### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

STATE OF TEN

NESSEE v. D

ELBERT LEE HA

RRIS 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, aggra vated assault, and attempted sexual bat ter y. An effective sentence of thirty-two y ears at thirty perc

ent was imposed. On

direct appeal, this court affirmed the convictions but remanded the case to

the trial court for resentencing, finding the trial court erre

d in imposing an erroneous release eligibility status. Upon resentencing, the trial court imposed aneffective sentence of thirty-two y ears at one hundred percent. The defendant now complains that this s

entence is excess

ive. After revie

w, we affirm. Tenn. R. App. P. 3(b) A ppeal as of Right; Judg

ment of the Circ

uit Court is Affir

med. G LENN , J., delivered the opinion of the court, in which R ILEY , J., and A CREE , S P .J., joined. Jack L. Garton, D

ickson, Tennesse

e, for the appell

ant, Delbert Lee

Harris. Paul G. Summers, Attorney Genera l and Reporter, Mic

hael Moore, Solici

tor 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, Delb

ert Lee Har

ris, was convicted of aggravated assault, rape, rape of a child, and attempted sexual battery. Th e Dickson County

Circuit Court imposed sentences of four years for aggravated assault, ten years f or 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 y ears1 The defendant was further ordered to serve all sentences consecutively to a prior convic tion for which he was

on probation at the

time of the instant o

ffenses.

2 Specificall

y, this court expr essed concern that the trial court’s failure to consider Tenn. Code Ann. § 39-13-523 (requiring multiple rapists o r child rapists to serve entire sentence imposed undiminished by credits) ultimately affected the e ffective thirty-two year

sentence imposed. Id. -2- at thirty per

cent. 1 The defendant’s convictions were affirmed by a pa nel of this court. See State v. Delbert Lee

Harris , No. 01C01 -9705-CC- 00177, 199 8 WL

670403 (Tenn. Crim. App., Nashville, Sept. 30, 1998), perm
. app . denied , concurring in r esults only

(Tenn. Mar. 29, 1999). Notwithst anding, this court fou nd m eri t to the Sta te’ s ar gume nt t hat , st atu tor ily, the defendant was required to serve one hundred percent of the sentences for rape and rape of a child and re manded the cas e to the trial c ourt for res entencing. 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 percen

t. 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.” Afte r review, we af

firm.
BACKGROUND A complete statement of the facts of this case may be found in State v. Delbert L

ee Harris , 1998 WL 670403 , a t *1-2. Paraphrasing from Judge Wade’s recitation of the facts in this court’s previous opinion, th

e following fac

tual backgroun

d is provided:
Inthe 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-y

ear-old victim. O

n September 17, 199 5, at approxi mately 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 interve ned. She “grabbed” her daughter and called 911, reporting that h er child had been molested and that the defendant had “taken possession of a gun.” Mrs. Harris woke her seven-ye ar-old daughter and was prep arin g to leave the home with her two children. The defendant threatened to com mit suic ide 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 tw o daughters lef

t the house and hid behind a playhouse in the front yard until the police a rrived. Worried about her sons who were still in t he house, M rs. Harris l ooked thro ugh the outside window to their

bedroom. The boy

s were still aslee

p. When Mrs. Harris saw the defendant enter the bedroom, she ran

to the rear of the h

ouse to hide. Arme

d with a rifle, the defendant walked out-3-

of the residence calling for Mrs. Harris and her daughters, promising that he would notharm them and that he just wanted to talk. The defend ant fled to Mary land, but eventua

lly returne

d to Tennessee when

he learned of the

criminal warra

nts against him. The victim later told law enforcement officers that the defendant had touch ed h er 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 intercour

se in May of 1995. She also admitted to a second rape on September 12, 1995.
RESENTENCING HEARING
At the resentencing hearing on J un e 3, 1999, the original presentence report was reintroduced. The presentence report reveals that the defendant was forty y ears old at the time of resentencing

and has a prior criminal history consisting of five convictions for dri ving under the influence. He had also entered a guilty plea to one count of aggravated sexual battery in 1992, for whichhe received a prob at ed sentence of three years. The instant offense s occurred before the expiration of the probated sentence. Thedefendant 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 receive d treatment from Southridge Psychological Services for what he descr ibes as “a mental evolution.” The defendant’s work history reveals employ ment in the constructio

