NORMA McGEE OGLE, J.
The appellants, Deshaun Emmanuel Brown and Jerome Cardell Holt, pled guilty in the Davidson County Criminal Court to ten counts of aggravated rape, two counts of aggravated robbery, one count of especially aggravated kidnapping, and one count of reckless endangerment. The trial court sentenced Appellant Brown to a total effective sentence of 60 years and Appellant Holt to a total effective sentence of 72 years in the Tennessee Department of Correction. On appeal, the appellants challenge the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court; however, we must remand for entry of corrected judgments for the aggravated rape convictions to reflect that each appellant is a multiple rapist rather than a violent offender as indicated on the judgments.
On March 16, 2009, the appellants were indicted by the Davidson County Grand Jury in indictment number 2010-A-556 on twenty counts of the aggravated rape of C.M.
At the guilty plea hearing, the State provided the following factual basis for the appellants' guilty pleas:
After the foregoing facts were recited, each appellant pled guilty to ten counts of the aggravated rape of C.M.; one count of the especially aggravated kidnapping of C.M.; two counts of aggravated robbery, one count relating to C.M. and the other relating to Pinson; and one count of the reckless endangerment of Pinson. The plea agreement provided that the trial court would determine the length and manner of service of the sentences.
At the sentencing hearing, C.M. testified that on the night of July 8, 2009, the appellants pushed their way into the apartment and made her and Pinson lie face-down on the floor. The appellants later put a gun to C.M.'s head, told her to stand, and led her to the bedroom. C.M. stated she "kind of knew what was going to happen." In the bedroom, the appellants ordered her to remove her clothes. She begged, "[N]o, please, please, no." The appellants put a gun to C.M.'s head, told her to shut up, and undressed her. They took turns raping her, with each man penetrating her vaginally and orally. One of them performed oral sex on her. Additionally, one of them penetrated her anally "[w]ith a finger, but nothing else, I told them I couldn't do that and I was practically hysterical and they didn't." She said that one of the appellants ejaculated on her stomach then forced his penis into her mouth. C.M. stated that during the rapes, "[T]hey asked me to call them daddy and to tell them that I liked it." Near the end of her ordeal, the appellants stuck "something cold" inside her, she did not know what it was, and she "started freaking out." At that time, the appellants left.
C.M. stated that she had been affected by the ordeal, explaining, "I can safely say that I am not the same person and I never will be." She maintained that she "was a shell for a long time" and that she still had difficulty trusting people. Specifically, C.M. stated, "I cannot look at a man the same way." C.M. said that the crimes contributed to the end of her relationship with Pinson. C.M. stated that because of the crimes, she left Nashville and went to the New England area. She said that she wanted the appellants to be "put away. I don't want to have to worry or be scared."
Stephen Pinson testified that on the night of the incident, he and C.M. were not surprised by the knock on the door because they worked in a restaurant and had "a lot of late-night visitors." Pinson opened the door, and Appellant Brown entered the room. Immediately thereafter, Appellant Holt entered the apartment. Appellant Holt's face was disguised, he pointed a gun at Pinson's chest, and he instructed Pinson and C.M. to lie face-down on the floor. The appellants asked for the victims' cellular telephones and money, took Pinson's "tip jar," and went through the apartment "being extremely destructive."
Pinson testified that when the appellants ordered C.M. to stand, they covered his head with his daughter's blanket. He heard C.M. crying as the appellants took her into the back bedroom. The appellants took turns holding the gun, and Pinson recalled a couple of instances when a gun was put to the back of his head. Once, one of the appellants asked, "Give me one reason why I shouldn't go ahead and kill you now." Pinson responded, "Mercy." The perpetrator "said that answer will work or good answer or something like that."
Ultimately, Pinson ran away and woke an elderly couple who called the police. When the police arrived, Pinson told them what happened and took them to the apartment. He feared C.M. would be dead, but she was alive.
Pinson said that before the incident, he believed in God and expected good things from life. Afterward, he became anxious and lived in fear, "waiting for something bad to happen." He said that he relives the incident in his mind daily. He said that immediately thereafter, he became "what [his] therapist called hypervigilant" and had to stop working because he could not function.
