Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 3, 2018 at Jackson
from the Circuit Court for Montgomery County No. 2016-CR-754
Jill Bartee Ayers, Judge
defendant, Anthony Penny, pled guilty to three counts of
aggravated sexual battery. The plea agreement provided for
the defendant to be sentenced by the trial court with an
agreement his sentences would be served concurrently.
Following a sentencing hearing, the trial court imposed a
sentence often years for each count to be served in
confinement. On appeal, the defendant contends the trial
court abused its discretion by failing to properly consider
the purposes and principles of sentencing, by applying
enhancement factor four, and by failing to properly consider
certain mitigating factors under the "catch-all"
provision of the statute. Following our review, we affirm the
judgments of the trial court.
R. App. P. 3 as of Right; Judgment of the Circuit Court
E. Nell, District Public Defender; and Shelby C. Silvey,
Assistant Public Defender, for the appellant, Anthony Penny.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; John W.
Carney, District Attorney General; and Kimberly Lund,
Assistant District Attorney General, for the appellee, State
Ross Dyer, J., delivered the opinion of the court, in which
D. Kelly Thomas, Jr. and Robert L. Holloway, Jr., JJ.,
ROSS DYER, JUDGE
and Procedural Background
defendant was charged with three counts of aggravated sexual
battery of his biological minor child. The State and the
defendant agreed that the defendant would plead guilty to all
three counts with sentencing to be determined by the trial
court. The State and the defendant further agreed the
defendant's sentences would be served concurrently. A
sentencing hearing was held on May 19, 2017.
the sentencing hearing, the State introduced into evidence
the presentence report and a victim impact letter written by
the victim's mother. In her letter, the victim's
mother stated the impact of the defendant's actions
caused the victim to "inflict self-harm, not sleep,
and her once bubbly personality was changing before my
eyes." She went on to note that "[t]he worst part
about it is the horrendous acts of her own so-called father
will haunt [the victim] the rest of her life. [The victim]
will never be the same again." The victim hid the abuse
from her family for a year during which time she would also
object to visiting the defendant and her grandparents
because, unknown to the victim's mother, the defendant
would abuse the victim during those visits. During that year,
the victim, who normally "enjoyed wearing bright colored
clothing" and "wanted to stand out" and
"be noticed, " began wearing "multiple
layers" of oversized dark long sleeved clothing and long
pants. The victim even stopped wearing pajamas "because
a lot of the abuse occurred at night and pajamas made access
to her private parts easy for her abuser." To date, the
victim still "wears long sleeves/long pants in an effort
to avoid attracting unwanted attention due to [the
defendant's] inappropriate comments and touching."
The victim's mother concluded her letter stating,
Before the sexual assault occurred, [the victim] was a more
confident child, one who wanted to excel, to impress others.
Now if she makes a mistake, or she doesn't do as well as
she feels she should, she beats herself up, she cries, and
sometimes she would self-hurt because of what she deemed as
defendant also made a statement during the sentencing
hearing. The defendant expressed regret for the pain he
caused the victim and the family. He also informed the trial
court that he wished he "could go back and undo the
damage I've caused. . . ." He expressed hope the
victim would have the strength to put this behind her.
Finally, the defendant stated, "I've done all this
to myself and I have no one else to blame. ... I fully admit
to this and I am deeply ashamed and sorry for what I've
sentencing the defendant, the trial court stated it
considered the evidence presented during the sentencing
hearing including, the presentence report, the victim impact
statement from the victim's mother, the defendant's
statement, and the arguments of counsel. The trial court also
considered the "statistical information provided by the
Administrative Office of the Courts." In reviewing the
appropriate and applicable enhancement factors, the trial
court found enhancement factors (4), the victim was
particularly vulnerable due to age, and (14), the defendant
abused a position of private trust, applied to the defendant.
See Tenn. Code Ann. § 40-350-114 (4), (14).
While the trial court did not find any of the enumerated
mitigating factors applicable, the trial court took into
account the fact that the defendant entered an open plea
"because [he] didn't want to put his daughter
through the trial, and ...