IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 18, 2014 Session

r 

STATE OF TENNESSEE v. COTY SHANE SMITH

Appeal from the Criminal Court for Monroe County

No. 12136 Amy F. Reedy, Judge

No. E2014-00490-CCA-R3-CD - Filed December 26, 2014

Defendant, Coty Shane Smith, pled guilty to one count of second degree murder. The trial

court sentenced him to an effective sentence of twenty-five years in the Tennessee

Department of Correction. On appeal, Defendant contends that the trial court imposed an

excessive sentence by improperly applying an enhancement factor and imposing a sentence

that is disproportionate to the sentence received by one of the co-defendants in his case and

to sentences received in other second degree murder convictions throughout the state. After

a thorough review of the record and the applicable authorities, we affirm the judgment of the

trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Joseph Crabtree, Athens, Tennessee, for the appellant, Coty Shane Smith.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilbur, Senior Counsel; Steven

Bebb, District Attorney General; and Wayne Carter, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

This case arises out of the murder of the victim, Luther “Luke” Vineyard. A Monroe
County grand jury indicted Defendant, Lorenz James Freeman, Jr., Joshua Lee Steele, and

Jessica Renee Payne for conspiracy to commit aggravated robbery and felony murder. Mr.

Freeman and Mr. Steele were also indicted for aggravated robbery. Ms. Payne was indicted

for criminal responsibility for aggravated robbery. Defendant entered a plea of guilt to

second degree murder in exchange for the dismissal of the remaining charges. The trial

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court was to determine the manner of service of the sentence at a sentencing hearing. At the

guilty plea hearing on July 1, 2013, the State announced the factual basis underlying the

guilty plea as follows:

[O]n March the 4th, 2012, that Mr. Freeman, [Defendant] and Ms. Payne had

an attempt to go and rob the victim in this case, a Mr. Vineyard. That they

went to his place of residence, that the female, Ms. Payne, stayed in the vehicle

and the two gentlemen get out. That they approached his residence when

another vehicle shows up and they get spooked and leave and so there’s no

event that happens at that point. They go to a residence where they get hold

of Mr. Steele. At that point, sometime later on, and Ms. Payne does not return

with them, but Mr. Freeman, [Defendant], and Mr. Steele go back to Mr.

Vineyard’s residence, and at that point they go in [wearing masks] and it is Mr.

Freeman and Mr. Steele who are the ones that hold on to the victim Mr.

Vineyard and he’s hit in the head with a piece of iron, a piece of wrought iron,

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and eventually dies - -

. . . .

[Defendant] was involved in the planning, [Defendant] goes through the

house, the house is ransacked looking for what we expect they were looking

for cash, there were some rumors going around that the victim Mr. Vineyard

had a large amount of cash that was there. After this happens they leave, go

back, and there’s some other conversations that goes on. Fortunately law

enforcement gets on top of this thing fairly quickly and does a[n] outstanding

job of investigating the case and statements are taken from Mr. Freeman and

Mr. Steele, and Ms. Payne that would support the facts that I’ve outlined to the

court.

The remaining defendants also entered pleas of guilt. According to the transcript of the guilty plea

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hearing, Mr. Steele and Mr. Freeman pled guilty to second degree murder with the trial court to determine

the length and manner of service of the sentence. Ms. Payne pled guilty to facilitation to commit second

degree murder in exchange for a sentence of ten years, suspended to probation with pre-trial jail credit from

March 9, 2012, to July 1, 2013.

At the sentencing hearing, the weapon was described as “rebar.” 2

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(Footnote added). Based upon the evidence, the trial court accepted Defendant’s guilty plea.

Subsequently, on September 20, 2013, Defendant filed a motion to withdraw his guilty

plea. On October 30, 2013, trial counsel filed a motion to withdraw. Trial counsel asserted

that representing Defendant on the motion to withdraw the guilty plea was likely a conflict

of interest due to the fact that it was, in part, based on the allegation that trial counsel did not

adequately provide Defendant with information to make a knowledgeable decision about the

entry of the guilty plea.

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The trial court held a hearing on the motion to withdraw the guilty plea. At the

hearing, Defendant explained that, prior to March of 2012, he had been charged with theft

of property valued under $500. Defendant pled guilty to that charge but was not represented

by an attorney.

