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State v. Utz

Court of Criminal Appeals of Tennessee, Nashville

January 27, 2017

STATE OF TENNESSEE
v.
JONATHAN WAYNE UTZ

          Assigned on Briefs December 13, 2016

         Appeal from the Circuit Court for Moore County No. 15-CR-1363 Forest A. Durard, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Donna 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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         The 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."

         The 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.

         The 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).

         The 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 this court.

         On 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.

         Appellate 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 ...


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