         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                       Remanded by Supreme Court April 22, 2004

          STATE OF TENNESSEE v. ROBERT JAMES YORECK, III

                   Appeal from the Circuit Court for Montgomery County
                   Nos. 38639 & 40000069    John H. Gasaway, III, Judge



                     No. M2004-01289-CCA-RM-CD - Filed June 29, 2004


This case presents an appeal to this court after remand by order of the Tennessee Supreme Court.
The Appellant, Robert James Yoreck, III, pled guilty to aggravated assault, a class C felony.
Following a sentencing hearing, the trial court sentenced Yoreck, as a Range II multiple offender,
to nine years in the Department of Correction. On appeal, Yoreck argues that his sentence was
excessive. After a review of the record, we affirm the sentence as imposed by the Montgomery
County Circuit Court

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT
WILLIAMS, J.J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Robert James Yoreck, III..

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.
Bledsoe, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen
Young, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                    OPINION ON REMAND

                                       Factual Background

        On February 7, 1999, the Appellant and the victim, Christy Shockey, were at the laundry mat
in the victim’s apartment complex. A conversation ensued, and the Appellant indicated that he was
“waiting for a friend to pick [him] up.” The victim offered to give the Appellant a ride, and he
accepted. The Appellant then gave directions, which led to a dead-end road. The Appellant put the
car in park, snatched the car keys, and attempted to pull the victim out of the passenger side of the
vehicle. The Appellant got out of the car, “opened the driver’s side door and pulled [the victim] out
onto the ground.” The victim was then raped by the Appellant.
        On April 8, 1997, the Appellant was indicted for rape in violation of Tennessee Code
Annotated section 39-13-503 (2003). Pursuant to a negotiated plea agreement, the Appellant pled
guilty to aggravated assault as a Range II multiple offender. At the conclusion of the sentencing
hearing, the trial court imposed a nine-year sentence and further ordered that this sentence be served
consecutively to a prior four-year sentence for robbery.1 This appeal followed.

                                                   ANALYSIS

        The Appellant argues that his nine-year sentence as imposed by the trial court was excessive.
He contends that the trial court failed to apply appropriate mitigating factors and improperly applied
or weighed enhancement factors. When an accused challenges the length, range, or the manner of
service of a sentence, this court has a duty to conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances.” Ashby, 823 S.W.2d at 169. When conducting a de novo
review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the
sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any
statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his own
behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§
40-35-102, -103, -210 (2003); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts
relevant to sentencing must be established by a preponderance of the evidence and not beyond a
reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945
S.W.2d 93, 96 (Tenn. 1997)).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W4.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness. Because the trial court did not fully comply with sentencing
principles, our review is de novo.

        In determining the Appellant’s sentence, the trial court applied the following enhancement
factors: (1) The Appellant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range; (7) The offense involved a victim and
was committed to gratify the Appellant’s desire for pleasure or excitement; (8) The Appellant has
a previous history of unwillingness to comply with the conditions of a sentence involving release


         1
         On August 7, 1997, the Appellant was sentenced to four years of supervised probation for a robbery conviction.
His probated sentence was revoked based upon his conviction for the present offense.

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into the community; and (13) The felony was committed while on probation for a prior felony
conviction. Tenn. Code Ann. § 40-35-114(1), (7), (8), (13) (1997).2

        Regarding enhancement factors, we find that the trial court properly applied enhancement
factors (1), (8), and (13). In addition to the two offenses necessary to establish the Appellant as a
Range II multiple offender, his criminal history includes convictions in Tennessee for evading arrest,
leaving the scene of an accident, drug possession, and patronizing prostitution and a conviction in
Georgia for aggravated sodomy. The pre-sentence report reflects that all of the above-listed offenses
and the present offense were committed while the Appellant was on probation for robbery.3 See
State v. Jeffrey English, No. M1999-02495-CCA-R3-CD (Tenn. Crim. App. at Nashville, Nov. 22,
2000) (citing State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995)) (defendant being
sentenced for series of offenses committed over time while on probation could be viewed, for
sentencing for most recent offenses, as having proven previous history of unwillingness to abide by
community release conditions by virtue of earlier offenses for which sentencing is to occur). Thus,
application of enhancement factors (1), (8), and (13) was proper. See id. (citing State v. Anderson,
985 S.W.2d 9, 20 (Tenn. Crim. App. 1997) (enhancement based on factors (8) and (13) does not
unfairly enhance defendant’s sentence twice for same conduct).

