        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville December 18, 2012

                STATE OF TENNESSEE v. TAVARIA MERRITT

                  Appeal from the Criminal Court for Wilson County
                     No. 10-CR-18 David Earl Durham, Judge




               No. M2012-00829-CCA-R3-CD - Filed December 10, 2013


The Defendant, Tavaria Merritt, pleaded guilty to nine counts of rape of a child, Class A
felonies. See T.C.A. § 39-13-522 (2010). He was sentenced to nine consecutive terms of
twenty-five years for an effective 225-year sentence to be served at 100%. The Defendant
was seventeen years old when the offenses were committed and nineteen years old when he
pleaded guilty. On appeal, the Defendant contends that his effective sentence is the
equivalent of life imprisonment without the possibility of parole and is cruel and unusual
punishment under the United States and Tennessee Constitutions. See Graham v. Florida,
560 U.S. 48 (2010). Although Graham does not apply to the Defendant’s effective 225-year
sentence, we conclude that the sentence is excessive, reverse the judgments of the trial court,
and remand for entry of judgments reflecting an effective fifty-year sentence.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed,
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., J., joined. C AMILLE R. M CM ULLEN, J., filed a dissenting opinion.

Comer L. Donnell, District Public Defender; and E. Marie Farley, Assistant Public Defender,
for the appellant, Tavaria Merritt.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Tom P. Thompson, Jr., District Attorney General; and Thomas H. Swink, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

        According to the State’s recitation of the facts at the guilty plea hearing on March 21,
2011,

        [I]n early summer of 2009 some concerned parents of children who had
        contact with this Defendant, Mr. Tavaria Merritt, reported to authorities that
        this Defendant had sexually assaulted their children. These children knew the
        Defendant through a local Lebanon church that this Defendant served the
        youth at this particular church.

               Several children were interviewed at the Child Advocacy Center. . . .
        Three of the boys who were then ten and eleven years of age disclosed . . . that
        this Defendant, Mr. Merritt, had penetrated them orally and anally on separate
        occasions.

               ....

                [O]ne [victim] was ten years old and two [victims] were eleven years
        old at the time.

               ....

              Those disclosures were captured on audio and video at the Child
        Advocacy Center, and of course copies of those were turned over to the
        defense. These acts occurred primarily at the Defendant’s residence where the
        Defendant lived with his parents in Wilson County.

                [O]ne of the acts . . . that we have not counted occurred at a hotel room
        in Mississippi. That’s an uncharged act, but the ones that we’re talking about
        primarily occurred here at his residence which was in Wilson County. So all
        of the indicted offenses are Wilson County offenses.

               Shortly after those children disclosed to the Child Advocacy Center
        what this Defendant had done, Detective Harbaugh . . . made contact with the
        Defendant and the Defendant’s mother and made efforts to try to speak with
        this Defendant about those allegations.




                                               -2-
              [O]n August 20, 2009, Mr. Merritt appeared at the Wilson County
       Sheriff’s Department unannounced and . . . said that he wanted to speak to
       Detective Harbaugh about the allegations that the children had made.

              On that same day, Detective Harbaugh interviewed the Defendant[,] and
       the Defendant confessed . . . to penetrating the three boys who had disclosed
       the abuse. Now that interview was captured on audio and video, and as the
       Court knows, a suppression hearing was heard . . . and a copy of that
       audio/video was made an exhibit during that hearing. . . .

              This Defendant confessed. His confession generally matched the
       disclosures which included both oral sex and anal penetration with all three of
       the boy victims that had disclosed. . . .

              The Defendant, whose date of birth is July 21, 1991, was seventeen
       years old at the time that these offenses were committed. [W]hen Mr. Merritt
       was interviewed by Detective Harbaugh in August of 2009, this Defendant had
       turned eighteen years of age. . . .

              This Defendant was charged initially in Juvenile Court[,] and it was
       transferred from Juvenile Court on December 15, 2009[. He] was indicted by
       the Wilson County Grand Jury . . . on January 12, 2009.

       The trial court noted that a suppression hearing was held previously regarding the
Defendant’s recorded confession. The court incorporated as part of the factual basis for the
guilty pleas the suppression hearing transcript and recorded confession, which are not
included in the appellate record.

