocks and scrotum. During the course of a subsequent internal investigation, Appellant, a developmental technician at Clover Bottom, admitted to kicking Mr. Goodwin twice in the groin after Mr. Goodwin had kicked him in the same area.
On February 16, 1995, a Davidson County Grand Jury indicted Appellant for aggravated assault in violation of Tennessee Code Annotated Section 39-13-102. On May 18, 1995, Appellant pled guilty to the charged offense and was sentenced to six years in the workhouse. Appellant appeals only his sentence.
II. SENTENCING
Appellant alleges that his sentence is excessive. Specifically, Appellant argues that the trial court erred in determining the length of his sentence and in fading to impose an alternative sentence.
When an appeal challenges the length, range, or manner of service of a sentence, this Court conducts a
de novo
review with a presumption that the determination of the trial court was correct.
In conducting a review, this Court must consider the evidence, the presentence report, the sentencing principles, the arguments of counsel, the nature and character of the offense, mitigating and enhancement factors, any statements made by the defendant, and the potential for rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn.Crim.App.1993). The defendant bears the burden of showing the impropriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn.Crim.App.1993).
We note initially that the record fails to demonstrate adequate consideration of certain principles of the Criminal Sentencing Reform Act, as required by Ashby. Most significantly, the trial court failed to address, on the record, Appellant’s statutorily-mandated presumption in favor of a nonincarcer-ative sentence. Also, the trial court failed to consider, on the record, certain mitigating factors proposed by Appellant during the sentencing hearing. For these reasons, our review of Appellant’s sentence, both its length and its manner of service, will be purely de novo.
Appellant was convicted of aggravated assault, a Class C felony.
See
(1) a victim of the offense was particularly vulnerable because of age or physical or mental disability;
(2) the defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense; and
(3) the defendant abused a position of public or private trust.
(1) the defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct.
Id. § 40-35-113(11). At the conclusion of the sentencing hearing, the trial court imposed a maximum sentence of six years.
A. LENGTH OF SENTENCE
Appellant first maintains that the trial court erred in determining the length of his sentence by improperly applying certain enhancement factors and failing to apply certain mitigating factors. .
In the absence of enhancement and mitigating factors, the presumptive length of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutory range while the presumptive length of sentence for a Class A felony is the midpoint in the statutory range.
1. PARTICULAR VULNERABILITY
Appellant first argues that the trial court improperly applied enhancement factor (4), concerning the particular vulnerability of Mr. Goodwin due to his severe mental retardation. This enhancement factor is applicable when a victim, as a result of natural physical or mental limitations, is unable to resist the commission of a crime, to call for help, or to testify against the perpetrator. *849 State v. Hayes, 899 S.W.2d 175, 185, (Tenn.Crim.App.1995). In order to establish enhancement factor (4), the State must show that the victim is particularly vulnerable because of age, physical disability, or mental disability, see State v. Adams, 864 S.W.2d 31, 35 (Tenn.1993), and that the condition of the victim was a factor in the commission of the offense. See State v. Seals, 735 S.W.2d 849, 853-54 (Tenn.Crim.App.1987).
Appellant maintains that there is no nexus between the disabilities of Mr. Goodwin and the aggravated assault. Moreover, Appellant contends that he assaulted Mr. Goodwin because he had been kicked and that he would not have reacted any differently had he been kicked by a nondisabled person. Nevertheless, Mr. Goodwin’s disabilities did limit his ability to defend himself and to cry out for help. See Hayes, 899 S.W.2d at 185. Furthermore, Mr. Goodwin’s disabilities prevented him from identifying or testifying against his attacker. See id. Thus, the application of enhancement factor (4) was proper.
2. EXCEPTIONAL CRUELTY
Appellant argues that the trial court improperly applied enhancement factor (5), concerning the treatment of the victim with exceptional cruelty. The application of this enhancement factor requires a finding of cruelty over and above that inherently attendant to the offense. State v. Embry, 915 S.W.2d 451, 456 (Tenn.Crim.App.1995). The fact that serious bodily injury is an element of aggravated assault does not necessarily preclude the application of enhancement factor (5). State v. Moore, No. 02C01-9306-CC-00126, 1994 WL 245481, at *2 (Tenn.Crim.App. June 8, 1994).
