IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 14, 2016

STATE OF TENNESSEE v. THOMAS ANTONIO RICKETTS

Appeal from the Criminal Court for Davidson County

No. 2013-D-3323 J. Randall Wyatt, Jr., Judge

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No. M2016-00816-CCA-R3-CD

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The Defendant, Thomas Antonio Ricketts, entered guilty pleas in the Davidson County 

Criminal Court to two counts of facilitation of aggravated child abuse and one count of 

facilitation of aggravated child neglect. The trial court imposed concurrent ten-year 

sentences for each count, to be served in confinement. On appeal, the Defendant argues

that his sentence was excessive and that the trial court erred in denying an alternative 

sentence. Upon review, we affirm the judgments of the trial court. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR. and J. ROSS DYER, JJ., joined. 

David A. Collins, Nashville, Tennessee, for the Defendant-Appellant, Thomas Antonio 

Ricketts.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Jennifer Smith, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

On December 2, 2013, the Defendant and his co-defendant, Ioka Kimbuke Kyles, 

were indicted for six counts of aggravated child abuse and one count of aggravated child 

neglect. The Defendant entered guilty pleas to the lesser included offenses of facilitation

of aggravated child abuse in counts one and five and facilitation of aggravated child 

neglect in count seven. Counts two, three, four, and six were dismissed pursuant to a plea 

agreement. The Defendant also agreed to be sentenced as a Range I, Standard Offender, 

with a range of eight to twelve years for each conviction and with all counts to run 

concurrently, leaving length and manner of service to be determined by the trial court. 

05/05/2017
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At the guilty plea hearing, the State summarized the facts surrounding the offenses 

as follows: 

On July 18, 2013, the victim, who was 7-years-old at the time, was 

admitted to Vanderbilt Children’s Hospital with pain to his right arm. The 

doctors determined that he had a spiral fracture to that arm. It was also 

discovered that he had numerous bruises, abrasions, marks, scars, all over 

his entire body including pattern marks on his back.

The victim’s weight was also severely low[,] and he was in less than the 

third percentile of his age. Both defendants were interviewed. Both 

defendants admitted to the time frame when the victim was in their 

exclusive care[,] and it was determined that the acute injuries that the 

victim had would have had to have occurred while he was in the 

defendants’ care.

However, some of the older healing injuries could have been the result of 

something that might have happened by the biological mother. Both 

defendants stated that the victim’s arm was broken as the result of another 

sibling stepping on his arm. However, the Vanderbilt Care Team stated 

that this was not consistent with this type of fracture and all of the markings 

on the victim’s body were a concern for abuse.

When confronted with the marks on the victim, the defendants first stated 

that the victim scratches himself and throws himself into a dresser when he 

is in the corner during time-out. When confronted with the markings that 

were all over the victim, they then stated that this was the result of a peanut 

butter allergy.

The victim was interviewed by several people. Initially, he stated that his 

arm was broke because he slept on it wrong; and then he stated that his arm 

was broke because a sibling stepped on it; and then he stated that the marks 

on his body were the result of a peanut butter allergy. However, he later 

stated that it was both of the defendants that twisted his arm that caused his 

broken arm. He told the forensic interviewer that both defendants beat him 

with whips and switches all over his body.

He told the forensic interviewer that he was made to stand in the corner all 

day without bathroom breaks and that when he peed on himself he would 

get punished. He told the forensic interviewer that he was denied food as 

punishment.
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The roommate at the time, Jimmy Young, was interviewed by the police 

and he told the police that he heard the victim being spanked, for peeing on 

himself, during one specific time approximately 15 to 20 times with a belt, 

when he entered the room he saw defendant Kyles holding the victim down 

on the bed while defendant Ricketts was beating him with the victim’s face 

in the mattress. Mr. Young told the police that the victim was beat every 

single day. Mr. Young told the police that the victim was made to stand in 

the corner from when he got up in the morning until night time. He told the 

police that the victim was deprived food and water and he was the only 

child that was not allowed outside to play with the other kids.

The neighbor, Mr. Stephen Willis, was also interviewed. He told the police 

that he saw the victim standing in the corner all day in his underwear. At 

one point, he saw the victim standing in the corner in his own filth[,] and he 

also stated that at one point the roommate, Jimmy Young, came over to his 

house and was in tears because of how the victim had been treated.

All of this occurred here in Davidson County and based upon these facts 

the State recommends the previously announced disposition. 

The trial court accepted the Defendant’s guilty pleas and set the matter for 

sentencing.

Sentencing Hearing. At the March 31, 2016 sentencing hearing, the Defendant’s 

presentence report was introduced without objection. The Defendant’s criminal history 

includes seven convictions for driving with a suspended license or revoked license, two 

convictions for domestic assault, one conviction for evading arrest, one conviction for 

resisting arrest, and two simple assault convictions. 

