                                                                                        05/05/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 14, 2016

        STATE OF TENNESSEE v. THOMAS ANTONIO RICKETTS

                Appeal from the Criminal Court for Davidson County
                  No. 2013-D-3323 J. Randall Wyatt, Jr., Judge
                     ___________________________________

                           No. M2016-00816-CCA-R3-CD
                       ___________________________________

The Defendant, Thomas Antonio Ricketts, entered guilty pleas in the Davidson County
Criminal Court to two counts of facilitation of aggravated child abuse and one count of
facilitation of aggravated child neglect. The trial court imposed concurrent ten-year
sentences for each count, to be served in confinement. On appeal, the Defendant argues
that his sentence was excessive and that the trial court erred in denying an alternative
sentence. Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR. and J. ROSS DYER, JJ., joined.

David A. Collins, Nashville, Tennessee, for the Defendant-Appellant, Thomas Antonio
Ricketts.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Jennifer Smith,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On December 2, 2013, the Defendant and his co-defendant, Ioka Kimbuke Kyles,
were indicted for six counts of aggravated child abuse and one count of aggravated child
neglect. The Defendant entered guilty pleas to the lesser included offenses of facilitation
of aggravated child abuse in counts one and five and facilitation of aggravated child
neglect in count seven. Counts two, three, four, and six were dismissed pursuant to a plea
agreement. The Defendant also agreed to be sentenced as a Range I, Standard Offender,
with a range of eight to twelve years for each conviction and with all counts to run
concurrently, leaving length and manner of service to be determined by the trial court.
        At the guilty plea hearing, the State summarized the facts surrounding the offenses
as follows:

       On July 18, 2013, the victim, who was 7-years-old at the time, was
       admitted to Vanderbilt Children’s Hospital with pain to his right arm. The
       doctors determined that he had a spiral fracture to that arm. It was also
       discovered that he had numerous bruises, abrasions, marks, scars, all over
       his entire body including pattern marks on his back.

       The victim’s weight was also severely low[,] and he was in less than the
       third percentile of his age. Both defendants were interviewed. Both
       defendants admitted to the time frame when the victim was in their
       exclusive care[,] and it was determined that the acute injuries that the
       victim had would have had to have occurred while he was in the
       defendants’ care.

       However, some of the older healing injuries could have been the result of
       something that might have happened by the biological mother. Both
       defendants stated that the victim’s arm was broken as the result of another
       sibling stepping on his arm. However, the Vanderbilt Care Team stated
       that this was not consistent with this type of fracture and all of the markings
       on the victim’s body were a concern for abuse.

       When confronted with the marks on the victim, the defendants first stated
       that the victim scratches himself and throws himself into a dresser when he
       is in the corner during time-out. When confronted with the markings that
       were all over the victim, they then stated that this was the result of a peanut
       butter allergy.

       The victim was interviewed by several people. Initially, he stated that his
       arm was broke because he slept on it wrong; and then he stated that his arm
       was broke because a sibling stepped on it; and then he stated that the marks
       on his body were the result of a peanut butter allergy. However, he later
       stated that it was both of the defendants that twisted his arm that caused his
       broken arm. He told the forensic interviewer that both defendants beat him
       with whips and switches all over his body.

       He told the forensic interviewer that he was made to stand in the corner all
       day without bathroom breaks and that when he peed on himself he would
       get punished. He told the forensic interviewer that he was denied food as
       punishment.
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       The roommate at the time, Jimmy Young, was interviewed by the police
       and he told the police that he heard the victim being spanked, for peeing on
       himself, during one specific time approximately 15 to 20 times with a belt,
       when he entered the room he saw defendant Kyles holding the victim down
       on the bed while defendant Ricketts was beating him with the victim’s face
       in the mattress. Mr. Young told the police that the victim was beat every
       single day. Mr. Young told the police that the victim was made to stand in
       the corner from when he got up in the morning until night time. He told the
       police that the victim was deprived food and water and he was the only
       child that was not allowed outside to play with the other kids.

       The neighbor, Mr. Stephen Willis, was also interviewed. He told the police
       that he saw the victim standing in the corner all day in his underwear. At
       one point, he saw the victim standing in the corner in his own filth[,] and he
       also stated that at one point the roommate, Jimmy Young, came over to his
       house and was in tears because of how the victim had been treated.

       All of this occurred here in Davidson County and based upon these facts
       the State recommends the previously announced disposition.

       The trial court accepted the Defendant’s guilty pleas and set the matter for
sentencing.

