### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 25, 2001 Session

STATE OF TENNESSEE v. SHA UN MICHAEL F LEEGLE

Direct Appeal from the Criminal Court for Knox County No. 66765 Richard R. Baumgartner, Judge

No. E2000-02045-CCA-R3-CD January 22, 2002

A Knox County jury found the Defendant guilty of voluntary manslaughter, a Class C felony; and the trial cou

rt senten ced him a s a Range

I, standa rd offe nder tofive years, four of which were to be

ser ved on probation. The Defendant now appeals, arguing the f ollowing: (1) that the trial court failed to properly consider enhancement and mitigating factors during sentencing, and (2) that the trial court er

red in failing to grant judicial diversion. Finding that the trial court properly sentenced the Defe ndant, we affirm t he judgme

nt of the tr

ial cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOM AS T. W OODALL , J., joined.

M. Jeffrey Whitt (on appeal and at trial) and Rick Clark (at trial), Knoxville, Tennessee, f or the Appellant, Shaun Michael Fleegle.

Paul G. Su mmers, Attorney General and Reporter; Elizabe th B. Marney, Assistant Attor ney General ; Randall Eugene Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

I. FACTS

On October 2, 1998, the Defendant, Shaun Michael Fleegle, a long with his older brother, Daniel Fleegle, and their

parents , travel ed to Knoxville , Tennes see, fr om their ho me in Florida. The Defendant’s parents continued on to West Virginia, while the Defendant

and his br

other sta yed in Knoxville. The Defendant’s family had previously lived in Ten nessee, and the two boys planned to stay with their former neighbor, Tommy Willis, and his family during their visit.

On the night that the Defend ant and hi s brother arrive d, Tommy Wi llis invited some peop le

over to his house because his parents were going out for the evening. At some point that night, Joey-2-

Patty (the vic tim), alon g with his girlfriend , Ghippi Lee, and two other friends, Todd Tucker and Susie Grove, a

rrived a t the Willishome. Shor

tly after Patty and his friends arrived, there wa s a brief altercation between Patty and Daniel Fleegle. Susie Grove testified that the fight took place because Fleegle made a “dirty remark” to Lee. Following the dispute, Willis asked Patty and his friends to leave. Patty, who was driving Lee ’s car, began to leave, along with Lee, Tucke r and Grove. However, the car never lef t the driveway.

Patty’s girlfriend, G hippi Lee , testified that as they were driving down the driveway, they “heard beating o n the car . It sounde d like the whole car was caving in .” Lee s tated tha t she also heard “cussing” outside the car. Lee testified that Patty got out of the car first and was met by Daniel Fleegle. Lee r e called that she got out next, and then the two people in the back seat, Tucke r and Grove, followed. Lee testified t hat when Patty got out of the car, he and Daniel Fleegle bega n fighting. L ee stated that Patty was on top of Fleegle “holding him down” and that at some point while Patty was holding Flee gle down, she “sma cked” Fleegle bec ause Patt y told her “to smack him for disrespecting [her].” Lee testified that afte r she hit Fleegle, she

noticed t hat Patty’ s hands “j ust let g o, kind of crippled up.” Lee testified that Patty “fell back,” a nd she turned to see “ a guy in a striped shirt running up the hill, and he just threw something to the side.” Lee testified that she later found out that the person r unning up th

e hill was the Defe

ndant. Ac cording t

o Lee, Pa tty tried to get up, and then his e

yes “rol led back

in his head.” Lee stated that she, Tucker a nd Grove started to take Patty to the hospital, but decided to stop at a nearby market to call 911 because Patty was “ getting worse.”

Todd Tucker , who was also in the car with Patty, testifiedthat as they were driving down the driveway, “[a] couple of p eople came down from the hill and started beating on the car a nd everything, hitting their hands on the car, and at that point, [Patty] got out.” Tucker testified that “as

soon as [Patty] got out, he locked up with Daniel [Fleegle].” Ac cording t o Tucker , the two “

just kind of like grabbed each other and ended up on the ground.” Tucker testified that the Defendant then “came barreling down the hill” and “struck [Patty] in the head with the baseball bat.” Tucker testified that the Defendant hit Patty on the back of his head three times. Tucker stated that he jumped in front of the Defendant, “got him on the ground,” and

the Defendant then got up and ran up the driveway.