As a result of the assault, Mr. Goodwin suffered severe bruising on his buttocks and scrotum. Mr. Goodwin was subsequently hospitalized on at least three separate occasions and, immediately following the attack, was unable to urinate or defecate without the aid of a catheter. The injuries suggest a more extensive and protracted beating than the two kicks admitted to by Appellant. Having viewed the photographs taken of Mr. Goodwin following the assault and having considered the extent of his injuries, we believe that Appellant treated Mr. Goodwin with exceptional cruelty over and above that inherently attendant to the offense of aggravated assault. Thus, the application of enhancement factor (5) was proper.
3. ABUSE OF A POSITION OF PUBLIC OR PRIVATE TRUST
Appellant argues that the trial court improperly applied enhancement factor (15), concerning the abuse of a position of public or private trust. With regard to the application of this enhancement factor, our Supreme Court has made the following observation:
[Application of the factor requires a finding, first, that defendant occupied a position of trust, either public or private. The position of parent, step-parent, babysitter, teacher, coach are but a few obvious examples. The determination of the existence of a position of trust does not depend on the length or formality of the relationship, but upon the nature of the relationship. Thus, the court should look to see whether the offender formally or informally stood in a relationship to the victim that promoted confidence, reliability, or faith. If the evidence supports that finding, then the court must determine whether the position occupied was abused by the commission of the offense.
State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.1996).
As a developmental technician at the Clover Bottom facility, Appellant did indeed occupy a position of trust; both private and public, with regard to Mr. Goodwin. The record reveals that, because of his severe mental retardation and impaired vision, Mr. Goodwin was totally reliant on the assistance of those employed at Clover Bottom. While Appellant may have only been responsible for Mr. Goodwin’s most basic care, the nature of that relationship required Mr. Goodwin’s private trust. Presumably, Mr. Goodwin’s family placed him in Clover Bottom with the belief that he would be cared for and treated humanely. It was in his capacity as a public employee entrusted as a care *850 giver that Appellant severely beat the helpless Mr. Goodwin. Thus, the application of enhancement factor (15) was proper.
4. LACK OF SUBSTANTIAL JUDGMENT
Appellant argues that the trial court should have considered mitigating factor (6), providing that “[t]he defendant, because of youth or old age, lacked substantial judgment in committing the offense.”
At the time of the assault, Appellant was twenty-one years of age. Although a high school drop-out, Appellant maintained and continues to maintain full-time employment. The record is devoid of any evidence supporting the contention that Appellant lacked substantial judgment to appreciate the nature of his conduct. Thus, mitigating factor (6) is inapplicable.
5. NON-STATUTORY MITIGATING FACTORS
Finally, Appellant argues that the trial court should have considered other non-statutory mitigating factors pursuant to Tennessee Code Annotated
We will first address Appellant’s contention that his lack of prior felony convictions deserves consideration under mitigating factor (13). The record reveals that Appellant was convicted of assault in March of 1994. According to his wife, Appellant struck her in the face, causing an eye injury that required twenty stitches. The record further reveals that Appellant has juvenile convictions for assault and for robbery. The juvenile record of an offender is an appropriate consideration when determining the sentence for an adult conviction.
State v. Stockton,
733 S.W.2d 111, 112-13 (Tenn.Crim.App.1986). Robbery is a Class C felony.
We now turn to the issue of whether Appellant’s expression of remorse warrant’s consideration under mitigating factor (13). During his sentencing hearing, Appellant made the following statement:
I am very sorry for what I had done. I know that it was wrong and I shouldn’t have done what I done. I just want to apologize for that.... I’m sorry that I kicked him.... I’m very sorry for what had happened. I didn’t mean to put his family or him in any kind of pain or agony. I just wish this all had never happened.