         However, we find the trial court’s application of enhancement factor (7), i.e., the offense
involved a victim and was committed to gratify the Appellant’s desire for pleasure or excitement,
improper. Enhancement factor (7) calls into question an appellant’s motive for committing a crime.
State v. Kissinger, 922 S.W.2d 482, 491 (Tenn. 1996); see also State v. Arnett, 49 S.W.3d 250, 261-
62 (Tenn. 2001). “Human motivation is a tangled web, always complex and multifaceted.”
Kissinger, 922 S.W.2d at 491. Proving an appellant’s motive will always be a difficult task. Id.
“But the legislature . . . has placed that obligation on the State when the state seeks an enhanced
sentence.” Id. This court has often held that this factor does not apply when no proof exists that the
offense was committed to gratify the Appellant’s desire for pleasure or excitement above and beyond
that inherent in the act of rape itself. See, e.g., State v. Jody Lane Orr, No. W2001-02075-CCA-R3-
CD (Tenn. Crim. App. at Jackson, Nov. 27, 2002), perm. to appeal denied, (Tenn. 2003). The trial
court found that this factor applied because the Appellant was convicted of aggravated assault rather
than rape. The nature of the act was not changed by the Appellant’s plea to a lesser offense. The
State failed to provide additional objective evidence of the Appellant’s motivation to seek pleasure
or excitement through sexual assault. Arnett, 49 S.W.3d at 262. Accordingly, the trial court
improperly applied this factor.

        With respect to mitigating proof, the Appellant, who was twenty-two years old at the time
of the commission of the present offense, contends that the trial court erred by not applying the
following mitigating factors: (6) The Appellant, because of youth or old age, lacked substantial

         2
        W e note that, because of recent renumbering of the enhancements factors under this section, the correct
enhancement numbers are now (2), (9), and (14). See Tenn. Code Ann. § 40-35-114 (2003).

         3
          Probation violation warrants were issued against the Appellant for several of these new offenses. As a result
of his admission to evading arrest, he was ordered to serve an additional 140 days in confinement.

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judgment in committing the offense and (8) The Appellant was suffering from a mental or physical
condition that significantly reduced the Appellant’s culpability for the offense. Tenn. Code Ann. §
40-35-113(6), (8) (2003). Relying on these factors, the Appellant contends that his sentence should
be mitigated based upon the following:

               Mr. Yoreck can’t pass a G.E.D. test. He dropped out of high school because
       of learning disabilities. As a child, Mr. Yoreck was hyperactive, learning disabled
       and a “wild child.” Meds didn’t help. An absent father, led to Juvenile Court and
       legal problems ever since. . . .

               . . . [T]he trial court found that there were mental issues, but they did not
       directly apply to the facts of this case. As noted above, Mr. Yoreck had such
       emotional issues as a youth that Ritalin and other medications did not ease the
       problem. Age didn’t ease the problem. . . . [T]his should qualify as a mitigator
       because it is a continuing mental stressor, even though it does not eliminate the
       wrongfulness of Mr. Yoreck’s crime.

The trial court declined to apply mitigating factors (6) and (8), finding that:

               As far as mitigating factors are concerned, under 40-35-113 the Court rejects
       the Defendant’s contention that his youth had anything to do with the commission of
       this offense. There’s been no evidence to suggest that.

               And being 21 or 22 does not mean that you don’t have sense enough to know
       the difference between right or wrong - - right and wrong, especially when it comes
       to an act of violence against the person of another.

