            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs July 16, 2013

               STATE OF TENNESSEE v. BILLY WAYNE VESTAL

                    Appeal from the Circuit Court for Marshall County
                       No. 2012-CR-18      Stella Hargrove, Judge


                  No. M2012-02483-CCA-R3-CD - Filed August 28, 2013


Appellant, Billy Wayne Vestal, entered a guilty plea to aggravated assault without a
recommended sentence. Following the sentencing hearing, the trial court sentenced him to
serve five years in the Tennessee Department of Correction (“TDOC”). Appellant challenges
the sentence as being excessive. Upon our review, we discern no error and affirm the
judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R., and
C AMILLE R. M CM ULLEN, JJ., joined.

Donna Orr Hargrove, District Public Defender, Lewisburg, Tennessee; and Michael J.
Collins, Assistant District Public Defender, Shelbyville, Tennessee, for the appellant, Billy
Wayne Vestal.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Robert Carter, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                              I. Facts from the Sentencing Hearing

        The facts underlying the offense in this case are set forth in the presentence report1
as follows:

        1
         A copy of the guilty plea submission hearing is not included in the appellate record. However, we
conclude that the record before us is sufficient for meaningful appellate review. See State v. Caudle, 388
S.W.3d 273, 279 (Tenn. 2012).
               [O]n or about [January 22, 2012], [appellant] did display a knife and put
       it to the throat of the victim, Phyllis R. Martin[,] and stated that he would kill
       her and cut her throat. [Appellant] stated to Officer Ragsdale that he did pull
       the knife on the victim. This incident was witnessed by [two witnesses].

        The trial court conducted a sentencing hearing in this case on November 7, 2012. At
the sentencing hearing, the trial court admitted the presentence report into evidence, and the
State did not present any further proof. Appellant presented Justin Christmas, a corrections
officer at the Marshall County jail, as a witness. Officer Christmas explained that appellant
suffered from various health problems that made it difficult for him to care for himself.
Appellant had to wear an adult diaper, which he needed assistance in changing. Officer
Christmas testified that on two or three occasions, the diaper had leaked, causing a mess on
the floor that required three to three and a half hours to clean up. Jail personnel would
sometimes have to physically move appellant, and someone would have to stand near and
assist him with showering. Appellant had problems with mobility and required a walker to
move around. Officer Christmas stated that having appellant in the jail created a situation
wherein personnel were called from their other duties to monitor and assist appellant.

       On cross-examination, Officer Christmas acknowledged that appellant did not cause
any trouble at the jail and was nice to the personnel. He denied knowing that appellant
committed the aggravated assault with a knife while he was using his walker. Following
Officer Christmas’s testimony, the defense rested.

        The State argued that the trial court should apply enhancement factor one because of
appellant’s extensive criminal history; enhancement factor nine due to appellant’s use of a
deadly weapon; and enhancement factor ten because appellant had no hesitation about
committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1),
(9), (10) (2010 & Supp. 2012). Appellant argued that his criminal history was comprised of
fourteen misdemeanors and were the type of crimes that one who suffered from post-
traumatic stress disorder (“PTSD”) would commit. Therefore, he asked the trial court to
place little emphasis on enhancement factor one. Further, appellant urged the trial court to
disregard enhancement factor nine because it was an element of the crime and factor ten
because it was embodied by the nature of the crime itself.

       Appellant advanced mitigating factors number eight, that he was suffering from a
mental or physical condition that significantly reduced his culpability for the offense; and
number thirteen, the “catch-all” provision, based on appellant’s open guilty plea, which saved
the court system time and money. Tenn. Code Ann. § 40-35-113(8), (13) (2010). Appellant
offered medical records into evidence, which the trial court admitted, purporting to establish
that appellant suffered from PTSD.


                                              -2-
       Before sentencing appellant, the trial court afforded him the opportunity to make a
statement. In his allocution, appellant expressed remorse but blamed his conduct on his
military training. He claimed that he felt threatened by the victim and that he pulled the knife
because he feared the victim was going to hit him with a bottle.

       After stating on the record that it considered the appropriate statutory factors, the trial
court ruled as follows:

            [M]y calculation of the prior record of actual convictions for [appellant]
       number . . . 15. They are 15 misdemeanors.

               And I count at least 11 probation efforts toward [appellant]. . . .

              I think it is noteworthy to say that [appellant] had just gotten off of
       probation when he was arrested for this offense that we are here on . . . today.
       ...

               It is also noteworthy, considering his prior record, that he was ordered
       to forfeit a weapon on . . . reckless endangerment, assault[,] and resisting. . .
       .

               We know that in this case that he had a knife.