       At the sentencing hearing on June 1, 2011, the presentence report was received as an
exhibit. The report showed that the Defendant was a minor when the offenses were
committed and that he had no previous criminal history or gang affiliation. The Defendant
had a tenth-grade education and reported excellent physical and mental health, although he
took blood pressure medication. He denied alcohol and drug use and reported having a son,
who was born on March 9, 2010. The Defendant’s employment history showed his working
for Debbie’s Farming from 2001 to 2008, Paul’s Smokehouse from January 2007 to
December 2007, and Arby’s from February to March 2011.

      The presentence report showed that the Defendant was the victims’ youth minister and
knew the victims for one year. The report showed that the abuse occurred between January
and June 2009. Only one victim impact statement was submitted to the court. The victim

                                             -3-
said he became angry when he talked about the abuse. He said, “I would never think in a
million years that a minister would try to rape a kid. I thought the church would be the safest
place[.]” The victim wanted to be a pastor. The victim’s mother reported that the victim was
receiving counseling.

        David Stanfield, the probation officer who prepared the presentence report, testified
that the Defendant was the victims’ youth minister and that two of the victims were brothers.
On cross-examination, he stated that although his investigation showed the abuse occurred
between January and June 2009, he did not know if all the incidents related to each victim
occurred on the same day or different days. He said that one of the victims reported
receiving counseling and that he did not see evidence of long-term psychological counseling
or medical treatment associated with the abuse. On redirect examination, he agreed that the
victims were receiving counseling.

       The trial court sentenced the Defendant to twenty-five years for each count of child
rape as required by law and ordered that each conviction be served consecutively, for an
effective 225-year sentence. The court found that Tennessee Code Annotated section 40-35-
15(b)(5) (2010) applied, which states that consecutive sentencing is permitted when

       [t]he defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and . . . victims, the time
       span of the defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       . . . victims.

       Regarding the aggravating circumstances arising from the relationship between the
Defendant and the victims, the trial court examined the mitigating and enhancement factors.
The court found that no mitigating factors applied. See T.C.A. § 40-35-113 (2010). The
court noted that although the Defendant was a minor when the offenses were committed, the
Defendant was a father and that his fatherhood meant he was “old enough to face the
consequences” of his actions.

        The trial court found that enhancement factors (3), (4), (6), (7) and (14) applied. See
id. §§ 40-35-114(3) (“The offense involved more than one (1) victim”), -114(4) (“A victim
of the offense was particularly vulnerable because of age or physical or mental disability”),
-114(6) (“The personal injuries inflicted upon . . . the victim [were] particularly great”), -
114(7) (“The offense . . . was committed to gratify the defendant’s desire for pleasure or
excitement”), and -114(14) (“The defendant abused a position of public or private trust . . .
in a manner that significantly facilitated the commission or the fulfillment of the offense”).

                                              -4-
The court found that factor (4) applied because it concluded that based on the court’s own
personal experience in raising children and stepchildren, ten- and eleven-year-old children
were particularly more vulnerable than twelve and thirteen year olds. Regarding factor (6),
the court stated that although only one victim impact statement was submitted, the victims
had to live with the rapes for the remainder of their lives. The court acknowledged that no
proof was presented regarding the victims’ physical and mental injuries but stated “we’ve all
seen it in prior cases . . . and I just think we can all note that anybody [who is] a victim of a
violent sexual assault carries a heavy burden their entire life[.]” The court found that factor
(6) applied based on the victim impact statement. The court noted that it had seen cases in
which victims of sexual assault could not form relationships and used drugs to forget the
abuse. The court stated that factor (14) applied because the Defendant met the victims when
acting as a youth minister and the victims trusted him due to his church affiliation.

        The trial court found that the time span of the Defendant’s undetected sexual activity
with the victims was from January 2009 to June 2009, which was “quite . . . some time.”
Regarding the nature and scope of the of the sexual conduct, the court found that anal and
oral intercourse were involved. Regarding the extent of the residual, physical, and mental
damage to the victims, the court stated “that you don’t have to sit in my position to know the
damage that this type of activity causes to the youth of our country[.]”