        Sentencing Hearing. At the March 31, 2016 sentencing hearing, the Defendant’s
presentence report was introduced without objection. The Defendant’s criminal history
includes seven convictions for driving with a suspended license or revoked license, two
convictions for domestic assault, one conviction for evading arrest, one conviction for
resisting arrest, and two simple assault convictions.

       Detective Kenney, a detective with the Youth Services division, testified that he
began an investigation of the Defendant and his co-defendant, Kyles, in July 2013, after
the victim was admitted to the hospital for arm pain. The victim’s arm had a lateral
condyle fracture, which commonly results from the arm being grabbed and forcibly
pulled toward the center of the body. The examination also revealed that the victim had
fresh and healing marks, scars, and lesions covering his face, neck, shoulders, back, hips,
buttocks, groin area, and legs. Detective Kenney identified multiple photographs of the
victim taken at the hospital on the day he was admitted and these photographs were
introduced as an exhibit. The victim was also diagnosed with a “failure to thrive”
because he was underweight and his weight had decreased since his last hospital visit one
year prior.

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        The victim initially told hospital staff that he had injured his arm by sleeping on it
wrong. The victim was then interviewed at the hospital by Department of Children’s
Services (“DCS”), and he disclosed that the Defendant had injured his arm by grabbing it
and twisting it. Detective Kenney testified that the victim “indicated that if he had to tell
the truth again that he would get beaten.” Detective Kenney interviewed the victim at the
hospital and recalled that he was “very distraught, very withdrawn, almost terrified.”

       Detective Kenney testified that the victim was later interviewed at the Children’s
Advocacy Center where he told the forensic interviewer that the Defendant had caused
his arm injury. The victim also told the forensic interviewer that the Defendant and
Kyles would force him to stand in a corner facing the wall for extended periods of time as
punishment for wetting himself and that if he left the corner or had an accident he would
be beaten. Detective Kenney took photographs of the corner where the victim was forced
to stand, and the photographs were admitted at the hearing. Detective Kenney testified
that the victim also told the forensic interviewer that he was often beaten by hand or with
a belt and was denied food and water while the other kids in the house played outside.
The victim told the interviewer that he was the only child in the household who received
physical discipline.

       Detective Kenney explained that, at the time of the incident, the victim was living
with his father, the Defendant, and the Defendant’s girlfriend, Kyles. Also living in the
home were the Defendant’s other minor son and a roommate, Jimmy Young. Detective
Kenney testified that the victim was originally in his mother’s custody but was removed
by DCS in 2012 due to truancy issues and “lack of stable housing and environmental
concerns.” The victim was then placed in the custody of his grandmother, the
Defendant’s mother, Thelma Pinkerton. In May 2013, the Defendant and Pinkerton
agreed that the victim and his brother would live with the Defendant during the summer.
Pinkerton told Detective Kenney that, when the victim went to live with the Defendant in
May 2013, he had no visible injuries other than minor scratches and a burn mark that had
possibly occurred while he was in his mother’s care.

        Detective Kenney interviewed the Defendant three times. The Defendant told
Detective Kenney that the victim’s arm injury occurred when the other kids in the
apartment jumped on his arm. When Detective Kenney asked the Defendant about the
marks and bruises on the victim’s body, the Defendant gave two different answers. In the
first interview, the Defendant claimed that the victim scratches himself and would
“bang[] his head on the wall and throw[] himself into the corner.” The Defendant
claimed that he had a video of the victim’s behavior and that the victim was getting help
for this behavior from Centerstone. Detective Kenney testified that he contacted
Centerstone and there was no record of the victim receiving treatment or medication for
this alleged behavior. Detective Kenney testified that he did not receive a copy of this
video.
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        In the second interview, the Defendant stated that some of the marks were caused
by a peanut butter allergy and that some of the marks were caused by the victim’s
mother. The Defendant also stated that he had a video of the victim’s mother beating the
victim. However, Detective Kenney testified that he did not receive a copy of this video.
The Defendant then stated that he reported the victim’s mother to DCS. Detective
Kenney testified that he contacted DCS and there was no record of a report by the
Defendant. The Defendant did admit to Detective Kenney that he made the victim stand
in the corner as “a form of punishment” but that he only stood in the corner for fifteen to
thirty minutes at a time.

