FILED

September 15, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9705-CR-00166

)

Appellee, )

)

) POLK COUNTY

VS. )

) HON. MAYO MASHBURN

MICHAEL SCOTT FARNER, ) JUDGE

)

Appellant. ) (Delayed Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

JERRY H. SUMMERS JOHN KNOX WALKUP

500 Lindsay Street Attorney General and Reporter

Chattanooga, TN 37402-1490

MICHAEL J. FAHEY, II

TIMOTHY W. JONES Assistant Attorney General

Ogle & Wallace 425 Fifth Avenue North

Court Place, Suite 1 Nashville, TN 37243

121 Court Avenue

Sevierville, TN 37862 JERRY N. ESTES

District Attorney General

SHARI TAYLOE

Assistant District Attorney

P. O. Box 1351

Cleveland, TN 37364-1351

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

On March 31, 1988, Appellant, Michael Scott Farner, pled guilty to second

degree murder, assault with intent to commit first degree murder, and second

degree burglary. After a sentencing hearing, Appellant was sentenced as a

standard Range I offender to 35 years for the second degree murder conviction,

32 years for the assault with intent to commit murder, and 9 years for the second

degree burglary. All sentences were ordered to run consecutively. Appellant

waived his right to appeal, and Appellant’s court-appointed counsel was relieved

from further representation of Appellant. On May 29, 1992, Appellant filed a pro

se Petition for a Writ of Habeas Corpus in the United States District Court for the

Eastern District of Tennessee. Counsel and a Guardian Ad Litem were

appointed. On September 25, 1996, Appellant’s petition for Habeas Corpus was

dismissed for failure to exhaust state remedies. On February 10, 1997, Appellant

filed a motion for a delayed appeal to this Court. On May 28, 1997, this Court

granted the motion for a delayed appeal. Appellant appeals from the trial court’s

imposition of an effective sentence of 72 years incarceration, raising two issues:

1) whether Appellant should receive less than the maximum sentence

in the range upon conviction of an offense when no enhancing

factors may be properly applied and where two mitigating factors

should be applied; and

2) whether Appellant should be sentenced to concurrent prison terms

when the record indicates that his confinement is not necessary for

the protection of the public, when he may be amenable to

rehabilitation, and when he cannot be properly labeled as a

“dangerous offender”.

After a review of the record, we affirm the judgment of the trial court.
-3-

FACTS

Appellant in this case was 20 years old at the time of the offense. He

suffers from both physical and mental handicaps in that since birth he has been

unable to hear or speak. His intelligence level is only slightly above mental

retardation, and he is functionally illiterate. Proof was presented in the presentence report that, as a youth, Appellant suffered severe physical abuse at the

hands of his grandparents.

On July 21, 1987, Appellant entered the home of Andrew and Agnes

Danisewicz without permission. He forced Ms. Danisewicz into the bathroom with

a hunting knife, where he then stabbed her four times. Mr. Danisewicz returned

home and interrupted the attack upon Ms. Danisewicz; Appellant turned on Mr.

Danisewicz, enabling Ms. Danisewicz to flee for help. Appellant stabbed Mr.

Danisewicz 17 times, killing him.

After his arrest on July 22, 1987, Appellant gave a statement to the police

through the means of an interpreter. Appellant stated that he was mad on the day

of the murder, because his mother had made him leave home. He went to a pool

hall, got two six-packs of beer, and drank all 12. He then went to the victims’

home with the intent to kill them, because he felt that they always looked at him

like they were mad at him.