Susie Grove, Tucker’s girlfriend, testified that as Patty was driving down the dr iveway, somebody began to “beat[] on” the car. Grove testified that Patty got out of the car, and he a nd Daniel Fleegle “ started w restling a round.” Grove sta

ted that Pa

tty was holding Fleegle

down while telling Lee to “pop his mouth fo r what he said” a nd that Lee hit Fleegle with her hand. Grove testified that she saw the Defendant run dow n the hill, but she must have blacked out during the incident
, because the next thing she reme mbered w as the De

fendant running ba

ck up the h

ill after the fight was over.

Chris Spencer was at the Willis home on October 2, 1998, and he testified that as Patty and his friends were leaving, Fleegle “ran a nd started hitting on the back of their car and tr[ied] to ge t up beside the driver ’s side do or, you kn ow, yellin g this or that.” Spencer stated that Patty then “got outof the car and grabbed Daniel Fleegle a round the waist and hoistedhim up in the air and-3-

slammed him down on his back on the bank beside the driveway.” Spencer recalled that he thensaw
a man that he later determined to be the Defendant “swing something in the direction of [Patty] and Mr. Fleegle.”

Thomas Willis testified that after the original altercation between Patty and Fleegle, he was walking towards the house when “everybody started ye lling.” Willis stated that he saw a group, including Daniel Fleegle, gathered at the end of the driveway near the car tha t Patty was driving. Willis testifie d that whe

n he got to

the car, Fleegle and Patty “were wre stling around on the ground.” According to Willis, Fl eegle a nd Patty “w ere thr

owing ra bbit punch

es.” Wil lis believed that at one point, Fleegle was on top of Patty. Willis testified that while Fleegle and Patty were wrestling, the Defendant

ran to them and hit Patty two times on the head with a bat. Willis stated that after the Defendant hit Patty, he and his brother, Daniel, “took off running.”

Daniel Fleegle

testifie d that he a

nd Patty got

into “a lit tle scuff le,” af ter which Patty and

his friends were asked to l eav e. Fleegl e testifi ed that a s Patty and his friends were

leaving, Patty “jump[ed] out of the car at the end of the driveway” and Fleegle “walked down there to meet him.” Fleegle testified that when he reached Patty, they “started arguing more and [Patty] picked [Fleegle] up and slammed [him] on the c oncret e.” Fleegle stated that he was “out” and did not remember anything until Josh McKelvey picked him up and helped him up the hill.

The Defend ant testif

ied that o n Octobe

r 2, 1998, his eighte enth

birthday, he and his brother arrived from Florida at the Willis home in Knoxville. The Defendant stated that he di d not witne ss the fight between his brother and Patty t

hat took pl ace in the garag e; howev er, he di d hear W illis tell Patty and his friends to leave. The Defendant stated that as Patty and his friends were leaving, he turned to go inside the house, but stopped when “everybody started yelling again.” Acc ording to the Defendant, he went to see what was happening and saw Patty “

pick [his ] brothe

r up and sl am him

on the ground,” a nd he noticed that his brother was not moving. The Defendant testified that he “went to Aaron’s truck and got the bat and ran down there and hit [Patty].” The Defendant stated that he did not remember how many times or how hard he hit the victim. According t o th e Defend ant, he then ran up the hill because he wanted to ca ll an ambulance. The Defendant recalled that he ran into Thomas Willis’ mother’s bedroom and called 911. After calling 911, he jumped out

o f the windo w and ra

n next doo

r to Glend a Johnson ’s house. When ask ed at tria l what h appene d the night he arrived in Knoxville, the Defendant testified, “I killed that boy.” However, he testified that he hit Patty only because he was trying to “[s]top him from killing [his] brother.”

Glenda Johnson, one of

the Willis ’ neighbors, testified that on October 2, 1998, she was working at

her computer when she heard a noise outside. Thinking that it was her son, she opened the door, and the Defendant “came flying past [he r].” According to Johnson, the Defendant “was real scared.” Johnson stated that the Defendant told her, “ Shut the door; there’s a fight.” Johnson testified that when she grabbed the ph o ne to call 911, the Defendant told her that he had alre ady called. Johnson testified that the Defendant told her tha t “somebody ha[ d] been hit with a bat.” Johnson called 911, an d the dispa tcher a sked her

how many p eople we

re involv ed in the f

ight. Johnson recalled that the Defendant told her that “maybe fifteen” were

involved. Johnson testified that the Defendant wa s “te rrified” and tha t she had “never seen a chil d so scar ed.” Ac cording t

o-4-

Johnson, the Defendant

told her th at he had

“to go bac

k” beca use he ha d “to see about [hi s] brother.”