Detective Rex Davenport testified that on June 30, 2009, approximately one and a half weeks prior to the instant offenses, the appellants robbed Noah Webster. During the crime, each appellant wore a bandana covering his face and held a handgun. Appellant Brown's fingerprints were found at the crime scene. When Detective Davenport interviewed Appellant Brown, he admitted his participation in the robbery and said that "his accomplice was Trey." Thereafter, Detective Davenport spoke with Detective Terry and learned that Appellant Holt "went by Trey." During an interview, Appellant Holt admitted to Detective Davenport his participation in the robbery.
No witnesses were presented on behalf of Appellant Holt. Doris E. Brown, Appellant Brown's paternal grandmother, testified on Appellant Brown's behalf. She said that when Appellant Brown was two years old, at the request of his mother, Mrs. Brown took him to Kansas City, Missouri, to raise.
Mrs. Brown said Appellant Brown was kind and respectful. When he lived with her, he was active in sports, went to church, sang in the choir, and helped in her nail salon. Mrs. Brown had Appellant Brown attend counseling to treat the "abandonment issues" he had because his mother was not involved in his life. Mrs. Brown presented twelve character reference letters from people who knew Appellant Brown while he lived with her.
Mrs. Brown stated that when Appellant Brown was almost fifteen years old, his father left Kansas City and moved to Nashville. Mrs. Brown said that Appellant Brown began misbehaving because he was upset that his father had left. Within three or four months, Appellant Brown moved to Nashville to live with his father. Shortly afterward, Appellant Brown and his father began having problems, leading Appellant Brown to run away from home. Subsequently, at the order of a juvenile court, Appellant Brown went to live with his mother, who also lived in Nashville, and the instant offenses occurred around the same time.
Seventeen-year-old Appellant Brown testified that his grandmother had taken good care of him and that he did not get into any trouble when he lived with her. However, after he moved to Nashville, he started using drugs and alcohol because he did not feel welcomed by his father.
Appellant Brown said that he was fifteen years old, in tenth grade, and living with his mother when he was arrested. He expressed remorse for his crimes.
On cross-examination, Appellant Brown admitted that on June 30, he and Appellant Holt robbed a man at gunpoint, about a week later committed the instant crimes, and approximately one month later broke into a house. He acknowledged that his grandmother supported him financially and that he did not need to commit crimes for money. He said that he borrowed the gun from someone and that he used the same gun in all the crimes.
After the conclusion of the proof and the arguments of counsel, the trial court took the case under advisement. In the subsequent sentencing orders, the trial court sentenced Appellant Holt to twenty-three years for each conviction for aggravated rape (counts 1-10) and especially aggravated kidnapping (count 21) and ordered that one hundred percent of the sentences be served in confinement. Appellant Holt was further sentenced to ten years for each aggravated robbery conviction (counts 24-25) and two years for the reckless endangerment conviction (count 26), with thirty percent of those sentences served in confinement before release eligibility. The court ordered that counts 1, 2, 21, and 24 be served consecutively to each other but concurrently with the remaining sentences for a total effective sentence of 79 years.
The trial court sentenced Appellant Brown to twenty years for each conviction for aggravated rape (counts 1-10) and especially aggravated kidnapping (count 21) and ordered he serve one hundred percent of the sentences in confinement. Appellant Brown was further sentenced to ten years for each aggravated robbery conviction (counts 24-25) and two years for the reckless endangerment conviction (count 26), with thirty percent of those sentences served in confinement before becoming eligible for release. The court ordered that counts 1, 2, 24, and 25 be served consecutively to each other but concurrently with the remaining sentences for a total effective sentence of 60 years.
On appeal, the appellants contend that the trial court erred in determining the length of the sentences and in imposing consecutive sentencing.
Previously, appellate review of the length, range, or manner of service of a sentence was de novo with a presumption of correctness.
In determining a specific sentence within a range of punishment, the trial court should consider, but is not bound by, the following advisory guidelines:
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should also consider enhancement and mitigating factors, the statutory enhancement factors are advisory only.
The trial court correctly noted that the appellants, as standard Range I offenders, were subject to sentences of not less than fifteen nor more than twenty-five years for the Class A felony convictions of aggravated rape and especially aggravated kidnapping. See Tenn. Code Ann. §§ 39-13-305; 39-13-502; 40-35-112(a)(1). Additionally, the appellants were subject to sentences of not less than eight nor more than twelve years for the Class B felony conviction of aggravated robbery and not less than one nor more than two years for the Class E felony conviction of reckless endangerment.
