Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 21, 2019
from the Circuit Court for Marshall County Nos. 18-CR-101,
15-CR-110 Franklin L. Russell, Special Judge
Defendant, Johnathan Robert Leonard,  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.
R. App. P. 3 Appeal as of Right; Order of the Circuit Court
Vacated; Case Remanded
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.
Everett Williams, P.J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and Robert H. Montgomery,
Jr., JJ., joined.
EVERETT WILLIAMS, PRESIDING JUDGE
AND PROCEDURAL HISTORY
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.
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.
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.
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
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
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.
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
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
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.
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 ...