IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASVHILLE

Assigned on Briefs May 8, 2012

STATE OF TENNESSEE v. DONALD E. FENTRESS

Direct Appeal from the Circuit Court for Montgomery County

No. 40800030 John H. Gasaway, Judge

No. M2011-01505-CCA-R3-CD - Filed November 7, 2012

The defendant, Donald E. Fentress, appeals the sentencing decision of the Montgomery

County Circuit Court. The defendant was convicted of aggravated burglary, a Class C

felony, and aggravated rape, a Class A felony. He was sentenced to an effective sentence of

twenty-four years in the Department of Correction. On appeal, he contends that his sentence

for rape is excessive under the facts and circumstances of his case. Specifically, he faults the

trial court for failing to apply mitigating factor (8), that the defendant was suffering from a

mental condition which significantly reduced his culpability for the offense. See T.C.A. §

40-35-113(8) (2010). Following review of the record before us, we affirm the decision of

the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR., and JEFFREY S. BIVINS, JJ., joined.

John T. Maher (atsentencing and appeal), Clarksville, Tennessee; Collier Goodlett, Assistant

Public Defender (at trial), for the appellant, Donald E. Fentress.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; John

WesleyCarney,Jr., District Attorney General; and John Finklea, Assistant District Attorney,

for the appellee, State of Tennessee.

OPINION

Procedural History and Factual Background

The charges against the defendant are based upon the actions he took on August 18,

2007, when he entered the apartment of his neighbor, the victim. The defendant, wearing a
Chicago Bulls basketball jersey, came uninvited into the apartment, went into the bedroom

where the victim was, and informed her that he was going to rape her. The defendant

knocked the victim down, repeatedly punched her in the face, pulled up her skirt, ripped her

underwear, and forcibly penetrated her vagina with his penis. The victim, although in pain,

continued to defend herself and attempted to call for help. At some point in the

approximately forty-minute-long encounter, the victim went limp and pretended to be dead.

As the defendant spread her legs, she pushed her fingers into the defendant’s eye sockets.

In the ensuing fray, the victim was able to escape and run to a neighbor’s apartment.

Police were called and responded to the scene in a matter of minutes. Detective Tyler

Barrett of the Clarksville Police Department arrived and observed the victim approach. She

was frantic, upset, and crying. After attempting to calm her, Detective Barrett learned what

had occurred, and the victim specifically said that “Don” had committed the acts. The

defendant and the victim were not friends, but she did recognize the defendant as someone

she saw in the neighborhood often. Detective Barrett went to the defendant’s apartment,

which the victim had pointed out, and was allowed entrance. The defendant denied that he

knew the victim or that he had raped her. However, Detective Barrett observed a Chicago

Bulls jersey in the defendant’s apartment and noted that his eyes were red. The defendant

was taken to the police station for questioning.

The victim was taken by ambulance to the emergency room, where she received

treatment, and a rape kit was completed. The treating physician noted that the victim’s

injuries and statements were consistent with a sexual assault. As a result of the defendant’s

actions, the victim, who was suffering from systemic lupus, sustained multiple injuries to her

face, head, arms, and legs.

The defendant was indicted by a Montgomery County grand jury for aggravated

burglary and aggravated rape. Following a jury trial, he was convicted as charged.

Thereafter, a sentencing hearing was held before the trial court. At the hearing, the State

introduced the pre-sentence report, which denoted that the defendant had one prior

conviction for armed robbery, for which he had served twenty years in prison. Also

introduced was a mental evaluation and competency report from September 28, 2007, which

indicated that the defendant was competent to stand trial and was able to appreciate the

nature and wrongfulness of his actions. The defendant also introduced a report from James

S. Walker, Ph.D., who had evaluated the defendant after trial. The report concluded that the

defendant has a probable mental condition that includesfrequently yelling,screaming, hitting

jail cell walls with his fists, and physically fighting a non-existent person. Other than some

letters written by the defendant, no other evidence was entered.

After weighing the evidence presented, the trial court imposed concurrent sentences

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of five years for the burglary conviction and twenty-four years for the rape. Following the

denial of his motion for new trial, the defendant filed a timely notice of appeal.

Analysis

On appeal, the single issue raised by the defendant is whether the sentence imposed

for the rape conviction is excessive because the trial court did not give the defendant’s

mental condition any mitigation consideration under Tennessee Code Annotated section 40-

35-113(8). Previously, our review of a defendant’s challenge to the length, range, or manner

of service of a sentence, has been a de novo review on the record with a presumption that

“the determinations made by the court from which the appeal is taken are correct.” T.C.A.

§ 40-35-401(d). However, in a recent opinion, our supreme court provided a thorough

review of the more recent developments in our sentencing laws and adopted a new standard

of review for sentencing in light of these changes. State v. Susan Renee Bise, ___ S.W.3d

___, No. E2011-00005-SC-R11-CD (Tenn., Sept. 26, 2012). In announcing the new standard

of review, the Bise court reasoned:

[W]hen the 2005 amendments vested the trial court with broad discretionary

authority in the imposition of sentences, de novo appellate review and the

“presumption of correctness” ceased to be relevant. Instead, sentences

imposed by the trial court within the appropriate statutory range are to be

reviewed under an abuse of discretion standard with a “presumption of

reasonableness.”