       ....

              In considering what crimes would be against [a] person and would be
       somewhat of a violent nature, the aggravated assault was reduced to assault in
       2010. He was convicted of assault in 1995. He was convicted of assault in
       1992. He was convicted of reckless endangerment in 2010. And now on his
       plea to aggravated assault, he is, for the fifth time now, convicted of an
       assaultive offense, a crime against [the] person. And now he has moved up to
       a felony conviction.

               [A]s we sit here today, he turned 65 this August.

               We talked a little bit about his efforts and whether he took advantage
       of what was out there, insofar as mental health treatment, because we talked
       a lot about PTSD that supposedly occurred from ‘67 to ‘70, although it is
       noteworthy to say that when he returned to Marshall County, his first offense
       that I am looking at wasn’t until age 44. That is a little difficult to reconcile.


                                               -3-
       The Presentence report shows that when he pled to those three offenses,
assault, reckless endangerment[,] and resisting in 2010, he was ordered to go
to Centerstone for an assessment and ordered to follow up with their
recommendations.

....

       The Court should consider and will consider the facts and
circumstances surrounding this offense[] and the nature and characteristics of
the criminal conduct involved.

....

        [I]t is [appellant’s] contention that he did pull the knife, but he did not
put it to her throat or threaten her.

      That is contrary, of course, to what the victim says, in that he did draw
the weapon and put it to her throat, put the blade to her neck, and said that he
would kill her and cut her GD throat.

        There is a discrepancy, which I always look for, in [appellant’s] version.
. . [T]hat might be a minor thing, but it is important to me, insofar as truth and
honesty and straightforward dealing with the Court.

....

       While [appellant] has obviously some physical problems, he is able to
get around, and he is able to carry a weapon, and he is able to draw that
weapon.

....

       Insofar as expectations of rehabilitation, I don’t – at 65, I don’t see that.
I don’t see that that is possible. And I think the record bears that out.

       Whether . . . it reasonably appears that [appellant] will abide by the
terms of probation . . . [H]e is still committing crimes in Marshall County, and
he has been on probation 11 times. So that is disturbing to the Court.

       Whether . . . the interests of society are being protected from possible
future criminal conduct . . . I think it does because [appellant] is mobile[,] and

                                        -4-
        he has a weapon.

                 He has had a loaded 20-gauge shotgun and now the knife.

               Whether . . . a sentence of full probation would unduly depreciate the
        seriousness of the offense, the Court finds that it would. I think the record
        bears that out.

               I think it is important to note that in Tennessee, case law tells us that
        providing an effective deterrence in and of itself would be a reason to deny full
        probation.

        ....

                 The Court finds that the first enhancement factor is appropriate.

               This [appellant] has a previous history of criminal convictions or
        criminal behavior . . . in addition to those necessary to establish the appropriate
        range.

        ....

              His behavior is escalating to a point that it is more violent and more
        dangerous to society and to victims.

                 Factor number 1, the Court gives great weight. . . .

        ....

                 Insofar as number 9, the deadly weapon, the knife, is an element.2

              I am reluctant to give number 10. . . . I think it is so close, though, with
        aggravated assault, that I should stay away from it.3


        2
           A trial court may not apply enhancement factor nine (9), use of a deadly weapon, to a case in which
the use of a deadly weapon is an element of the offense. State v. Charles Haywood, No. W2009-01994-CCA-
R3-CD, 2010 WL 3489179, at *6 (Tenn. Crim. App. Sept. 7, 2010).
        3
         “In general, . . . where a high risk to human life is inherent in the underlying conviction,
enhancement factor (10) applies only if the defendant disregarded a high risk to the life of a person other than
                                                                                                  (continued...)

                                                      -5-
        ....

              I don’t think substantial grounds . . . exist to excuse or justify his
        criminal conduct, so I would not consider that factor.

              [Appellant], because of youth or because of old age, lacked substantial
        judgment in committing the offense.

                I don’t find that that is a factor that is noteworthy or I should consider.

        ....

               Number 8, [appellant] was suffering from a mental or physical
        condition that significantly reduced his culpability. And again, from the
        record, I do not find that.

        ....

               Now, 13 is a catch-all: Any other factor consistent with the purpose of
        this chapter. And I guess that this Court should consider that there has been
        a diagnosis of PTSD.

        ....

              [F]rom observing him today, and from looking at this record, I will
        consider that as a catch-all factor, that there has been a diagnosis of PTSD
        somewhere down the road. . . .

        ....
               The Court will now sentence [appellant] to five years in the penitentiary
        as a Range I Standard Offender.

                I really think [appellant] ought to go to special needs and serve that
        time.


