            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE


               STATE OF TENNESSEE v. DELBERT LEE HARRIS

                  Direct Appeal from the Circuit Court for Dickson County
                         No. CR3198, Robert E. Burch, Trial Judge



                    No. M1999-01239-CCA-R3-CD - Decided June 23, 2000




The defendant was convicted of rape, rape of a child, aggravated assault, and attempted sexual
battery. An effective sentence of thirty-two years at thirty percent was imposed. On direct appeal,
this court affirmed the convictions but remanded the case to the trial court for resentencing, finding
the trial court erred in imposing an erroneous release eligibility status. Upon resentencing, the trial
court imposed an effective sentence of thirty-two years at one hundred percent. The defendant now
complains that this sentence is excessive. After review, we affirm.

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

GLENN, J., delivered the opinion of the court, in which RILEY, J., and ACREE, SP.J., joined.

Jack L. Garton, Dickson, Tennessee, for the appellant, Delbert Lee Harris.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.
Ryan, Assistant Attorney General, Dan Mitchum Alsobrooks, District Attorney General, and Robert
Wilson, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, Delbert Lee Harris, was convicted of aggravated assault, rape, rape of a child,
and attempted sexual battery. The Dickson County Circuit Court imposed sentences of four years
for aggravated assault, ten years for rape, twenty-two years for rape of a child, and eleven months
and twenty-nine days for attempt to commit sexual battery. The sentence for rape was ordered to be
served consecutively to the sentence for rape of a child for an effective sentence of thirty-two years
at thirty percent.1 The defendant’s convictions were affirmed by a panel of this court. See State
v. Delbert Lee Harris, No. 01C01-9705-CC-00177, 1998 WL 670403 (Tenn. Crim. App., Nashville,
Sept. 30, 1998), perm. app. denied, concurring in results only (Tenn. Mar. 29, 1999).
Notwithstanding, this court found merit to the State’s argument that, statutorily, the defendant was
required to serve one hundred percent of the sentences for rape and rape of a child and remanded the
case to the trial court for resentencing. 2 Id. A new sentencing hearing was held on June 3, 1999,
during which the defendant was resentenced to an effective sentence of thirty-two years at one
hundred percent.

         The defendant now appeals the decision upon resentencing. Specifically, he contends that
the trial court’s imposition of a release eligibility date of one hundred percent results in an excessive
sentence and that the “imposition of consecutive sentences was improper.” After review, we affirm.

                                          BACKGROUND

       A complete statement of the facts of this case may be found in State v. Delbert Lee Harris,
1998 WL 670403, at *1-2. Paraphrasing from Judge Wade’s recitation of the facts in this court’s
previous opinion, the following factual background is provided:

        In the summer of 1995, the defendant and his wife, Diane, had been married for ten years.
Their union resulted in the birth of two children. Mrs. Harris had three children by a prior marriage,
including the thirteen-year-old victim. On September 17, 1995, at approximately 3:40 a.m., the
defendant woke the victim, directed her to an upstairs playroom, and began to remove her shorts.
Mrs. Harris awakened in time to see the defendant leading the victim up the stairs. As the victim’s
clothes were being removed, Mrs. Harris overheard the child’s cries and intervened. She “grabbed”
her daughter and called 911, reporting that her child had been molested and that the defendant had
“taken possession of a gun.” Mrs. Harris woke her seven-year-old daughter and was preparing to
leave the home with her two children. The defendant threatened to commit suicide and then
threatened his wife. The defendant told his wife, “You f----- up now,” then pointed the gun at her
chest. As he pulled the trigger, the bullet jammed. The defendant then went upstairs to get a second
gun. When the defendant left the room, Mrs. Harris and her two daughters left the house and hid
behind a playhouse in the front yard until the police arrived.

       Worried about her sons who were still in the house, Mrs. Harris looked through the outside
window to their bedroom. The boys were still asleep. When Mrs. Harris saw the defendant enter
the bedroom, she ran to the rear of the house to hide. Armed with a rifle, the defendant walked out


        1
        The defendant was further ordered to serve all sentences consecutively to a prior conviction
for which he was on probation at the time of the instant offenses.
        2
       Specifically, this court expressed concern that the trial court’s failure to consider Tenn. Code
Ann. § 39-13-523 (requiring multiple rapists or child rapists to serve entire sentence imposed
undiminished by credits) ultimately affected the effective thirty-two year sentence imposed. Id.

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of the residence calling for Mrs. Harris and her daughters, promising that he would not harm them
and that he just wanted to talk. The defendant fled to Maryland, but eventually returned to
Tennessee when he learned of the criminal warrants against him.

        The victim later told law enforcement officers that the defendant had touched her private
parts and had done so before. Upon examination by a doctor, the victim reported that the defendant
had forced her to engage in sexual intercourse in May of 1995. She also admitted to a second rape
on September 12, 1995.

                                 RESENTENCING HEARING

        At the resentencing hearing on June 3, 1999, the original presentence report was
reintroduced. The presentence report reveals that the defendant was forty years old at the time of
resentencing and has a prior criminal history consisting of five convictions for driving under the
influence. He had also entered a guilty plea to one count of aggravated sexual battery in 1992, for
which he received a probated sentence of three years. The instant offenses occurred before the
expiration of the probated sentence. The defendant admitted to the use of alcohol, marijuana, and
cocaine; however, he stated that his use had ceased prior to the commission of the instant offenses.
He has received treatment from Southridge Psychological Services for what he describes as “a
mental evolution.” The defendant’s work history reveals employment in the construction business
from September 1989 until August 1994, when he left his last job for health reasons. He was
honorably discharged from the United States Army after service from July 5, 1977 through
December 1, 1977.

