        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 11, 2012 Session

             STATE OF TENNESSEE v. DANIEL DAVID COLBY

                Direct Appeal from the Dickson County Circuit Court
                  No. 22CC2010CR260        Robert E. Burch, Judge




                 No. M2012-00261-CCA-R3-CD - Filed May 22, 2013


Defendant, Daniel David Colby, was charged in a presentment returned by the Dickson
County Grand Jury with two counts of rape of a child, a Class A felony. He subsequently
was allowed to plead guilty to two counts of aggravated sexual battery, a Class B felony, in
lieu of the greater offense of rape of a child. Defendant submitted to the trial court’s
determination the length and manner of service of the sentences following a hearing. The
trial court imposed the minimum sentence of eight (8) years for each conviction and ordered
the sentences to be served consecutively. In Defendant’s only issue on appeal, he argues that
the trial court erred by imposing consecutive sentencing. After a thorough review, we affirm
the sentences and the imposition of consecutive sentencing, but remand to the trial court for
entry of appropriate amended judgments which set forth all pretrial jail credits to which
Defendant may be entitled, and for correction to show the convictions are in Dickson County
rather than Anderson County.

                     Tenn. R. App. P. 3 Appeal as of Right;
Convictions and Sentencing Affirmed; Remanded for Entry of Amended Judgments

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.

E. Covington Johnston, Jr., Franklin, Tennessee, for the appellant, Daniel David Colby.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Dan Alsobrooks, District Attorney General; and Ray Couch, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                          OPINION

I. Background

       The female victim in both counts was three years old when the crimes were committed
between December 1, 2009 and February 28, 2010. Defendant, 30 years old at the time of
the offenses, was a “live-in” babysitter for the victim, her sibling, and occasionally another
child or two. The victim’s mother, with whom the victim resided, testified that she had
known Defendant for several years and that Defendant had “been in our family quite some
time [ ] through a friend of mine.” The victim’s mother first found out about Defendant’s
abuse of the victim when the victim complained that her “private area” hurt because
Defendant had “stuck his finger [ ] all the way in my hole.” She added that the victim, who
loved to take a bath prior to the sexual abuse, no longer “like[d] to take baths.” There was
no evidence that Defendant and the victim’s mother had a romantic relationship.

        Detective Stacy Patterson of the Dickson County Sheriff’s Department testified
regarding the statement given to her and signed by Defendant during the investigation. In
this statement, Defendant admitted that he was regularly babysitting the victim and her sister
beginning in December 2009. Defendant stated that on an occasion during that month he and
the victim “had been wrestling.” The three-year-old victim then sat in Defendant’s lap.
Defendant told Detective Patterson that the victim “rubbed her butt on my penis and I got
aroused.”

        Defendant stated that on an occasion in January 2010, the victim informed Defendant
that “she didn’t [wipe] her butt very well.” Defendant went to the bathroom where the victim
was, and “[wiped] [her] butt with toilet paper.” Defendant told Detective Patterson he stuck
his finger into the victim’s “butt because I was curious. I became sexually aroused. I went
into the other bathroom and masturbated.” Defendant also provided the details of an event
in February 2010, when he again “became aroused.” On this occasion he was helping the
victim get dressed. Defendant said he “stuck [his] pointer finger” into the victim’s vagina,
then went into the bathroom and masturbated.

       Rachel Riley Coe testified that she was an employee of the Tennessee Board of
Probation and Parole and that she prepared the presentence report, which was made an
exhibit. She testified that Defendant had one prior conviction for the misdemeanor offense
of reckless driving.

       Defendant did not testify at the sentencing hearing, but he did present the testimony
of his sister, Virginia Sharber. She stated that Defendant grew up with developmental
disabilities. Specifically, she testified that Defendant had “always been sort of to himself and

                                              -2-
quiet, very socially delayed, [developmentally] delayed, he’s been in special education.”
Defendant graduated from high school with “a special ED [sic] degree.” Ms. Sharber
testified that if she had children, she would allow Defendant to babysit them.

       Regarding the sole issue on appeal, the trial court imposed consecutive sentences
pursuant to Tennessee Code Annotated section 40-35-115(b)(5) which provides that a trial
court may order consecutive sentencing if it finds by a preponderance of the record 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
        victim or victims, the time span of 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 victim or victims;

Tenn. Code Ann. § 40-35-115(b)(5)

II. Analysis

       Consecutive Sentencing

       In his brief, Defendant argues that consecutive sentencing is not justified by any
provision of Tennessee Code Annotated section 40-35-115(b)(1)-(7), and specifically not
authorized by the subsection relied upon by the trial court. Defendant asserts that there was
no evidence that consecutive sentencing is necessary to protect society from future criminal
conduct of Defendant; that Defendant’s only prior criminal conviction is a misdemeanor
(reckless driving); that Defendant had developmental disabilities, and that there was no proof
of physical, mental, or emotional injury to the victim. Defendant cites State v. Imfield, 70
S.W.3d 698, 707 (Tenn. 2002) in support of his argument that the trial court should have
imposed concurrent sentencing. In that case, our supreme court noted that,

       In addition to the specific criteria in Tenn. Code Ann. [sic] § 40-35-115(b),
       consecutive sentencing is guided by the general sentencing principles
       providing that the length of a sentence be “justly deserved in relation to the
       seriousness of the offense” and “no greater than that deserved for the offense
       committed.” [Tenn. Code Ann.] §§ 40-35-102(1) and -103(2).

Imfield, 70 S.W.3d at 707 (footnote omitted).




