        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 3, 2014

      STATE OF TENNESSEE v. CALEB LAWRENCE MULLINS

                  Appeal from the Circuit Court for Madison County
                      No. 13-256       Donald H. Allen, Judge




               No. W2013-02691-CCA-R3-CD - Filed October 22, 2014


The Defendant, Caleb Lawrence Mullins, pleaded guilty to second degree murder, theft of
property, and tampering with evidence. The trial court sentenced him to serve an effective
sentence of thirty-seven years in the Tennessee Department of Correction. On appeal, the
Defendant contends that the trial court misapplied one enhancement factor and two
consecutive sentencing factors. After a thorough review of the record and the applicable
authorities, we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which A LAN E. G LENN,
and R OBERT L. H OLLOWAY, J R., JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Caleb Lawrence Mullins.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
James G. Woodall, District Attorney General; and Brian M. Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the murder of the victim, Karen Mullins. A Madison County
grand jury indicted the Defendant for first degree murder, felony murder, theft of property,
and tampering with evidence. The Defendant entered a plea of guilt to second degree
murder, theft of property, and tampering with evidence. At the guilty plea hearing, the State
announced the factual basis underlying the guilty pleas as follows:
        [I]n Count 1 the State would show that on or about November the 10 th
of 2012 while here in Madison County that [the Defendant] did knowingly and
unlawfully kill Karen Mullins. In Count 3 the State would show that on that
same day, November the 10th of 2012, while here in Madison County that the
[D]efendant did knowingly obtain or exercise control over property equal to
or over the value of $10,000 without the effective consent of the owner, Karen
Mullins, with the intent to deprive her of that property. In Count 4 on that
same day, November the 10th of 2012, while here in Madison County, [the
Defendant], knowing an investigation or official proceeding was pending or
in progress did alter, destroy or conceal any record, document of thing with
intent to impair it’s verity, legibility or availability as evidence against him in
an investigation or official proceeding.

       If Your Honor please, this was a murder that took place on November
      th
the 10 although the Jackson Police Department and police officers weren’t
aware of it until November the 11th . There they received a call requesting that
a welfare check be done on Karen Mullins. She was a resident at 21 Copper
Ridge Cove here in Jackson, Madison County. When officers made entry into
her house they did find her dead on her kitchen floor apparently killed by
multiple stab wounds. In the course of the investigation they learned that she
did not live there alone at the time; that she was living with her nephew, [the
Defendant], and that the relationship between [the Defendant] and the victim
was that of nephew and aunt.

        Once the investigators learned that [the Defendant] was living at that
residence they also noted that he was not there. They also noted that [the
victim’s] vehicle, a 2011 Toyota Rav 4 valued at approximately $20,000 was
also missing along with some personal items related to [the Defendant] from
that house. The investigation later determined that [the Defendant] after
killing his aunt took her vehicle. That’s the Theft of Property over $10,000,
that $20,000 vehicle of her’s. He took that along with her ATM debit card and
used that on the way traveling from Jackson, Tennessee to Louisville,
Kentucky. The [D]efendant is originally from Louisville, Kentucky and was
a resident of Louisville, Kentucky.

        The proof would show that the [D]efendant was living in Louisville,
Kentucky up until about two months prior to this murder. There was an
arrangement made by his family that he leave Louisville, Kentucky and come
to live here in Jackson with his aunt, Karen Mullins, and he ended up living
here for about two months. The proof would show that he was unhappy about

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      living here and that he missed – I believe he had some friends as well as a
      girlfriend and a child in Louisville and had multiple requests stating that he
      wanted to go back to Louisville. That’s where investigators found him was in
      Louisville.

              In Louisville he was apprehended. He was detained there and
      investigators from the Jackson Police Department, [], actually went and spoke
      to the [the Defendant].