        The trial court stated that although the Defendant was young, his life was over
regardless of whether it sentenced him to twenty-five or 225 years. The court said it was no
longer interested in the Defendant’s life and wanted to protect the children and the public
from the Defendant. The court noted that sentencing the Defendant to twenty-five years
would send a message to potential defendants that the penalty for twenty rapes was the same
for one rape. The court stated that it intended for the Defendant to remain in confinement
for the remainder of his life. This appeal followed.

        The Defendant contends that his effective 225-year sentence violates the Eighth
Amendment to the United States Constitution and article I, section 16 of the Tennessee
Constitution. He argues that he was seventeen years old when the offenses were committed
and that pursuant to Graham v. Florida, 540 U.S. 48, 130 S. Ct. 2011 (2010), his sentence
is the equivalent of life imprisonment without the possibility of parole in violation of the
federal and state constitutions. The State responds that the Defendant’s effective sentence
does not violate the the United States or Tennessee Constitutions. We agree with the State.

       The Eighth Amendment to the United States Constitution and article I, section 16 of
the Tennessee Constitution state, “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; Tenn.
Const. art. 1, § 16. The Supreme Court has concluded that “[t]he concept of proportionality

                                               -5-
is central to the Eighth Amendment,” and the “ban on cruel and unusual punishments
[embodies] ‘the precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.’” Graham, 130 S. Ct. at 2021 (quoting Weems v. United States,
217 U.S. 349, 376 (1910)). Before Graham, the Court reviewed proportionality of
sentencing based on two classifications, challenges to the length of term-of-years sentences
and categorical restrictions on the death penalty. Id.

        Under the length of term-of-years sentence classification, courts determine if
sentences are excessive by comparing the gravity and severity of the offense. Id. at 2021-22
(citing Harmelin v. Michigan, 501 U.S. 957 (1991)). If a court determines a sentence is
grossly disproportionate, “the court should . . . compare the . . . sentence with the sentences
received by other offenders in the same jurisdiction and with the sentences imposed for the
same crime in other jurisdictions.” Id. at 2022. If the comparison confirms the court’s
conclusion that the sentence is disproportionate, the sentence is cruel and unusual. Id.

        Under the application of categorical restrictions in death penalty cases, the focus is
the nature of the offense and the characteristics of the defendant. This approach considers
“‘objective indicia of society’s standards, as expressed in legislative enactments and state
practice’ to determine whether there is a national consensus against the sentencing practice
at issue.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 572 (2005)). The Supreme Court
applied the categorical approach in Graham, which challenged a term-of-years sentence. The
Court concluded that life imprisonment without the possibility of parole was cruel and
unusual punishment when imposed against juvenile offenders convicted of offenses that do
not involve homicides.

        Tennessee courts are charged with applying a three-pronged test when determining
if a particular punishment is cruel and unusual for a capital offense. Our supreme court has
concluded that the inquiry involves asking “[f]irst, does the punishment for the crime
conform with contemporary standards of decency? Second, is the punishment grossly
disproportionate to the offense? Third, does the punishment go beyond what is necessary to
accomplish any legitimate penological objective?” State v. Black, 813 S.W.2d 166, 189
(Tenn. 1991) (quoting State v. Ramseur, 524 A.2d 188, 210 (N.J. 1878)). Our supreme court
adopted the proportionality test delineated in Harmelin, for determining if sentences in
noncapital cases are cruel and unusual. The court said,

       [T]he sentence imposed is initially compared with the crime committed.
       Unless this threshold comparison leads to an inference of gross
       disproportionality, the inquiry ends – the sentence is constitutional. In those
       rare cases where this inference does arise, the analysis proceeds by comparing
       (1) the sentences imposed on other criminals in the same jurisdiction, and (2)

                                              -6-
       the sentences imposed for commission of the same crime in other jurisdictions.


State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992). Regarding noncapital cases, the
Supreme Court acknowledged that successful challenges to the proportionality of sentences
would be rare. See Solem v. Helm, 463 U.S. 277, 289-90 (1983) (internal quotation omitted).