n business fromSeptember 1989 until August 1994, when he left his last job f or he alth reasons. He was honorably

discharged from the United States Army after service from July 5, 1977 through December 1, 1977.
Ina Victim’s Statement, Mrs. Ha rris revealed th

at “emotionally

[she] will never be the same again. [She] will always l ive in fear of his

release.” She a

dded that, “[t]his man

stole a 12 ye

ar old girl’s innocence. He abused the role of father and made her live through hell and in fear for about 6 months.” Regard

ing the defenda

nt’s sentence, sh

e commented, “Sinc

e 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 [rap e of achild] be served consecutively and that counts one and four be served concurrently therewith. The Court finds thatth e defendant has committed two or more offens es invo lving 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 . . . ruledthat consecutive sentencing is ap propriate in this c

ase . . . and I

heartily3 The State asse rts that th e defendant h as waived an y challenge to the excessive nature of the

sentences imposed for

failure to support the issue by argume nt, citation to autho

rities, or approp

riate references to the record. Ap pellee’s brief a

t 8 (citing Tenn.

Ct. Crim. App. R. 10(b)). Although we concede that

the de fendant’s arg

ument is minimal at be

st, we do not agre

e that the brief f

ails to conform with the Rules of

Appellate Procedure or the Rules of this court. Accordingly, we pr oceed to address the issu

e raised on its mer

its. -4- concur. . . . Itwas remanded for reconsideration in determining if, under the onehundred-percent

sentencing as o

pposed to thirty

percent, that the

se sentences are justifi ed g iven the facts of the case, that an actual sentence of service is justified. And the Court rules that they are.

ANALYSIS
Incontesting the excessive length of the sentence imposed by the trial court, the defendant’s argument is limited to the consecutive nature of the s en tences 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 ), requirin g 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, r

ange, or manne

r 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 con sidered th e same, thus, the presumption applies. Moreover, the defendant bears the burde n of showing the impropriety

of the sentence imposed. Sentencing Commission Comments, Tenn. Code Ann. § 40- 35-401(d). Tennessee Code A

nnotated § 40-35- 501(i) (Supp. 1999) provides: (1) There shall be no rel ease eli gibi lit y f ora person committing an offense, on or after July 1, 1995, that is enumerated in subdivision (2). Such perso

n shall serve one hundred percent (100%) of the sentence imposed by the court less

se ntence credits earned and retained. . . . (2) The offenses to whic

h the provisions of s

ubdivision (1) appl

y are:-5- . . . . (G) Rape;

. . . . (I) Rape of a child[.]

Tennessee Code A

nnotated § 40-35- 501(i)(3) adds: Nothing in this subsection sh all be construed as affecting, amending or altering the provisions of § 39-13-523, which requires c hild rapists and multiple rapists to serve the entire sentence imposed by the court undiminished by

any senten

ce reduction cr

edits.
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 percent ser vice undiminished by sentence credits is not discretionary upon the court; the classif

ication is statutorily required. Accordingly , the trial court did not err by setting service of the se

ntences for rap

e and rape of a c

hild at one hundre

d percent.
A trial court may

impose consecutiv

e sentences upon

finding th

e e xistence of one of the criteria in Ten n. Cod e Ann. § 40-3 5-115 (1997 ). In the present case, the trial court found that the defenda nt“is convicted of two or more statutory offenses involving sexual abuse of a minor wi t h consideration

of the aggravating circumstances arising from the re lationship 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 a n offense committed while on probation.” See Tenn. Code Ann. § 40-35-115(b)(6). Once the trial court finds the existence of one of t he statutorily enumerated criterion, it is within the court’s discretionwhether to i mpose co nsecutive 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 o ne hundred percent service, consecutive sentences for the rape and the rape of a child c

onvictions are not

reasonably

related to the severity of

the offenses. I

n support of his arg

ument, the defendant relies upon the prior rulings of our supreme cou

rt in Wilke rson

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 affirme d.