Detective Kenney, a detective with the Youth Services division, testified that he 

began an investigation of the Defendant and his co-defendant, Kyles, in July 2013, after 

the victim was admitted to the hospital for arm pain. The victim’s arm had a lateral 

condyle fracture, which commonly results from the arm being grabbed and forcibly 

pulled toward the center of the body. The examination also revealed that the victim had 

fresh and healing marks, scars, and lesions covering his face, neck, shoulders, back, hips, 

buttocks, groin area, and legs. Detective Kenney identified multiple photographs of the 

victim taken at the hospital on the day he was admitted and these photographs were 

introduced as an exhibit. The victim was also diagnosed with a “failure to thrive” 

because he was underweight and his weight had decreased since his last hospital visit one 

year prior. 
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The victim initially told hospital staff that he had injured his arm by sleeping on it 

wrong. The victim was then interviewed at the hospital by Department of Children’s 

Services (“DCS”), and he disclosed that the Defendant had injured his arm by grabbing it 

and twisting it. Detective Kenney testified that the victim “indicated that if he had to tell 

the truth again that he would get beaten.” Detective Kenney interviewed the victim at the 

hospital and recalled that he was “very distraught, very withdrawn, almost terrified.” 

Detective Kenney testified that the victim was later interviewed at the Children’s 

Advocacy Center where he told the forensic interviewer that the Defendant had caused 

his arm injury. The victim also told the forensic interviewer that the Defendant and 

Kyles would force him to stand in a corner facing the wall for extended periods of time as 

punishment for wetting himself and that if he left the corner or had an accident he would 

be beaten. Detective Kenney took photographs of the corner where the victim was forced 

to stand, and the photographs were admitted at the hearing. Detective Kenney testified 

that the victim also told the forensic interviewer that he was often beaten by hand or with 

a belt and was denied food and water while the other kids in the house played outside. 

The victim told the interviewer that he was the only child in the household who received 

physical discipline. 

Detective Kenney explained that, at the time of the incident, the victim was living 

with his father, the Defendant, and the Defendant’s girlfriend, Kyles. Also living in the 

home were the Defendant’s other minor son and a roommate, Jimmy Young. Detective 

Kenney testified that the victim was originally in his mother’s custody but was removed 

by DCS in 2012 due to truancy issues and “lack of stable housing and environmental 

concerns.” The victim was then placed in the custody of his grandmother, the 

Defendant’s mother, Thelma Pinkerton. In May 2013, the Defendant and Pinkerton 

agreed that the victim and his brother would live with the Defendant during the summer. 

Pinkerton told Detective Kenney that, when the victim went to live with the Defendant in 

May 2013, he had no visible injuries other than minor scratches and a burn mark that had 

possibly occurred while he was in his mother’s care. 

Detective Kenney interviewed the Defendant three times. The Defendant told 

Detective Kenney that the victim’s arm injury occurred when the other kids in the 

apartment jumped on his arm. When Detective Kenney asked the Defendant about the 

marks and bruises on the victim’s body, the Defendant gave two different answers. In the 

first interview, the Defendant claimed that the victim scratches himself and would 

“bang[] his head on the wall and throw[] himself into the corner.” The Defendant

claimed that he had a video of the victim’s behavior and that the victim was getting help 

for this behavior from Centerstone. Detective Kenney testified that he contacted 

Centerstone and there was no record of the victim receiving treatment or medication for 

this alleged behavior. Detective Kenney testified that he did not receive a copy of this 

video. 
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In the second interview, the Defendant stated that some of the marks were caused 

by a peanut butter allergy and that some of the marks were caused by the victim’s 

mother. The Defendant also stated that he had a video of the victim’s mother beating the 

victim. However, Detective Kenney testified that he did not receive a copy of this video. 

The Defendant then stated that he reported the victim’s mother to DCS. Detective 

Kenney testified that he contacted DCS and there was no record of a report by the 

Defendant. The Defendant did admit to Detective Kenney that he made the victim stand 

in the corner as “a form of punishment” but that he only stood in the corner for fifteen to 

thirty minutes at a time. 

Jimmy Young testified that the Defendant and Kyles lived with him for about a 

year in 2013. Young confirmed that the victim and six or seven other children lived in 

the house during the summer of 2013. Young recalled seeing the Defendant beat the 

victim with a belt while Kyles held him down and the other children watched. Young 

also confirmed that the victim was sometimes forced to stand in the corner all day. 

Young testified that the victim was allowed outside on the porch but was not allowed to 

play with the other children. 

Stephen Willis testified that the Defendant and Kyles lived next door to him. 

Willis recalled observing the victim standing in the bedroom with his nose in the corner. 

Willis testified that the victim was alone in the house wearing only soiled underwear. 

