IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE SESSION, 1994 June 30, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9402-CC-00038
)
Appellant, )
)
) MAURY COUNTY
VS. )
) HON. WILLIAM B. CAIN,
CHRISTOPHER LANGLEY, ) JUDGE
)
Appellee. ) (Sentencing)
DISSENTING OPINION
I cannot join the opinion of my distinguished colleagues affirming the
sentence imposed by the trial court. I do not believe that the record in this case
“affirmatively” shows that the trial judge considered the sentencing principles and
all relevant facts and circumstances. The trial judge’s brief reference to
enhancement factors is quickly followed by his statement as follows:
The long and the short of it is, I’ve either got to apply the enhancing
factors and send him to the penitentiary, or apply the minimum
sentence and put him on eight years of probation. No matter how
we try to cut it, that’s the alternative, and that’s all of the alternatives
that are available to the court. No useful purpose will be served by
confining him.
W hile it is likely that the trial judge was aware of other sentencing
alternatives, this statement leads me to conclude that these were the only two
options “considered” by the court. Obviously, this “all or nothing approach” to the
manner in which sentences may be served disregards a wide array of sentencing
options, including split confinement, which are available for consideration. Tenn.
Code Ann. § 40-35-104(c); see State v. Barbara D. Frank, C.C.A. No. 03C01-
9209-CR-00303, Blount County (Tenn. Crim. App., Knoxville, Dec. 22, 1993).
Also, I do not believe that the trial judge properly considered the enhancement
factors and other relevant facts and circumstances applicable to the Defendant’s
sentence. The judge stated that “beyond these incidents involving these small
children,” the Defendant’s record was “exemplary.” The Defendant’s admitted
lengthy involvement with marijuana and other factors in his background do not
dem onstrate an “exemplary” record. In short, from this record, I cannot afford this
sentence the presumption of correctness and therefore, I believe it is my duty to
review this sentence de novo.
Because the Defendant was convicted of a Class B felony, he does not
enjoy a presumption that he is a favorable candidate for alternative sentencing
options. See Tenn. Code Ann. § 40-35-102(6). I believe that the record supports
the existence of three enhancement factors applicable to the Defendant’s
sentence: (1) The Defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate
range, (2) a victim of the offense was particularly vulnerable because of age, and
(3) the Defendant abused a position of private trust. Tenn. Code Ann. §§ 40-35-
114(1), (4) and (15). There are some positive factors in the Defendant’s history
and background which might be considered in mitigation. Tenn. Code Ann. § 40-
35-113(13).
The injuries inflicted upon the ten-month-old victim were serious. As the
trial judge stated, “One thing is crystal clear in this case, and that is that
somebody beat the hell out of [the victim].” Although the Defendant denied any
responsibility for the crime, the jury did not believe him and resolved the issue by
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finding him guilty. As noted by my colleagues, this record would easily support
a denial of probation. I believe this case calls for a sentence of incarceration.
Therefore, I respectfully dissent.
___________________________________
DAVID H. WELLES, JUDGE
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