             I will say for the record that Investigator Aubrey Richardson is in the
      courtroom. He took the statement from the [D]efendant in which the
      [D]efendant confessed to killing his aunt. He stated that they had gotten into
      an argument. This involved the [D]efendant using drugs and also doing some
      things that [the victim] simply didn’t approve of in the house. [The
      Defendant] stated that during the course of that argument that he became very
      angry with her and while they were in the kitchen he took a knife from a
      kitchen drawer and proceeded to stab her.

             According to the medical examiner, [the victim] was stabbed
      somewhere between 33 and 38 times and that was her cause of death. Manner
      of death was homicide and cause of death was multiple stab wounds. Of
      course, she bled to death. She was not found until about 24 hours after her
      death, so she had been dead for quite sometime.

             The State would shows that the [D]efendant did knowingly and
      unlawfully kill his aunt, Karen Mullins, as I said by the use of a knife. [The
      Defendant] also indicated in that statement that he had taken the knife and he
      had disposed of it in the Camilla Trace Apartments also located here in
      Jackson, Madison County. He confessed that to investigators. The
      investigators were able to go to Camilla Trace Apartments and did recover that
      knife along with some shoes and I believe a shirt. The shoes that [the
      Defendant] was wearing at the time left some shoe prints in the kitchen. There
      was some shoe prints as well as shirt that [the Defendant] was wearing and the
      clothing [the Defendant] was wearing that became blood stained.

      Based upon this evidence, the trial court accepted the Defendant’s guilty pleas.

      At the subsequently held sentencing hearing, the parties presented the following
evidence: The State offered the presentence report and a victim impact statement, both of
which the trial court admitted into evidence. Sharon Mullins, the Defendant’s aunt and the

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victim’s twin sister, testified that the impact of her sister’s death had been very traumatic for
her family and had presented a tremendous hardship for them. She stated that she had
forgiven the Defendant, as her sister would have done. Ms. Mullins testified that the
Defendant had moved in with the victim at Ms. Mullins’s suggestion to give the Defendant
a “fresh start” and allow him to graduate. Ms. Mullins said her family wanted to help the
Defendant by putting him in a new environment away from any negative influences in
Louisville.

       Isaiah Mullins, Jr., testified that he was the Defendant’s grandfather and the victim’s
father. Mr. Mullins said he had been attending weekly therapy sessions since his daughter’s
death to help him with his grief. He stated that his therapy would continue for two years.
Mr. Mullins testified that he felt that the Defendant’s crime was “cruel, heinous, atrocious
and brutally done” and that the number of stab wounds and the tragic circumstances of her
death kept him awake at night. Mr. Mullins asked that the Defendant be sentenced to no less
than thirty-four years for his crime.

       After considering this evidence, the trial court stated that the Defendant was a Range
I, standard offender. The trial court found three enhancement factors applicable:
enhancement factor (5), that the Defendant treated, or allowed the victim to be treated, with
exceptional cruelty during the commission of the offense; (8) that the Defendant, before trial
or sentencing, failed to comply with the conditions of a sentence involving release into the
community; and (9) that the Defendant possessed or employed a deadly weapon during the
commission of the offense. T.C.A. § 40-35-114 (5), (8), (9) (2014). The trial court applied
two mitigating factors: (10) that the Defendant assisted the authorities in locating or
recovering any property or person involved in the crime; and (13) that the Defendant took
responsibility for the crime. T.C.A. § 40-35-113(10), (13) (2014). The trial court gave
“slight” weight to those mitigating factors.

        The trial court sentenced the Defendant to twenty-five years at 100 percent for the
second degree murder conviction, consecutive to a six-year sentence at 30 percent for theft
of property convictions and a six-year sentence at 30 percent for the tampering with evidence
conviction for a total effective sentence of thirty-seven years. The trial court stated that it
was ordering the sentences to be served consecutively based on consecutive sentencing factor
(4), that the Defendant is a dangerous offender whose behavior indicates little or no regard
for human life and no hesitation about committing a crime in which the risk to human life
is high; and (6), that the Defendant was being sentenced for an offense committed while on
probation. T.C.A. § 40-35-115(4), (6) (2014). It is from these judgments that the Defendant
now appeals.

