# FILED

February 10, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9612-CR-00475 Appellee, * SHELBY COU NTY VS. * Hon. Joseph B. Mc Cartie, Judge Hon. John P. Colton, Judge MARK W. RAWLINGS, * (Post-Conviction) Appellant. * (Especia lly Aggravate d Robbery)

For Appellant : For Appellee : Lila Kathleen Mitchell John Knox Walkup Assistant Public Defender Attorney General and Repor ter Shelby County Public Defender's Office Georgia Blythe Felner 201 Poplar Avenue, Second Flo or Counsel for the State Memphis, TN 38103 450 James Robertson Parkwa y (at trial) Nashville, TN 37243-0493 Paula L. Skahan, Attorney Phillip Gerald Harris 140 North Third Street Assistant District A ttorney General Memphis, TN 38103 Shelby County Distr ict Attorney (on appeal) General's Office 201 Poplar Avenue Memphis, TN 38103

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Mark W. Rawlings, entered pl eas of guilt to three counts of especially agg ravated robbery on June 16, 1992. Tenn. Code Ann. § 39- 13-403. The trial court impos ed Range I sentences of eighteen years on each count and orde red the te rms to be s erved con secutivel y for an ef fective s entence of fift yfour years. The defendant attempted to appeal to this court pro se but mai led the notice to the wrong addr ess. Thereafter, he filed a petition for post-conviction re lief alleging ineffective as

sistance of counsel and an inv oluntary guilty

plea. The trial court denied relief but, on dir ect appeal, this court gr anted a delayed appeal as to the sentence: The petitioner has failed to carr y his burden of proving that the evi dence preponderates against th e lower court's findings that he pled guilty freely and voluntarily and that he received effective assi stance of counsel in entering his

plea. Therefore, we affirm the lower court's judg ment denying post-conv iction relief with respect to the defendant's conviction. However, because the defendant was denied effective ass istance of counsel on appeal, we grant the defendant a delayed appeal with respect to his sentence only

. Mark W. Rawlings v. State , No. 02C01-9504-CR-00 112, slip op . at 7-8 (Tenn . Crim. App., at Jackson, Apr. 17, 1996)

.

The grant of the delayed appeal on the sentence was based upon the affirmative duty on the part of defense counsel to provide adv ice on the right to appeal a sentence. The failure to do s o qualifies as a deficiency in performance. A finding of prejudice is not r equired for the grant of a dela yed appeal. Pinkston v. State , 668 S.W.2d 676 (Tenn. Crim. App. 1984); State v. Lester D. Her ron , No. 03C01-9109-CR-00284, slip op. at 10 (Tenn. Crim. App., at K noxville, Mar. 1 0, 1992).3 In this appeal of the trial cour t's fifty-four-year sent

ence, the defendant complains that the sentences are excessive, that the t rial court failed to take i nto account his medical conditi on, and that the sentences should not have been ordered to be served consecutiv ely. We reject each of those arguments and a ffirm the judgment of the trial court.

The prior opinion of this court summarized the facts whi ch led to the convictions: On July 5, 1991, Rawlings approached an uncle

("Mr. Green") for a loan of money . At the time, another man and woman [Tom W . Barlow and Annie L. Williams] were visiting

Mr. Green at his resi dence, both of whom also knew the petitioner [Rawlings]. Mr. Green refused to make t he loan. The peti tioner th en asked to borrow a claw hammer. He subseq uently beat Mr. Green and both of Mr. Green's visitors in the head with the hammer. He broke the woman's hands w ith the hammer as she attempted to ward off the blows to her head. After beating the victims, the petitioner robbed them. All of the victims were ser

iously injured. The w

oman was forty years old at the time of the offense and the two men were in their six

ties; the petitioner wa

s thirty-four. All of the victims identified Rawlings as the attacker. Rawlings , slip op. at 2-3 (footnote omitt ed).

The prior opinion of this court makes reference to the fact that the state sought the maximum sentenc e possible and refused to offer a plea agreement. Id. at 4. The defendant, who had a prior conviction for the voluntary manslaughter of his first wife, entered a guilty plea when defense counse l was able to persuade the state, for the upcoming sentencing hearing, to withhold a number of graphic photographs of the victims at the crime scene and to refrain f rom using as a witness the father of the woman the defendant had killed several years earlier. At the sentencing hearing, the state sought three, consecutive twenty-fiv e-year sentences but withheld cer tain of the evidence as agr eed. Id. at 6. W hile lengt hy,4 the sentence imposed by the tr ial court was tw

enty-one years less

than the maximum possible.

