State v. Leming ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1998 SESSION July 16, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9709-CC-00426
Appellee, )
) SEVIER COUNTY
VS. )
) HON. REX HENRY OGLE,
RANDY LEMING, ) JUDGE
)
Appellant. ) (Statutory Rape)
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY K. GAYLON JOHN KNOX WALKUP
119 Court Avenue Attorney General and Reporter
Sevierville, TN 37862-3511
TODD R. KELLEY
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ALFRED C. SCHMUTZER, JR.
District Attorney General
CHARLES E. ATCHLEY, JR.
G. SCOTT GREEN
Asst. District Attorneys General
125 Court Avenue, Room 301-E
Sevierville, TN 37862
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Randy Leming, was indicted by a grand jury in Sevier County
on two (2) counts of statutory rape, Class E felonies. He applied for pretrial
diversion, which was denied by the district attorney’s office. He filed a petition for
writ of certiorari in the trial court to review the denial of pretrial diversion. The trial
court sustained the denial, and defendant subsequently pled guilty to both counts
of statutory rape. The trial court sentenced defendant as a Range I, standard
offender, to concurrent sentences of eighteen (18) months imprisonment for each
offense. On appeal, defendant contends that the trial court erred in:
(1) sustaining the prosecutor’s denial of pretrial diversion;
(2) denying judicial diversion; and
(3) imposing an excessive sentence to be served in incarceration.
We affirm the judgment of the trial court.
FACTS
The defendant was the pastor at Shiloh Baptist Church in Sevier County. In
1991, the female victim, B.J.,1 began attending that church on a regular basis. The
defendant and the victim began developing a friendship soon thereafter. B.J.
looked to defendant for spiritual guidance, and defendant often counseled her when
she developed problems with family and at school. Their relationship began to
escalate gradually until 1993 when they started to kiss and engage in sexual
“touching.” In May 1994, the victim performed oral sex on defendant while they
were at a friend’s trailer. In June 1994, the victim once again performed oral sex on
defendant. The victim was sixteen (16) years of age at the time, while defendant
was thirty-one (31) years of age.
At the time of the offenses, defendant was married and had no prior criminal
1
It is the policy of this Court not to reveal the names of minor victims of sexual
abuse.
2
record. He reported no drug or alcohol problems and had an excellent reputation
in the community. In support of his application for pretrial diversion, he submitted
approximately thirty (30) letters from friends and colleagues attesting to his good
moral character.
In considering pretrial diversion, the prosecutor acknowledged the
defendant’s many positive qualities. However, diversion was denied on the
following grounds:
(1) the defendant’s conduct persisted over a long period of time,
indicating a “protracted pattern of knowingly violating the law”;
(2) the defendant, as a pastor, abused a position of trust as the victim
was a member of defendant’s congregation;
(3) the victim has suffered significant emotional trauma; and
(4) there is a wide discrepancy between the defendant’s age and the
victim’s age.2
The trial court held a hearing to determine if the prosecution abused its
discretion in denying diversion. Upon its review of the denial of pretrial diversion,
the trial court focused on the abuse of trust by the pastor with a juvenile member of
his congregation. The court also noted that while the indicted offenses did not
occur until 1994, the “inappropriate contact” began well before 1994. Therefore, the
trial court found no abuse of discretion and upheld the prosecutor’s decision to deny
pretrial diversion.
Upon the conclusion of this hearing, the trial court allowed a recess for
defendant to confer with his counsel. Upon returning to open court, the defendant
then entered open pleas of guilty to both counts of statutory rape. The trial court
heard arguments from counsel concerning judicial diversion and defendant’s
sentences. The trial court then denied judicial diversion and sentenced defendant
to concurrent terms of eighteen (18) months imprisonment for both offenses.
2
Attached as exhibits to the letter denying diversion were: (1) a letter written by a
psychologist explaining the extent of the victim’s emotional trauma; (2) a twenty (20) page
statement written by the victim detailing her relationship with the defendant; and (3) a letter
written by the defendant to the victim explicitly, graphically and lewdly describing his sexual
“fantasy” with the victim.
3
PRETRIAL DIVERSION
In his first issue, defendant claims that the trial court erred in sustaining the
district attorney’s decision to deny pretrial diversion. He argues that he is a good
candidate for pretrial diversion because of his lack of criminal record, good work
history and excellent reputation in the community. He claims that the district
attorney erroneously refused to consider his positive attributes and amenability to
rehabilitation. Therefore, he asserts that the district attorney abused his discretion,
and the trial court should have granted pretrial diversion.
A.