In sentencing Appellant Brown, the trial court found three enhancement factors: (6), that "[t]he personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great"; (7), that the aggravated rapes "involved a victim and w[ere] committed to gratify the [appellants'] desire for pleasure or excitement"; and (16), that Appellant Brown was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult. Tenn. Code Ann. § 40-35-114(6), (7), and (16).
Regarding mitigating factors, the trial court applied mitigating factor (6), noting that Appellant Brown was only fifteen years old at the time he committed the instant offenses. Tenn. Code Ann. § 45-35-113(6). The court also applied mitigating factor (9), that Appellant Brown "assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses" by implicating Appellant Holt "in case number 2010-A-557." Tenn. Code Ann. § 45-35-113(9). The court also found that Appellant Brown pled guilty to the offenses so as to "not force the State and the victims to undergo a lengthy jury trial." Tenn. Code Ann. § 40-35-113(13).
On appeal, Appellant Brown first challenges the application of enhancement factor (6), stating that the "amount of damage to property, presumably the theft in this case, was of a minor amount" and that the record does not support the trial court's finding that the victims suffered particularly great personal injuries. However, the trial court did not apply enhancement factor (6) because of the physical injuries sustained by the victim. Instead, the court found that both victims had suffered great "psychological or emotional injuries" and had sought psychological treatment.
Our supreme court has stated "that enhancement factor (6) contemplates psychological or emotional injuries, as well as physical injuries, provided that the evidence establishes that such injuries are `particularly great.'"
C.M. testified that she will never be the same as before the offenses, that she "was a shell for a long time," and that she still had trust issues. She said that she had difficulties with her relationships with men, stating that her relationship with Pinson ended as a result of the crimes. She also felt compelled to leave the State and move to the New England area. Pinson testified that he had lost his optimistic outlook, becoming fearful and anxious. He said that he constantly relived the incident in his mind, that he saw a therapist, and that he became "hypervigilant" and could not work. We conclude that there was a sufficient basis for the trial court to apply this enhancement factor to the convictions.
Appellant Brown next contends that the trial court erred by applying enhancement factor (7) because there was no proof that "the rape[s were] sexually motivated and done to gratify [Appellant Brown's] desire for pleasure or excitement." Tenn. Code Ann. § 40-35-114(7). Our supreme court has explained that when deciding whether enhancement factor (7) applies to sexual crimes, the trial court must look to the"motive for committing the offense."
In sum, we conclude that the trial court did not err in the application of enhancement and mitigating factors, and we discern no error in the lengths of Appellant Brown's sentences as imposed by the trial court.
In sentencing Appellant Holt, the trial court applied five enhancement factors: (6), that "[t]he personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great"; (7), that the aggravated rapes "involved a victim and w[ere] committed to gratify the [appellants'] desire for pleasure or excitement"; (8) that Appellant Holt "before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community"; (13)(c) that Appellant Holt committed the instant offenses while on probation; and (16), that Appellant Holt was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult. Tenn. Code Ann. § 40-35-114(6), (7), (8), (13)(c) and (16). In mitigation, the court found that Appellant Holt "assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses," noting that Appellant Holt implicated Appellant Brown in another offense. See Tenn. Code Ann. § 45-35-113(9). The court also found that Appellant Holt pled guilty to the offenses so as to "not force the State and the victims to undergo a lengthy jury trial." Tenn. Code Ann. § 40-35-113(13).
On appeal, Appellant Holt contends that the trial court erred in determining the length of his sentences, specifically arguing that the trial court erred by failing to give proper consideration and weight to two mitigating factors. However, Appellant Holt does not dispute any of the enhancement factors applied by the trial court.
As we stated earlier, the trial court's application of enhancement factors (6), that "[t]he personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great," and (7), that the aggravated rapes "involved a victim and w[ere] committed to gratify the [appellants'] desire for pleasure or excitement," was justified.
Further, as the trial court noted, Appellant Holt's presentence report reflects that Appellant Holt "has two (2) probation violations in his juvenile criminal record." See Tenn. Code Ann. § 40-35-114(8). The violation of prior juvenile court probationary terms can be used to enhance a sentence.
Appellant Holt argues that the trial court erred by failing to consider mitigating factor (6), that because of youth or old age, he lacked substantial judgment in committing the offense, contending that he was twenty years old at the time of the offense and possessed only a ninth grade education. Ordinarily, "[i]n determining whether this factor is to be applied, courts should consider the concept of youth in context, i.e., the defendant's age, education, maturity, experience, mental capacity or development, and any other pertinent circumstance tending to demonstrate the defendant's ability or inability to appreciate the nature of his conduct."