       In Graham, the sixteen-year-old defendant was prosecuted as an adult for armed
burglary and attempt to commit armed robbery. Id. at 2018. He was sentenced to probation
but violated the conditions of his release, and the trial court sentenced him to life
imprisonment for armed burglary and fifteen years for attempted robbery. Florida no longer
provided parole to its offenders, which gave the defendant no opportunity for release, except
executive clemency. The Supreme Court concluded that the sentence was cruel and unusual
and stated that

       [a] State is not required to guarantee eventual freedom to a juvenile offender
       convicted of a nonhomicide crime. What the Sate must do, however, is give
       defendants . . . [a] meaningful opportunity to obtain release based on
       demonstrated maturity and rehabilitation. . . . [W]hile the Eighth Amendment
       forbids a State from imposing life without parole . . . on a juvenile
       nonhomicide offender, it does not require a State to release that offender
       during his natural life. Those who commit truly horrifying crimes as juveniles
       may turn out to be irredeemable, and thus deserving of incarceration for the
       duration of their lives. The Eighth Amendment does not foreclose the
       possibility that persons convicted of nonhomicide crimes committed before
       adulthood will remain behind bars for life. It does forbid States from making
       the judgment at the outset that those offenders never will be fit to reenter
       society.

Id. at 2030. The Court emphasized that Graham concerned “only those juvenile offenders
sentenced to life without parole solely for a nonhomicide offense.” Id. at 2030, 2052 n.11
(Thomas, J., dissenting) (noting that the majority’s analysis excluded “all juveniles sentenced
to lengthy term-of-years sentences”).           Likewise, state and federal courts have
overwhelmingly refused to extend Graham to juvenile offenders who were not sentenced to
life without the possibility of parole but nonetheless received lengthy sentences that might
prevent their release. See Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012) (concluding that
Graham “did not clearly establish that consecutive, fixed-term sentences for juveniles who
commit multiple nonhomicide offenses are unconstitutional when they amount to the . . .
equivalent of life without parole”), cert. denied sub nom Bunch v. Bobby, — U.S. —, 133 S.
Ct. 1996 (2013); see also Middleton v. State, 721 S.E.2d 111 (Ga. Ct. App. 2011)

                                              -7-
(concluding that Graham did not apply to an aggregate sentence of thirty years without
parole for armed robbery, two counts of aggravated assault, kidnapping, theft, and sexual
assault), cert denied, — U.S. —, 133 S. Ct. 867 (2013); Angel v. Commonwealth, 704 S.E.2d
386, 402 (Va. 2011) (concluding that Graham did not apply to a sixteen-year-old defendant
who was sentenced to three terms of life imprisonment for sex-related offenses when the
relevant statute provided for conditional release at the age of sixty), cert denied, — U.S. —,
132 S. Ct. 344 (2011). Compare People v. Mendez, 114 Cal. Rptr. 3d 870, 883-84 (Cal. Ct.
App. Sept. 1, 2010) (concluding that a sixteen-year-old defendant’s sentence of eighty-four
years to life imprisonment for a violent, nonhomicide offense violated the Eighth
Amendment under the traditional proportionality review and rejecting Graham because it
applied only to juveniles sentenced to life without parole), with People v. Caballero, 282
P.3d 291 (Cal. 2012) (concluding that Graham applied to a fourteen-year-old defendant’s
sentence of 110-years to life imprisonment for attempt to commit murder).

        The Defendant fails to present an argument that his sentence is grossly
disproportionate under the terms-of-years approach or that his sentence violates Graham’s
categorical approach. Although the Defendant’s effective 225-year sentence is the equivalent
of life imprisonment, the sentence does not violate Graham’s specific holding because he
was not sentenced to life imprisonment without the possibility of parole. We conclude that
Graham applies only to juveniles sentenced to life imprisonment without the possibility of
parole for nonhomicide offenses and that the Defendant is not entitled to relief on this basis.

        The Defendant also contends that his effective sentence is excessive and “is not the
least severe measure available to achieve the purpose for which the sentence is imposed.”
The State responds that the trial court did not abuse its discretion. We conclude that although
consecutive sentencing is permitted, the Defendant’s effective 225-year sentence violates the
purposes and principles of sentencing. We reverse the judgments and remand for entry of
judgments reflecting a fifty-year sentence.