We first note that defendant did not properly reserve a certified question of
law for appeal as a condition of his guilty plea under Tenn. R. Crim. P. 37(b)(2)(iv).
In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), the Tennessee Supreme Court
delineated certain prerequisites to considering the merits of a certified question of
law:
[T]he final order or judgment from which the time begins to run to
pursue a T.R.A.P. 3 appeal must contain a statement of the
dispositive certified question of law reserved by defendant for
appellate review and the question of law must be stated so as to
clearly identify the scope and the limits of the legal issue reserved. .
. . Also, the order must state that the certified question was expressly
reserved as part of a plea agreement, that the State and the trial
judge consented to the reservation and that the State and the trial
judge are of the opinion that the question is dispositive of the case. Of
course, the burden is on defendant to see that these prerequisites are
in the final order and that the record brought to the appellate courts
contains all of the proceedings below that bear upon whether the
certified question of law is dispositive and the merits of the question
certified. No issue beyond the scope of the certified question will be
considered.
Id. at 650. The appellant in Preston was reserving a certified question of law as part
of a plea agreement pursuant to Tenn. R. Crim. P. 37(b)(2)(i), whereas in this case
defendant entered an open plea of guilty and attempted to reserve a certified
question of law under Tenn. R. Crim. P. 37(b)(2)(iv). However, the requirements of
Preston apply for the consideration of a certified question of law reserved under
Tenn. R. Crim. P. 37 (b)(2)(i) or (iv). Id.In this case, the defendant has not complied with the requirements mandated
4
by Preston. The judgment forms dated April 9 and entered April 11 contain no
statement of the dispositive certified question of law reserved by defendant. Nor do
the judgments state that the trial court consented to the reservation of the certified
question and agreed that the issue was dispositive of the case.
The order of the trial court stating that “the Defendant reserved the issue of
the Court’s denial of his application for pre-trial diversion” does not rectify this
situation. The order was dated approximately twelve (12) days after the filing of
notice of appeal and over thirty (30) days after the entry of the judgments of
conviction. The trial court loses jurisdiction upon the filing of the notice of appeal
and loses its power to amend the judgment. State v. Pendergrass, 937 S.W.2d
834, 837 (Tenn. 1996). An order entered subsequent to the filing of notice of
appeal will not serve to cure the defect of failing to properly reserve a certified
question of law. Id. at 837-38.3
B.
Nevertheless, we will address this issue in the interest of justice. The
decision to grant or deny an application for pretrial diversion is within the discretion
of the district attorney general. Tenn. Code Ann. § 40-15-105(b)(3); see also State
v. Pinkham, 955 S.W.2d 956, 959 (Tenn. 1997); State v. Houston, 900 S.W.2d 712,
714 (Tenn. Crim. App. 1995); State v. Carr, 861 S.W.2d 850, 855 (Tenn. Crim. App.
1993).
A prosecutor's decision to deny diversion is presumptively correct, and the
trial court should only reverse that decision when the appellant establishes a patent
or gross abuse of discretion. State v. Lutry, 938 S.W.2d 431, 434 (Tenn. Crim. App.
1996); Houston, 900 S.W.2d at 714. The record must be lacking in any substantial
3
We note that the certified question of law must be “dispositive of the case” under
Tenn. R. Crim. P. 37(b)(2)(iv). Generally, an issue is dispositive only when the appellate
court must either affirm or reverse and dismiss. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn.
Crim. App. 1984). It is an unresolved issue whether remanding for entry of an order of
pretrial diversion is “dispositive of the case.” Pretrial diversion suspends prosecution for a
specified period of time conditional upon the performance of certain conditions and may be
subsequently terminated and prosecution resumed under certain circumstances. Tenn. Code
Ann. § 40-15-105(a) and (d). Yet, we also recognize that recently adopted Tenn. R. Crim.
P. 38 allows either an interlocutory appeal or appeal after final judgment from a denial of
pretrial diversion. However, we need not decide whether the issue of pretrial diversion is
“dispositive of the case” since the parties did not comply with the Preston requirements.
5
evidence to support the district attorney general’s decision before an abuse of
discretion can be found. State v. Pinkham, 955 S.W.2d at 960; State v. Carr, 861
S.W.2d at 856. The trial court may not substitute its judgment for that of the district
attorney general when the decision of the district attorney general is supported by
the evidence. State v. Watkins, 607 S.W.2d 486, 488 (Tenn. Crim. App. 1980).
Our review focuses on whether there is substantial evidence in the record to
support the district attorney’s refusal to divert. The underlying issue for
determination on appeal is whether or not, as a matter of law, the prosecutor
abused his or her discretion in denying pretrial diversion. State v. Brooks, 943
S.W.2d 411, 413 (Tenn. Crim. App. 1997).
