                                                                                        10/16/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs June 27, 2017 at Knoxville

   STATE OF TENNESSEE v. STEPHEN ALEXANDER LYCZKOWSKI

                  Appeal from the Circuit Court for Maury County
                         No. 24677 David L. Allen, Judge
                     ___________________________________

                           No. M2016-02273-CCA-R3-CD
                       ___________________________________



The Defendant, Stephen Alexander Lyczkowski, entered a guilty plea in the Maury
County Circuit Court to domestic aggravated assault with the length of the sentence to be
determined by the trial court. Following a hearing, the trial court imposed a sentence of
ten years. On appeal, the sole issue presented for our review is whether the trial court
imposed an excessive sentence. The judgment of the trial court is affirmed.

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

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

Brandon E. White, Columbia, Tennessee, for the Defendant-Appellant, Stephen
Alexander Lyczkowski.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Brent A. Cooper, District Attorney General; and Dan J. Runde, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                          OPINION

        On September 22, 2016, the Defendant entered a guilty plea as a Range II,
multiple offender to domestic aggravated assault for stabbing the victim, his then-
girlfriend, Melissa Malone, in the ear with a pair of scissors. The terms of his plea
agreement required the Defendant to serve his sentence in confinement but reserved the
length of the sentence to be determined by the trial court after a hearing. The State also
agreed to run the Defendant’s five-year sentence in an unrelated case concurrently with
the sentence imposed in the instant case.1

       At the November 4, 2016 sentencing hearing, Officer Alicia Helton, an employee
of the Tennessee Department of Correction, testified that she prepared the Defendant’s
presentence report, which was admitted as an exhibit. The presentence report reflects the
Defendant’s criminal history in Tennessee as follows: aggravated assault, false
imprisonment, two misdemeanor drug possessions, and two misdemeanor domestic
assaults. It further showed that the Defendant’s probation had been previously revoked
and that he was on probation at the time of the instant offense. Officer Helton testified
that she also confirmed several Florida convictions referenced by the State in their notice
of intent to seek enhanced punishment. The Florida convictions were as follows:
possession of a controlled substance, felony battery, resisting arrest, sale of a controlled
substance, multiple convictions for possession of marijuana, and aggravated assault.

       Documents confirming that the Defendant attended and completed various
education classes in Florida were also included and referenced in the presentence report.
Defense counsel conceded that the Defendant was on probation for aggravated assault at
the time of the instant offense; however, defense counsel objected to the trial court’s
reliance on any other convictions submitted by the State because they were not provided
with certified copies of the convictions. The trial court sustained the Defendant’s
objection regarding the Florida convictions but overruled the objection with respect to the
Defendant’s Tennessee convictions. On cross-examination, Officer Helton confirmed
that the Defendant had received his general equivalency diploma and completed several
vocational classes.

       The victim’s mother testified that on October 10, 2015, she took her daughter to
the emergency room because the victim was having trouble breathing. The victim
suffered from a partially collapsed lung, bruising on her face from a prior altercation with
the Defendant, and blood was coming out of her left ear. A nurse suspected that the
victim had been beaten and called the police. The victim was later transferred to another

        1
           The record on appeal does not include the guilty plea hearing transcript. The judgment clearly
lists the Defendant as a Range II, multiple offender; however, the State claimed in its notice of intent to
seek enhanced punishment that the Defendant was in fact a Range III, persistent offender. Because there
is no transcript of the guilty plea hearing on appeal this court is unable to determine if the Defendant’s
offender status was reduced as part of his plea agreement. Nevertheless, the relevant testimony in this
case was presented at the sentencing hearing. Therefore, we conclude that the record is adequate for our
review. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (“[W]hen a record does not include a
transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-by-
case basis whether the record is sufficient for a meaningful review[.]”).

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hospital where she remained for five days. Shortly after being released from the hospital,
the victim was readmitted to another hospital and eventually placed on life support due to
“bleeding on [her] brain.” Several photographs taken of the victim in the hospital were
admitted into evidence.

       Asked what affect, if any, that this offense has had on her, the victim, and the
victim’s children, the victim’s mother replied,

              Well, [the victim] is always asking me why did God keep me alive.
       And I think part of the reason, and my belief is, so that she can make sure
       this doesn’t happen to another woman. She is number two it has happened
       to, you know.

       Defense counsel objected, and the State then admitted certified copies of the
judgments and the affidavits for two of the Defendant’s prior misdemeanor domestic
assault convictions. On January 20, 2012, the Defendant threatened to kill his parents
when they refused to give him money. The Defendant entered a guilty plea and was
ordered to attend domestic violence classes. A month later, on February 23, 2012, the
Defendant struck his father in the face with an open hand, threw his cell phone, and
placed him in a head-lock. The Defendant subsequently entered a guilty plea, which
required him to have no contact with his parents.2 Questioned further by defense counsel,
the State admitted into evidence all five certified copies of the Defendant’s Tennessee
judgments of conviction. The trial court overruled defense counsel’s objection.3