Id. Therefore, we now review the defendant’s sentencing challenge under an abuse of

discretion standard with a “presumption of reasonableness.” Id. The party challenging the

sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. T.C.A. § 40-35-401, Sentencing Comm’n Cmts; State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991).

In fashioning a sentence, the trial court is obliged to determine the propriety of

sentencing alternatives by considering: (1) the evidence, if any, received at the guilty plea

and sentencing hearings; (2) the pre-sentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal

conduct involved; (5) evidence and information offered by the parties on the enhancement

and mitigating factors; (6) any statistical information provided by the administrative office

of the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement

the defendant made on his behalf about sentencing; and (8) the defendant’s potential for

rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; Bise, ___ S.W.3d ___, No.

E2011-00005-SC-R11-CD.

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The trial court should also consider enhancing and mitigating factors; however, the

statutory factors are advisory only. State. v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

Additionally, our supreme court has stated that “a trial court's weighing of various mitigating

and enhancement factors [is] left to the trial court’s sound discretion.” Id. at 345. The trial

court must “place on the record, either orally or in writing, what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

and consistent sentencing.” T.C.A. § 40-35-210(2). However, if a trial court misapplies an

enhancing or mitigating factor in passing sentence, said error will not remove the

presumption of reasonableness from its sentencing determination. Susan Renee Bise, No.

E2011-00005-SC-R11-CD.

This court will uphold the trial court’s sentencing decision “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in compliance

with the purposes and principles listed by statute.” Id. The purposes and principles include

“the imposition of a sentence justly deserved in relation to the seriousness of the offense,”

T.C.A. § 40-35-102(1), a punishment sufficient “to prevent crime and promote respect for

the law,” T.C.A. § 40-35-102(3), and consideration of a defendant’s “potential or lack of

potential for . . . rehabilitation,” T.C.A. § 40-35-103(5). See also Carter, 254 S.W.3d at 343.

Under such circumstances, appellate courts are left with a much narrower set of

circumstances in which they might find that a trial court has abused its discretion in setting

the length of the defendant’s sentence. Id. at 345-46. In fact, appellate courts may not

disturb a sentence imposed in such a manner even if we had preferred a different result. Id.

As noted, the defendant challenges only the sentence he received for the rape

conviction. As a Range I offender convicted of a Class A felony, he was subject to a range

of punishment between fifteen and twenty-five years. See T.C.A. § 40-35-112(A)(1). In

setting the length of the sentence at twenty-four years, the trial court found two enhancement

factors, those being prior criminal history and a particularly vulnerable victim. See T.C.A.

40-35-114(1), (4). The defendant makes no challenge to application of those factors, and we

conclude that there was no error in the trial court’s application of them.

The defendant’s sole challenge to the sentence is that the trial court refused to apply

mitigating factor (8) based upon the defendant’s mental condition. In support of his

argument, the defendant relies upon the information and conclusions contained in the report

authored by Dr. Walker. Specifically, he notes the conclusions that: (1) the defendant has

a severe psychotic disorder; (2) he has hallucinations and delusions regarding conflicts with

females; (3) he was incompetent to stand trial at the time of this interview; (4) he needed

immediate involuntary psychological inpatient placement; (5) his current condition brings

into question his mental state at the time of the crime; and (6) further assessment is

warranted.

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We do not dispute the defendant’s claim that this court has held that a defendant’s

history of mental illness qualifies as a mitigating factor under Tennessee Code Annotated

section 40-35-113(8). See State v. Max, 714 S.W.2d 289, 296 (Tenn. Crim. App. 1986).

However, even though the condition may be considered, the defendant must sufficiently

establish not only the presence of the defect, but also a causal link between his ailment and

the offense charged. State v. Robert James Yoreck, III, No. M2004-01289-CCA-R3-CD

(Tenn. Crim. App., at Nashville, June 29, 2004).

In regard to mitigation, the trial court made the following statements on the record:

As far as mitigating factors are concerned, under [Tennessee Code

Annotated section] 40-35-113, what [defense counsel] argued with regard to

[the defendant’s] mental state comes under subsection eight; and what it says

is that the defendant was suffering from a mental or physical condition that

significantly reduced the defendant’s culpability for the offense.

. . . .

But I don’t think even the report by Dr. Walker rises to the level of

saying that the mental condition that he had diminished the culpability when

he decided to walk in behind her as she went into her apartment, beat her and

rape her. And without that connection I’m not going to apply this mitigator.

We must agree with the trial court that Dr. Walker’s report, although expressing

concern about the defendant’s mental state at the time of the crime, does not state with any

certainty that the defendant’s culpability was diminished at that time. In fact, the report is

quiet clear that the defendant’s actual state of mind at the time of the commission of the

offenses could not be determined due to the defendant’s lack of cooperation. Specifically,

the report states: “It will be difficult, if not impossible, to successfully assess [the

defendant’s] mental state without successful treatment of his psychosis.” While the report

can support the conclusion that the defendant is suffering from a psychotic condition at the

present time, it is not evidence of a causal link between his condition and the offense

charged. Moreover, the State introduced a competency evaluation from 2007, much closer

in time to the crime, that determined that the defendant was competent to stand trial and

understood the wrongfulness of his actions. We cannot conclude that the trial court abused

its discretion by refusing to apply this mitigating factor on these facts. As such, the

defendant is entitled to no relief.

CONCLUSION

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Based upon the foregoing, the sentence of twenty-four years is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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