Willis offered the victim food and water, but the victim refused and said “[t]hey will hurt 

me.” Willis testified that he observed this on at least four or five separate occasions over 

a two-week period.

The victim testified but could not recall the time around when his arm was broken 

or earlier statements that he had made. The State introduced a recording of the forensic 

interview, which the trial court later reviewed when taking the Defendant’s sentencing 

under advisement. 

Thelma Pinkerton, the Defendant’s mother, testified that she currently had custody 

of the Defendant’s two minor sons, T.R. and the victim. Pinkerton testified that the 

victim was treated “bad” by his mother and that he suffered a burn on his leg while he 

was in his mother’s care. Pinkerton testified that victim spent some time with his mother 

during the summer of 2013, but to her knowledge the victim did not suffer any injuries

while he was with his mother. Pinkerton did not believe that the Defendant abused the 

victim, and if the Defendant were released, she would allow the Defendant to visit the 

victim. 
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T.R., the Defendant’s minor son, testified that he was looking forward to the 

Defendant’s release and that he was not scared of the Defendant. He also testified that he 

was not afraid of Kyles and that she would not hurt him or his brother. 

After hearing the proof and arguments from counsel, the trial court took the matter 

under advisement to determine the appropriate length and manner of service for the 

Defendant’s three convictions.

1

 On April 14, 2016, the trial court entered an order 

sentencing the Defendant to ten-year sentences for each count and ordered that count

seven would run consecutively to counts one and five, for a total effective sentence of 

twenty years’ incarceration. However, the trial court was unaware that the plea 

agreement specified that the Defendant’s sentences would run concurrently. On April 15, 

2016, the trial court entered an amended order stating that the Defendant’s sentences 

would run concurrently, for a total effective sentence of ten years’ incarceration. It is 

from this order that the Defendant now timely appeals. 

ANALYSIS

On appeal, the Defendant challenges the length and manner of his sentence. 

Specifically, he argues that his criminal history did not justify the length of his sentence 

and the trial court should have ordered, “some form of alternative sentencing.” The State 

argues that the trial court did not abuse its discretion by imposing a “within-range”

sentence or by ordering the Defendant to serve his sentence in confinement. We agree. 

We review the length and manner of service of a sentence imposed by the trial 

court under an abuse of discretion standard with a presumption of reasonableness. State 

v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, “a trial court’s misapplication of 

an enhancement or mitigating factor does not invalidate the sentence imposed unless the 

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as 

there are other reasons consistent with the purposes and principles of sentencing, as 

provided by statute, a sentence imposed by the trial court within the appropriate range 

should be upheld.” Id. 

“[T]he abuse of discretion standard, accompanied by a presumption of 

reasonableness, applies to within-range sentences that reflect a decision based upon the 

purposes and principles of sentencing, including questions related to probation or any 

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A

trial court must consider the following when determining a defendant’s specific sentence 

and the appropriate combination of sentencing alternatives: (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 

 

1 The Defendant did not make an allocution.
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characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in sections 40-35-113 and 

40-35-114; (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 wishes to make in the defendant’s own behalf about sentencing. T.C.A. §§ 

40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation 

or treatment of the defendant should be considered in determining the sentence 

alternative or length of a term to be imposed.” Id. § 40-35-103(5). The court must 

impose a sentence “no greater than that deserved for the offense committed” and “the 

least severe measure necessary to achieve the purposes for which the sentence is 

imposed.” Id. §§ 40-35-103(2), (4). 

Any sentence that does not involve complete confinement is an alternative 

sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). In determining 

whether to deny alternative sentencing and impose a sentence of total confinement, the 

trial court should consider whether:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the 

offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant[.]

T.C.A. § 40-35-103(1)(A)-(C); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 

1991).

A defendant is eligible for probation if the actual sentence imposed upon the 

defendant is ten years or less and the offense for which the defendant is sentenced is not 

specifically excluded by statute. T.C.A. § 40-35-303(a). An especially mitigated or 

standard offender convicted of a Class C, D, or E felony shall be considered as a 

favorable candidate for alternative sentencing options in the absence of evidence to the 

contrary. Id. § 40-35-102(6)(A). However, a trial court “shall consider, but is not bound 

by, the advisory sentencing guideline” in Tennessee Code Annotated section 40-35-

102(6)(A). Id. § 40-35-102(6)(D). Despite a defendant’s eligibility, he or she is not 

automatically entitled to probation as a matter of law. Id. § 40-35-303(b), Sentencing 

Comm’n Cmts. Moreover, the defendant bears the burden of establishing her suitability 

for probation. Id. § 40-35-303(b). “The abuse of discretion with a presumption of 

reasonableness standard of review . . . also applies to a trial court’s decision to grant or 

deny probation.” Caudle, 388 S.W.3d at 278-79.
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As to the length of his sentence, the Defendant does not dispute his Range I, 

