IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. DELBERT LEE HARRIS

Direct Appeal from the Circuit Court for Dickson County

No. CR3198, Robert E. Burch, Trial Judge

No. M1999-01239-CCA-R3-CD - Decided June 23, 2000

The defendant was convicted of rape, rape of a child, aggravated assault, and attempted sexual

battery. An effective sentence of thirty-two years at thirty percent was imposed. On direct appeal,

this court affirmed the convictions but remanded the case to the trial court for resentencing, finding

the trial court erred in imposing an erroneous release eligibility status. Upon resentencing, the trial

court imposed an effective sentence of thirty-two years at one hundred percent. The defendant now

complains that this sentence is excessive. After review, we affirm.

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

GLENN, J., delivered the opinion of the court, in which RILEY, J., and ACREE, SP.J., joined.

Jack L. Garton, Dickson, Tennessee, for the appellant, Delbert Lee Harris.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.

Ryan, Assistant Attorney General, Dan Mitchum Alsobrooks, District Attorney General, and Robert

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

OPINION

The defendant, Delbert Lee Harris, was convicted of aggravated assault, rape, rape of a child,

and attempted sexual battery. The Dickson County Circuit Court imposed sentences of four years

for aggravated assault, ten years for rape, twenty-two years for rape of a child, and eleven months

and twenty-nine days for attempt to commit sexual battery. The sentence for rape was ordered to be

served consecutively to the sentence for rape of a child for an effective sentence of thirty-two years
1

The defendant was further ordered to serve all sentences consecutively to a prior conviction

for which he was on probation at the time of the instant offenses.

2

Specifically, this court expressed concern that the trial court’s failure to consider Tenn. Code

Ann. § 39-13-523 (requiring multiple rapists or child rapists to serve entire sentence imposed

undiminished by credits) ultimately affected the effective thirty-two year sentence imposed. Id.

-2-

at thirty percent.1

 The defendant’s convictions were affirmed by a panel of this court. See State

v. Delbert Lee Harris, No. 01C01-9705-CC-00177, 1998 WL 670403 (Tenn. Crim. App., Nashville,

Sept. 30, 1998), perm. app. denied, concurring in results only (Tenn. Mar. 29, 1999).

Notwithstanding, this court found merit to the State’s argument that, statutorily, the defendant was

required to serve one hundred percent of the sentences for rape and rape of a child and remanded the

case to the trial court for resentencing.2

 Id. A new sentencing hearing was held on June 3, 1999,

during which the defendant was resentenced to an effective sentence of thirty-two years at one

hundred percent.

The defendant now appeals the decision upon resentencing. Specifically, he contends that

the trial court’s imposition of a release eligibility date of one hundred percent results in an excessive

sentence and that the “imposition of consecutive sentences was improper.” After review, we affirm.

BACKGROUND

A complete statement of the facts of this case may be found in State v. Delbert Lee Harris,

1998 WL 670403, at *1-2. Paraphrasing from Judge Wade’s recitation of the facts in this court’s

previous opinion, the following factual background is provided: 

In the summer of 1995, the defendant and his wife, Diane, had been married for ten years.

Their union resulted in the birth of two children. Mrs. Harris had three children by a prior marriage,

including the thirteen-year-old victim. On September 17, 1995, at approximately 3:40 a.m., the

defendant woke the victim, directed her to an upstairs playroom, and began to remove her shorts. 

Mrs. Harris awakened in time to see the defendant leading the victim up the stairs. As the victim’s

clothes were being removed, Mrs. Harris overheard the child’s cries and intervened. She “grabbed”

her daughter and called 911, reporting that her child had been molested and that the defendant had

“taken possession of a gun.” Mrs. Harris woke her seven-year-old daughter and was preparing to

leave the home with her two children. The defendant threatened to commit suicide and then

threatened his wife. The defendant told his wife, “You f----- up now,” then pointed the gun at her

chest. As he pulled the trigger, the bullet jammed. The defendant then went upstairs to get a second

gun. When the defendant left the room, Mrs. Harris and her two daughters left the house and hid

behind a playhouse in the front yard until the police arrived.

Worried about her sons who were still in the house, Mrs. Harris looked through the outside

window to their bedroom. The boys were still asleep. When Mrs. Harris saw the defendant enter

the bedroom, she ran to the rear of the house to hide. Armed with a rifle, the defendant walked out
-3-

of the residence calling for Mrs. Harris and her daughters, promising that he would not harm them

and that he just wanted to talk. The defendant fled to Maryland, but eventually returned to

Tennessee when he learned of the criminal warrants against him.

The victim later told law enforcement officers that the defendant had touched her private

parts and had done so before. Upon examination by a doctor, the victim reported that the defendant

had forced her to engage in sexual intercourse in May of 1995. She also admitted to a second rape

on September 12, 1995.

RESENTENCING HEARING

At the resentencing hearing on June 3, 1999, the original presentence report was

reintroduced. The presentence report reveals that the defendant was forty years old at the time of

resentencing and has a prior criminal history consisting of five convictions for driving under the

influence. He had also entered a guilty plea to one count of aggravated sexual battery in 1992, for

which he received a probated sentence of three years. The instant offenses occurred before the

expiration of the probated sentence. The defendant admitted to the use of alcohol, marijuana, and

cocaine; however, he stated that his use had ceased prior to the commission of the instant offenses.

