        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 12, 2016 Session


                STATE OF TENNESSEE v. THOMAS A. ISBELL

                   Appeal from the Circuit Court for Maury County
                       No. 22225    Stella L. Hargrove, Judge




                 No. M2015-00587-CCA-R3-CD – Filed March 4, 2016
                         _____________________________

THOMAS T. WOODALL, P.J., concurring.

       I concur in all portions of the majority opinion except the conclusion that the trial
court did not violate the holding in Mitchell v. U.S., 526 U.S. 314 (1999). In Mitchell, the
Supreme Court held,

         By holding [the defendant’s] silence against her in determining the facts
         of the offense at the sentencing hearing, the [trial court] imposed an
         impermissible burden on the exercise of the constitutional right against
         compelled self-incrimination.

Id. at 330.

       As noted in the majority opinion, the trial court stated in open court when making
her sentencing decision:

         [I]t is this Court’s position that we never got the truth of what happened.
         We never got to the truth in this courtroom of what happened to baby
         [M.I.].

         ....

         We don’t know what happened, but we know two people who know what
         happened and that would be [Defendant] and the mother. The rest of us
         don’t know.

         ....
        And so we don’t know what happened, but [Defendant] does. I was
        hoping I might learn today, but I will not learn.

(emphasis added).

       I am simply unable to agree that the trial court merely commented on Defendant’s
failure to accept responsibility for the victim’s injury. The trial court stated that
Defendant refused to tell what happened, and not that Defendant refused to accept
responsibility for what happened. In my opinion the trial court violated the U.S. Supreme
Court’s holding in Mitchell.

       However, Defendant has still failed to show that he is entitled to plain error
review. He has failed to show that consideration of the error is required and necessary in
order to do substantial justice. State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).
Defendant received the minimum sentence for his conviction offense as a standard Range
I offender. He was not eligible for a sentence alternative that did not mandate total
incarceration. He was eligible to be considered for sentencing as an especially mitigated
offender. However, even though Defendant was eligible, the trial court acted completely
within its statutory discretion by not sentencing Defendant as an especially mitigated
offender. See State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Under Bise, Defendant’s
sentence as a standard offender is presumed reasonable. Id.

      Accordingly, I agree that Defendant is not entitled to plain error review.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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