Standard Offender status, which subjected him to a sentencing range of eight to twelve 

years. Rather, the Defendant appears to argue that the trial court placed a “great 

emphasis” on the Defendant’s criminal history, which consisted primarily of traffic 

offenses. He also argues that the trial court “mischaracterized” his criminal record and 

found that the Defendant had a “significant criminal history [by] citing two felony 

convictions for aggravated assault that do not, in fact, exist.” As an initial mater, the 

Defendant risks waiver of this issue because his brief and reply brief fails to address why 

his ten-year sentence was improper and how the trial court abused its discretion. Waiver 

notwithstanding, the record fully supports the trial court’s imposition of a ten-year 

sentence. Here, the trial court did not “mischaracterize” the Defendant’s criminal history 

and did not find that the Defendant had two prior convictions for aggravated assault. The 

trial court found that the Defendant had a “significant criminal history, including two 

convictions for assault, two convictions for domestic violence, and numerous convictions 

for violating the driver’s license law, and several other miscellaneous convictions.” The 

trial court also explicitly recognized “that all of [the Defendant’s] convictions are for 

misdemeanors.” Therefore, the Defendant’s argument that the trial court 

“mischaracterized” his criminal history is without merit. 

In determining the appropriate length of the Defendant’s sentence, the trial court 

also found that “[t]he defendant was a leader in the commission of an offense involving 

two (2) or more criminal actors[,] . . . the Defendant treated the victim ‘with exceptional 

cruelty’ in the commission of the offense[,] . . . and the personal injuries inflicted upon 

the victim were particularly great.” See T.C.A. § 40-35-114 (2), (5), (6). The trial court 

thoroughly considered the evidence presented at the sentencing hearing, including the 

Defendant’s presentence report, the witnesses’ testimony, and the victim’s forensic 

interview. Furthermore, after considering all the evidence, the trial court did not find any 

mitigating factors. Because the record shows that the trial court carefully considered the 

evidence, the enhancement and mitigating factors, and the purposes and principles of 

sentencing prior to imposing a sentence of ten years, the Defendant has failed “to either 

establish an abuse of discretion or otherwise overcome the presumption of reasonableness 

afforded sentences which reflect a proper application of the purposes and principles of 

our statutory scheme.” Caudle, 388 S.W.3d at 280. The Defendant is not entitled to 

relief.

Next, the Defendant argues that the trial court erred in denying the Defendant 

“some form of alternative sentencing.” Again, the Defendant argues that the trial court 

“mischaracterized” his criminal record and found that the Defendant had a “significant 

criminal history” [by] citing two felony convictions for aggravated assault that do not, in 

fact, exist.” The Defendant also argues that “measures less restrictive than confinement” 

have not been “frequently or recently” applied. Specifically, the Defendant claims that 
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although his diversion was revoked, he was only placed on diversion once, ten years ago, 

and this does not support the trial court’s denial of an alternative sentence. As an initial 

matter, because the Defendant was convicted of three Class B felonies, he is not 

considered a favorable candidate for alternative sentencing. See T.C.A. § 40-35-

102(6)(A). We have already determined that the trial court did not “mischaracterize” the 

Defendant’s criminal history. However, in addition to finding that “confinement [was] 

necessary to protect society by restraining a defendant who has a long history of criminal 

conduct,” the trial court also found that confinement was necessary to “avoid 

depreciating the seriousness of the offense [and] confinement [was] particularly suited to 

provide an effective deterrence to others likely to commit similar offenses.” T.C.A. § 40-

35-103(1)(A)-(B). The trial court determined that this was an “extremely serious offense 

and that the sentence must reflect its severity.” The record shows that the trial court 

properly considered these two factors in denying an alternative sentence.

Finally, although the trial court did not include an analysis of whether less 

restrictive means had been applied in the past, the Defendant’s presentence report shows 

that the Defendant was granted diversion for one of his domestic violence convictions 

and that his diversion was later revoked. Moreover, the trial court found that the two 

remaining factors were established by the record, and “the trial court was only required 

under the Sentencing Act to find one of the aforementioned reasons to properly confine 

the Defendant.” State v. Christopher Allen, No. W2016-00505-CCA-R3-CD, 2017 WL

764552, at *4 (Tenn. Crim. App. Feb. 24, 2017), no perm. app. filed. The record shows 

that the trial court properly relied on the Defendant’s criminal history, the seriousness of 

the offense, and general deterrence in denying alternative sentencing. Accordingly, we 

conclude that the Defendant has failed to show that the trial court’s decision was not 

“based upon the purposes and principles of sentencing.” Caudle, 388 S.W.3d at 279. 

The Defendant is not entitled to relief.

CONCLUSON

Upon review, we affirm the judgments of the trial court. 

______________________________

CAMILLE R. McMULLEN, JUDGE