When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

In calculating the sentenc e for Class B, C, D, or Efelony convictions at the time of these offenses, the presumptiv e sentence is the minimum within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35- 210(c). If there are enhancement factors bu t no mitigating factors, the trial court may set the sentence above th e minimum. Tenn. Code Ann. § 40-35-210( d). A sentence involving

both enhancement and mitigating factors requires an assi gnment1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felony c onvictions , may en hance the sente nce ran ge but is n o longer a listed criterion. See Tenn . Code A nn. § 40- 35-115 , Senten cing Co mm ission Co mm ents. 5 of relative weight for the enhancement factors as a means of incr easing the sentence. Tenn. Code Ann. § 40-35-210.The sentence may then be reduced within the range by

any weight assi gned to the mitigating factors present. Id.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case, our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later,in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution :

[C]onsecutive sentences s hould not be routinely impos ed ... and ... th e aggrega

te maximum of c

onsecutiv

e terms must be reasonably related to the severity of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to6 sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; or (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supr eme cour t had rule d that be fore con secutive sentencing could be imposed upon the dangerous offender, as now defined by subsection (b)(4) in the statute, other conditions mus t be present: (a) that the crimes involved aggravating circ umstances; (b) that consecuti ve sentences are a necessary means to protect the public from the def endant; and (c) that the term reasonably relates to th e severity of the offenses.

More recently, in State v. Wilkerson , 905 S.W.2d 933 (Te nn. 1995), our high court reaffirmed those principles and ruled that consecutive sentences cannot be required for any of the classifications "unless the terms reasonably rel ate to the severity of the offenses c ommitted and are necessary i n order to protect the public from further serious cr iminal conduct by the defendant." Id. at 938. The Wilkerson decision, which modified g uidelines adopted in State v. Woods , 8147 S.W.2d 378, 380 (Tenn. Crim. App. 1991), gover ning the sentencing of danger ous offenders, described sentencing as "a hum an process that neither can nor should be reduced to a set of fixed and mechani cal rules." Wilkerson , 905 S.W.2d at 938 (footnote omitted).

At the sentencing hearing on July 31, 1992, the tria l judge found the following enhancement factors applicable:

(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) The offense

involved more than one victim; (3) A victim of the offense was particularly vulnerable because of age or physical or mental disability; (4) The defendant treated or allow ed the victim to be treated with excepti onal cruelty during the commission of the offense; (5) The personal injurie s inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly

great; (6) The defendant possessed or employ ed a firearm ... during the commission of the offense; (7) The defen dant had no he sitation abou t committing a crime when the risk t

o human life was high; (8) The felony resulted in death or bodily injury or involved the threat of death or bodily injury to another person and the defendant has previou sly been convicted of a felony that resulted in death or bodily injury ; (9) During the commiss ion of a felony, the defendant willfully inflic

ted bodily injury upon another person, or the actions of the defendant resulted in the death of or serious bodily injur

y to a victim or a person other than the intended victim; and (10) The crime was commit ted under circumstances under which the potential for bodily injury t o a victim was great. Tenn. Code Ann. § 40-35-114(1), ( 3), (4), (5), (6), (9), (10), (11), (12) , and (16).8 While the trial court rejected Tenn. Code Ann. § 40-35-114(15), that the defendant abused a position of public or private trust, it r

uled as an aside that because one of the victims w as his uncle, there was a violation of a priv

ate trust. The trial judge found no mitig ating factors and refused to make a fin ding on Tenn. Code Ann. § 40-35-113(7), that the defendant was motivated by a desire to provide necessities for his family or himself. Finally, as his basis for ordering the consecutive sentences, the trial court found that the defendant w as a dangerous offender whose behavior indi cated little or no regar d for human life and had "no hesitation about committing a crime when the risk t o human life was high." Tenn. Code Ann. § 40-35-115(4).