Defendant explained that during the investigation of the incident at issue herein, he

never admitted that he intended to cause injury or death to the victim or that he actually

inflicted the injuries to the victim. Additionally, he informed investigators that he did not

understand why or how he could be responsible for the death of someone when he did not

perform the acts that resulted in the death. However, Defendant admitted on crossexamination that he understood after conversations with trial counsel that he could be

responsible for someone else’s actions in the perpetration of a felony. Additionally,

Defendant admitted that he was present during the robbery.

Defendant explained that he wanted to file the motion to withdraw the plea because

he felt like he made a mistake in entering the plea. Defendant explained that he “just felt like

. . . [he] didn’t have [any] part in the death and so [he] shouldn’t . . . be charged for

something that [he] had nothing to do with.”

At the conclusion of the hearing, the trial courtstated that it considered the motion and

“did not find that the balance of the factors to be considered weighed in the defendant’s

favor.” Specifically, the trial court determined that “there was no confusion or

misunderstanding of the terms of the agreement.” The trial court noted that Defendant “had

a fear of the sentence and ‘woke up’ afraid of the fact as he testified which amounted to a

change of heart as to the possible penalty he faced.” As a result, the trial court denied the

motion to withdraw the guilty plea.

The motion to withdraw as counsel does not appear in the technical record. The order of the trial

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court denying the motion to withdraw the guilty plea states that the “motion was denied on the record on

November 1, 2013 after the State of Tennessee indicated they would not be calling counsel for the defendant

as a witness” at the hearing on the withdrawal of the guilty plea.

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The trial court set the matter for sentencing. At the sentencing hearing, Detective

Captain Doug Brandon of the Monroe County Sheriff’s Department testified. Detective

Captain Brannon testified that he was the lead investigator in the case. He explained that law

enforcement responded to a call at the home of the victim. A neighbor reported that he found

the victim dead in his home. Detective Captain Brannon described the home as a small log

cabin that “had been pretty well ransacked . . . as if someone was searching for something.”

The “walls had been torn apart, flooring had been ripped up.”

Detective Captain Brannon explained that the victim had a visible head wound and

the autopsy later revealed he had been struck in the head several times with a hard object.

The autopsy also indicated that “positional asphyxiation,” or an inability to move his body,

was a “contributing factor” to the victim’s death.

Officers received information during the investigation that led to the defendants. Mr.

Steele was approached by officers and was cooperative, describing the events as “a planned

robbery.” Mr. Steele explained that he was not initially involved in the robbery. Defendant,

Ms. Payne, and Mr. Freeman went to the victim’s home to rob him and were interrupted

when someone came to the house unexpectedly. They abandoned the plan and went to Mr.

Steele’s house, which was located a few miles away from the victim’s home. Mr. Steele was

brought into the conspiracy at that point and returned to the victim’s home with Mr. Freeman

and Defendant. Ms. Payne stayed with Mr. Steele’s girlfriend at the home of Mr. Steele.

When the men arrived at the home of the victim, they kicked in the door, restrained

the victim with “flexicuffs” or “flex-cuffs,” and Mr. Steele beat the victim with a piece of

“rebar,” a “piece of steel normally used to reinforce concrete.” The men tore the house apart

looking for narcotics and money.

Detective Captain Brannon described Defendant as the “least cooperative” of the

individuals involved in the incident. When investigators spoke with Defendant, he “pretty

much denied everything.” Detective Captain Brannon testified that Defendant “placed

himself out of the picture . . . he placed himself as having not made any physical contact with

the victim, having not done anything but perhaps being present.” However, Detective

Captain Brannon explained that the victim’s home was very small and that he “would find

it hard to believe that any one person anywhere in that house was not aware of what was

going on in that front room, either visually, verbally, or audi[torily]. . . .”

The victim’s brother, Larry Vineyard, testified at the hearing. He testified that he

went to his brother’s home with his two grown sons after the murder in an attempt to clean

up the home. He described it as “ransacked.” The couch was “soaked in blood,” and there

was a “puddle of blood probably a foot or foot and a half” where the victim’s face had been.

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Mr. Vineyard and his two sons tried to clean up the home but eventually boarded up the

house after cleaning on several occasions. Charlene Adams, the victim’s niece, also testified

about the negative effect that the victim’s murder had on the family and surrounding

community.

Jennifer Bledsoe, of the Monroe County Sheriff’s Department, testified that she was

the Captain of the jail that housed Defendant at the time of the sentencing hearing. She

testified that Defendant had been given a position in the jail in which he was permitted to

clean the hallways, a position reserved for inmates who “have established they are a lesser

risk than others.” Additionally, he completed a program offered through the jail known as

Team Dad, a parenting skills course.