Sandra Elkins, Dir

ector of Autopsy Se

rvices a nd Fo rensic Pa

thology at the University of Tenness e e Medical Center and Knox County Medical Examiner, testified that she perf ormed the autopsy on Joseph Patty. Elkins testified that Patty received a minimum of three blows to the head which ultimately caused his death. E lki ns testified that the injuries causing Patty’s death were consiste nt with blow s from a b aseball bat.

The Knox County Grand Jury indicted the Defendant for second

degree murder f or the de ath of Joseph Patty, and a Knox County jury convicted the Defendant of t he lesser-incl uded crime of voluntary manslaughter. The trial court sentenced the Defendant to five year s, four of which were to be served on probation.

II. ANALYSIS

The Defendant contends that he was improperly sentenc ed. When a crimin al defendant challenges the length, range, or manner of service of a sentenc e, the reviewing court must conduct

a de novo review of the sentence with a presumption that the determinations made by the trial court

are correct. Tenn. Cod

e Ann. § 40 -35-401( d). This pr esumption , howeve

r, “is conditioned upon the affirmative showing in the record that the trial court co nsi dered th e sentencing pr

inciples a nd all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the rec ord failsto show such consider ation, the review o f the sen

tence is purely de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing determination, the trial court, at the conclusion of the sentencing hearin g, determines the range of sentence and the n determines the specific sentence and the proprie ty of sentenc ing alte

rnative s by

consider ing (1) the evide

nce, if a ny, receiv ed at the trial an d the sentencing hearing, (2) the present ence re port, (3) the princ iples of se ntencing and arg uments as to sentencing alternatives, (4) the nat ure and characteristics of the cr iminal conduct involved, (5) evidence and information offered by t he parti es on the e

nhance ment and m

itigatin g fact

ors, (6) any
statemen ts the defendant wishes to make in the defendant' s behalf abou t sentenci ng, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103( 5); St ate v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sentence to be imposed by the trial court for

a Class B, C, D or E felony is the minimum with

in the applica

ble rang e unless t

here ar e enhan cement o

r mitiga ting fa ctors pr esent. Tenn. Code Ann. § 40-35-210(c). I f there are enhanc ement or

mitigati ng fac tors, the court must start
at the presumptive sentence, enhance the sente nce as appropriate for the enhanc ement factors, and then red uce the s entence

in the range as appropriate f or the mitigating factors. Id. § 40-35-210(e). The weight to be given eac h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d
at 123. However, the sentence must be adequate l y suppor ted by the rec ord and comply with the purposes and principles of the 1989 Sentencing Reform Act. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).-5-

When imposing a sentence, thetrial court must make specific findings of fact on the r ecord supporting the se ntence. Tenn. Code Ann. § 40-35-209(c). The recor d should also include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if thetrial court wis hes to enh ance a s entence , the cour t must state

its reasons on the record. The purpose of recording the court’s reasoning is to guara ntee the prepar ation of a proper r ecord f or appellate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

The trial court stated in the sentencing order that it “considered the evidence received at trial and the sentencing hearing; the pre-sentence r eport, in cluding the victim-impact statement; the principles and guidelines of t he sentencing act; the arguments of counsel as to enhancing a nd mitigating factors as well as sentencing altern atives; the nature and characteristics of c riminal conduct involved; the testimony o f the def endant; and the potential for rehabilitation or treatment.” Becau se the rec ord in

this case indicates that the trial court adequately considered the enhancement and mitigating factors as well as the underly ing facts, our re

view is de novo with a presumption of

correc tness.

If our review reflects that the trial court followed the statutory sentencing

procedure, that

the
court imposed a lawful sentence after ha ving gi ven due consideration and proper weig ht to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequately

supported by the re cord, then we may not modify the sentence

"even if we would have preferred a different res ult." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

A. LENGTH OF SENTENCE

The Defendant first argues that the sentence imposed by the trial court was excessive. Specifical ly, the De fendant argues that the trial court failed to proper ly consider and weigh the enhancement and mitigating factors in this case.

