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State v. Penny

Court of Criminal Appeals of Tennessee, Nashville

April 23, 2018


          Assigned on Briefs April 3, 2018 at Jackson

          Appeal from the Circuit Court for Montgomery County No. 2016-CR-754 Jill Bartee Ayers, Judge

         The 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.

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

          Roger 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 of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. and Robert L. Holloway, Jr., JJ., joined.


          J. ROSS DYER, JUDGE

         Factual and Procedural Background

         The 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.

         During 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 failure.

         The 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 done."

         In 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. ยง 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 ...

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