Appellant was indicted for first degree m urder, assault with intent to commit

first degree murder, and second degree burglary. He pled to a reduced charge

of second degree murder, and to the other charges.
-4-

I. Length of Sentence

Appellant argues that the trial court erred in imposing the maximum

sentence within the applicable ranges, contending that none of the statutory

enhancement factors may properly be applied and that two mitigating factors

should have been applied. Because both Appellant’s crime and his trial occurred

prior to the 1989 Sentencing Reform act, the 1982 sentencing act applies. Under

the holding of State v. Poole, 845 S.W.2d 171 (Tenn. 1992) and Sills v. State,

884 S.W.2d 139 (Tenn. Crim. App. 1994), when a sentence is merely readjusted

or when the individual components of the sentence are reviewed, but the

sentence is not set aside on substantive or procedural flaw or due to a lack of

jurisdiction, the same statute applies to the re-sentencing as did in the original

sentence. Here, had Appellant’s appeal not been an out of time appeal, the 1982

act would have applied. We see no reason to stray from the rule of State v.

Poole.

 When a defendant, convicted under the law applicable in this case,

complains of his or her sentence, we must conduct a de novo review of the

sentence. Tenn. Code Ann. § 40-35-401(d)(Supp. 1988)(repealed by Criminal

Sentencing Reform Act of 1989, Acts 1989, ch 591, §6). This review is without

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)(Supp.

1988)(repealed by Criminal Sentencing Reform Act of 1989, Acts 1989, ch 591,

§6); State v. Boling, 806 S.W.2d 202 (Tenn. Crim. App. 1990).

The Sentencing Reform Act of 1982 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code
-5-

Annotated § 40-35-210 (1982)(repealed by Criminal Sentencing Reform Act of

1989, Acts 1989, ch 591, §6), mandated the court’s consideration of the

following:

(1) The evidence, if any, received at the trial and the

sentencing hearing; (2) [t]he presentence report; (3) [t]he

principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the

criminal conduct involved; (5) [e]vidence and information

offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny

statement the defendant wishes to make in his own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210.

Under the 1982 Sentencing Act, there is no presumption that a defendant

will be sentenced to the minimum sentence in the applicable range as there is

under current law. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). After

determining the appropriate range for sentencing, the court was then to weigh the

enhancing and mitigating factors found in Tennessee Code Annotated §§ 40-35-

110 and 40-35-111 to arrive at a sentence which was “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn.

Code Ann. § 40-35-103(4)(Supp. 1988)(repealed by Criminal Sentencing Reform

Act of 1989, Acts 1989, ch 591, §6).

The 1982 Sentencing Reform Act also provided that the trial court shall

place on the record either orally or in writing what enhancement or mitigating

factors it found, if any. These findings are crucial for appellate review of the trial

court’s decision. In the matter sub judice, the trial court found two mitigating
1

The State concedes that Tennessee Code Annotated § 40-35-111(10) does not apply to either

the second degree murder conviction or to the assault with intent to commit second degree murder, but

argues that it properly applies to the burglary conviction.

-6-

factors: under Tennessee Code Annotated § 40-35-110 (7), the defendant,

because of his youth, lacked substantial judgment in committing the offense, and

under Tennessee Code Annotated § 40-35-110(9) the defendant was suffering

from a mental or physical condition that significantly reduced his culpability for the

offense. The trial court also found several enhancement factors, namely: under

Tennessee Code Annotated § 40-35-111(1) that the defendant had a previous

history of criminal behavior; under Tennessee Code Annotated § 40-35-111(3)

the offense involved more than one victim; under Tennessee Code Annotated §

40-35-111(4) the victim was particularly vulnerable because of age or physical

or mental disability; under Tennessee Code Annotated § 40-35-111(5) the

defendant treated the victim with “almost unbelievable cruelty” during the

commission of the offense; under Tennessee Code Annotated § 40-35-111(6)the

injury inflicted upon the victims was particularly great; under Tennessee Code

Annotated § 40-35-111(9) the defendant possessed and employed a deadly

weapon in the commission of the offense; under Tennessee Code Annotated §

40-35-111(10) the defendant had no hesitation about committing a crime where

the risk to human life was high. In its brief, the State concedes that Tennessee

Code Annotated § 40-35-111(3) and (10) were misapplied to Appellant’s

sentence.1
-7-

Enhancement Factors

In the matter sub judice, we find that the trial court correctly enhanced each

sentence with respect to Tennessee Code Annotated § 40-35-111(1). The

presentence report contains ample undisputed evidence of previous violence,

drug abuse, and illegal destruction of property. All sentences were also

appropriately enhanced with Tennessee Code Annotated § 40-35-111(9) since

it is clear Appellant used a deadly weapon, i.e., a hunting knife to commit his

crime. In addition the trial court properly enhanced all three sentences pursuant