         In a Victim’s Statement, Mrs. Harris revealed that “emotionally [she] will never be the same
again. [She] will always live in fear of his release.” She added that, “[t]his man stole a 12 year old
girl’s innocence. He abused the role of father and made her live through hell and in fear for about
6 months.” Regarding the defendant’s sentence, she commented, “Since castration is not an option,
I feel he should be given the maximum sentence for each count.”

       Based upon the evidence presented, the court found:

               The Court then is required to determine whether or not they are to be
               served consecutively. And the Court rules that counts two [rape] and
               three [rape of a child] be served consecutively and that counts one
               and four be served concurrently therewith.

               The Court finds that the defendant has committed two or more
               offenses involving sexual abuse of a minor, and that allows
               consecutive sentences to be handed down by the Court. . . .

               Well, the Court of Criminal Appeals has already . . . ruled that
               consecutive sentencing is appropriate in this case . . . and I heartily


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                concur. . . .

                It was remanded for reconsideration in determining if, under the one-
                hundred-percent sentencing as opposed to thirty percent, that these
                sentences are justified given the facts of the case, that an actual
                sentence of service is justified. And the Court rules that they are.


                                             ANALYSIS

         In contesting the excessive length of the sentence imposed by the trial court, the defendant’s
argument is limited to the consecutive nature of the sentences imposed in consideration of the
requirement that the sentences be served at one hundred percent. Specifically, he asserts that the trial
court failed to consider the mandates of State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995) and
State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987), requiring a finding that the “aggregate maximum
of consecutive terms must be reasonably related to the severity of the offense involved.”3

        Review, by this court, of the length, range, or manner of service of a sentence is de novo with
a presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-
401(d) (1997). The presumption is “conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The record reflects that the trial court considered the
same, thus, the presumption applies. Moreover, the defendant bears the burden of showing the
impropriety of the sentence imposed. Sentencing Commission Comments, Tenn. Code Ann. § 40-
35-401(d).

       Tennessee Code Annotated § 40-35-501(i) (Supp. 1999) provides:

               (1) There shall be no release eligibility for a person committing an
               offense, on or after July 1, 1995, that is enumerated in subdivision
               (2). Such person shall serve one hundred percent (100%) of the
               sentence imposed by the court less sentence credits earned and
               retained. . . .

               (2) The offenses to which the provisions of subdivision (1) apply are:



       3
        The State asserts that the defendant has waived any challenge to the excessive nature of the
sentences imposed for failure to support the issue by argument, citation to authorities, or appropriate
references to the record. Appellee’s brief at 8 (citing Tenn. Ct. Crim. App. R. 10(b)). Although we
concede that the defendant’s argument is minimal at best, we do not agree that the brief fails to
conform with the Rules of Appellate Procedure or the Rules of this court. Accordingly, we proceed
to address the issue raised on its merits.

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                ....

                        (G) Rape;

                        ....

                        (I) Rape of a child[.]


        Tennessee Code Annotated § 40-35-501(i)(3) adds:

                Nothing in this subsection shall be construed as affecting, amending
                or altering the provisions of § 39-13-523, which requires child rapists
                and multiple rapists to serve the entire sentence imposed by the court
                undiminished by any sentence reduction credits.

See also Tenn. Code Ann. § 39-13-523 (Supp. 1999) (multiple rapist or child rapist required to serve
entire sentence imposed by the court undiminished by any sentence reduction credits). The
imposition of one hundred percent service undiminished by sentence credits is not discretionary upon
the court; the classification is statutorily required. Accordingly, the trial court did not err by setting
service of the sentences for rape and rape of a child at one hundred percent.

         A trial court may impose consecutive sentences upon finding the existence of one of the
criteria in Tenn. Code Ann. § 40-35-115 (1997). In the present case, the trial court found that the
defendant “is convicted of two or more statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising from the relationship between the defendant
and the victim. . . .” See Tenn. Code Ann. § 40-35-115(b)(5). This court previously found the trial
court’s finding as to this factor supported by the evidence. Moreover, as advanced by the State, we
also find that the record supports a finding as to factor (6), that “the defendant is sentenced for an
offense committed while on probation.” See Tenn. Code Ann. § 40-35-115(b)(6). Once the trial
court finds the existence of one of the statutorily enumerated criterion, it is within the court’s
discretion whether to impose consecutive sentences. See State v. Black, 924 S.W.2d 912, 917
(Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1996).

        Notwithstanding the court’s discretion, the defendant argues that it was improper for the trial
court to order consecutive sentencing because, in light of the one hundred percent service,
consecutive sentences for the rape and the rape of a child convictions are not reasonably related to
the severity of the offenses. In support of his argument, the defendant relies upon the prior rulings
of our supreme court in Wilkerson and Taylor. The defendant’s argument is misplaced. Our
supreme court has recently limited the Wilkerson requirements of additional findings to those cases
involving dangerous offenders pursuant to Tenn. Code Ann. § 40-35-115(b)(4). See State v. Lane,
3 S.W.3d 456, 460-61 (Tenn. 1999). Thus, the trial court was not required to apply the Wilkerson
factors. Accordingly, the defendant is not entitled to relief on this issue.


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For these reasons, the sentence imposed by the trial court is affirmed.




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