        The victim, age 38, testified that she met the Defendant in February 2015 and
began living with him in August 2015. She admitted that she had a drug problem and
that she and the Defendant were using heroin and methamphetamine. The victim said
that the Defendant had physically abused her eight or nine times prior to the instant
offense. In past altercations, she suffered several broken ribs, her teeth were knocked
out, she had been bitten, and she sustained black eyes. In regard to the instant case, the
victim said that she received a text message from another man “and the next thing [she
knew] [she was] being attacked because [she] apparently raised [her] voice.” The
Defendant “used his elbow and he would jump up and down to hit her in the sides and
       2
          The transcript from the hearing shows that the prosecutor was referring to these
convictions; however, exhibit numbers 6 and 7 reflect judgments for aggravated assault and false
imprisonment. Neither judgment in exhibit 6 or 7 references a victim or the circumstances of the
offense.
        3
          Later in the hearing, the court clerk testified in an attempt to authenticate certain
judgments and affidavits. Defense counsel objected to the affidavits, exhibits 8 and 9, and the
trial court admitted them for identification purposes only. However, the State had already
admitted these exhibits, as they were self-authenticating business records.
                                             -3-
ribs[.]” He struck her in the same fashion as a wrestler’s pile driver about ten times. The
Defendant then grabbed a pair of scissors, stabbed the victim in the ear, and bit her on the
right side of her back. The victim recalled that the Defendant gave her a bath “to get the
blood off of [her].” She awoke the next morning and told the Defendant she was going to
visit her children at her mother’s home.

       Regarding her injuries, the victim testified in large part consistently with her
mother. In addition, she explained that she had a blood clot, bruising, and bleeding on
her brain. A hole was drilled in her brain to relieve the pressure, and she eventually
succumbed to a coma. Following the attack, the victim also suffered from extreme post-
traumatic stress disorder, anxiety, and depression. She had to take two different anti-
depressants, medication to help her sleep due to her night terrors, and other anxiety
medication. She believed that the Defendant “dehumanized” her and “completely and
emotionally and physically broke [her].” The victim also received treatment from a
trauma counselor and extensive physical therapy.

      The Defendant provided the following statement:

       Your Honor, I would like to express remorse to [the victim], I’m sorry for
       what I have caused. It is all no – no excuses. I have been locked up 13
       months and I have had some time to think and I am going to do what I need
       to do when I go to prison. I am not saying give me the six, give me just
       eight, and I’m going to go, I am going to be in classes, take everything I
       need to take so I can reenter society. And I say I’m sorry again.”

       After hearing the above proof and argument of counsel, the trial court imposed a
ten-year sentence, which was to be served in confinement pursuant to the Defendant’s
plea agreement. The Defendant later filed a timely appeal on November 8, 2016.

                                           ANALYSIS

       On appeal, the Defendant essentially argues that his ten-year sentence is excessive.
Given his apology to the victim, his rehabilitation capability, and the fact that he took
responsibility for his actions immediately after the offense, the Defendant insists that an
eight-year sentence is the least severe measure necessary to achieve the purpose for
which the sentence was imposed. The State responds, and we agree, that the trial court
properly imposed a sentence of ten years’ confinement.

       We review the length 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). “So long as there are other reasons consistent with the purposes and
                                           -4-
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Id. “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” State v. Carter, 254 S.W.3d 335,
344-45 (Tenn. 2008).

       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
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).

        As a Range II, multiple offender, the Defendant was subject to a sentencing range
of six to ten years for aggravated assault, a Class C felony. See T.C.A. § 39-13-102; see
also id. § 40-35-112(a)(3). Thus, the trial court’s ten-year sentence is within the statutory
range and presumed reasonable. Prior to imposing sentence, the trial court applied
enhancement factors 1, 5, 6, 10, and 13(c), see id. § 40-35-114, none of which are in
dispute. It also engaged in an exhaustive ten-page analysis of the purposes and principles
of sentencing. It further considered as mitigating factors the Defendant’s acceptance of
responsibility and specifically noted that the Defendant’s allocution to the victim was
sincere and that the Defendant was a person who could be saved.

       Defense counsel candidly acknowledges in his brief our limited standard of review
for sentencing issues and his obligation to nevertheless challenge the trial court’s
imposition of a ten-year sentence on grounds that it was greater than necessary to achieve
the purpose for which the sentence was imposed. However, he does not clearly state why
he believes the Defendant’s sentence is excessive or how the trial court erred in imposing
the ten-year sentence. Instead, he essentially asks this court to reconsider the trial court’s
imposition of sentence based on the Defendant’s acceptance of responsibility, his
sincerity at the sentencing hearing, and his rehabilitative capacity. Under our law, as
acknowledged by the Defendant, this court is bound by the trial court’s sentencing
                                            -5-
decision because the record shows it was based on the purposes and principles of the
Sentencing Act. The trial court properly imposed a sentence that was not arbitrary and
that was within the appropriate sentencing range. Therefore, this court may not overturn
the sentence imposed by the trial court, even if we preferred a different result. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Accordingly, because the
Defendant has failed to show an abuse of discretion in the trial court’s sentence or
otherwise overcome the presumption of reasonableness afforded to a sentence imposed
within the applicable range, the judgment of the trial court is affirmed.

                                    CONCLUSION

       Based on the foregoing reasoning and authority, the judgment of the trial court is
affirmed.


                                                    ______________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




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