IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December17, 2013 Session

IN RE: ANNA L. J.

Appeal from the Juvenile Court for Williamson County

No. 37304 Sharon Guffee, Judge

No. M2013-00561-COA-R3-JV - Filed March 20, 2014

FRANK G. CLEMENT, JR., J., concurring.

I write separately to emphasize the point that trial courts should not automatically

impose the maximum sentence when consecutive sentencing is available; this is due in part

to the recognition that “not every contemptuous act, or combination of contemptuous acts,

justifies the imposition of a maximum sentence, particularly when consecutive sentencing

is in play.” Simpkins v. Simpkins, 374 S.W.3d 413, 422 (Tenn. Ct. App. 2012). Imposition

of the maximum sentence to be served consecutively is merely an option if the facts of the

case justify the absolute maximum sentence. Further, there is a presumption in favor of

concurrent sentencing as distinguished from consecutive sentencing. Id. at 424 (citing State

v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987) (holding that consecutive sentences should not

routinely be imposed in criminal cases and the aggregate maximum of consecutive terms

must be reasonably related to the severity of the offenses involved)).

Tenn. Code Ann. § 29-9-103 provides that the punishment for contempt may be by

fine or by imprisonment, or both. Fines are limited to no more than fifty dollars, and

imprisonment shall not exceed ten days. Id. Thus, the foregoing merely represents the

maximum fine and maximum imprisonment that may be imposed. Accordingly, the mere fact

someone is found guilty of criminal contempt does not, by itself, justify the imposition of the

maximum sentence available, nor does it mandate that some or all of it be served

concurrently or consecutively. See In re Sneed, 302 S.W.3d 825, 828-29 (Tenn. 2010); see

also Simpkins, 374 S.W.3d at 425.

As our Supreme Court explained in In re Sneed, when sentencing for contempt of

court: “Although statutory criteria may support the imposition of consecutive sentences, the

overall length of the sentence must be ‘justly deserved in relation to the seriousness of the

offense[s]’ and ‘no greater than that deserved’ under the circumstances.” In re Sneed, 302
S.W.3d at 828-29. The court further noted that “partial consecutive sentencing” and

concurrent sentencing may be appropriate in certain cases. Id. at 829 (citing State v.

Cummings, 868 S.W.2d 661, 664, 667 (Tenn. Crim. App. 1992)). Additionally, as this court

held in Simpkins, “not every contemptuous act, or combination of contemptuous acts,

justifies the imposition of a maximum sentence, particularly when consecutive sentencing

is in play.” Simpkins, 374 S.W.3d at 425.

In Simpkins, the husband was found guilty of 14 counts of criminal contempt and,

without specifying the reasons as Tenn. R. Crim. P. 32(c)(1) requires, the trial court imposed

the absolute maximum sentence of 140 days, ten days for each count to be served

consecutively. Id. at 417. On appeal we found the record did not justify the imposition of the

maximum available sentence, all of which was to be served consecutively. Id. at 425. After

noting the defendant was sentenced for criminal contempt, which may justify consecutive

sentencing, at least in part, we reasoned:

[T]his factor [Tenn. Code Ann. § 40-35-115(b)(7)] alone does not justify the

imposition of the absolute maximum sentence of 140 days [ten days for each

of 14 counts]. As we noted above, “[a]lthough statutory criteria may support

the imposition of consecutive sentences, the overall length of the sentence

must be ‘justly deserved in relation to the seriousness of the offense[s],’ and

‘no greater than that deserved’ under the circumstances.” In re Sneed, 302

S.W.3d at 828 (internal citations omitted).

Simpkins, 374 S.W.3d at 425.

We further reasoned:

Although the record clearly established Husband’s guilt of all fourteen counts

of criminal contempt, that fact alone does not justify the imposition of the

maximum sentence of ten days for each conviction or that all of the sentences

run consecutively to each other for an effective period of confinement of 140

days. To the contrary, there is a presumption in favor of concurrent sentencing

as distinguished from consecutive sentencing. See State v. Taylor, 739 S.W.2d

227, 230 (Tenn. 1987) (holding that consecutive sentencesshould not routinely

be imposed in criminal cases and the aggregate maximum of consecutive terms

must be reasonably related to the severity of the offenses involved). Further,

the record suggests the trial court did not consider the statutory criteria when

determining whether Husband’s multiple sentences should be served

concurrently or consecutively. See Tenn. Code Ann. § 40-35-115(a) (“If a

defendant is convicted of more than one (1) criminal offense, the court shall

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order sentences to run consecutively or concurrently as provided by the criteria

in this section.”).

Id.

Applying the foregoing principles and reasoning, we modified the sentence imposed

on Mr. Simpkins as follows:

The sentences imposed for the ten withdrawals against the line of credit are

reduced to four (4) days each, which will run consecutive to each other. The

sentences imposed for failing to pay pendente lite support and the 2009

property taxes are reduced to four (4) days each, which will run consecutive

to each other and consecutive to the ten counts above. The sentences imposed

for the remaining two counts are reduced to one (1) day each, which will run

concurrent to each other but consecutive to the other twelve counts. The total

effective sentence to be served is forty-nine (49) days. On remand, the trial

court shall set the date for Husband to report to jail to serve his sentence.

Id. at 426.

As noted in Simpkins, this court could modify the sentence without remand;

nevertheless, I fully concur with the majority’s decision to remand this matter to the trial

court for reconsideration of the sentence to be imposed based on the particular facts of this

case, and the principles stated in Tenn. Code Ann. § 40-35-115(b), In re Sneed, Simpkins,

Cummins, and Taylor.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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