                                          II. Analysis

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        On appeal, the Defendant contends that the trial court erred when it sentenced him
because it misapplied enhancement factor (8), that the Defendant, before trial or sentencing,
failed to comply with the conditions of a sentence involving release into the community, and
because the trial court erred when it applied the consecutive sentencing factors. The State
counters that the record supports the trial court’s sentencing determinations. We agree with
the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “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.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The reviewing court should uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles of
the Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.

       Our Supreme Court extended the Bise standard to appellate review of the manner of
service of the sentence and consecutive sentencing. The Court explicitly held that “the abuse
of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In State v. Pollard, the Court held,
“the appropriate standard of appellate review for consecutive sentencing is abuse of
discretion accompanied by a presumption of reasonableness.” State v. James Allen Pollard,
432 S.W.3d 851, 860 (Tenn. 2013). We also recognize that the defendant bears “the burden
of demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       In determining the proper sentence, the trial court must consider: (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

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characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2010).

                       A. Application of Enhancement Factor (8)

        The Defendant asserts that the trial court improperly applied enhancement factor (8),
that the Defendant, before trial or sentencing, failed to comply with the conditions of a
sentence involving release into the community. T.C.A. 40-35-114 (8). In support of his
argument, the Defendant cites State v. Hayes, 899 S.W.2d 175 (Tenn. Crim. App. 1995) for
the proposition that “a trial court is not to consider the fact that a defendant committed the
instant offenses while on probation” when applying this factor. The Defendant contends that,
rather, a trial court must find a previous history of unwillingness to comply with probation
to apply this factor. The State responds that the trial court’s application of enhancement
factor (8) was not inconsistent with the purposes and principles of sentencing.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2014).

       Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2014); see also
Bise, 380 S.W.3d at 699 n.33, 704; Carter, 254 S.W.3d at 343. We note that “a trial court’s
weighing of various mitigating and enhancement factors [is] left to the trial court’s sound

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discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any
sentence within the applicable range so long as the length of the sentence is ‘consistent with
the purposes and principles of [the Sentencing Act].’” Id. at 343. A trial court’s
“misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706. “[Appellate Courts are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Carter, 254
S.W.3d at 346.

        We agree with the Defendant that the instant offense may not be used as evidence of
a previous unwillingness to comply with probation as contemplated by enhancement factor
(8). Hayes, 899 S.W.2d at 185-186 (stating that the commission of the offense for which a
defendant is being sentenced should not be used to make factor (8) applicable in sentencing.)
Thus, we hold that the trial court erred when it applied enhancement factor (8) when
sentencing the Defendant. However, as we have previously stated, “a trial court’s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range should
be upheld. ” Bise, 380 S.W.3d at 706. The weight to be afforded an existing factor is left
to the trial court’s discretion so long as it complies with the purposes and principles of the
Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210,
Sentencing Comm’n Cmts.

        In the instant case, the trial court applied three enhancement factors, enhancement
factor (5), that the Defendant treated, or allowed the victim to be treated, with exceptional
cruelty during the commission of the offense; (8) that the Defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community; and (9) that the Defendant possessed or employed a deadly weapon during the
commission of the offense. T.C.A. § 40-35-114 (5), (8), (9) (2014). The trial court gave
“great weight” to factor (8), but it also focused heavily on factor (5) and gave “great weight”
to the “brutal” circumstances of the victim’s death, specifically that the Defendant stabbed
her thirty-three to thirty-eight times. The trial court went on to address factor (9), and the
fact that the Defendant employed a deadly weapon, a kitchen knife, to stab the victim, to
which it applied “moderate” weight. We conclude that, despite the trial court’s
misapplication of enhancement factor (8), the evidence supports the trial court’s application
of enhancement factors (5) and (9), and thus, the within-range sentence imposed should be
upheld. See Bise, 380 S.W.3d at 706 (concluding that if there are “other reasons consistent
with the purposes and principles of sentencing, as provided by statute, a sentence imposed

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by the trial court within the appropriate range should be upheld.”) The Defendant is not
entitled to relief on this issue.