        3
         (...continued)
the victim.” State v. Lance Sandifer, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *20 (Tenn.
Crim. App. Dec. 21, 2010) (internal citations omitted). The State did not allege that anyone other than the
victim in this case was at risk of harm from appellant’s attack. Thus, the trial court correctly declined to
apply this enhancement factor.


                                                    -6-
       Appellant now challenges the trial court’s order, claiming that his “sentence is
excessive and contrary to law.”

                                         II. Analysis

                                   A. Standard of Review

        In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence 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 mitigating and enhancement 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 makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-
35-103(5), -113, -210(b) (2010); Tenn. Code Ann. § 40-35-114 (2010 & Supp. 2012). In
addition, “[t]he sentence imposed should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4) (2010 &
Supp. 2012).

        Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114 (2010 & Supp. 2012); Tenn. Code Ann. § 40-35-210(c) (2010). The
2005 amendments set forth certain “advisory sentencing guidelines” that are not binding on
the trial court; however, the trial court must nonetheless consider them. See id. § 40-35-
210(c). Although the application of the factors is advisory, a court shall consider “[e]vidence
and information offered by the parties on the mitigating and enhancement factors in §§ 40-
35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The trial court must also place on the record
“what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The weighing of
mitigating and enhancing factors is left to the sound discretion of the trial court. State v.
Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving applicable mitigating
factors rests upon appellant. State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL
548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial court’s weighing of the various
enhancement and mitigating factors is not grounds for reversal under the revised Sentencing
Act. Carter, 254 S.W.3d at 345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271
S.W.3d 90 (Tenn. 2008)).

      A trial court should base its decision regarding alternative sentencing on the following
considerations:

                                              -7-
       (A)    Confinement is necessary to protect society by restraining a defendant
              who has a long history of criminal conduct;

       (B)    Confinement is necessary to avoid depreciating the seriousness of the
              offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses;

       (C)    Measures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1) (2010).

       When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). This standard of review also applies to “the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d, 273, 279 (Tenn. 2012). 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. Bise, 380
S.W.3d at 709. 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. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing Comm’n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

                                   B. Appellant’s Claim

       Appellant argues that the weight that the trial court placed on enhancement and
mitigating factors “did not comply with the ‘purposes and principles’ of the [Sentencing]
[A]ct.” However, as noted above, the trial court’s weighing of the various enhancement and
mitigating factors is not grounds for reversal under the revised Sentencing Act. Carter, 254
S.W.3d at 345 (citations omitted).

       He further argues that “the punishment imposed does not fit the crime or the
offender.” The trial court noted fifteen prior misdemeanor offenses and eleven opportunities
to serve suspended sentences. It further noted two convictions for misdemeanor assault, one
conviction for misdemeanor assault that was reduced from felony-grade aggravated assault,
and one conviction for reckless endangerment. Finally, the trial court noted the

                                             -8-
circumstances of the instant crime and the escalating nature of appellant’s offenses against
the person. The record supports the trial court’s ordering a five-year sentence in
confinement.

        Relying on State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991), appellant’s final
argument is that “scarce prison resources should enter into the sentencing evaluation for
those convicted of violating the law.” Appellant’s reliance on Ashby is misplaced. Ashby
did not purport to give carte blanche to a criminal who also has special physical or mental
needs. Although appellant Ashby suffered from a heart condition that required medication
and a pacemaker, his criminal record contained only one prior conviction for a nonviolent
offense, and his convicted offense in the 1991 case was a drug offense, also nonviolent. Id.
at 167, 170. Moreover, the supreme court found error in the trial court’s sentencing appellant
Ashby to incarceration on the sole basis of deterrence, not on the basis of his physical
condition. Id. at 170.

       However, in the instant case, appellant had a lengthy criminal history involving four
prior offenses against the person. He violated a court order to forfeit weapons following his
2010 convictions by possessing a knife. He enjoyed eleven chances to avoid incarceration
by receiving probation. He was given the opportunity in 2010 to receive an assessment and
treatment for PTSD. The trial court’s sentencing determination mentioned deterrence as a
factor but also included expectations of rehabilitation, compliance with the terms of
probation, protection of societal interests, and depreciation of the seriousness of the offense.
We note that rather than excusing the criminal behavior of offenders who have extraordinary
medical or mental health requirements, the special needs division of TDOC exists to
accommodate those offenders who require such assistance. Considering the record as a
whole, the trial court did not abuse its discretion by ordering appellant to serve a sentence of
incarceration.

                                       CONCLUSION

      Based on the record, the parties’ briefs, and applicable case law, we affirm the
judgment of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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