                                             -3-
       As indicated by this court in State v. Blouvet, 965 S.W.2d 489 (Tenn. Crim. App.
1997), when the preponderance of the evidence shows that a factor(s) in Tennessee Code
Annotated section 40-35-115(b) is applicable, “[t]he determination of concurrent or
consecutive sentences is a matter left to the sole discretion of the trial court.” Blouvet, 965
S.W.2d at 495 (citing State v. James, 688 S.W.2d 463 (Tenn. Crim. App. 1984)).

      In concluding that consecutive sentencing should be imposed pursuant to Tennessee
Code Annotated section 40-35-115(b)(5), the trial court made the following factual findings:

              In this case the Court finds from the proof that there was a - the
       relationship between the defendant and victims [sic] was that of babysitter, a
       person who had absolute power, authority over these children. These children
       would be unable to protect themselves; and I say, “children,” child; and the
       child would be unable to protect herself and was totally under his control for
       a considerable period of time.

               The times factor was roughly three months that the - or possibly longer
       that the defendant’s activities were undetected; but they were subject to - under
       the indictment they were subject to his domination during that three month
       period of time.

               The nature and scope of the sexual acts were basically stated by
       Detective Patterson in her testimony in relating a statement by the defendant;
       and there is no reason for me to go into the details of that. It is obvious to say
       that [these] sexual acts were considerable.

              The extent of any residual, physical and mental damage has not been
       shown to be any physical damage. The mother testified to mental and
       emotional damaging affect it had upon the victim in this case and the Court
       finds that to be the case.

       Recently, addressing the standard of appellate review as to the length of a sentence,
our supreme court held in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012),

       In our view, [State v.] Carter [, 254 S.W.3d 335 (Tenn. 2008)] marked the
       beginning of this Court’s recognition that sentences should be reviewed under
       an abuse of discretion standard . . . . We hold, therefore, . . . the 2005
       amendments [to the Sentencing Act of 1989] also effectively abrogated the de
       novo standard of appellate review . . . . We adopt an abuse of discretion
       standard of review, granting presumption of reasonableness to within - range

                                              -4-
       sentencing decisions that reflect a proper application of the purposes and
       principles of our Sentencing Act.

Bise, 380 S.W.3d at 707.

       Subsequently, our supreme court adopted the same standard of review for a trial
court’s decision regarding the manner of service of a sentence in the context of whether
probation or some other form of alternative sentence was appropriate. State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). In Caudle, the supreme court recognized,

        As stated in Bise, “when the 2005 amendments vested the trial court with
        broad discretionary authority in the imposition of sentences, de novo
        appellate review and the ‘presumption of correctness’ ceased to be relevant.
        380 S.W.3d at 708.

Caudle, 388 S.W.3d at 279.

        Our review of the record confirms the factual findings of the trial court as to the basis
to order consecutive sentencing. We conclude that the holdings in Bise and Caudle equally
apply to decisions of whether to impose consecutive or concurrent sentencing. However,
even if review of whether the facts found to justify a ground for consecutive sentencing is
reviewed de novo with a presumption of correctness, then under either standard, the trial
court’s decision to impose consecutive sentencing should be affirmed. Defendant is not
entitled to relief on this issue.

       Judgments

        Defendant pled guilty on October 3, 2011, to aggravated sexual battery under each
count of the presentment. Judgments were entered on October 11, 2011, for each count,
reflecting the offenses occurred in Dickson County. Since the sentencing hearing was not
held until December 21, 2011, the October 11 judgments did not state the sentences imposed.
Also, the space to set forth Defendant’s pretrial jail credits was left blank on each judgment.
On January 6, 2012, amended judgments were filed, reflecting the sentencing decisions of
the trial court on December 21, 2011. However, for some reason, each of these amended
judgments lists Anderson County as the county where the offense was committed.
Furthermore, both of the amended judgments again have blank spaces for pretrial jail credits.

       Neither party has addressed the failure to provide for pretrial jail credits in the
judgments as amended. However, we note from our review of the record that Defendant was
arrested on the presentment on April 30, 2010, and bond was set at $150,000.00.

                                               -5-
Defendant’s counsel filed a motion to reduce bond on May 7, 2010, and it alleged that
Defendant had been unable to post bond in the amount of $150,000.00. On June 11, 2010,
an agreed order was entered reducing the bond to $50,000.00. No copy of any bond is in the
record. Furthermore, even if Defendant made bail in June 2010, by statute the trial court had
to revoke bail immediately upon conviction by guilty plea on October 3, 2011. See Tenn.
Code Ann. § 40-35-116. The presentence report reflects that Defendant was “currently
incarcerated” when that report was prepared. There is nothing in the record to indicate that
Defendant would have been incarcerated on any criminal charges other than the charges in
this case. A criminal defendant is clearly entitled to receive pretrial jail credits. Tenn. Code
Ann. § 40-23-101. It appears that Defendant in this case quite likely is entitled to receive
statutory jail credits but that through oversight, these credits were omitted from the
appropriate judgment. Accordingly, although we affirm the length and manner of
consecutive service of the sentences, we are compelled to remand this matter to the trial court
for a determination of the amount of statutory jail credits to which Defendant is entitled, if
any, and for amended judgments that correctly reflect statutory jail credits, and the
designation that the offenses occurred in Dickson County rather than Anderson County.

                                       CONCLUSION

        We affirm the convictions, the length of the sentences, and the order of consecutive
sentencing. However, we remand to the trial court for entry of amended judgments showing
that the offenses occurred in Dickson County, and for a determination and specification of
the amount of statutory jail credits to which Defendant is entitled.

                                            _______________________________________
                                            THOMAS T. WOODALL, JUDGE




                                              -6-