to Tennessee Code Annotated § 40-35-111(5). Appellant chose to attack Mr.

and Mrs. Danisewicz in a particularly vicious manner, i.e., by using a knife to

inflict multiple stab and slash wounds, rather than quickly accomplishing his grisly

mission. Mrs. Danisewicz was stabbed four (4) times as she pleaded for her life

and escaped only because Appellant turned his wrath onto Mr. Danisewicz

wounding him seventeen (17) times eventually killing him as he too pleaded for

his life. By his own admission, Appellant burgled the Danisewicz’s home with his

knife in hand for the exclusive purpose of killing the couple. Under these

circumstances we have no trouble concluding that the victims were treated with

exceptional cruelty. In addition to the above, we hold that the trial court properly

applied Tennessee Code Annotated § 40-35-111(6) to Appellant’s conviction for

aggravated burglary. The injury to both Mr. and Mrs. Danisewicz during the

burglary was very great. In addition as a result of her husband’s death, Mr.

Danisewicz lost considerable financial support. Application of this factor to the

burglary sentence was appropriate.
2Although State v. Adams deals with the Sentencing Reform Act of 1989, its reasoning should be

equally applicable to the identical provision of the 1982 Act, i.e., it is particular vulnerability rather than age

above which is the focus of § 40-35-111(4). Any other citations in this opinion to cases arising after the

adoption of the 198 9 Sente ncing Act are m ade in the belief that su ch holdin gs are e qually applica ble to

analogo us prov isions of th e 1982 Senten cing Ac t.

-8-

Appellant’s burglary sentence was also properly enhanced with Tennessee

Code Annotated § 40-35-111(10), no hesitation about committing a crime where

risk to human life is high. Clearly a home invasion burglary for the express

purpose of killing the occupants is such a crim e. See, State v. Edwards, 868

S.W.2d 682, 702 (Tenn. Crim. App. 1993).

However, there was some misapplication of enhancement factors. The

State concedes and we agree that Tennessee Code Annotated § 40-35-111(3),

the crime involved more than one victim, does not apply to any of the convictions

in this case. See, State v. Clabo, 905 S.W.2d 197 (Tenn. Crim. App. 1995)

(holding separate convictions with respect to each victim in a case precludes use

of this aggravating factor). The State also concedes and we agree that

Tennessee Code Annotated § 40-35-111(10), no hesitation about committing a

crime where risk to human life is high, was inapplicable to the murder and

attempted murder convictions. See, State v. Sims, 909 S.W .2d 46, 50 (Tenn.

Crim. App. 1995); State v. Makoka, 885, S.W.2d 366 (Tenn. Crim. App. 1994).

Also the age of the victim without proof of special vulnerability as a result thereof

is insufficient to warrant application of Tennessee Code Annotated § 40-35-111

(4). State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993)

2
-9-

Mitigating Factors

The State does not contest the applicability of mitigating factors found at

Tennessee Code Annotated §§ 40-35-110(7) and (9). These factors deal

respectively with a lack of judgment because of youth and reduced culpability due

to a mental or physical conditions. The trial judge however, as was his

prerogative gave little weight to these factors in view of the circumstances of

Appellant’s crime and the gravity of the numerous enhancement factors

applicable in this case.