       Jimmy Young testified that the Defendant and Kyles lived with him for about a
year in 2013. Young confirmed that the victim and six or seven other children lived in
the house during the summer of 2013. Young recalled seeing the Defendant beat the
victim with a belt while Kyles held him down and the other children watched. Young
also confirmed that the victim was sometimes forced to stand in the corner all day.
Young testified that the victim was allowed outside on the porch but was not allowed to
play with the other children.

       Stephen Willis testified that the Defendant and Kyles lived next door to him.
Willis recalled observing the victim standing in the bedroom with his nose in the corner.
Willis testified that the victim was alone in the house wearing only soiled underwear.
Willis offered the victim food and water, but the victim refused and said “[t]hey will hurt
me.” Willis testified that he observed this on at least four or five separate occasions over
a two-week period.

       The victim testified but could not recall the time around when his arm was broken
or earlier statements that he had made. The State introduced a recording of the forensic
interview, which the trial court later reviewed when taking the Defendant’s sentencing
under advisement.

       Thelma Pinkerton, the Defendant’s mother, testified that she currently had custody
of the Defendant’s two minor sons, T.R. and the victim. Pinkerton testified that the
victim was treated “bad” by his mother and that he suffered a burn on his leg while he
was in his mother’s care. Pinkerton testified that victim spent some time with his mother
during the summer of 2013, but to her knowledge the victim did not suffer any injuries
while he was with his mother. Pinkerton did not believe that the Defendant abused the
victim, and if the Defendant were released, she would allow the Defendant to visit the
victim.




                                               -5-
      T.R., the Defendant’s minor son, testified that he was looking forward to the
Defendant’s release and that he was not scared of the Defendant. He also testified that he
was not afraid of Kyles and that she would not hurt him or his brother.

       After hearing the proof and arguments from counsel, the trial court took the matter
under advisement to determine the appropriate length and manner of service for the
Defendant’s three convictions.1 On April 14, 2016, the trial court entered an order
sentencing the Defendant to ten-year sentences for each count and ordered that count
seven would run consecutively to counts one and five, for a total effective sentence of
twenty years’ incarceration. However, the trial court was unaware that the plea
agreement specified that the Defendant’s sentences would run concurrently. On April 15,
2016, the trial court entered an amended order stating that the Defendant’s sentences
would run concurrently, for a total effective sentence of ten years’ incarceration. It is
from this order that the Defendant now timely appeals.

                                             ANALYSIS

       On appeal, the Defendant challenges the length and manner of his sentence.
Specifically, he argues that his criminal history did not justify the length of his sentence
and the trial court should have ordered, “some form of alternative sentencing.” The State
argues that the trial court did not abuse its discretion by imposing a “within-range”
sentence or by ordering the Defendant to serve his sentence in confinement. We agree.

        We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, “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. “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.

        “[T]he 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 questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A
trial court must consider the following when determining a defendant’s specific sentence
and the appropriate combination of sentencing alternatives: (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

       1
           The Defendant did not make an allocution.
                                                       -6-
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in sections 40-35-113 and
40-35-114; (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 wishes to make in the defendant’s own behalf about sentencing. T.C.A. §§
40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation
or treatment of the defendant should be considered in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5). The court must
impose a sentence “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. §§ 40-35-103(2), (4).

        Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). In determining
whether to deny alternative sentencing and impose a sentence of total confinement, the
trial court should consider whether:

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

T.C.A. § 40-35-103(1)(A)-(C); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

       A defendant is eligible for probation if the actual sentence imposed upon the
defendant is ten years or less and the offense for which the defendant is sentenced is not
specifically excluded by statute. T.C.A. § 40-35-303(a). An especially mitigated or
standard offender convicted of a Class C, D, or E felony shall be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary. Id. § 40-35-102(6)(A). However, a trial court “shall consider, but is not bound
by, the advisory sentencing guideline” in Tennessee Code Annotated section 40-35-
102(6)(A). Id. § 40-35-102(6)(D). Despite a defendant’s eligibility, he or she is not
automatically entitled to probation as a matter of law. Id. § 40-35-303(b), Sentencing
Comm’n Cmts. Moreover, the defendant bears the burden of establishing her suitability
for probation. Id. § 40-35-303(b). “The abuse of discretion with a presumption of
reasonableness standard of review . . . also applies to a trial court’s decision to grant or
deny probation.” Caudle, 388 S.W.3d at 278-79.