Defendant testified at the hearing. At the time, he was twenty-seven. He apologized

to the victim’s family. He explained that he grew up with his grandparents and attended

school until the 12th grade but did not graduate. He obtained his GED. Defendant had one

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prior criminal offense, a misdemeanor theft of property valued under $500. He was on

probation for that offense at the time he was arrested for the offense at issue.

Defendant explained that his theft conviction arose after he removed some “game

cameras that [were] placed on my farm.” Defendant “returned the cameras to the owner but

he got a little upset because he couldn’t hunt [on the property].” The farm was actually

owned by Defendant’s grandparents.

Defendant had two children. At the time of the incident, he was living with the

children and their mother. Defendant ran his own business, a roofing company. He

employed one of the other defendants.

Defendant explained his involvement in the offense. He admitted that he went to the

home of the victim with the purpose of robbing the victim. However, Defendant stated

injuring the victim or using a weapon were not part of the plan. The plan was to restrain the

victim by placing “flexi-cuffs” on him. Defendant did not anticipate that the victim would

be injured. In fact, Defendant explained that they had no intention of harming the victim and

that the men disguised themselves prior to the robbery so that they would not be recognized

by the victim. Defendant testified that he did not know that the victim had been injured until

after they left the victim’s home and returned to Mr. Steele’s house.

At the conclusion of the sentencing hearing the trial court found that Defendant

Interestingly, at the hearing on the motion to withdraw his guilty plea, Defendant testified that he 4

attended school until 9th grade and did not have a GED or high school diploma. 

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“directed, instigated the entire event” and was a leader in the commission of an offense

involving two or more criminal actors, applying enhancement factor (2). The trial court also

found that enhancement factor (5) applied, that Defendant “treated, or allowed [the] victim

to be treated, with exceptional cruelty during the commission of the offense” because

Defendant was “tied up with these one time handcuffs” and “the position that he was left in

allowed him to lay there and suffer while his home was torn apart.” The trial court also noted

that Defendant was on probation for that conviction at the time of the offense, factor (13).

The trial court did not find any mitigating factors. After applying the enhancement factors,

the trial courtsentenced Defendant to twenty-five yearsin incarceration to be served at 100%

as a violent offender.

Defendant appeals.

Analysis

On appeal, Defendant contends that the trial court imposed an excessive sentence.

Specifically, he argues that the trial court erred by applying enhancement factor (5), that

Defendant treated or allowed the victim to be treated with exceptional cruelty, because the

proof was “unrefuted” that Defendant was unaware that the victim wasinjured. Additionally,

Defendant complains that his sentence is disproportionate to that of co-defendant Freeman,

who received a sentence of twenty years, and other similarly situated homicide convictions.

The State disagrees.

When the record establishes that the trial court imposed a sentence within the

appropriate range that reflects a “proper application of the purposes and principles of our

Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,

707 (Tenn. 2012). This Court will uphold the trial court’s sentencing decision “so long as

it is within the appropriate range and the record demonstrates that the sentence is otherwise

in compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,

under those circumstances, we may not disturb the sentence even if we had preferred a

different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing

the sentence has the burden of demonstrating its impropriety. T.C.A. § 40-35-401, Sent’g

Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

At the conclusion of a sentencing hearing, the trial court considers the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence

and information offered by the parties on enhancement and mitigating factors; (6) any

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statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. §§ 40-35-102,-103,

-210; see also Bise, 380 S.W.3d at 697-98.

Tennessee Code Annotated section 40-35-114 contains a non-exclusive list of

enhancement factors. The weighing of both enhancement and mitigating factors is left to the

trial court’s sound discretion. We note that even a trial court’s misapplication of an

enhancement or mitigating factor in imposing a sentence will not remove the presumption

of reasonableness from its sentencing determination. Bise, 380 S.W. 3d at 709. Here,

Defendant asserts that the trial court was in error by imposing a sentence of twenty-five years

on the basis of three enhancement factors and no mitigating factors.