Length of Sentence

As stated earlier there is no presumptive minimum sentence with respect

to sentences under the 1982 Sentencing Act. In this case which falls under the

provisions of that act three (3) enhancement factors are applicable to the murder

sentence, four (4) such fac tors are applicable to the assault with the intent to

commit murder, and five (5) enhancers properly pertain to the burglary sentence.

The trial court, within the scope of his discretion, gave little weight to the

applicable mitigating factors. Under the circumstances we cannot say the length

of the sentences imposed are improper.

II. Consecutive Sentencing

Appellant contends that the trial court erred in imposing consecutive

sentences, arguing that his confinement is not necessary for the protection of the
-10-

public, that he may be amenable to rehabilitation, and that he cannot properly be

labeled as a “dangerous offender” or a “dangerous, m entally abnormal person.”

We disagree.

 In Gray v. State, 538 S.W.2d 391 (Tenn. 1976), the Supreme Court set out

criteria by which a defendant is evaluated in deciding whether consecutive

sentencing is appropriate: 

Types of offenders for which consecutive sentencing

should be reserved may be classified as follows: (1) the

persistent offender, defined as one who has previously

been convicted of two felonies or of one felony and two

misdemeanors committed at different times when he was

over eighteen (18) years of age; (2) the professional

criminal, one who has knowingly devoted himself to

criminal acts as a major source of livelihood or who has

substantial income or resources not shown to be derived

from a source other than criminal activity; (3) the m ultiple

offender, one whose record of criminal activity is

extensive; (4) the dangerous mentally abnormal person,

so declared by a competent psychiatrist who concludes as

a result of a presentence investigation that the defendant's

criminal conduct has been characterized by a pattern of

repetitive or compulsive behavior or by persistent

aggressive behavior with heedless indifference to

consequences; and (5) the dangerous offender,

hereinafter defined.

The prior record of the persistent offender will

indicate that he is one not likely to be rehabilitated and

should be incarcerated under consecutive sentences for

the protection of the public. The same may be said for the

professional criminal. The prior record of the multiple

offender may have been good, but the crimes for which he

has been convicted indicate criminal activity so extensive

and continuing for such a period of time as to warrant

consecutive sentencing. See Sentencing Alternatives and

Procedures, § 3.4, Comment C; Model Penal Code, §

7.03. The object is to use consecutive sentencing, where

appropriate, to protect society from those who are

unwilling to lead a productive life and resort to criminal

activity in furtherance of their anti-societal lifestyle.
-11-

A defendant may be classified as a dangerous

offender if the crimes for which he is convicted indicate

that he has little or no regard for human life, and no

hesitation about committing a crime in which the risk to

human life is high. This does not mean that all defendants

convicted of several counts of a dangerous offense, such

as armed robbery, should be consecutively sentenced.

Even though armed robbery is a dangerous offense, there

are increased penalties for that crime. The decision to

impose consecutive sentences when crimes inherently

dangerous are involved should be based upon the

presence of aggravating circumstances and not merely on

the fact that two or more dangerous crimes were

committed. However, this does not preclude the trial court

from imposing consecutive sentencing for the commission

of dangerous offenses where no aggravating

circumstances are present if evidence indicates that the

defendant should be sentenced under one of the other

classifications.

Gray v. State, 538 S.W.2d 391, 393-394 (Tenn. 1976). In the matter sub judice,

the trial court sentenced Appellant to consecutive sentences upon finding that

Appellant was a dangerously mental abnormal person, but the record does not

reflect any evaluation by a competent psychiatrist as required under Gray.

However, based upon Appellant’s past violent behavior documented in the

presentence report, and his lack of hesitation in committing a home invasion with

a view toward killing the occupants because of how he thought they looked at

him, we believe that society must be protected from Appellant, and accordingly

find that Appellant meets the criteria set out in Gray to be classified as a

dangerous offender. The trial court’s imposition of consecutive sentences is

affirmed.
-12-

For the aforementioned reasons, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

CURWOOD WITT, JR., JUDGE