Initially, the defendant chal lenges the application of enhancement factors (3), (5), (6),(9), (12), and (16). H e does not challenge the appli cability of factors (1), (4), (10),and (11). The state acknowl edges that the application of enhancement factors (3) and (12) w ere erroneous because the defendant w as separately punished for cr imes against each of the vi ctims. State v. Lambert , 741 S.W.2d 127 (Tenn. Crim. App. 1987); State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). The state also concedes that the trial judge committed error by applying

enhancement (12) because "serious bodily injury" q ualifies as an element of the offense of especially agg ravated robbery. State v. Gregory Maurice Brooks , No. 02C01-9411-CV-00261 (Tenn. Crim. App., at Jackson, July 19, 1995);
see Tenn. Code Ann. § 39-13-403(a). Finally, the state ack nowledges the erroneous application of factors (6), (9), and (16) becaus e the factors had been included in the definition of the el ements of especially agg ravated robbery. State v. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Thus, the only disputed question is whether fact or (5), that the defendant treated or allowed the victi ms to be treated with excepti onal cruelty, was properly applied in eac h of the three9 sentences. A secondary i ssue is whether enhancement fact or (15), relative t

o the position of private trust, applies because the victim Green was the defend ant's uncle.

In State v. Poole , 945 S.W.2d 93, 98 (T enn. 1997), our supreme court ruled "'exceptional cr

uelty' is not an element of especially aggrav ated robbery." If the facts of the case demonstrate "'a cul pability distinct from and appreciably greater than that incident to'" the cri me, it may be applied. Id. (citations omitted). The defendant's beating the victi ms about the head with a claw hammer establishes exceptional cruelty . In our view, thi s factor was properly applied. Moreover, th e victim Green's kins hip to the defendant and his wil lingness to loan his cl aw hammer was evidence of a priv

ate trust. Thus, the factor mig ht appropriately be consi dered as to that single sentence. See State v. Adams , 864 S.W.2d 31 (Tenn. 1993).

The defendant has claimed that his histo ry of drug and alcohol abus e, his attempts at treatment, and a di abetic condition warr anted application of Tenn. Code Ann. § 40-35-113(8):

The defendant was suffering from a mental or physical condition that significantly reduced the defendan t's culpability for the offense; how ever, the voluntary

use of intoxicants does not fall w ithin the purview o

f this factor. While the defend ant's voluntary use of illegal drugs or alcohol does not qualify as a mitigating factor, a diabetic can be considered. In our view, however, there is insufficient evidence in this record to suggest that the condition "significan tly reduced the defendant's culpabilit y for the offense." Tenn. Code Ann. § 40-35- 113(8). That is, no causal l ink has been established betw een the ailment and the offense.10 Obviously, the trial court cited several enhancement factors which should not have been applied. The presumption of correctness is conditioned upon the consideration of all of the appr opriate factors in the imposition of a sentence. Yet at least four enhancements remai n as to each offense. Because there are no mitigating factors, a l ow to mid-range sentenc e on each count would be appropr iate. Here, the defendant attacked two elderly men and a woman w ith a claw hammer. All three individual s were seriously injured and required s ignificant medical care. There were major medical ex penses involved. The defendant had a prior criminal history which included taking the life of his first wife. In sentencing, the primary purpose is to impose "a sentence justly deserved i n relation to the seriousnes s of the offense." Here, a low to mid- range sentence of eighteen y ears on each count, when the range is from fifteen to t wenty-five year

s, is fully warr

anted.

Finally, because the defendant qualifies as a dangerous of fender, consecutive sentences are permissible. Tenn. Code Ann. § 40-35 -115(b)(4). This court cannot disagree w ith the state's assertion that the defendant's behavior demonstrated a contemptible lack of concern for human life and an absence of basic human decency. There w ere multiple blows to ea ch of the victims causing life-threatening injuries. The victim Green requires the use of a walker to assist his ambulat ion. The victim W illiams h as not fu lly recovere d despite three ope rative procedures. The victim Bar low requires w

eekly medical care due to abnormal blood pressure. In our view, the crimes involv ed aggravating ci rcumstances. The aggregate term imposed, while significant i n length, reasonably r eflects the necessity of protecting

the public from the defendant.

Accordingly, the j udgment is affirmed.11 ________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge