State v. Jack Benson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1998 SESSION
August 25, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9707-CC-00283
Appellee, * BEDFORD COUNTY
VS. * Hon. Charles Lee, Judge
JACK LAYNE BENSON, * (First Degree Murder and
Appellant. * Especially Aggravated Robbery)
For Appellant: For Appellee:
Gregory D. Smith, Attorney John Knox Walkup
One Public Square, Ste. 321 Attorney General and Reporter
Clarksville, TN 37040
Deborah A. Tullis
Michael D. Randles Assistant Attorney General
Asst. Public Defender Cordell Hull Building, Second Floor
218 North Main 425 Fifth Avenue North
Shelbyville, TN 37160 Nashville, TN 37243
Donna Hargrove W. Michael McCown
Asst. Public Defender District Attorney General
Seventeenth Judicial District 215 E. College
105 South Main Street Fayetteville, TN 37334
P.O. Box 1119
Fayetteville, TN 37334 Robert G. Crigler
Asst. District Attorney General
Bedford County Courthouse
One Public Square, Suite 100
Shelbyville, TN 37160
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Jack Layne Benson, was convicted of first degree
murder in the perpetration of a robbery and especially aggravated robbery. Tenn.
Code Ann. § 39-13-202 and Tenn. Code Ann. § 39-13-403. The jury imposed a life
sentence for first degree murder. Tenn. Code Ann. § 39-13-204. The trial court
imposed a Range I, consecutive sentence of twenty-four years for especially
aggravated robbery.
The single issue presented for review is whether the trial court erred by
ordering a consecutive sentence. We affirm the judgment of the trial court.
The facts are not in significant dispute. On January 10, 1996, the
defendant and the victim, Jody Butts, visited in the home of Mitchell Sturdevant. At
approximately 11:25 P.M., the victim announced that he intended to leave and the
defendant asked for a ride. The two men left the Sturdevant residence together
and, only a few minutes later, the body of the victim was found lying in the street in
front of the defendant's residence.
At 11:38 P.M., Officer Don Barber of the Shelby County Police
Department was responding to a radio dispatch when he discovered the body in the
street. Medical testimony established that the victim died as a result of three stab
wounds. Either of two of the stab wounds, one to the heart and one the lung, would
have been fatal.
Between 11:30 and 11:40 P.M., Donna Addison noticed dark spots on
the front of the defendant's jacket and saw the defendant drop some money which
appeared to be stained with blood. He also informed her that he could not give her
2
a ride to the store because he was driving someone else's vehicle. Ms. Addison
described the vehicle that the defendant was driving as a cream and red colored
Chevrolet Blazer with tinted windows, a description that matched that of the vehicle
the victim was driving at the time he left the Sturdevant residence.
Less than thirty minutes later, Calvin Harris observed the defendant
driving the Blazer, a car he had never seen the defendant drive at anytime before.
When Harris asked where the defendant had acquired the Blazer, the defendant
simply laughed. The defendant agreed to drive Harris to a motel, where police
made the arrest. The vehicle in the defendant's possession was identified as that
owned by the victim. The glove compartment and the center console had been
ransacked and part of the console had been broken. Police found blood on the
driver's side door of the vehicle. Several items belonging to the victim, including
items of identification, were found scattered in the rear of the Chevrolet Blazer.
Police found the defendant in possession of the key to the Blazer. A piece of the
broken console and $11.00 in bills and coins, splattered with human blood, were
found in his right front pocket.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with 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
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
3
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for a Class A felony conviction at the time
of these offenses, the presumptive sentence is the midpoint within the range if there
are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If
there are enhancement factors but no mitigating factors, the trial court may set the
sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence
involving both enhancement and mitigating factors requires an assignment of
relative weight for the enhancement factors as a means of increasing the sentence.
Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range
by any weight assigned to the mitigating factors present. Id.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989,
the limited classifications for the imposition of consecutive sentences were set out in
Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court
ruled that aggravating circumstances must be present before placement in any one
of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the
court established an additional category for those defendants convicted of two or
more statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution:
[C]onsecutive sentences should not be routinely imposed
... and ... the aggregate maximum of consecutive terms
4
must be reasonably related to the severity of the
offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court only upon a determination that one or
more of the following criteria1 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
1
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.
5
In Gray, our supreme court had ruled that before consecutive
sentencing could be imposed upon the dangerous offender, as now defined by
subsection (b)(4) in the statute, other conditions must be present: (a) that the
crimes involved aggravating circumstances; (b) that consecutive sentences are a
necessary means to protect the public from the defendant; and (c) that the term
reasonably relates to the severity of the offenses.
In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our high court
reaffirmed those principles and ruled that consecutive sentences cannot be required
for any of the classifications "unless the terms reasonably relate to the severity of
the offenses committed and are necessary in order to protect the public from further
serious criminal conduct by the defendant." Id. at 938. The Wilkerson decision,
which modified guidelines adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.
Crim. App. 1991), governing the sentencing of dangerous offenders, described
sentencing as "a human process that neither can nor should be reduced to a set of
fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938 (footnote omitted).
As a Range I offender, the defendant was eligible for a fifteen to
twenty-five year sentence for especially aggravated robbery, a Class A felony.
Tenn. Code Ann. § 39-13-403(b); Tenn. Code Ann. § 40-35-112(a)(1). The trial
court found no mitigating factors and two enhancement factors. The trial judge
calculated the sentence by beginning at mid-range, because there are no mitigating
factors, and added four years due to the enhancement factors. See Tenn. Code
Ann. § 40-35-210(c); Tenn. Code Ann. § 40-35-114. The length of the sentence is
not in dispute.
The defendant argues that "consecutive sentencing is unjust under the
6
facts...." Yet he concedes that he was on probation for another offense at the time
of these offenses, and thus Tenn. Code Ann. § 40-35-115(b)(6) applies.
The record demonstrates that the defendant was convicted in Ohio in
1988 of aggravated burglary. In 1990, he was convicted for receiving stolen
property, drug abuse, and carrying a concealed weapon. In 1992, he was convicted
for drug abuse and carrying a concealed weapon. In 1993, he was convicted for
drug abuse and possession of drug paraphernalia.
Now thirty-three years of age, the defendant is single and is the father
of a daughter who is in the custody of her mother. At the time of sentencing, he
provided no support. The defendant has a sporadic work record, no military history,
and no income or other resources. On September 26, 1995, the defendant was
convicted of simple possession of a Schedule VI controlled substance and
sentenced to eleven months and twenty-nine days. He was on probational release
for that offense at the time of this offense.
When one or more statutory criteria is present, the imposition of
consecutive sentences is within the discretion of the trial court. State v. Taylor, 739
S.W.2d at 228. Even though the defendant was on probation for a misdemeanor
offense, the plain language of the statute authorizes a consecutive sentence.
Wendell King, Jr., v. State, No. 01C01-9310-CR-00366 (Tenn. Crim. App., at
Nashville, Aug. 4, app. denied, (Tenn., Oct. 31, 1994). In our view, the aggregate
length of the sentences was warranted.
7
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
David G. Hayes, Judge
_____________________________
Jerry L. Smith, Judge
8