In upholding the district attorney’s decision to deny diversion, the trial court
was concerned that defendant’s “inappropriate behavior” with the victim occurred
over a long period of time and found that defendant’s abuse of his position of trust
made this situation more egregious. We agree. According to the victim’s statement
relied upon by the district attorney, the defendant befriended the victim when she
was a young girl. He actively pursued a romantic relationship with the victim, and
they eventually engaged in sexual “touching.” The victim’s statement outlined
numerous instances of inappropriate sexual behavior which culminated into two (2)
instances of oral sex. This was not aberrant behavior on defendant’s part, as the
romantic relationship lasted approximately one (1) year. Compare State v.
Washington, 866 S.W.2d 950, 951 (Tenn. 1993) (allowing pretrial diversion where
defendant’s offenses were characterized as “apparently aberrant”).
Most importantly, defendant used his position as pastor to gain the victim’s
trust. The victim looked to defendant as her spiritual advisor and confidant, and he
took advantage of her innocence.
Although we commend defendant’s otherwise impeccable record and
reputation, we find that his abuse of a position of trust and the duration of his
conduct outweighs the factors favoring diversion. Accordingly, the trial court did not
err in sustaining the prosecutor’s decision to deny pretrial diversion.
This issue has no merit.
6
SENTENCING
In his last two issues, defendant claims that the trial court erred in denying
judicial diversion and in imposing an unreasonable sentence. He argues that the
trial court imposed an excessive sentence of eighteen (18) months. He further
asserts that he is a favorable candidate for alternative sentencing, and the trial court
erred in requiring that he serve his sentence in confinement. Finally, he contends
that he is an excellent candidate for judicial diversion, and the trial court erred in
denying judicial diversion.
A. Sentencing Standard of Review
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d
785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for
each factor is prescribed by the statute, as the weight given to each factor is left to
the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record.
State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
7
Nevertheless, should there be no mitigating factors, but enhancement factors are
present, a trial court may set the sentence above the minimum within the range.
Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638
(Tenn. Crim. App. 1994).
B. Length of Sentence
Defendant contends that the sentence imposed by the trial court is
excessive. He claims that he is entitled to the minimum one (1) year sentence
because of his lack of prior record and excellent reputation in the community.
In determining the length of defendant’s sentence, the trial court found that
defendant had abused a position of private trust. Tenn. Code Ann. § 40-35-
114(15). The court found that no statutory mitigating factors were applicable;
however, the trial court found that defendant’s otherwise exemplary life was a
mitigating factor. Tenn. Code Ann. § 40-35-113(13). The trial court weighed the
enhancement factor along with the mitigating factor and determined that a sentence
of eighteen (18) months was appropriate.
Under our de novo review, we also note that this offense was committed to
gratify the defendant’s desire for pleasure or excitement. Tenn. Code Ann. § 40-35-
114(7). From a reading of the victim’s statement and the various letters written by
the defendant to the victim, it is apparent that this factor should apply. See State
v. Walton, 958 S.W.2d 724, 730 (Tenn. 1997) (upholding the application of this
factor when defendant was convicted of aggravated rape and incest); see also State
v. Roy David McCarter, C.C.A. No. 03C01-9402-CR-00050, Blount County (Tenn.
Crim. App. filed July 14, 1994, at Knoxville), perm. to app. dismissed (Tenn.
November 28, 1994) (finding that Tenn. Code Ann. § 40-35-114(7) was applicable
even though defendant convicted of statutory rape).
Although defendant complains that he is entitled to the minimum sentence
because of “his being a good and productive citizen,” the trial court considered this
as a mitigating factor. However, the trial court concluded that the abuse of private
trust outweighed that mitigating factor. The trial court has the discretion to
determine the particular weight to be given enhancement and mitigating factors.
8
See State v. Moss, 727 S.W.2d at 238. The trial court enhanced the defendant’s
sentence to eighteen (18) months, six (6) months above the minimum for a Range
I, standard offender. Defendant has not met his burden of showing that the
sentence imposed by the trial court was improper. See Tenn. Code Ann. § 40-35-
401(d), Sentencing Commission Comments.
This issue is without merit.
C. Alternative Sentencing
Defendant also claims that he is presumed to be a favorable candidate for
alternative sentencing, and the trial court erred in imposing a sentence to be served
in imprisonment. Under the Criminal Sentencing Reform Act of 1989, trial judges
are encouraged to use alternatives to incarceration. An especially mitigated or
standard offender convicted of a Class C, D or E felony is presumed to be a
favorable candidate for alternative sentencing options in the absence of evidence
to the contrary. Tenn. Code Ann. § 40-35-102(6).