                                 B. Consecutive Sentencing

        The Defendant next contends that the trial court erred when it ordered consecutive
sentencing. The Defendant argues that he took full responsibility for his actions and pleaded
guilty to the offenses and that the trial court erred when it placed no weight on him so doing.
The State counters that the imposition of consecutive sentencing was justly deserved based
on the seriousness of the offense and that the trial court correctly found that the Defendant
was a dangerous offender. T.C.A. 40-35-115(4) (2014). We agree with the State.

        Consecutive sentencing is a matter addressed to the sound discretion of the trial court.
State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A trial court may order
multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that
at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2014). In
addition to these criteria, consecutive sentencing is subject to the general sentencing principle
that the length of a sentence should be “justly deserved in relation to the seriousness of the
offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-
102(1), -103(2) (2014); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

       In this case, the trial court found, “[t]he [D]efendant is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a
crime in which the risk to human life is high.” T.C.A. § 40-35-115(4) (2014). Our Supreme
Court has noted that the “dangerous offender” category is the hardest and most subjective to
apply. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). Consequently, our Supreme Court
in State v. Wilkerson held that “particular facts” must show the following in order to base
consecutive sentencing on subsection 115(b)(4): (1) that an extended sentence is necessary
to protect the public against further criminal conduct by the defendant; and (2) that the
consecutive sentences reasonably relate to the severity of the offenses committed. 905
S.W.2d 933, 938-39 (Tenn. 1995); see State v. Robinson, 146 S.W.3d 469, 524 (Tenn. 2004).

        In discussing the applicability of the “dangerous offender” category to the Defendant,
the trial court stated the following:

               [T]he Court finds as far as consecutive sentencing that this [D]efendant
       is a dangerous offender whose behavior indicates little or no regard for human
       life. He had no hesitation about committing a crime in which the risk to
       human life is high. I find that to be appropriate in this case.



                                               8
               Also as part of that factor, the Court finds the circumstances
       surrounding the commission of these offenses is aggravated. Again, the reason
       it’s aggravated is because, you know, he didn’t have to stab her 33 to 38 times.
       []. So, the commission of the offense is certainly aggravated.

              ....

             Also the Court finds that the aggregate length of the sentence
       reasonably relates to the offenses for which the [D]efendant stands convicted.
       You know, again, I consider the people that knew or know [the Defendant] the
       best. They are all recommending to me the maximum sentence. They are
       recommending 25 years, plus six years, plus six years. [].

               So, you know, based upon all of the factors I’ve talked about and one
       factor I haven’t talked about and [] this is where the rubber [] meets the road,
       [the Defendant] has expressed no remorse for anything he has done. []

              ....

             So, given all of these circumstances, I find that it is important that [the
       Defendant] be removed from society for as long as possible and for that reason
       I’m going to order all of these sentences to be served consecutive[ly]. [].

             Again, the Court finds that the aggregate length of these sentences
       reasonably relates to the grief and the harm and the pain that he has caused to
       so many people who really love him and care for him[.]

        We conclude that the evidence supports the trial court’s imposition of consecutive
sentences. The facts recited at the guilty plea hearing show that the Defendant was living
with an aunt, the victim, in Jackson, Tennessee. Following an argument between the two,
the Defendant stabbed the victim to death with a kitchen knife. The medical examiner’s
report indicated that she died from multiple stab wounds, between thirty-three and thirty-
eight. The Defendant then left her alone to die in her home, where she was not discovered
for 24 hours, and he fled to another state. This evidence supports the trial court’s finding that
the Defendant is a dangerous offender, and the fact that the Defendant pleaded guilty to this
crime and took responsibility for his actions does not negate the heinous nature of the killing.
Furthermore, the nature of this crime supports the trial court’s finding that consecutive
sentencing is necessary to protect the public and that the sentence is reasonably related to the
seriousness of the offenses committed. The Defendant is not entitled to relief on this issue.



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                                     III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s judgments.

                                                  ________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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