IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 18, 2010

STATE OF TENNESSEE v. EVETTA MAI McGEE

Direct Appeal from the Circuit Court for Bedford County

No. 16773 Robert Crigler, Judge

No. M2009-02266-CCA-R3-CD - Filed September 10, 2010

The Defendant, Evetta Mai McGee, pled guilty to rape, and the trial court sentenced her to

eleven years. On appeal, the Defendant contends the trial court erred when it enhanced her

sentence beyond the statutory minimum without explanation. After a thorough review of the

record and applicable law, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES

and NORMA MCGEE OGLE, JJ., joined.

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Evetta Mai McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

John H. Bledsoe, Assistant Attorney General; Charles Crawford, District Attorney General;

Michael D. Randles, Assistant District Attorney General, for the Appellee, State of

Tennessee.

OPINION

I. Facts

This case arises from the Defendant’s rape of a fellow inmate while both were

incarcerated in the Bedford County Jail. At the time, the Defendant was serving a nine-year

sentence for manufacturing, possessing, or selling drugs. During the Defendant’s plea

submission hearing, the State set forth the following summary of the rape underlying this

appeal:

[I]n August 2008 [the Defendant], Brooke Whitaker, Kelly Dodson,
Brandy Holden, Kim O’Neal, and A.D. ] were all housed in the same cell at

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the Bedford County Jail.

On the night of August 20th after lockdown, the lights are cut off by the

facility and the door to the cell is locked. [A.D.] was in her bunk when she was

approached by [the Defendant] and Brooke Whitaker. They held her down and

they began sexually assaulting penetration of her vagina digitally [sic]. Also

included oral sex in the form of cunnilingus performed on her.

At one point Brooke Whitaker yelled for other girls to help hold her

down. Kelly Dodson and Brandy Holden came over and assisted in holding

down [A.D.] while the sexual assault continued.

They did ultimately let go. Essentially everyone let go.

[The victim] checked herself that night. Basically had to cry herself to

sleep. She is in the same room with these persons.

The next day after many hours, ultimately she did report it to the

authorities.

Investigation was then done, led by Capt. Becky Hord of the sheriff’s

department in which statements were obtained from numerous individuals.

Virtually everyone in the cell gave a statement including Kim O’Neal who was

not a participant. She was the only one that was not a participant as a victim

or perpetrator. Also girls in other cells who heard [A.D.] screaming no, stop

and things like that while the assault went on.

Based upon this conduct, a Bedford County grand jury indicted the Defendant for aggravated

rape. The Defendant pled guilty to rape, with the trial court to determine her sentence.

The trial court held a sentencing hearing, wherein the following evidence was

presented: the State introduced the Defendant’s presentence report, which showed that the

Defendant, who was twenty-two at the time of her offense, was placed in the Department of

Children’s Services custody after she failed to attend school as a juvenile. In the eleventh

grade, she dropped out of Central High School in Shelbyville. Throughout the next four

years, the Defendant was sporadically employed and collected several criminal convictions,

which included the manufacture, sale, or possession of drugs; possession of less than .5

In order to protect the victim’s privacy, we will refer to her only by her initials. 1

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ounces of marijuana; shoplifting; and failure to use a safety belt/child restraint. The

Defendant violated a one-year probation sentence she received for her marijuana possession

and shoplifting convictions. She was serving the nine-year sentence she received for

possession, sale, or manufacture of drugs when she committed the rape in this case.

The Defendant stated to the officer preparing her presentence report that she suffered

from depression and insomnia, that her mother was an alcoholic, and that she herself had

never used drugs. The Defendant testified at her sentencing hearing that she and the victim

had no “ill words or confrontation” the morning following the rape. At the conclusion of the

sentencing hearing, the trial court applied three statutory enhancement factors and sentenced

the Defendant, who the parties agreed was a Range I, Standard offender, to eleven years, to

be served consecutively to the nine-year sentence she was serving at the time of this offense.

The Defendant now appeals this judgment.

II. Analysis

On appeal, the Defendant does not challenge the trial court’s application of

enhancement factors but rather contends that the trial court did not sufficiently explain its

reasons, apart from the factors’ applicability, for sentencing the Defendant to three years

above the statutory minimum. The State responds that the trial court adequately stated on the

record its reasoning for departing from the minimum sentence.

When a defendant challenges the length, range, or manner of service of a sentence,

this Court must conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” T.C.A. §

40-35-401(d) (2006). This presumption, however, is conditioned upon the affirmative

showing in the record that the trial court properly sentenced the defendant. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). As the Sentencing Commission Comments to this

section note, the burden is on the appealing party to show that the sentencing is improper.

T.C.A. § 40-35-401, Sentencing Comm’n Cmts. If the trial court followed the statutory

sentencing procedure, made findings of facts which are adequately supported in the record,

and gave due consideration to the factors and principles relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result was

preferred. T.C.A. § 40-35-103 (2006), State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The

presumption does not apply to the legal conclusions reached by the trial court in sentencing

a defendant or to the determinations made by the trial court which are predicated upon

uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v.

Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929

(Tenn. Crim. App. 1994). In the event the record fails to demonstrate the required

consideration by the trial court, appellate review of the sentence is purely de novo. Ashby,

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823 S.W.2d at 169.

In conducting a de novo review of a sentence, we must consider: (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 the mitigating and enhancement factors set out in Tennessee Code Annotated

sections 40-35-113 and -114; (6) any statistical information provided by the administrative

office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any

statement the defendant made in the defendant's own behalf about sentencing. See T.C.A.

§ 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

The Criminal Sentencing Act of 1989 and its amendments describe the process for

determining the appropriate length of a defendant's sentence. Under the Act, a trial court

may impose a sentence within the applicable range as long as the imposed sentence is

consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006);

see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The Tennessee Code allows a

sentencing court to consider the following enhancement factors, among others, when

determining whether to enhance a defendant’s sentence:

(1) The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range;

. . .

(3) The offense involved more than one (1) victim;

. . .

(13) At the time the felony was committed, one (1) of the following

classifications was applicable to the defendant:

. . .

(I) Incarcerated in any penal institution on a misdemeanor or felony

charge or a misdemeanor or felony conviction

T.C.A. § 40-35-114(1), (3), and (13) (2006).

In order to ensure “fair and consistent sentencing,” the trial court must “place on the

record” what, if any, enhancement and mitigating factors it considered as well as its “reasons

for the sentence.” T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing

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Act, both the State and a defendant could appeal the manner in which a trial court weighed

enhancement and mitigating factors it found to apply to the defendant. T.C.A. §

40-35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a

claim that the trial court did not properly weigh the enhancement and mitigating factors. See

2005 Tenn. Pub. Acts ch. 353, §§ 8, 9. In summary, although this Court cannot review a trial

court’s weighing of enhancement factors, we can review the trial court’s application of those

enhancement factors. T.C.A. § 40-35-401(d) (2006); see Carter, 254 S.W.3d at 343.

In this case, the parties agree that the trial court properly applied enhancement factors

(1), (2), and (13) to enhance her sentence. The Defendant argues, however, that the trial

court failed to offer sufficient additional explanation for raising the Defendant’s sentence

above the statutory minimum eight-year sentence for a Class B felony committed by a Range

I, Standard offender.

The trial court first noted that, in setting the Defendant’s sentence, it relied on the

proof adduced at the plea and sentencing hearings, the principles of sentencing, the nature

and characteristics of the criminal conduct, the applicable enhancement factors, and the

Defendant’s rehabilitative potential or lack thereof. The parties agreed that the Defendant

was a Range I, Standard offender. The trial court declined to apply two enhancement factors

requested by the State but applied enhancement factor (1), that the Defendant had a long

criminal record; enhancement factor (2), that the Defendant was a leader in the offense; and

enhancement factor (13), that the Defendant was incarcerated at the time of the felony she

committed.

The trial court described the Defendant’s offense as “extremely serious” and

determined that, given the fact that incarceration clearly did not deter the Defendant from reoffending, “the length of sentence just has to go up to try to create deterrence.” Finally,

noting that the Defendant’s prior record was shorter than that of her co-defendant, Brooke

Whitaker, the trial court sentenced the Defendant to eleven years.

This eleven-year sentence was, by operation of law, to be served consecutively to the

nine-year sentence the Defendant was serving during the commission of this offense.

Exceeding its procedural obligations, however, the trial court made additional Wilkerson

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State v. Wilkerson discusses two findings a trial court must make in order to impose 2

consecutive sentencing based upon criteria (3), that the defendant is a dangerous offender. 905

S.W.2d 933 (Tenn. 1995). In this case, consecutive sentencing was mandatory given that the

offense was committed during the Defendant’s service of a jail term, so the trial court’s

Wilkerson findings were ultimately unnecessary. The trial court noted that its findings might be

“redundant and unnecessary” but explained it made the findings in an abundance of caution. 

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findings that the Defendant’s resultant twenty-year sentence was “justly deserved in relation

to the seriousness of the offense” and that her sentence was “no greater than that deserved

under the circumstances.”

The trial court properly relied on the principles of sentencing, the facts of the offense,

and the applicable enhancement factors. T.C.A. § 40-35-103. It emphasized the “extremely

serious” nature of the victim’s rape as well as the apparently irrepressible nature of the

Defendant’s criminal conduct when it raised the Defendant’s sentence above the statutory

minimum. Thus, the trial court properly “placed its reasons” for the Defendant’s eleven-year

sentence on the record. See T.C.A. § 40-35-210(e). We conclude the trial court properly

sentenced the Defendant. She is not entitled to relief.

III. Conclusion

After a thorough review of the facts and relevant authorities, we conclude the trial

court properly sentenced the Defendant. As such, we affirm the trial court’s judgment.

__________________________________

ROBERT W. WEDEMEYER, JUDGE

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