Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 13, 2016
from the Circuit Court for Moore County No. 15-CR-1363 Forest
A. Durard, Jr., Judge
Defendant, Jonathan Wayne Utz, pled guilty to one count of
aggravated sexual battery, a Class B felony. See Tenn. Code
Ann. § 39-13-504. The trial court sentenced the
Defendant as a Range I, standard offender to a term of
imprisonment of nine years and six months to be served at one
hundred percent. In this appeal as of right, the Defendant
contends that "the sentence in this case is excessive
and contrary to the law." Discerning no error, we affirm
the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Orr Hargrove, District Public Defender; and Andrew Jackson
Dearing III, Assistant District Public Defender, for the
appellant, Jonathan Wayne Utz.
Herbert H. Slatery III, Attorney General and Reporter; Ruth
Anne Thompson, Senior Counsel; Robert James Carter, District
Attorney General; and Hollynn Eubanks, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE.
Defendant was indicted for one count of rape of a child, a
Class A felony. See Tenn. Code Ann. §
39-13-522. The Defendant and the State entered into a plea
agreement in which the Defendant agreed to plead guilty to
the lesser offense of aggravated sexual battery. At the plea
submission hearing, the State presented the following factual
basis to support the guilty plea. In early August 2015, the
victim, the Defendant's four-year-old nephew, spent the
weekend with the Defendant. Afterwards, the victim told his
mother that the Defendant had forced him to perform fellatio
on the Defendant. The Defendant testified that the
State's recitation was "an accurate statement"
and that he was "in fact guilty."
victim's mother testified at the sentencing hearing that
the victim had "lost [his] innocence, " was afraid
of men, and "no longer want[ed] to be held or
loved." The victim's mother further testified that
the victim was restless and had trouble sleeping since the
incident occurred. However, the victim's mother admitted
that she had not sought any counseling for the victim.
Additionally, the Defendant's presentence report was
entered into evidence at the sentencing hearing. The report
revealed that the Defendant had one prior misdemeanor
conviction for possession of drug paraphernalia. The
Defendant also admitted in the report to past marijuana use.
trial court found that the Defendant was a Range I, standard
offender subject to a sentencing range of "not less than
eight (8) nor more than twelve (12) years" for the Class
B felony conviction. Tenn. Code Ann. § 40-35-112(a)(2).
The trial court applied the following enhancement factors:
that the Defendant had a previous history of criminal
convictions or behavior, in addition to those necessary to
establish the appropriate range, and that the Defendant had
abused a position of private trust. Tenn. Code Ann. §
40-35-114(1), (14). The trial court also found that the
"catchall" mitigating factor applied because the
Defendant pled guilty rather than subject the victim to a
trial. Tenn. Code Ann. § 40-35-113(13).
trial court stated that it placed more weight on the
Defendant's abuse of a position of private trust than it
did his history of criminal behavior, but gave "some
weight" to his past criminal behavior. The trial court
gave "little weight" to the "catchall"
mitigating factor. Weighing the applicable enhancement and
mitigating factors, the trial court sentenced the Defendant
to nine years and six months, just below the midpoint of the
applicable sentencing range. The Defendant now appeals to
appeal, the Defendant contends that "the sentence in
this case is excessive and contrary to the law." The
Defendant argues that the imposed sentence "does not fit
the crime or the offender" and that "[t]he facts of
this case do not justify this sort of sentence."
However, nowhere in his brief does the Defendant provide any
specific statement as to why a sentence of nine years and six
months is excessive in light of the circumstances of the
offense. The Defendant also argues that a lesser sentence
"would help conserve prison resources." The State
responds that the trial court did not abuse its discretion in
imposing a nine-and-a-half-year sentence and that the
Defendant has not overcome the presumption of reasonableness
granted to the in-range sentence.
courts are to review "sentences imposed by the trial
court within the appropriate statutory range . . . under an
abuse of discretion standard with a presumption of
reasonableness." State v. Bise, 380 S.W.3d 682,
709 (Tenn. 2012) (internal quotation marks omitted). A
sentence will be upheld "so long as the statutory
purposes and principles [of the Sentencing Reform Act] . . .
have been properly addressed." Id. at 706. If
this is true, this court may not disturb the sentence even if
a different result were preferred. State v. Carter,
254 S.W.3d 335 (Tenn. 2008). Even if the trial court has
misapplied an enhancement or mitigating factor, the sentence
will be upheld if "there are other reasons consistent
with the purposes and principles of ...