Appellant Holt acknowledges that the trial court applied two mitigating factors but argues that the trial court should have weighed them more heavily. However, the weighing of mitigating and enhancement factors is in the trial court's discretion, and this court is bound by the trial court's sentencing decisions as long as sentence is imposed in a manner consistent with the purposes and principles of the Sentencing Act.
In sum, we conclude that the trial court did not err in applying enhancement and mitigating factors, and we discern no error in the lengths of the sentences imposed by the trial court.
Generally, "[w]hether sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion of the trial court."
In determining whether consecutive sentencing was appropriate for Appellant Brown, the trial court found that Appellant Brown had an extensive record of criminal activity and that he was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(2) and (6). Based on this finding, the trial court ordered that Appellant Brown's sentences for count 1 (twenty years for aggravated rape), count 2 (twenty years for aggravated rape), count 24 (ten years for aggravated robbery), and count 25 (ten years for aggravated robbery) be served consecutively to each other but concurrently with the remaining sentences for a total effective sentence of 60 years. On appeal, Appellant Brown contends that the trial court erred by finding that he has an extensive criminal record and that he was a dangerous offender.
The court based its finding that Appellant Brown had an extensive record of criminal activity upon his previous adjudication for aggravated burglary and the numerous convictions involved in the instant case. Tenn. Code Ann. § 40-35-115(b)(2). This court has stated that the instant offenses may be used to establish that an offender has an extensive criminal history for the purposes of consecutive sentencing.
The court also found that Appellant Brown was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4). Our case law clearly reflects that in order to impose consecutive sentencing based upon a finding that a defendant is a dangerous offender, a court must also find (1) "that an extended sentence is necessary to protect the public against further criminal conduct by the defendant" and (2) "that the consecutive sentences . . . reasonably relate to the severity of the offenses committed."
Regarding its finding that Appellant Brown was a dangerous offender, the trial court explained that the appellants "forcefully enter[ed] the sanctity of [the] victim[s'] homes and robb[ed] them at gunpoint. . . . [I]n addition to robbing both victims, [the appellants] taunted Mr. Pinson and repeatedly raped [C.M.] at gunpoint, forcing her to perform multiple degrading sexual acts and threatened to shoot her if she failed to obey." The court also explicitly found the existence of the
When examining whether consecutive sentencing was appropriate for Appellant Holt, the trial court found that Appellant Holt had an extensive record of criminal activity, that he was a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high, and that Appellant Holt committed the instant offenses while on probation. Tenn. Code Ann. § 40-35-115(b)(2), (4), and (6). The trial court ordered that Appellant Holt's sentences for counts 1 (twenty-three years for aggravated rape), 2 (twenty-three years for aggravated rape), 21 (twenty-three years for especially aggravated kidnapping), and 24 (ten years for aggravated robbery) be served consecutively to each other but concurrently with the remaining sentences for a total effective sentence of 79 years.
On appeal, Appellant Holt summarily contends that the trial court erred "by ordering consecutive sentencing." However, he does not support this contention with any argument. Therefore, he has waived this issue.
Nevertheless, we conclude that the trial court did not err in imposing consecutive sentencing. The trial court stated that Appellant Holt had previous adult convictions for robbery and burglary of a motor vehicle, as well as juvenile adjudications for two counts of assault with bodily injury, three counts of disorderly conduct, one count of aggravated assault, two probation violations, and one count of burglary. A defendant's history of juvenile adjudications is an appropriate consideration in determining whether a defendant has an extensive record of criminal activity for consecutive sentencing purposes.
Finally, the State asks this court to remand this case to the trial court for entry of corrected judgments for the aggravated rape convictions to reflect that each appellant is a multiple rapist, not a violent offender. We note that both a violent offender and a multiple rapist must serve one hundred percent of a sentence imposed in confinement. However, a violent offender may earn good time credits and reduce the sentence up to fifteen percent, but a multiple rapist is not eligible for credits to reduce the sentence.
In sum, we conclude that the trial court did not err in sentencing the appellants. However, we must remand for entry of corrected judgments of conviction for the aggravated rape convictions. We affirm the judgments of the trial court in all other respects.
