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State v. Burnett

Court of Criminal Appeals of Tennessee, Jackson

February 28, 2018

STATE OF TENNESSEE
v.
RANDEL LEE BURNETT, II

          Assigned on Briefs June 6, 2017

         Appeal from the Circuit Court for Fayette County No. 15-CR-24 J. Weber McCraw, Judge

         The Appellant, Randel Lee Burnett, II, pled guilty in the Fayette County Circuit Court to vehicular homicide by intoxication, aggravated child neglect, and three counts of vehicular assault. After a sentencing hearing, he received an effective twenty-four-year sentence. On appeal, the Appellant contends that the trial court improperly enhanced his sentences and erred by ordering consecutive sentencing based upon his being a dangerous offender. Upon review of the record and the parties' briefs, we conclude that the trial court improperly applied two enhancement factors during sentencing but that the length of the Appellant's sentences is not excessive. We also conclude that the trial court did not err by ordering consecutive sentencing. Accordingly, the judgments of the trial court are affirmed.

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

          William D. Massey, Memphis, Tennessee, for the appellant, Randel Lee Burnett, II.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and Matt Hooper, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In March 2015, the Fayette County Grand Jury indicted the Appellant for first degree felony murder, vehicular homicide by intoxication, vehicular homicide by recklessness, three counts of aggravated child neglect, aggravated child neglect of a child less than eight years old, three counts of reckless aggravated assault, and three counts of vehicular assault. On June 23, 2016, the Appellant pled guilty to vehicular homicide by intoxication, aggravated child neglect, and three counts of vehicular assault. The State dismissed the remaining charges.

         At the guilty plea hearing, the State gave the following factual account of the crimes: In April 2014, the Appellant was living at the Maturen residence on Johnson Drive off Highway 194. Shortly before midnight on April 12, the Appellant decided to drive his Mini Cooper convertible to Gurkin's convenience store for a "beer run." The Appellant had been drinking twenty-four-ounce beers throughout the day. The four children at the Maturen residence, the victims in this case, wanted to go with the Appellant to get snacks. The children were Brandon Anderson, an eleven-year-old who was spending the night at the Maturen home; Bobby Maturen, a child under the age of eight; Cole Maturen, a child under the age of sixteen but over the age of eight; and Robert Maturen, Jr., a child under the age of sixteen but over the age of eight. The State explained as follows:

They got to the store. The defendant bought beer. The children bought snacks and candy. They got back into the car and headed back north on 194 again in Fayette County. Just after leaving the city limits, the State would have expected to call at least one of the children to testify that the defendant was traveling at a rate of speed at about a hundred or a hundred and ten miles per hour. This is a forty-five mile per hour zone. Just outside the city limits the defendant lost control of the vehicle, ran off the road, the vehicle flipped numerous times. At no point in this process had the children been in their seatbelts. They were all unrestrained and all four of the children were thrown out of the vehicle as it flipped multiple times through the ditch over many yards along, parallel to 194.

         Bobby Maturen landed in a nearby ditch, and the vehicle ended up flipping on top of him, pinning him partially underwater. It took twenty minutes for emergency personnel to lift the car off him. Cole Maturen landed on the side of the road opposite the overturned car and received various internal injuries and broken bones. Brandon Anderson was found lying on the side of the road and was "brain dead from the beginning."

         After hearing about the crash, the father of the Maturen boys went to the scene and advised police officers that a fourth child had been in the car. Officers began searching and found Robert Maturen, Jr., about 140 feet from the vehicle. He had very serious injuries and broken bones. All three of the Maturen boys survived, but Brandon Anderson died from his injuries.

         The State advised the trial court that it expected Deputy Ken Hunt to testify at trial that the Appellant told the officer at the scene "that he was the driver, that he was drunk, and that it was his fault." The State said Officer Jim Norton would have testified that the Appellant smelled of alcohol. The Appellant was seriously injured but was able to walk around at the scene. Due to his injuries, the officers were not able to draw blood from him "in the normal T.B.I. test kit." Later, though, the officers obtained a search warrant and received a tube containing blood that was drawn from the Appellant at the hospital two and one-half hours after the crash. The Appellant's blood alcohol level was .022.

         Two or three days later, State Trooper James Smith went to the hospital to interview the Appellant. The Appellant admitted that he was the driver of the vehicle and that he was driving about eighty miles per hour in a forty-five-mile-per-hour zone. The State stated at the plea hearing, "[The Appellant] admitted that he had been drinking and that his judgment was impaired, that he was, in effect, buzzed at the time of the crash, and that drinking contributed to his speeding and contributed to the crash." The Appellant stipulated to the facts given by the State, and sentencing was set for July 18, 2016.

         At the sentencing hearing, Deputy Hunt testified that just before midnight on April 12, 2014, he responded to a call concerning a car crash. When he arrived at the scene, the Appellant walked up to his vehicle. The Appellant could not tell Deputy Hunt how many children had been in the car, and Officer Hunt could find only three children. The fourth child was found about thirty-five minutes later.

         Andrea Bass, Brandon Anderson's mother, testified that her family had been dealing with "depression, amidst anger, sorrow, and guilt" since the crash. Moreover, one of Brandon's brothers committed suicide due to the distress caused by Brandon's death. Ms. Bass said she did not recognize ...


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