At the conclusion of the sentencing hearing, the trial court applied enhancement

factors (2), (5), and (13) in sentencing Defendant to a sentence of twenty-five years in

incarceration. See T.C.A. § 40-35-114(2), (5), (13). Defendant does not challenge the trial

court’s application of enhancement factors (2), that “defendant was a leader in the

commission of an offense involving two (2) or more criminal actors,” or (13), that defendant

was “[r]eleased on probation” at the “time the felony was committed.” T.C.A. § 40-35-

114(2), (13). Instead, he challenges the application of enhancement factor (5), “[t]he

defendant treated, or allowed a victim to be treated, with exceptional cruelty during the

commission of the offense.” T.C.A. § 40-35-114(5).

To support his argument on appeal, Defendant insists that because he did not “allow”

the victim to be treated with exceptional cruelty during the commission of the offense, the

trial court improperly applied this enhancement factor. The State, on the other hand, cites

this Court’s opinion in State v. Ramone Gholston, No. M2011-01989-CCA-R3-CD, 2012 WL

2151492, at *4 (Tenn. Crim. App. Jun. 14, 2012), perm. app. denied (Tenn. Sept. 27, 2012),

to support the position that the trial court properly applied this enhancement factor even

though Defendant did not “personally” treat the victim with exceptional cruelty.

In Ramone Gholston, the defendant was convicted of facilitation of first degree felony

murder and facilitation of especially aggravated robbery. Id. at *1. The facts revealed that

the victim, who was particularly vulnerable because he suffered from a condition known as

Huntington’s chorea, was beaten by a co-defendant and bled to death as a result of his

injuries. Id. Mr. Gholston was sentenced to twenty-one years in incarceration by the trial

court and appealed. See State v. Ramone Pierre Gholston, No. M2008-01283-CCA-R3-CD,

2010 WL 22810 (Tenn. Crim. App. Jan. 5, 2010). On appeal, the case was remanded for resentencing because the record failed to demonstrate that Mr. Gholston properly waived his

ex post facto protections and agreed to be sentenced under the 2005 Amendments to the

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Sentencing Act. Id. at *8. On remand, Mr. Gholston executed a waiver of ex post facto

provisions and the trial court re-sentenced him, applying enhancement factors (2), (5), (6),

and (13). Ramone Gholston, 2012 WL 2151492, at *2. The trial court again sentenced Mr.

Gholston to twenty-one years in incarceration. Mr. Gholston appealed his sentence for a

second time, arguing that his sentence was excessive because the trial court misapplied

enhancement factors, including enhancement factor (5). Mr. Gholston argued that “the trial

court should not have applied that factor because the jury’s convicting him of facilitation

meant the jury found that he did not personally participate in the crimes.” Id. at *3. On

review of the application of the enhancement factors, this Court’s decision was constrained

by the failure of Mr. Gholston to include a copy of the trial transcript in the record in either

of his appeals. Id. at *4. Despite this failure, we noted:

Regarding enhancement factor (5), that the victim was treated with

exceptional cruelty, as noted by the State, a trial court may apply that factor if

the defendant allowed the victim to be treated with exceptional cruelty during

the commission of the offense. The defendant does not have to treat the victim

with exceptional cruelty personally. As to [Mr. Gholston’s] claim that the

facts of this case do not demonstrate exceptional cruelty, we again conclude

that we cannot determine whether the trial court properly applied enhancement

factor (5) because [Mr. Gholston’s] failure to include the trial transcript in the

appellate record prevents us from conducting a complete de novo review. “In

the absence of an adequate record on appeal, this court must presume that the

trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991).

Ramone Gholtson, 2012 WL 2151492, at *4 (emphasis added). As noted above, in Ramone

Gholston, this Court ultimately made the conclusion to uphold the sentence on the basis of

the failure of the defendant to include the trial transcript in the record, not on the proper

application of enhancement factors, including enhancement factor (5). We note that the plain

language of the statutory enhancement factor supports a trial court’s application of

enhancement factor (5) where the proof supports a finding that a defendant “allowed” the

victim to be treated with exceptional cruelty. In other words, it is permissible, based on the

plain language of the statute, to apply this enhancement factor where the defendant does not

“personally” treat the victim with exceptional cruelty.

In the case herein, the proof at the sentencing hearing presented by Defendant was that

he and the co-defendants went to the home of the victim with the intention of committing a

robbery. Defendant testified that they did not have any intention to harm the victim, in his

view, a fact supported by the fact that they wore disguises in order to prevent the victim from

being able to identify them at a later time. However, Defendant admitted that they planned

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to restrain the victim with “flexicuffs.” Defendant testified that he had no idea that the

victim had been injured until after the robbery concluded and the men returned to the home

of Mr. Steele.

