IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 May 28, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00216
)
Appellee, )
) KNOX COUNTY
V. )
)
) HON . RICH ARD B AUM GART NER ,
REG INALD SUTT ON, ) JUDGE
)
Appe llant. ) (HARASS ING CO MM UNICAT IONS)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
JAMIE L. NILAND SANDY C. PATRICK
Assistant Public Defender Assistant Attorney General
1209 Euclid Avenue 2nd Floor, Cordell Hull Building
Knoxville, TN 37921 425 Fifth Avenue North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorn ey Ge neral
MARS HA SEL ECM AN
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defe ndan t, Reg inald Sutto n, appeals from the sentencing order of the
Knox County Criminal Court. Defendant pled guilty to one count of making
harassing telephone calls. Following the se ntencing he aring, the trial court
sentenced Defendant to serve eleven (11) months and twenty-nine (29) days, to be
served at seventy-five percent (75%). Defendan t appeals the sentence, arguing
that it does not conform to the requirements of the Criminal Sentencing Reform Act
of 1989, and that the sentence is excessive and should be reduced on appeal or
remanded for a new senten cing hea ring. W e affirm the judgm ent of the tria l court.
When an accused challenges the length, range, or the manner of service of
a senten ce, this cou rt has a du ty to cond uct a de novo review of the sen tence w ith
a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and
all relevant fac ts and circ umsta nces.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
In conducting a de novo review of a sentence, this co urt must con sider: (a) the
evidence, if any, 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 chara cteristics of the criminal co nduct involved; (e) an y statutory
mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.
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Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d
859, 863 (T enn. Crim. A pp. 1987).
If our rev iew refle cts that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law; and
made findings of fact adequately supported by the record, then we may no t modify
the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the sentencing hearing, Doris Davenport, the victim, testified that she and
the Defendant were living together on July 26, 199 5, and it was their so n’s birthday.
Davenp ort had been requesting that the Defendant move out of her home because
he “has kept [her] going through a lot of changes .” Whe n she got ho me from work
that day, the Defendant came in her house and refused to give her his keys to the
house. Defendant picked up the telephone, and Davenport demanded to know who
he was calling. Defendant replied, “None of your dam n busine ss.” Davenport hung
up the tele phon e, and Defe ndan t spit in her face. Davenport told Defendant, “That
is it. Get out.”
When Davenport turned her back and walked toward the kitchen, Defendant
grabbed her by her hair and threw her in the floor. Davenport described that
Defendant held a knife in his hand an d cut her face w hile beating her in the floor.
Davenp ort stated that her two (2) year old son was watching the altercation, and she
kept repeating, “Do not beat me in front of my childre n.” Defendant kept beating her
and said, “I am going to kill you, bitch.” Davenport stated that she did not know what
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made him “snap back,” but that he said, “O h . . . look wha t you have made me do .”
Defendant grabbed a towel, wiped the floor and then her face becau se there
was blood everywh ere in the kitchen. H e stated, “I am going to get the d amn p olice,”
and ran ou t the do or. Da venpo rt did not see th e Defe ndant a fter that, and he did not
call the police. Davenport called her brother who called an ambulance. She was
treated at the hospital where she received stitches. Davenport displayed her
remaining facial scars to the cou rt. She stated that she took a warrant out against
the Defend ant the following da y.
Davenport stated that while she had formerly been convicted of armed robbery
and has been on parole, she has chang ed her life and did not feel that she deserved
to be treated this way. Following the above-described incident, Davenport received
harassing messages from the Defendant on her answering machine. These
messages were pla yed for the court. Davenpo rt described D efendant as being very
insecure and previously accusing her of having an affair with a man at work. She
believed that Defendant is “going to hurt somebody . . . and feels like he don’t [sic]
have no respect for the Court or nobody else.” Davenport stated that Defendant
could have killed her and felt like he “sh ould no t get a pat on the back [probation] for
what he did.”
On cross-examination, Davenport admitted that she had been drinking the day
of the ass ault, but sta ted that sh e was n ot drunk .
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The Defendant stated that he dated Da venport for over two (2) years and that
they had a child together. On the day of the assault, Defendant got off from work
and drove to Davenport’s home, where he was living at the time. He was on the
phone with his older son who called to ask for a ride home when Davenport came
out of the k itchen and a sked who h e was talking to. W hen h e said that it wa s his
son, Dave nport to ld him , “Tha t is a lie. That is a girl.” Davenport hung up the
telephone and sta rted calling Defendant names, then she returned to the kitchen.
Defendant followed her into the kitchen and as ked wh y she wa s upse t. Defendant
believed she had been drinking and was trying to be reasonable as he believes she
is a violent pe rson.
Davenp ort did not answer Defendant’s questio n, but s tarted c ursing at him
and s pit in his face. De fendan t spit back in her face , and Da venport re ached onto
the counter for a knife. Defendant took the knife out of her hand, and the two started
fighting. He admitted that Davenport was bleeding, so he tried to wipe off her face.
After Defendant tried to help Davenport clean up, she went into the living room and
called her bro ther. D efend ant sta ted tha t he ha d see n the p olice d rive by, s o he to ld
her he w ould ge t the police .
When questioned as regarding the harassing phone calls, Defendant stated
that at the particular time he was upset with Davenport because he did care for her
and was upset that she had him put in jail for protecting himself. Defendant stated
that he was trying to let Davenport know that what she did to him was very wrong
and that he w anted to take a warrant out ag ainst her.