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); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169.
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103
considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d
9
435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an
alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston, 938 S.W.2d at 438.
There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the
offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d 467(Tenn. Crim. App. 1996). Indeed, individualized punishment is the essence of
alternative sentencing. State v. Dowdy, 894 S.W.2d at 305. In summary,
sentencing must be determined on a case-by-case basis, tailoring each sentence
to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d at 235.
In determining that defendant’s sentence should be served in incarceration,
the trial court once again noted the defendant’s lack of prior criminal history and
admirable work and social history. However, the trial court found that the nature of
the offense outweighed defendant’s commendable attributes. The trial court also
focused on the abuse of defendant’s position of trust, stating, “it is that because of
[defendant’s] position, his position of private trust, he was able to continue and
foster this illegal activity for over two years.” The trial court found that allowing
defendant to serve his sentence on probation would depreciate the seriousness of
the offense. Therefore, the trial court sentenced defendant to eighteen (18) months
confinement.
Probation may be denied based solely upon the circumstances surrounding
the offense. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995);
State v. Hartley, 818 S.W.2d 370, 374 (Tenn. Crim. App. 1991). However, 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 probation.
State v. Hartley, 818 S.W.2d at 374-75.
We agree with the trial court that the nature of the offenses committed
10
outweigh all other factors in favor of alternative sentencing. The defendant initiated
a relationship with a juvenile member of his congregation. The relationship
progressed and continued over an extended period of time, even though the
instances of sexual penetration occurred within a short period of time. In the course
of this relationship, defendant wrote many letters to the victim, including one which
described an explicit and graphic sexual “fantasy” about the victim. We conclude
that the offenses committed were especially shocking and reprehensible to justify
the denial of probation.
Furthermore, defendant abused his position of trust as a pastor. Tenn. Code
Ann. § 40-35-114(15). In addition, these offenses were committed to gratify
defendant’s desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114(7).
These enhancement factors are relevant in determining whether an alternative
sentence is appropriate. Tenn. Code Ann. § 40-35-210(b)(5).
We, therefore, hold that the trial court did not err in failing to grant an
alternative sentence.4
This issue is without merit.
D. Judicial Diversion
Defendant also contends that the trial court abused its discretion in denying
judicial diversion. When a defendant contends that the trial court committed error
in refusing to impose a sentence pursuant to Tenn. Code Ann. § 40-35-313,
commonly referred to as “judicial diversion,” this Court must determine whether the
trial court abused its discretion in failing to sentence pursuant to the statute. State
v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); State v. Anderson, 857
S.W.2d 571, 572 (Tenn. Crim. App. 1992); State v. George, 830 S.W.2d 79, 80
(Tenn. Crim. App. 1992). Judicial diversion is similar to pretrial diversion; however,
judicial diversion follows a determination of guilt, and the decision to grant judicial
diversion rests with the trial court, not the prosecutor. State v. Anderson, 857
4
Since the defendant received a sentence of less than two (2) years, the remainder of
his sentence will be suspended upon his reaching his release eligibility date. See Tenn. Code
Ann. § 40-35-501(a)(3). The district attorney may petition the trial court for denial of the
suspension only under certain circumstances. Tenn. Code Ann. § 40-35-501(a)(6)(A).
11
S.W.2d at 572.
The criteria that must be considered in determining whether an eligible
accused should be granted judicial diversion include: (a) the defendant’s
amenability to correction; (b) the circumstances of the offense; (c) the defendant’s
criminal record; (d) the defendant’s social history; (e) the defendant’s physical and
mental health; and (f) the deterrence value to the defendant as well as to others.
State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). An additional
consideration is whether judicial diversion will serve the ends of justice, i.e., the
interests of the public as well as the defendant. Id.The trial court denied judicial diversion on the same grounds as its denial of
alternative sentencing, namely the nature of the offense in light of (1) the length of
time during which the improper conduct occurred and (2) the defendant’s abuse of
a position of private trust. We conclude that the record fully supports the trial court’s
decision to deny judicial diversion.
This issue has no merit.
CONCLUSION
We find that the trial court properly upheld the district attorney’s decision to
deny pretrial diversion. We further find that the sentence imposed by the trial court
is appropriate under the facts of this case. Accordingly, the judgment of the trial
court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
12
JOSEPH M. TIPTON, JUDGE
CURWOOD WITT, JUDGE
13