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Leonard v. State

Court of Criminal Appeals of Tennessee, Nashville

November 12, 2019

JOHNATHAN ROBERT LEONARD
v.
STATE OF TENNESSEE

          Assigned on Briefs August 21, 2019

          Appeal from the Circuit Court for Marshall County Nos. 18-CR-101, 15-CR-110 Franklin L. Russell, Special Judge

         The Defendant, Johnathan Robert Leonard, [1] was convicted of three counts of rape of a child, two counts of soliciting sexual exploitation of a minor, and one count of aggravated sexual battery and was sentenced to an effective term of ninety-six years. After this court affirmed the judgments on direct appeal, the Defendant sought post-conviction relief, alleging ineffective assistance of counsel at trial and on appeal. The post-conviction court granted the Defendant a delayed appeal to allow him to challenge his sentence. In this delayed appeal, the Defendant challenges the length of his sentence for each conviction and the trial court's imposition of partial consecutive sentences. We conclude that counsel was not ineffective in failing to challenge the Defendant's sentence in his direct appeal and that the post-conviction court, therefore, erred in granting the delayed appeal. Accordingly, we vacate the post-conviction court's order and remand for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Order of the Circuit Court Vacated; Case Remanded

          Donna Orr Hargrove, District Public Defender; and Michael Collins (at hearing) and William J. Harold (at hearing and on appeal), Assistant District Public Defenders, for the appellant, Johnathan Robert Leonard.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Robert J. Carter, District Attorney General; and Andrew Wright and William Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The evidence presented at trial established that the Defendant sexually abused the nine-year-old and seven-year-old daughters of his girlfriend over a period of time. See State v. Johnathan Robert Leonard, No. M2016-00269-CCA-R3-CD, 2017 WL 1455093, at *1-2 (Tenn. Crim. App. Apr. 24, 2017), perm. app. denied (Tenn. Aug. 16, 2017). From August 2013 to March 2014, the victims and their mother lived with the Defendant, and the Defendant cared for the victims after school and on weekends while their mother was at work. Id. at *1. On March 2, 2014, the victims disclosed the Defendant's sexual abuse to their mother. Id. The following day, the victims' mother contacted the police, and the victims were interviewed by detectives and underwent forensic examinations. Id. The Defendant was arrested based on the disclosures made by the victims. Id. Detectives interviewed the Defendant after he waived his rights, and he denied the allegations of sexual abuse. Id.

         At trial, the seven-year-old victim testified to numerous instances of sexual abuse by the Defendant, stating that the Defendant made her touch his penis, pulled down his pants and told her what to do with his penis on multiple occasions, put his penis in her mouth, touched her "bottom" and vagina with his penis, and put his penis "in [her] bottom" during which she felt pain. Id. at *1. The nine-year-old victim testified that the Defendant showed his "private parts" to her, made her move her hand "up and down" his penis on more than one occasion, touched her "butt" with his penis, and pushed his penis "[i]n [her] butt," which caused her pain. Id. She recalled that the Defendant put lotion in her hand and made her rub the lotion on his penis, that the Defendant's penis "would go straight," and that "clear, white stuff would come out." Id. She also saw the Defendant put his penis into the other victim's mouth. Id. Both victims testified that the Defendant showed them pornographic movies. Id.

         The Defendant testified at trial and denied sexually abusing the victims or showing them pornographic movies. Id. at *2. He stated that on the morning in which the victims made the disclosures, he and their mother had an argument during which the Defendant told the victims' mother that he was leaving her. Id. The Defendant said that he had told the victims' mother that he was leaving her on a prior occasion and that she had threatened to "put him in jail." Id. The jury subsequently convicted the Defendant of three counts of rape of a child, two counts of soliciting sexual exploitation of a minor, and one count of aggravated sexual battery.