       The Tennessee Supreme Court adopted the present standard of review for sentencing
in State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). The length of a sentence “within the
appropriate statutory range [is] to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” Id. at 708. In determining the proper sentence, the trial
court must consider: (1) any evidence received at the trial and 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, (5) any mitigating or
statutory enhancement factors, (6) statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee, (7) any
statement that the defendant made on his own behalf, and (8) the potential for rehabilitation



                                              -8-
or treatment. T.C.A. §§ 40-35-102, -103, -210 (2010); see State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We must apply
“a presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. “[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.” Id. at 706. “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.” Id.

        The determination of concurrent or consecutive sentences is a matter left to the
discretion of the trial court and should not be disturbed on appeal absent an abuse of
discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b) (2010), which
states, in relevant part, that the court may order sentences to run consecutively if it finds by
a preponderance of the evidence that:

       (5) The defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and . . . victims, the time
       span of the defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       . . . victims[.]

       We conclude that the trial court properly applied 40-35-115(b)(5) in ordering
consecutive sentencing but that the Defendant’s effective 225-year sentence violates the
purposes and principles of our sentencing statutes. In addition to satisfying one criteria in
Code section 40-35-115(b), a consecutive sentence must comply with the general sentencing
principles that a sentence be deserved in relation to the seriousness of the offense, be no
greater than that deserved for the offense committed, and be the least severe measure
necessary to achieve the purposes for which the sentence was imposed. See T.C.A. §§ 40-35-
102(1), -103(2), -103(4) (2010); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

       In David Lamar Hayes, the defendant was convicted of thirteen counts of rape of a
child and seven counts of rape and received an effective 220-year sentence. State v. David
Lamar Hayes, No. M2002-01331-CCA-R3-CD (Tenn. Crim. App. Aug. 9, 2004). The
defendant was thirty-seven years old at the sentencing hearing and had no previous criminal

                                              -9-
history. The abuse involved one victim and occurred over a ten-month period while the
defendant lived with the victim and her mother. This court reduced the sentence to sixty-six
years because the effective sentence was greater than that deserved, failed to reflect the least
severe measure necessary to achieve the purposes of sentencing, and created an unjustified
disparity in sentencing. Id., slip op. at 11. The court stated,

       Ordinarily this court does not reduce an effective sentence when consecutive
       sentencing is justified. In most instances, it is well within the discretion of the
       trial court to determine which sentences should run consecutively. However,
       we believe this particular effective sentence of 220 years far exceeds that
       allowed under our sentencing principles.

Id., slip op. at 12. Likewise, we conclude that the Defendant’s sentence exceeds that allowed
under the purposes and principles of sentencing. The effective 225-year sentence is not the
least severe measure necessary to protect the victims and the public from the Defendant’s
future criminal conduct and fails to reflect the Defendant’s potential for rehabilitation. We
note the trial court commented that although the Defendant was young, his life was over
regardless of whether it sentenced him to twenty-five or 225 years. We also note the court
stated that the Defendant would not be alive after a twenty-five-year sentence, although the
record shows the Defendant would have been in his mid- to late-forties after twenty-five
years. These comments indicate the lack of a need for the 225-year sentence. We conclude
that two consecutive terms of twenty-five years complies with the purposes and principles
of sentencing that the Defendant’s sentence be the least severe measure necessary to protect
the victims and the public from the Defendant’s future criminal conduct, bears some
relationship to his potential for rehabilitation, is deserved in relation to the seriousness of the
offense, and is no greater than that deserved for the offense committed.

        At the sentencing hearing, the probation officer could not determine when any of the
acts of abuse occurred other than the six-month time frame listed in the indictment. Counsel
argued that the discovery materials contained evidence that the acts of abuse involving the
two victims who were brothers occurred on the same day, and no evidence or argument was
presented showing otherwise. Although the trial court did not address the discovery at the
hearing, the record suggests that the six-month time frame listed in the indictment might be
misleading regarding two of the three victims. We note that this factor has been applied in
cases involving greater lengths of time. See, e.g., State v. Brown, 373 S.W.3d 565, 568
(Tenn. Crim. App. 2011) (alleging sexual abuse spanning seven years); see also Frank
Crittenden v. Charles Jones, Warden, ex rel. State of Tennessee, No. 03C01-9707-CC-00315
(Tenn. Crim. App. Sept. 9, 1998) (alleging sexual abuse spanning ten years). We note,
though, that a six-month time frame does not bar the imposition of consecutive sentences.



