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State v. Burrows

Court of Criminal Appeals of Tennessee, Nashville

October 31, 2019

STATE OF TENNESSEE
v.
MICHAEL ANDREW BURROWS

          Assigned on Briefs October 16, 2019

          Appeal from the Circuit Court for Montgomery County No. 63CC1-2017-CR-4 Jill Bartee Ayers, Judge

         The Montgomery County Grand Jury indicted Defendant, Michael Andrew Burrows, on seven counts of rape of a child and eight counts of aggravated sexual battery. Pursuant to a plea agreement, Defendant pled guilty as a Range I offender to two counts of sexual battery, with an agreed out-of-range sentence of four years on each count, with sentence alignment, manner of service, and the issue of judicial diversion to be determined by the trial court. The remaining counts were dismissed. Following a sentencing hearing, the trial court denied judicial diversion, imposed consecutive sentences, and sentenced Defendant to eight years' probation. Defendant now appeals the denial of judicial diversion. Based on a thorough review of the record and applicable case law, the judgments of the trial court are affirmed.

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

          Gregory D. Smith (on appeal) and Chase T. Smith (at trial), Clarksville, Tennessee, for the appellant, Michael Andrew Burrows.

          Herbert H. Slatery III, Attorney General and Reporter; Daniel P. Whitaker, III, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural History

         Guilty Plea Submission Hearing

         At the beginning of the hearing, the State announced that parties had reached a plea agreement whereby the Defendant would plead guilty to two Class E felonies with an out-of-range sentence of four years with thirty-five percent release eligibility on each conviction and with the alignment and manner of service of the sentences to be determined at a sentencing hearing.[1] Defendant acknowledged that he understood that the sentences were out-of-range. The State presented the following factual basis for the plea:

If this case were presented to a trial by jury, the proof would be that on October 2nd, 2016, law enforcement responded to a call of sexual assault at [***] Woodlawn Road, here in Montgomery County. The [c]omplainant, Lonna Burrows (phonetic), had called 9-1-1 in reference to her ten-year-old daughter having made statements that her stepfather, the Defendant, had touched her inappropriately.
Law enforcement would testify that in -- upon going in the home, they did find [Defendant] laying [sic] in the bathtub on his back, naked. [Defendant] was mildly damp from a shower and had an odor of alcoholic beverage on his person. He stood up and was asked to put on underwear, which was located on the floor. [Defendant] was taken into custody, at that time.
The children were later interviewed and would testify at trial, according to [the] following: L.S., whose date of birth is 02/21/06, would testify that the Defendant had touched and nibbled on her chest and breast; that he had put his ["]dinger["] in her vagina; that he had made her touch his ["]dinger["] with her hands; and [made] her get on top of him while she was naked. She indicated that, that had been going on for approximately two years. K.S., . . . whose date of birth was 12/10/07, would testify that approximately four to five times in her room that the Defendant had touched her inappropriately with his finger, . . . playing with her private on her skin, while cuddling with her. She thought that that had started when she was approximate eight years old.

         The trial court advised and questioned Defendant concerning his rights pursuant to Tennessee Rule of Criminal Procedure 11(b) and insured that Defendant was voluntarily and knowingly agreeing to an out-of-range sentence of four years on each count. The court then accepted Defendant's plea of guilty to two counts of Class E felony sexual battery and, pursuant to the plea agreement, sentenced Defendant to four years on each count. The court set a sentencing hearing to determine the alignment of the sentences and the method and manner of service.

         Sentencing ...


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