He has received treatment from Southridge Psychological Services for what he describes as “a

mental evolution.” The defendant’s work history reveals employment in the construction business

from September 1989 until August 1994, when he left his last job for health reasons. He was

honorably discharged from the United States Army after service from July 5, 1977 through

December 1, 1977.

In a Victim’s Statement, Mrs. Harris revealed that “emotionally [she] will never be the same

again. [She] will always live in fear of his release.” She added that, “[t]his man stole a 12 year old

girl’s innocence. He abused the role of father and made her live through hell and in fear for about

6 months.” Regarding the defendant’s sentence, she commented, “Since castration is not an option,

I feel he should be given the maximum sentence for each count.”

Based upon the evidence presented, the court found:

The Court then is required to determine whether or not they are to be

served consecutively. And the Court rules that counts two [rape] and

three [rape of a child] be served consecutively and that counts one

and four be served concurrently therewith.

The Court finds that the defendant has committed two or more

offenses involving sexual abuse of a minor, and that allows

consecutive sentences to be handed down by the Court. . . .

Well, the Court of Criminal Appeals has already . . . ruled that

consecutive sentencing is appropriate in this case . . . and I heartily
3

The State asserts that the defendant has waived any challenge to the excessive nature of the

sentences imposed for failure to support the issue by argument, citation to authorities, or appropriate

references to the record. Appellee’s brief at 8 (citing Tenn. Ct. Crim. App. R. 10(b)). Although we

concede that the defendant’s argument is minimal at best, we do not agree that the brief fails to

conform with the Rules of Appellate Procedure or the Rules of this court. Accordingly, we proceed

to address the issue raised on its merits.

-4-

concur. . . .

It was remanded for reconsideration in determining if, under the onehundred-percent sentencing as opposed to thirty percent, that these

sentences are justified given the facts of the case, that an actual

sentence of service is justified. And the Court rules that they are.

ANALYSIS

In contesting the excessive length of the sentence imposed by the trial court, the defendant’s

argument is limited to the consecutive nature of the sentences imposed in consideration of the

requirement that the sentences be served at one hundred percent. Specifically, he asserts that the trial

court failed to consider the mandates of State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995) and

State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987), requiring a finding that the “aggregate maximum

of consecutive terms must be reasonably related to the severity of the offense involved.”3

Review, by this court, of the length, range, or manner of service of a sentence is de novo with

a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d) (1997). The presumption is “conditioned upon the affirmative showing in the record that the

trial court considered the sentencing principles and all relevant facts and circumstances.” State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The record reflects that the trial court considered the

same, thus, the presumption applies. Moreover, the defendant bears the burden of showing the

impropriety of the sentence imposed. Sentencing Commission Comments, Tenn. Code Ann. § 40-

35-401(d).

Tennessee Code Annotated § 40-35-501(i) (Supp. 1999) provides:

(1) There shall be no release eligibility for a person committing an

offense, on or after July 1, 1995, that is enumerated in subdivision

(2). Such person shall serve one hundred percent (100%) of the

sentence imposed by the court less sentence credits earned and

retained. . . .

(2) The offenses to which the provisions of subdivision (1) apply are:
-5-

. . . .

(G) Rape;

. . . .

(I) Rape of a child[.]

Tennessee Code Annotated § 40-35-501(i)(3) adds:

Nothing in this subsection shall be construed as affecting, amending

or altering the provisions of § 39-13-523, which requires child rapists

and multiple rapists to serve the entire sentence imposed by the court

undiminished by any sentence reduction credits.

See also Tenn. Code Ann. § 39-13-523 (Supp. 1999) (multiple rapist or child rapist required to serve

entire sentence imposed by the court undiminished by any sentence reduction credits). The

imposition of one hundred percentservice undiminished by sentence credits is not discretionary upon

the court; the classification is statutorily required. Accordingly, the trial court did not err by setting

service of the sentences for rape and rape of a child at one hundred percent.

A trial court may impose consecutive sentences upon finding the existence of one of the

criteria in Tenn. Code Ann. § 40-35-115 (1997). In the present case, the trial court found that the

defendant “is convicted of two or more statutory offenses involving sexual abuse of a minor with

consideration of the aggravating circumstances arising from the relationship between the defendant

and the victim. . . .” See Tenn. Code Ann. § 40-35-115(b)(5). This court previously found the trial

court’s finding as to this factor supported by the evidence. Moreover, as advanced by the State, we

also find that the record supports a finding as to factor (6), that “the defendant is sentenced for an

offense committed while on probation.” See Tenn. Code Ann. § 40-35-115(b)(6). Once the trial

court finds the existence of one of the statutorily enumerated criterion, it is within the court’s

discretion whether to impose consecutive sentences. See State v. Black, 924 S.W.2d 912, 917

(Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996).

Notwithstanding the court’s discretion, the defendant argues that it was improper for the trial

court to order consecutive sentencing because, in light of the one hundred percent service,

consecutive sentences for the rape and the rape of a child convictions are not reasonably related to

the severity of the offenses. In support of his argument, the defendant relies upon the prior rulings

of our supreme court in Wilkerson and Taylor. The defendant’s argument is misplaced. Our

supreme court has recently limited the Wilkerson requirements of additional findings to those cases

involving dangerous offenders pursuant to Tenn. Code Ann. § 40-35-115(b)(4). See State v. Lane,

3 S.W.3d 456, 460-61 (Tenn. 1999). Thus, the trial court was not required to apply the Wilkerson

factors. Accordingly, the defendant is not entitled to relief on this issue.
-6-

For these reasons, the sentence imposed by the trial court is affirmed.