                                               -10-
See David Lamar Hayes, slip op. 1 (consecutive sentences permitted for abuse spanning ten
months).

        Although we agree with the trial court’s finding enhancement factors (3), (7), and (14)
applied, the court’s application of enhancement factors (4) and (6) in relation to the residual,
physical and mental damage suffered by the victims is more problematic. The trial judge
improperly relied on his own experience as a judge and father in applying enhancement
factors (4) and (6). See T.C.A. § 40-35-114(4), (6). A trial court must only consider
“evidence in the record of the trial, the sentencing hearing, the presentence report and the
record of prior felony convictions filed by the district attorney general with the court.” Id.
§ 40-35-210(f) (2010); see State v. Hooper, 39 S.W.3d 1, 12 (Tenn. 2001); State v. Nunley,
22 S.W.3d 282, 288 (Tenn. Crim. App. 1999). No evidence was presented that the victims,
ages ten and eleven, were particularly vulnerable compared to other twelve- and thirteen-
year-old children. Likewise, no evidence was presented that the personal injuries inflicted
upon the victims were particularly great. Although one victim impact statement was
submitted to the court showing that the victim was angry about the abuse and was receiving
counseling, the trial judge stated that rape victims had future difficulty forming relationships
and routinely used drugs to forget the abuse. A court’s general observations that ten- and
eleven-year-old children are more vulnerable than twelve- and thirteen-year-old children and
that rape victims have difficulty forming relationships and routinely use drugs to forget the
abuse “cannot serve as a substitute for factual findings containing comparisons” based on
evidence presented at sentencing. See State v. Fields, 40 S.W.3d 435, 442 (Tenn. 2001). The
court noted that no evidence was presented of the victims’ physical injuries.

        Regarding the nature and scope of the offenses, we note that the record does not
include the Defendant’s confession or the transcript of the suppression hearing, which were
incorporated into the factual basis supporting the Defendant’s guilty pleas. The record
contained three affidavits of complaint. The affidavit of complaint from the eleven-year-old
victim states that the Defendant performed oral sex on the victim twice, that the victim
performed oral sex on the Defendant once, and that the Defendant placed his penis inside the
victim’s anus. The affidavit of complaint from the second eleven-year-old victim states that
the victim performed oral sex on the Defendant twice and that the Defendant placed his penis
inside the victim’s anus. The affidavit of compliant regarding the ten-year-old victim states
that the victim performed oral sex on the Defendant once and that the Defendant placed his
penis inside the victim’s anus. The trial court noted that the Defendant’s confession
“matched” the victims’ allegations. We conclude that the State did not show that the rapes
were more egregious or extreme than other child rapes and that a 225-year sentence is not
justified.




                                              -11-
       Although the trial court erroneously applied enhancement factors (4) and (6), the court
properly applied enhancement factors (3), (7), and (14), which support the imposition of
consecutive sentences pursuant to Code section 40-35-115(b)(5). Likewise, the Defendant
knew the victims for one year and was their youth minister. The Defendant used that
position of trust to accomplish the sexual abuse. We note that the victim impact statement
submitted to the court reflects that one of the victims never suspected that a youth minister
would be capable of such conduct. Although the record reflects that the abuse occurred
between January and June 2009, the record also reflects that the abuse suffered by the two
victims who were brothers occurred on the same day. The record reflects that the victims,
ages ten and eleven, suffered anal penetration by the Defendant, that they performed oral sex
on the Defendant, and that the Defendant performed oral sex on them. As a result of the
abuse, the victims received counseling, although evidence of long-term impact was not
presented at the sentencing hearing. For these reasons, we conclude that two consecutive
twenty-five-year sentences are appropriate and comply with the purposes and principles of
our Sentencing Act.

       In consideration of the foregoing and the record as a whole, we reverse the trial
court’s judgments and remand the case for entry of judgments reflecting an effective fifty-
year sentence. The twenty-five-year sentences for rape of a child in counts 1 and 5 of the
indictment shall be served consecutively, and the remaining sentences shall be served
concurrently, for an effective fifty-year sentence.




                                           ___________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -12-