The trial cou

rt applie d the follo wing enha ncement factor s in sentenc ing the De fendant : (1) that the Defendant has a previous history of criminal convictions and cr iminal behavior

in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); (2) that the Defendant

possessed or employed a firearm, explosive device or other d eadly weapon during the commission of the offense, id. § 40-35-114(9); and (3) that the Defendant had no hesitation about committing a crime when the risk to human life was high, id. § 40-35-114 (10). The D efendant concedes that fac tor (1) w as prope rly applied because he admitted in the pre-sentenc e report that he had used marijuana in the past. The trial court noted, and we agree, that this factor should be given little weight.

The Defen dant al so concedes that the trial court properly applied fac tor (9) because the Defendant

used a baseball bat during the commission of the offense. However, the Defendant argues that this factor

should be given less weight becau se the De fendant took posse ssion of the baseba ll bat only after he saw his brother “being slammed to the ground and being struck by the dece ased.”-6-

We conclude that thereis no rea son why thi s factor should be g iven less weight sim ply because the Defendant was not armed with the bat for a substantial period of time. The evidence presented at trial established that the Defendant hit the victim three times on the hea d wi th the bat and thus “possessedor employed a . . . deadly weapon during the commission of the offense .” Id. § 40-35- 114(9). The Defend ant also a rgues tha t “less we ight should

be given t

o cases where a d

eath re sults from the use of

the wea pon beca use it is cl osely aki n to being an element of the offense.” The trial court may not apply an enhancement factor that is an essential e lement of the offense

. State v. Winfield
, 23 S.W.3d 279, 283 (Tenn. 2000). The Defendant in this case was found guilty of voluntary manslaughter, which does not require the use of

a weapon. See Tenn. Code Ann. § 39-13- 211(a). The trial court properly applied and we ighed this factor.

The Defendant next

argues that the trial court erred in applyin g factor

(10) bec ause “th

e State failedto meet its burden of proving that a high risk of death existed as to Ms. Ghippi Lee and/or Daniel Fleegle. ” (Empha sis in origi nal.) The trial cou rt noted in

its decisi on that “it is immaterial wh ether Ms. Lee was aware of the ac t as she certainly was in the zone of danger w he n the attac k occurred and therefore was at risk even though she was unaware of that risk.” The evidenc e at trial established that when the Defendant began striking the victim, Gh ippi Lee w as right beside the victim and Daniel Fleegle was underneath him. Lee testified that Patty’s blood “splattered” onher. Thus, Lee and Fleegle were certa inly in the zone of danger. This issue is without merit.

The trial cou

rt applie d the follo wing mitiga ting fac tors in

sentencing the Defendant: (1) that the Defend ant assist

ed the au thorities in locatin g or rec overing a ny prope rty or perso n involved

in the crime, Tenn. Code Ann. § 40-35-113(10); (2) that the Def endant, although guilty of the crime, committed the offense under such unusual circumstance s that it is unlikely that a sustained intent to violate the law motivated his conduct, id. § 40-35-113(11); and (3) a ny other f actor c onsistent with the purposesof this chapt er, id. § 40-35-113(13). The Defendant argue s that the trial court failed
to adequately articulate how the mitigating factors were weigh ed and asserts that these factors “should be given great weight.” We disagree. In applying factor (10), the trial court noted that “the discovery of the bat’s location was highly likely without the defendant’s assistance.” Thus, we may

assume that the trial court did not place much weight on this factor. In applying factor ( 11), the court stated that it was “mindful of the fact that the jury has alre ady mitiga ted [the Defend ant’s] culpability by finding hi m guilty of t he lesse r include d offens e of volun tary man slaughter.” The trial court further found tha

t “while t his factor does apply[,] the weigh t to be give

n is not as g

reat as it would have been ha

d he bee n found gu

ilty of the greater offense of murder.” Finally, the trial court applied factor (13), which includes any other factor consistent with the purpose of the chapter. In doing so, the trial court found that the Defendant was “extr emely remorseful” about his conduct.