         During the sentencing hearing, the State presented the Defendant's presentence report, which reflected prior convictions for driving on a suspended license, two misdemeanor marijuana offenses, and disorderly conduct. His probation had been revoked for one of the marijuana convictions, and he admitted to prior extensive use of marijuana.

         The victims' mother testified that several months before the victims disclosed the sexual abuse to her, she began noticing that the victims no longer wanted to be around the Defendant and that the victims became "[m]ore reclusive." During the same time period, the younger victim began having behavioral outbursts, and the older victim's grades began slipping. The victims' mother stated that since the disclosure of the abuse, the older victim was more reserved, did not trust anyone, and had anger issues. The victims' mother agreed that the abuse continued to have an emotional impact on the older victim. The victims' mother testified that the younger victim was "not the innocent little girl she used to be" and that she wanted to wear more revealing clothing. The victims' mother stated that when the younger victim was around an adult male, she gravitated toward him, "seem[ed] to want all the attention," and was "a little clingy." The victims began therapy shortly after they disclosed the abuse and continued with the therapy for sixteen to eighteen months. The victims' mother believed the younger victim needed to continue with the therapy. The victims' mother believed the Defendant's actions would have a lasting impact on her family and requested that the Defendant receive the maximum sentence.

         The trial court applied the following enhancement factors: (1) the Defendant had "a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range;" (7) "[t]he offense involved a victim and was committed to gratify the [D]efendant's desire for pleasure or excitement;" (8) the Defendant previously "failed to comply with the conditions of a sentence involving release into the community;" and (14) the Defendant abused a position of private trust. See T.C.A. § 40-35-114. The trial court noted that the Defendant's criminal record was "not particularly significant" and that enhancement factor (8) only applied "in a minor way." The trial court found that enhancement (14), the abuse of private trust, was present "in a very powerful way" because the victims had referred to the Defendant as "daddy," he was their babysitter while their mother worked, and he accomplished the abuse while acting in a "quasi parental role." The trial court also found that the evidence presented at trial established that the Defendant committed the acts to gratify his desire for pleasure or excitement. The trial court found that no mitigating factors applied. The trial court sentenced the Defendant, as a Range II multiple offender, to thirty-two years at one hundred percent for each conviction of rape of a child and, as a Range I standard offender, to ten years at one hundred percent for the aggravated sexual battery conviction and five years at thirty percent for each conviction of soliciting sexual exploitation of a minor.

         The trial court imposed partial consecutive sentences based upon Tennessee Code Annotated section 40-35-115(b)(5).

The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims.

         The trial court stated that the Defendant committed the offenses against the seven-year-old and nine-year-old victims and that the victims suffered "very significant mental harm" as a result of the Defendant's acts, which required that they undergo mental health counseling. The trial court found that the abuse occurred over a significant period of time while the Defendant was serving in a "quasi parental role." The trial court also considered the nature and scope of the sexual acts, noting that the abuse involved both anal and oral penetration. The trial court found that based upon the purposes of the sentencing act, full consecutive sentencing would not be appropriate. The trial court ordered the Defendant to serve his sentences for his convictions for rape of a child consecutively to each other but concurrently to his sentences for his other convictions, resulting in an effective sentence of ninety-six years at one hundred percent.

         The Defendant filed a timely motion for new trial and an amended motion for new trial. Following a hearing, the trial court entered an order denying the motion. The Defendant filed a timely notice of appeal. On direct appeal, the Defendant raised claims of prosecutorial misconduct and "irregularities" during voir dire and jury selection. See Jonathan Robert Leonard, 2017 WL 1455093, at *4, 9. This court affirmed the trial court's judgments on direct appeal, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. See id. at *14.

         Post-Conviction Proceedings

         The Defendant filed a pro se petition for post-conviction relief and an amended petition following the appointment of counsel in which he maintained that he had received ineffective assistance of counsel at trial and on appeal. As relevant to the post-conviction court's granting of the delayed appeal, the Defendant alleged that trial counsel was ineffective in ...


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