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The trial court sentenced the Defenda nt to serve eleven (1 1) months , twenty-
nine (29) days at a rate of s event y-five pe rcent (7 5%) r eleas e eligib ility date in the
Knox Coun ty Penal Facility. If Defendant chose to attend the Domestic Violence
program offered by the Knox County Sheriff’s Department while incarcerated, the
trial court would co nsider an ea rly release upon successful completion of the
program . The trial co urt mad e the follow ing statem ent:
W ell, you know, w e have heard different versions of what happened on
July 26, 1995. I don’t know that, as in a lot of cases, we will ever know
exactly what happened out there and exactly what precipitated it, but
we know one thing for certain. That, as a result of that incident, Ms.
Davenport was beaten about the face. She was cut. She has a scar
on her face, and this is a classic domestic violence, and it is a very,
very serious prob lem that we h ave in our society.
For years, I think w e swe pt it under the rug, or we kept it quiet. It was
a public embarrassment to the people involved in it. So they c hose to
keep it quiet, and fo rtunately, I think that is changing. I consider it to be
one of the most despicable and concerning aspects of our -- one of the
problems we ha ve in our socie ty today, an d to the extent that I can do
anything to have a positive effe ct on it, I intend to do that.
I have listened to this evidence here today. I have considered the pre-
sentence report. I have considered the conditions of the Sentencing
Act here, again, including in particular the necessity to avo id
depreciating the seriou sness o f the offens e. These things don’t happen
just accide ntally. It is a pattern . It is a course of condu ct.
Ms. Davenport, you are right. The fact that you had prior convictions
and are on parole does n’t mean that anybody has got the right to beat
you. Mr. Sutton is currently, he says, employed, although here at the
end, that he is not working because of some medical condition. He is
forty-one years old. He is living w ith his mo ther. His e xpense s in life
are an autom obile paym ent, and an amou nt he claim s he is pa ying to
his mo ther as re nt.
I think you n eed to spend so me time in c ustody, Mr. Sutton. I am going
to order tha t Mr. Sutton serve this s entence. I am going to order -- I
can’t order, but I am going to advis e him that I thin k it is in his best
interest that he attend and complete the Domestic Violence Program
offered by the Knox County Sheriff’s Department at the Detention
Facility.
Misdemeanor sentencing is controlled by Tennessee Code Annotated section
40-35-302 which provid es in part that the trial court shall impose a specific sentence
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consistent with the purposes, principles and goals of the 1989 Criminal Sentencing
Reform Act. See State v. Palmer, 902 S.W.2d 391, 393 (T enn. 19 95). In
misdemeanor senten cing, a separate sentencing hearing is not mandatory, but the
court is required to provide the Defe ndant w ith a reasona ble opportun ity to be heard
as to the length and mann er of the se ntence . Tenn . Code Ann. § 4 0-35-30 2(a). In
addition to setting the sentence based on the principles, purposes, and goals of the
Act, the cour t must se t a release eligibility percentag e which can not exceed s eventy-
five percent of the impo sed se ntence . Id. at (d); Palmer, 902 S.W.2d at 393.
Alternatively, the trial court retains the authority to place the defendant on probation
either imm ediate ly or afte r a time of perio dic or continuous confinement. Tenn. Code
Ann. § 4 0-35-30 2(e).
Defendant argue s that th e only e videnc e the tria l court c onsid ered in
sentencing him was evidence of another crime. The trial court specifically stated
within the record that it considered the presentence report, the conditions of the
Sentencing Act, and, in particular, the need to avoid depreciating the seriousness
of this type of offense. Defendant did not object to the evidence of another crime
during the sentencing hearing. The record reflects that the p arties and the trial court
agreed in the plea a greem ent tha t the victim would be allo wed to desc ribe the details
of the assault as well as the harassing communications during the sentencing
hearing .
Defendant also complains that the sentence is excessive. Misdemeanor
sente ncing is designed to provide the trial court with continuing jurisdiction and a
great deal of flexibility. O ne con victed of a m isdem eanor, u nlike one convicted of a
felony, is not entitled to the presumption of a minimum sentence. State v. Creasy,
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885 S.W.2d 829, 832 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 199 4).
Defendant received the maximum sentence as allowed by law due to the
circumstances surrounding the offense and his prior record. T enn. C ode An n. § 40-
35-114(1) and (9 ). Altho ugh th e discu ssion of app licable mitigating and enhancing
factors would be good for our review, it is not a requirement that those factors be
set forth explicitly within the record. State v. McKnight, No. 01C01-9509-CC-00313,
slip. op. at 2, Rutherfo rd County (T enn. Crim. App., at Nashville, June 11, 1996)
perm. to appeal denied, (Tenn . 1997) (c itations om itted). In addition, the trial court
provided for possible early release so long as the Defendant completed a program
on dom estic violen ce.
Finally, the Defendant argues that the sentence should be reduced or
remanded for a new sentencing hearing . As we have found no error in the trial
court’s sentencing as according to the Sentencing Act under our de novo review,
then we decline to modify th e sente nce im posed . This issu e is withou t merit.
We affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
WILLIAM B. ACREE, JR., Special Judge
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State v. Sutton
Combined Opinion