IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 13, 2016

STATE OF TENNESSEE v. JONATHAN WAYNE UTZ

Appeal from the Circuit Court for Moore County

No. 15-CR-1363 Forest A. Durard, Jr., Judge

No. M2016-01244-CCA-R3-CD

The Defendant, Jonathan Wayne Utz, pled guilty to one count of aggravated sexual 

battery, a Class B felony. See Tenn. Code Ann. § 39-13-504. The trial court sentenced 

the Defendant as a Range I, standard offender to a term of imprisonment of nine years 

and six months to be served at one hundred percent. In this appeal as of right, the 

Defendant contends that “the sentence in this case is excessive and contrary to the law.” 

Discerning no error, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing III, 

Assistant District Public Defender, for the appellant, Jonathan Wayne Utz.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior 

Counsel; Robert James Carter, District Attorney General; and Hollynn Eubanks,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was indicted for one count of rape of a child, a Class A felony. 

See Tenn. Code Ann. § 39-13-522. The Defendant and the State entered into a plea 

agreement in which the Defendant agreed to plead guilty to the lesser offense of 

aggravated sexual battery. At the plea submission hearing, the State presented the 

following factual basis to support the guilty plea. In early August 2015, the victim, the 

Defendant’s four-year-old nephew, spent the weekend with the Defendant. Afterwards, 

the victim told his mother that the Defendant had forced him to perform fellatio on the 

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Defendant. The Defendant testified that the State’s recitation was “an accurate 

statement” and that he was “in fact guilty.” 

The victim’s mother testified at the sentencing hearing that the victim had “lost 

[his] innocence,” was afraid of men, and “no longer want[ed] to be held or loved.” The 

victim’s mother further testified that the victim was restless and had trouble sleeping 

since the incident occurred. However, the victim’s mother admitted that she had not 

sought any counseling for the victim. Additionally, the Defendant’s presentence report 

was entered into evidence at the sentencing hearing. The report revealed that the 

Defendant had one prior misdemeanor conviction for possession of drug paraphernalia. 

The Defendant also admitted in the report to past marijuana use.

The trial court found that the Defendant was a Range I, standard offender subject 

to a sentencing range of “not less than eight (8) nor more than twelve (12) years” for the 

Class B felony conviction. Tenn. Code Ann. § 40-35-112(a)(2). The trial court applied 

the following enhancement factors: that the Defendant had a previous history of criminal 

convictions or behavior, in addition to those necessary to establish the appropriate range,

and that the Defendant had abused a position of private trust. Tenn. Code Ann. § 40-35-

114(1), (14). The trial court also found that the “catchall” mitigating factor applied 

because the Defendant pled guilty rather than subject the victim to a trial. Tenn. Code 

Ann. § 40-35-113(13).

The trial court stated that it placed more weight on the Defendant’s abuse of a 

position of private trust than it did his history of criminal behavior, but gave “some 

weight” to his past criminal behavior. The trial court gave “little weight” to the 

“catchall” mitigating factor. Weighing the applicable enhancement and mitigating 

factors, the trial court sentenced the Defendant to nine years and six months, just below 

the midpoint of the applicable sentencing range. The Defendant now appeals to this 

court.

On appeal, the Defendant contends that “the sentence in this case is excessive and 

contrary to the law.” The Defendant argues that the imposed sentence “does not fit the 

crime or the offender” and that “[t]he facts of this case do not justify this sort of 

sentence.” However, nowhere in his brief does the Defendant provide any specific 

statement as to why a sentence of nine years and six months is excessive in light of the 

circumstances of the offense. The Defendant also argues that a lesser sentence “would 

help conserve prison resources.” The State responds that the trial court did not abuse its 

discretion in imposing a nine-and-a-half-year sentence and that the Defendant has not 

overcome the presumption of reasonableness granted to the in-range sentence.

Appellate courts are to review “sentences imposed by the trial court within the 

appropriate statutory range . . . under an abuse of discretion standard with a presumption 
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of reasonableness.” State v. Bise, 380 S.W3d 682, 709 (Tenn. 2012) (internal quotation 

marks omitted). A sentence will be upheld “so long as the statutory purposes and

principles [of the Sentencing Reform Act] . . . have been properly addressed.” Id. at 706. 

If this is true, this court may not disturb the sentence even if a different result were 

preferred. State v. Carter, 254 S.W.3d 335 (Tenn. 2008). Even if the trial court has 

misapplied an enhancement or mitigating factor, the sentence will be upheld if “there are 

other reasons consistent with the purposes and principles of sentencing, as provided by 

statute . . . .” Bise, 380 S.W.3d at 706. On appeal, the burden is on the defendant to 

show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d).

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring 

that every defendant “be punished by the imposition of a sentence justly deserved in 

relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to 

implement the purposes of the Sentencing Reform Act, trial courts must consider several 

sentencing principles. The sentence imposed for an offense “should be no greater than 

that deserved for the offense committed” and “should be the least severe measure 

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. 

§ 40-35-103(2), (4). Sentences involving incarceration “should be based on the following 

considerations”:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(2). Trial courts should consider the “potential or lack of 

potential for the rehabilitation or treatment of the defendant” when “determining the 

sentence alternative or length of term to be imposed.” Tenn. Code Ann. § 40-35-103(5).

Additionally, the trial court must consider: (a) the evidence adduced at the trial 

and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing 

and arguments as to sentencing alternatives; (d) the nature and characteristics of the 

criminal conduct involved; (e) evidence and information offered by the parties on the 

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-

35-113 and 40-35-114; (f) any statistical information provided by the Administrative 

Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any 

statement the defendant wishes to make in the defendant’s own behalf about sentencing. 
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Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical that [a] 

trial court[] adhere[s] to the statutory requirement set forth in Tennessee Code Annotated 

section 40-35-210(e)” and articulates in the record its reasons for imposing the specific 

sentence. Bise, 380 S.W.3d at 705 n.41.

The Defendant does not allege that the trial court misapplied any of the 

enhancement or mitigating factors. The trial court, after determining the appropriate 

sentencing range and applicable enhancement and mitigating factors, articulated its 

reasons for enhancing the Defendant’s sentence from the minimum eight years to nine 

years and six months. The trial court’s sentence was consistent with the purposes and 

principles of sentencing. We do not believe that the trial court’s imposition of a sentence 

below the midpoint of the applicable sentencing range was excessive in light of the 

factual basis provided by the State for the Defendant’s guilty plea. Nor do we believe 

that the addition of a year and a half to the Defendant’s sentence would place an undue 

burden on “prison resources.” We conclude that the Defendant has not overcome the 

presumption of reasonableness granted to the trial court’s in-range sentence and that the 

trial court did not abuse its discretion in setting the length of the Defendant’s sentence.

Upon consideration of the foregoing and the record as a whole, the judgment of 

the trial court is affirmed.

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D. KELLY THOMAS, JR., JUDGE