                                                -7-
        As to the length of his sentence, the Defendant does not dispute his Range I,
Standard Offender status, which subjected him to a sentencing range of eight to twelve
years. Rather, the Defendant appears to argue that the trial court placed a “great
emphasis” on the Defendant’s criminal history, which consisted primarily of traffic
offenses. He also argues that the trial court “mischaracterized” his criminal record and
found that the Defendant had a “significant criminal history [by] citing two felony
convictions for aggravated assault that do not, in fact, exist.” As an initial mater, the
Defendant risks waiver of this issue because his brief and reply brief fails to address why
his ten-year sentence was improper and how the trial court abused its discretion. Waiver
notwithstanding, the record fully supports the trial court’s imposition of a ten-year
sentence. Here, the trial court did not “mischaracterize” the Defendant’s criminal history
and did not find that the Defendant had two prior convictions for aggravated assault. The
trial court found that the Defendant had a “significant criminal history, including two
convictions for assault, two convictions for domestic violence, and numerous convictions
for violating the driver’s license law, and several other miscellaneous convictions.” The
trial court also explicitly recognized “that all of [the Defendant’s] convictions are for
misdemeanors.”        Therefore, the Defendant’s argument that the trial court
“mischaracterized” his criminal history is without merit.

        In determining the appropriate length of the Defendant’s sentence, the trial court
also found that “[t]he defendant was a leader in the commission of an offense involving
two (2) or more criminal actors[,] . . . the Defendant treated the victim ‘with exceptional
cruelty’ in the commission of the offense[,] . . . and the personal injuries inflicted upon
the victim were particularly great.” See T.C.A. § 40-35-114 (2), (5), (6). The trial court
thoroughly considered the evidence presented at the sentencing hearing, including the
Defendant’s presentence report, the witnesses’ testimony, and the victim’s forensic
interview. Furthermore, after considering all the evidence, the trial court did not find any
mitigating factors. Because the record shows that the trial court carefully considered the
evidence, the enhancement and mitigating factors, and the purposes and principles of
sentencing prior to imposing a sentence of ten years, the Defendant has failed “to either
establish an abuse of discretion or otherwise overcome the presumption of reasonableness
afforded sentences which reflect a proper application of the purposes and principles of
our statutory scheme.” Caudle, 388 S.W.3d at 280. The Defendant is not entitled to
relief.

        Next, the Defendant argues that the trial court erred in denying the Defendant
“some form of alternative sentencing.” Again, the Defendant argues that the trial court
“mischaracterized” his criminal record and found that the Defendant had a “significant
criminal history” [by] citing two felony convictions for aggravated assault that do not, in
fact, exist.” The Defendant also argues that “measures less restrictive than confinement”
have not been “frequently or recently” applied. Specifically, the Defendant claims that
                                               -8-
although his diversion was revoked, he was only placed on diversion once, ten years ago,
and this does not support the trial court’s denial of an alternative sentence. As an initial
matter, because the Defendant was convicted of three Class B felonies, he is not
considered a favorable candidate for alternative sentencing. See T.C.A. § 40-35-
102(6)(A). We have already determined that the trial court did not “mischaracterize” the
Defendant’s criminal history. However, in addition to finding that “confinement [was]
necessary to protect society by restraining a defendant who has a long history of criminal
conduct,” the trial court also found that confinement was necessary to “avoid
depreciating the seriousness of the offense [and] confinement [was] particularly suited to
provide an effective deterrence to others likely to commit similar offenses.” T.C.A. § 40-
35-103(1)(A)-(B). The trial court determined that this was an “extremely serious offense
and that the sentence must reflect its severity.” The record shows that the trial court
properly considered these two factors in denying an alternative sentence.

        Finally, although the trial court did not include an analysis of whether less
restrictive means had been applied in the past, the Defendant’s presentence report shows
that the Defendant was granted diversion for one of his domestic violence convictions
and that his diversion was later revoked. Moreover, the trial court found that the two
remaining factors were established by the record, and “the trial court was only required
under the Sentencing Act to find one of the aforementioned reasons to properly confine
the Defendant.” State v. Christopher Allen, No. W2016-00505-CCA-R3-CD, 2017 WL
764552, at *4 (Tenn. Crim. App. Feb. 24, 2017), no perm. app. filed. The record shows
that the trial court properly relied on the Defendant’s criminal history, the seriousness of
the offense, and general deterrence in denying alternative sentencing. Accordingly, we
conclude that the Defendant has failed to show that the trial court’s decision was not
“based upon the purposes and principles of sentencing.” Caudle, 388 S.W.3d at 279.
The Defendant is not entitled to relief.

                                     CONCLUSON

       Upon review, we affirm the judgments of the trial court.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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