Detective Captain Brannon testified that the home of the victim was very small and

he found it “hard to believe that any one person anywhere in that house was not aware of

what was going on in that front room.” Further, the testimony from the victim’s brother

indicated that the front room of the house had a large pool of blood and blood spatter from

where the victim was beaten with a piece of rebar.

The trial court, in concluding that Defendant allowed the victim to be treated with

exceptional cruelty, clearly accredited the testimony of the officer. The trial court heard the

live testimony from the witnesses at the sentencing hearing and was in the best position to

assess their credibility. At a sentencing hearing, the trial court, as the trier of fact, listens to

the testimony and observes the demeanor of the witnesses. The appellate court gives great

weight to the determinations made by the trial court concerning the credibility of witnesses.

This Court will not interfere with the trial court’s findings unless the record preponderates

against them. State v. Andrew Cross, No. E2011-02106-CCA-R3-CD, 2012 WL 6734708,

at *6 (Tenn. Crim. App. Dec. 28, 2012), perm. app. denied (Tenn. Apr. 9, 2013) (citing State

v. Melvin, 913 S.W.2d 195, 202 (Tenn. Crim. App. 1995)). The evidence presented at the

sentencing hearing supportsthe trial court’s determination that Defendant allowed the victim

to be treated with exceptional cruelty by his co-defendants.

Moreover, the trial court properly considered that Defendant was a leader in the

commission of the offense. The trial court accredited Detective Captain Brannon’stestimony

that Defendant “directed, initiated [and] was the man behind the idea.” Additionally,

Defendant admitted that he was on probation at the time the offense was committed. These

two enhancement factors alone would justify the imposition of a twenty-five year sentence.

We conclude that the sentencing decision was “within the appropriate range and the

record demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Bise, 380 S.W.3d at 709-10. Defendant pled guilty to second

degree murder, a Class A felony, and faced a sentence of fifteen to twenty-five years as a

Range I offender. T.C.A. § 39-13-210(c); T.C.A. § 40-35-112(a)(1). The sentence of

twenty-five years, as imposed by the trial court, was within that range. The trial court did not

abuse its discretion; Defendant is not entitled to relief.

Further, we determine that the sentence is not disproportionate. Defendant does not

argue that the sentence is outside the appropriate range or that the trial court in some way

deviated from the sentencing guidelines. In order to determine, in a non-capital case, if a

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sentence is disproportionate and therefore in violation of the Eighth Amendment’s guarantee

against cruel and unusual punishment, the Tennessee Supreme Court has adopted the

following analysis:

[T]he sentence is initially compared with the crime committed. Unless this

threshold comparison leads to an inference of gross disproportionality, the

inquiry ends—the sentence is constitutional. In those rare cases where this

inference does arise, the analysis proceeds by comparing (1) the sentences

imposed on other criminals in the same jurisdiction, and (2) the sentences

imposed for commission of the same crime in other jurisdictions.

State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992). A successful challenge to a sentence

utilizing a proportionality argument is “exceedingly rare.” Id. at 602. Defendant’s sentence

herein, twenty-five years for second degree murder, does not meet the threshold inference

of gross disproportionality.

Further, Appellant has cited to only one other case, a twenty-one year sentence

imposed in State v. Patrick Rico Edwards, No. M2009-01277-CCA-R3-CD, 2011 WL

497444, at *3 (Tenn. Crim. App. Feb. 11, 2011), perm. app. denied (Tenn. May 26, 2011),

in order to support his claim of disproportionality. In Patrick Rico Edwards, the defendant,

who shot someone in the back during a drug transaction, entered a plea of guilt to second

degree murder after a mistrial. The trial court sentenced him to twenty-one years in

incarceration based on the application of enhancement factors (1), (9), and (10). Id. at *3.

While the case herein and Patrick Rico Edwards certainly have distinguishable factual

scenarios, and Patrick Rico Edwards was most certainly the primary aggressor whereas

Defendant herein allowed the victim to be treated with exceptional cruelty by others, the fact

of the matter remains that they both entered pleas of guilt to second degree murder and were

both sentenced within the range for that offense. Defendant has not shown that his sentence

is disproportionate. This issue is without merit.

Conclusion

Based upon our review of the record, we affirm the judgment of the trial court.

_________________________________

TIMOTHY L. EASTER, JUDGE

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