               The Defendant also contends under subsection - - well, the Defendant did cite
       subsection eight, but the Defendant talked about the mental condition of the
       Defendant. Again, there’s no evidence - - while there may be evidence that he’s had
       some mental problems as a child and even continuing through adulthood there’s
       nothing to indicate that a mental condition had anything to do with the commission
       of this offense.

        The application of mitigating factor (6) is not determined simply by the chronological age
of the offender but, rather, upon the offender’s “youth in context” of various pertinent circumstances
tending to demonstrate his or her ability or inability to appreciate the nature of his or her conduct.
State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). In determining whether the sentence should have
been mitigated because the Appellant lacked substantial judgment because of his youth, “courts
should consider the concept of youth in context, i.e., the defendant’s age, education, maturity,
experience, mental capacity or development, and any other pertinent circumstance tending to
demonstrate the defendant's ability or inability to appreciate the nature of his conduct.” State v.
Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995) (quoting Adams, 864 S.W.2d at 33). As has


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been observed, “youth is more than a chronological fact.” Eddings v. Oklahoma, 455 U.S. 104, 102
S. Ct. 869, 877 (1982). This is not the Appellant’s first contact with the law as evidenced by his prior
convictions. We think the trial court acted within its prerogative in determining that the Appellant
was sufficiently mature to understand the nature of his conduct.

        The burden of proving applicable mitigating factors rests upon the Appellant. State v. Joshua
Aaron Roush, No. E2002-00313-CCA-R3-CD (Tenn. Crim. App. at Jackson, Feb. 18, 2003), perm.
to appeal denied, (Tenn. 2003). Therefore, while Tennessee Code Annotated section 40-35-113(8)
allows a court to consider any mental condition that significantly reduced the Appellant’s culpability,
the Appellant must sufficiently establish not only the presence of a defect, but also a causal link
between his ailment and the offense charged. We agree with the trial court that the proof does not
support application of mitigating factor (8).

        Moreover, we are constrained to noted that the trial court found that the non-enumerated or
catch-all mitigator, Tennessee Code Annotated § 40-35-113 (13), applied because the Appellant pled
guilty “obviating the necessity to have a protracted trial.” A guilty plea does not automatically entitle
a defendant to mitigation. See Jeffrey English, No. M1999-02495-CCA-R3-CD. The Appellant’s
merely pleading guilty is not enough to justify mitigating his sentence. See State v. William Rhea
Jackson, No. M2002-02567-CCA-R3-CD (Tenn. Crim. App. at Nashville, Feb. 12, 2003), perm. to
appeal denied, (Tenn. 2003). In this case, the record does not indicate that the Appellant pled guilty
to spare the victim from further harm but rather only entered a plea out of his desire for a lesser
sentence.4 The legislative intent of this non-enumerated mitigator does not encompass such a
motivation for pleading guilty. Accordingly, we conclude that the trial court’s application of this
factor was improper.

        Aggravated assault, a class C felony, has an appropriate sentence range for a Range II
multiple offender of six to ten years. Tenn Code Ann. § 40-35-112(b)(3). The presumptive sentence
to be imposed by the trial court for a class C felony is the minimum sentence within the applicable
range unless there are enhancement or mitigating factors present. Tenn. Code Ann. § 40-35-210(c).
When there are enhancement factors and no mitigating factors, there is no presumptive sentence, and
the court may sentence above the minimum in the range. Tenn. Code. Ann. § 40-35-210(d).
Because we find that the trial court properly applied enhancement factors (1), (8), and (13) and no
mitigating factors were applicable, we conclude that the record supports the decision to enhance the
Appellant’s sentence. Therefore, we find that a sentence of nine years is appropriate.




        4
            At the sentencing hearing, the Appellant made the following statement:

                 Sometimes during our grand jury trial they don’t go the way you want them or the way the
        courts want them. So, I figured that and that’s why I - - that’s the reason that I took the plea I did
        today is because I didn’t - - I didn’t know how it was going to turn out, and I was afraid for that.

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                                        CONCLUSION

       Based upon the foregoing reasons, we find that a sentence of nine years was not excessive.
The sentencing decision of the Montgomery County Circuit Court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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