IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 3, 2023

STATE OF TENNESSEE v. DARUNN TURNER

Appeal from the Criminal Court for Shelby County

No. C1906849, 19-04890 James M. Lammey, Judge

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No. W2022-01389-CCA-R3-CD

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Robert H. Montgomery, Jr., J., concurring.

I agree with the majority that the trial court properly imposed maximum, 

consecutive sentences. I write separately to explain why, in contrast to the analysis 

undertaken in the lead opinion, my analysis does not deprive the trial court of the 

presumption of reasonableness based upon the court’s having considered the facts of the 

crimes and having observed that they demonstrated by a preponderance of the evidence 

that the Defendant’s culpability exceeded that required for the verdicts returned by the jury. 

The majority characterizes the court’s comments as a “strong reliance on [the court’s] 

personal disagreement with the jury’s verdict.” 

In my view, the court’s observations of evidence which might have supported 

verdicts reflecting greater culpability than that found by the jury were made in the context 

of the following:

 Consideration of “[t]he nature and characteristics of the criminal conduct involved,” 

as mandated by Tennessee Code Annotated section 40-35-210(b)(4),

 The applicability of the enhancement factor prescribed by Code section 40-35-

114(10), “The defendant had no hesitation about committing a crime when the risk 

to human life was high,” and

 The determination that the Defendant was a “dangerous offender whose behavior 

indicates little or no regard for human life and no hesitation about committing a 

crime in which the risk to human life is high” whose sentences should be served 

consecutively, pursuant to Code section 40-35-115(b)(4).

02/27/2024
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Unlike the majority, I do not view the trial judge’s actions in the present case to be 

equivalent to the situation in State v. Stevie Gibson, No. W2013-02015-CCA-R3-CD, 2014 

WL 4100158 (Tenn. Crim. App. Aug. 19, 2014), perm. app. denied (Tenn. Dec. 18, 2014). 

I acknowledge that both cases involved the same, now-retired judge. Nevertheless, in 

Stevie Gibson, the judge expressed his personal disagreement with the law regarding lesserincluded offenses of first degree felony murder, going so far as to call the relevant statute 

“a silly law” and expressing his preference that the commission of an underlying felony, 

the perpetration of which results in a death, should be felony murder without exception. 

Stevie Gibson, 2014 WL 4100158, at *11. The judge went on to note that felony murder 

required a life sentence and determined that “the only appropriate sentence under these 

circumstances [in which the defendant had committed an underlying felony that resulted 

in the death of a victim but had nevertheless been acquitted of felony murder and convicted 

of the lesser-included offense of second degree murder]” was the maximum sentence of

twenty-five years. Id., at *12. 

In contrast, in the present case, the trial court did not express his disagreement with 

the law itself. Moreover, I do not view the court’s comments as indicating an intent to 

impose a maximum sentence on the basis of the existence of evidence of offenses involving 

greater culpability than those reflected by the jury’s verdict or mere personal preference. 

Rather, the court noted the “[t]he nature and characteristics of the criminal conduct 

involved,” which it was statutorily bound to do, and it considered the facts of record when 

determining the propriety of the enhancement factors and any statutory factors permitting

consecutive sentencing. See T.C.A. §§ 40-35-114(10), -114(b)(4), -210(b)(4). The court’s 

comments about the facts of the case were made in the context of its consideration of 

relevant provisions of the Sentencing Act and reflected its adherence to that statutory

framework.

For these reasons, I conclude that the trial court was entitled to the presumption of 

reasonableness which is conferred when a court has followed the statutory and decisional 

guidelines and has considered the relevant facts, arguments, and other prescribed 

considerations. See State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). That said, I concur 

in the majority’s determination that the trial court did not abuse its discretion in imposing 

maximum, consecutive sentences.

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 ROBERT H. MONTGOMERY, JR., JUDGE