This Court has held that remorse is a proper consideration under mitigating factor (13). See State v. Thomas, 755 S.W.2d 838, 845 (Tenn.Crim.App.1988). Based on Appellant’s recognition of the wrongfulness of his actions and his expression of remorse, we believe that some marginal consideration is appropriate under mitigating factor (13). See, e.g., State v. Mooney, No. 03C01-9502-CR-00050, 1996 WL 183931, at *15 (Tenn.Crim.App. April 18, 1996), perm. app. denied, (Tenn. Oct. 28, 1996).
B. MANNER OF SERVICE
Appellant also contends that the trial court erred in failing to impose an alternative sentence. Appellant argues that the trial court should have granted full probation or, in the alternative, probation following a period of confinement.
The Tennessee Criminal Sentencing Reform Act of 1989 recognizes the limited capacity of state prisons and mandates that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts of rehabilitation shall be given first priority regarding sentencing involving incarcera
*851
tion.”
A denial of alternative sentencing in the face of the statutory presumption should be based 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.
As a Range I standard offender convicted of a Class C felony, Appellant was and is entitled to the presumption of alternative sentencing. We must ascertain whether the trial court properly denied Appellant any form of alternative sentence.
We first address the nature and circumstances of the attack. In order to deny an alternative sentence because of the nature of the offense, “the circumstances of the offense as committed must be especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree,” and the nature of the offense must outweigh all factors favoring a sentence other than confinement. State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn.Crim.App.1991). We believe that the savage kicking of a blind and severely mentally retarded individual coupled with the fact that the aggressor purported to be a qualified caregiver and was employed and entrusted with the victim’s most basic care is sufficiently horrifying, shocking, reprehensible, and offensive to justify incarceration. The extent of the victim’s injuries also reflects the seriousness of the attack. The nature and circumstances of this attack clearly outweigh all factors favoring an alternative sentence and support the imposition of a sentence involving incarceration.
We next turn to the deterrent effect a sentence involving incarceration might have on others with a propensity to commit similar acts. Normally, a finding of effective deterrence cannot be conclusory but must be supported by proof. State v. Ashby, 823 S.W.2d 166, 170 (Tenn.1991). However, certain criminal offenses appear to be sufficiently unique to warrant special treatment with regard to the underlying proof requirement. See e.g., State v. Millsaps, 920 S.W.2d 267 (Tenn.Crim.App.1995) (embezzlement); State v. Mitchell, No. 02C01-9108-CC-00167, 1992 WL 133201 (Tenn.Crim.App. June 17, 1992) (drug trafficking); State v. Cleavor, 691 S.W.2d 541 (Tenn.1985) (drunk driving); State v. Vines, No. 95, 1991 WL 21603 (Tenn.Crim.App. Feb.22, 1991) (child sexual abuse). It is our opinion that the need to deter violent, unlawful behavior by those individuals entrusted with the custodial control over others, especially those incapacitated by mental retardation, is obvious. Therefore, we believe that this sentencing consideration weighs in favor of denying Appellant’s bid for an alternative sentence.
Finally, the record supports the trial court’s observation that Appellant, while remorseful and willing to accept responsibility, was not truthful as to the severity and protracted nature of the attack. This Court has previously observed that a defendant’s credibility is germane to his rehabilitative potential. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.Crim.App.1994). Here, Appel *852 lant’s lack of candor reflects poorly on such potential.
C. CONCLUSION
With regard to the length of Appellant’s sentence, we find that the following enhancement factors apply:
(1) Mr. Goodwin was particularly vulnerable because of physical and mental disability;
(2) Appellant treated Mr. Goodwin with exceptional cruelty during the commission of the offense; and
(3) Appellant abused a position of trust.
See
(1) Appellant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct; and
(2) Appellant expressed remorse.
See
With regard to the manner of service of Appellant’s sentence, we conclude that the circumstances of the offense and the offender justify the trial court’s imposition of a sentence involving confinement.
Accordingly, the judgment of the trial court is affirmed.
WELLES and BARKER, JJ., concur.