Th e trial cou

rt found t hat enha ncing fa ctors (6 ) and (10 ) outweig hed the a ppli cable mitigating factor s. The sentence range for a Range I, standard off ender convicted of a Class C felony is three
to six years. See id. § 40-35-112(a)(3). The trial court sentenc ed the Defendant to five years, four of which are to be serv ed on prob ation. In our view , the sent

ence imp osed by the

trial cou rt is clearly not exce ssive. Thi s issue is w ithout mer it.

B. JUDICIAL DIVERSION-7-

The D efe ndant also argues that the trial court erred in declining to impose a sentenc e pursuant to Tenne ssee Code Annotated § 40-35-313, commonly referred to as judicial diversion. According to t his statute, t he trial c ourt may in

its discre tion, follo wing a de

terminat ion of guil

t, defer further proceedings and place a qua lified defendant onprobation without entering a judgment of guilt. Id. § 40-35-313(a)(1)(A). A qualified defendant is one who pleads guilty or is found guilty of a misdemeanor or a Class C, D or E felony; who has not previously been convicted of a felony

or a Class A misdemeanor; and who is not seeking d eferr al for a sexual of fense or a Class A or Class B felony. I d. § 40-35-3 13(a)( 1)(B)(i )(a)-( c); State v. Parker , 932 S.W.2 d 945, 958 (Tenn. Cri m. App. 1996).

When a defendant contends that the trial court committed error in re fusing to grant judicial div ersion, this Court must determine whether the trial court abused its discretion in failing t o sentence pursuant to the statute. State v. Electropl ating, Inc

. , 990 S.W.2 d 211, 229 (Tenn. Cri m. App. 1998); State v. Cutshaw , 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Judicial diversion is similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the decision to grant judicial diversion is initiated by the trial court, not the pr osecutor. State v. Anderson , 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial evidence supporting the trial court’s decision. Cutshaw , 967 S.W.2d at 344; Parker , 932 S.W.2d at 958. As this Court said in Anderson
,

[w]e conclude

that judic ial diver sion is simila r in purpo se to pre

trial divers ion and is to be imposed within the discreti on of the t

rial cou rt subjec t only to the

same constra ints applica

ble to pr osecutors in applying pretrial diversion under T.C.A. § 40-15-105. Therefor e, upon review, if “any substantial evidence to support the refusa l” exists in the record, we will give thetrial court the benefit of its discretion. Only an a buse of th at discre

tion will allow us to ov erturn th e trial c ourt. 857 S.W.2d at 572 (citation omitted).

The criteria that

the trial court mus t conside

r in determining whether a qualified defendant should be granted judicial diversion include the following: (1) the defendant’ s am en ability to correction; (2) the ci rcumstances of the offense; (3) the def endant’s criminal record; (4) the defendant’s social his tory; (5) th e defendant’s physical and mental health; and (6) the deterrence value to the defendant and others. Cutshaw , 967 S.W.2d a t 343- 344; Parker , 932 S.W.2d at 958. An addit ional con sideration is whether judicial diversion will serve the ends of justice, i.e., the interest s of the public as well as of the defendant. Cutshaw , 967 S.W.2 d at 344; Parker , 932 S.W.2d at 958.

A trial cou

rt should c onsider t

he same f acto rs i n judicial diversion that it does in pretrial diversion. Cutshaw , 967 S.W.2 d at 344. I n addition , this Court

should app ly “the sam e level of review as that which is applicable to a review of the district attorney general’s action in denying pretrial diversion.” State v. George , 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992). We conclude that the record does not show an absence of any substantial evidence to support the trial court’s refusal to grant judicial diversion.-8-

Although the trial co urt did not specifically address the issue in its sentencing order, we conclude that the record c ontains sub stantial evidence to support the denial of judicial diversion. The Defendant was charged with second de gree murder and convicted of the lesser- included offense of voluntary manslaughter. The Defendant hit the unarmed victim three times on the head with a baseball bat, killing the victim and causing a high risk to other lives

. We conclude that the circumstances of this offense warrant the trial court’s denial of judicial diversion. Morever, the trial court considered the deterrent effe ct of incarceration and concluded that “a sentencing involving no incarc eration

would dep

reciate the serio usness of this tragi c offen se and fail to deter others . . . .” We agree. This iss ue is without merit.

___________________________________ ROBERT W. WEDEMEYER, JUDGE