In Re: Anna L. J. - Concurring ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December17, 2013 Session
IN RE: ANNA L. J.
Appeal from the Juvenile Court for Williamson County
No. 37304 Sharon Guffee, Judge
No. M2013-00561-COA-R3-JV - Filed March 20, 2014
F RANK G. C LEMENT, J R., J., concurring.
I write separately to emphasize the point that trial courts should not automatically
impose the maximum sentence when consecutive sentencing is available; this is due in part
to the recognition that “not every contemptuous act, or combination of contemptuous acts,
justifies the imposition of a maximum sentence, particularly when consecutive sentencing
is in play.” Simpkins v. Simpkins, 374 S.W.3d 413, 422 (Tenn. Ct. App. 2012). Imposition
of the maximum sentence to be served consecutively is merely an option if the facts of the
case justify the absolute maximum sentence. Further, there is a presumption in favor of
concurrent sentencing as distinguished from consecutive sentencing. Id. at 424 (citing State
v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987) (holding that consecutive sentences should not
routinely be imposed in criminal cases and the aggregate maximum of consecutive terms
must be reasonably related to the severity of the offenses involved)).
Tenn. Code Ann. § 29-9-103 provides that the punishment for contempt may be by
fine or by imprisonment, or both. Fines are limited to no more than fifty dollars, and
imprisonment shall not exceed ten days. Id. Thus, the foregoing merely represents the
maximum fine and maximum imprisonment that may be imposed. Accordingly, the mere fact
someone is found guilty of criminal contempt does not, by itself, justify the imposition of the
maximum sentence available, nor does it mandate that some or all of it be served
concurrently or consecutively. See In re Sneed, 302 S.W.3d 825, 828-29 (Tenn. 2010); see
also Simpkins, 374 S.W.3d at 425.
As our Supreme Court explained in In re Sneed, when sentencing for contempt of
court: “Although statutory criteria may support the imposition of consecutive sentences, the
overall length of the sentence must be ‘justly deserved in relation to the seriousness of the
offense[s]’ and ‘no greater than that deserved’ under the circumstances.” In re Sneed, 302
S.W.3d at 828-29. The court further noted that “partial consecutive sentencing” and
concurrent sentencing may be appropriate in certain cases. Id. at 829 (citing State v.
Cummings, 868 S.W.2d 661, 664, 667 (Tenn. Crim. App. 1992)). Additionally, as this court
held in Simpkins, “not every contemptuous act, or combination of contemptuous acts,
justifies the imposition of a maximum sentence, particularly when consecutive sentencing
is in play.” Simpkins, 374 S.W.3d at 425.
In Simpkins, the husband was found guilty of 14 counts of criminal contempt and,
without specifying the reasons as Tenn. R. Crim. P. 32(c)(1) requires, the trial court imposed
the absolute maximum sentence of 140 days, ten days for each count to be served
consecutively. Id. at 417. On appeal we found the record did not justify the imposition of the
maximum available sentence, all of which was to be served consecutively. Id. at 425. After
noting the defendant was sentenced for criminal contempt, which may justify consecutive
sentencing, at least in part, we reasoned:
[T]his factor [Tenn. Code Ann. § 40-35-115(b)(7)] alone does not justify the
imposition of the absolute maximum sentence of 140 days [ten days for each
of 14 counts]. As we noted above, “[a]lthough statutory criteria may support
the imposition of consecutive sentences, the overall length of the sentence
must be ‘justly deserved in relation to the seriousness of the offense[s],’ and
‘no greater than that deserved’ under the circumstances.” In re Sneed, 302
S.W.3d at 828 (internal citations omitted).
Simpkins, 374 S.W.3d at 425.
We further reasoned:
Although the record clearly established Husband’s guilt of all fourteen counts
of criminal contempt, that fact alone does not justify the imposition of the
maximum sentence of ten days for each conviction or that all of the sentences
run consecutively to each other for an effective period of confinement of 140
days. To the contrary, there is a presumption in favor of concurrent sentencing
as distinguished from consecutive sentencing. See State v. Taylor, 739 S.W.2d
227, 230 (Tenn. 1987) (holding that consecutive sentences should not routinely
be imposed in criminal cases and the aggregate maximum of consecutive terms
must be reasonably related to the severity of the offenses involved). Further,
the record suggests the trial court did not consider the statutory criteria when
determining whether Husband’s multiple sentences should be served
concurrently or consecutively. See Tenn. Code Ann. § 40-35-115(a) (“If a
defendant is convicted of more than one (1) criminal offense, the court shall
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order sentences to run consecutively or concurrently as provided by the criteria
in this section.”).
Id.
Applying the foregoing principles and reasoning, we modified the sentence imposed
on Mr. Simpkins as follows:
The sentences imposed for the ten withdrawals against the line of credit are
reduced to four (4) days each, which will run consecutive to each other. The
sentences imposed for failing to pay pendente lite support and the 2009
property taxes are reduced to four (4) days each, which will run consecutive
to each other and consecutive to the ten counts above. The sentences imposed
for the remaining two counts are reduced to one (1) day each, which will run
concurrent to each other but consecutive to the other twelve counts. The total
effective sentence to be served is forty-nine (49) days. On remand, the trial
court shall set the date for Husband to report to jail to serve his sentence.
Id. at 426.
As noted in Simpkins, this court could modify the sentence without remand;
nevertheless, I fully concur with the majority’s decision to remand this matter to the trial
court for reconsideration of the sentence to be imposed based on the particular facts of this
case, and the principles stated in Tenn. Code Ann. § 40-35-115(b), In re Sneed, Simpkins,
Cummins, and Taylor.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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