           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON               FILED
                                JULY 1997 SESSION            August 19, 1997

                                                           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,                      )
                                         )   C.C.A. No. 02C01-9610-CR-00321
      Appellee,                          )
                                         )   SHELBY COUNTY
VS.                                      )
                                         )   HON. L. T. LAFFERTY,
                                         )   JUDGE
KERWIN L. WALTON,                        )
                                         )   (Sentencing-Reckless Homicide)
      Appellant.                         )


FOR THE APPELLANT:                           FOR THE APPELLEE:

A. C. WHARTON                                JOHN KNOX WALKUP
(of counsel on appeal)                       Attorney General & Reporter
Shelby County Public Defender
                                             JANIS L. TURNER
W. MARK WARD                                 Assistant Attorney General
(on appeal)                                  450 James Robertson Parkway
Assistant Public Defender                    Nashville, Tennessee 37243-0493
147 Jefferson, Ste. 900
Memphis, Tennessee 38103                     WILLIAM L. GIBBONS
                                             District Attorney General
BETTY THOMAS
(at trial)                                   KEVIN RARDIN
Assistant Public Defender                    KAREN COOK
Shelby County Public Defender’s Office       Assistant District Attorneys General
201 Poplar Ave. - Second Floor               201 Poplar Ave. Ste. 301
Memphis, Tennessee 38103                     Memphis, Tennessee 38103-1947




OPINION FILED: __________________



AFFIRMED



JOE G. RILEY,
JUDGE



                                    OPINION
       The defendant, Kerwin L. Walton, appeals as of right from the sentence imposed

by the Shelby County Criminal Court. He was convicted of reckless homicide, a Class

D felony. As a Range I, Standard Offender, the trial court sentenced the defendant to

four (4) years incarceration, to run consecutively to a twenty-five (25) year sentence for

aggravated arson arising out of the same incident. In challenging the sentence for

reckless homicide, defendant presents two (2) issues for review: (1) whether the trial

court imposed an excessive sentence by relying upon non-statutory enhancement

factors; and (2) whether the trial court erred by ordering his sentence to be served

consecutively. The judgment of the trial court is AFFIRMED.



                                          FACTS



       The tragic facts of this case involve the death of an infant, thirteen (13) months

of age, as a result of blunt trauma to the stomach. Briefly, the evidence at trial

established that at the time of the offense the defendant was the boyfriend of the

victim’s mother. The night the victim died, the mother had left the child under the

supervision of the defendant. The infant would not stop crying and the defendant struck

him in the stomach, ultimately causing his death. Defendant set the house on fire in an

effort to conceal the death. He was subsequently charged with aggravated arson and

murder in the first degree based on aggravated child abuse.

       The defendant was convicted of aggravated arson and received a twenty-five (25)

year sentence.1 In a separate trial, the defendant was convicted of reckless homicide.

He received four (4) years incarceration to be served consecutively to the aggravated

arson sentence, an effective sentence of twenty-nine (29) years.

       At the sentencing hearing, the trial court enhanced the defendant’s sentence

based on the following factors: (1) the victim was particularly vulnerable because of age;



       1
         The conviction and sentence in the aggravated arson case are not at issue in the
present appeal.

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(2) the defendant was on misdemeanor probation at the time of the offense; and (3)

there was an abuse of the corpse to conceal the homicide. Finding no applicable

mitigating factors, the court imposed the maximum four (4) year sentence. The court

noted that the defendant was a risk to society and was a dangerous offender; therefore

the trial court ordered the sentence to be served consecutively to the aggravated arson

sentence.



                                I. Excessive Sentence



       The defendant argues that the trial court imposed an excessive sentence by

improperly relying upon non-statutory enhancement factors.

       This Court’s review of the sentence imposed by the trial court is de novo with a

presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is

conditioned upon an affirmative showing in the record that the trial judge considered the

sentencing principles and all relevant facts and circumstances. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). The burden is upon the appealing party to show that

the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission

Comments. In conducting our review, we are required, pursuant to Tenn. Code Ann.

§ 40-35-210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing;
       (2) [t]he presentence report; (3) [t]he principles of sentencing and
       arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn. Code

Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum

sentence within the applicable range. See State v. Fletcher, 805 S.W.2d 785 (Tenn.

Crim. App. 1991). However, if such factors do exist, a trial court should start at the

minimum sentence, enhance the minimum sentence within the range for enhancement

factors and then reduce the sentence within the range for the mitigating factors. Tenn.


                                            3
Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the

statute, as the weight given to each factor is left to the discretion of the trial court as long

as its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 240 (Tenn.

1986); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see also Tenn.

Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should

there be no mitigating factors, but enhancement factors are present, a trial court may

set the sentence above the minimum within the range. Tenn. Code Ann. § 40-35-

210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

       The defendant was convicted of reckless homicide, a Class D felony. The

sentence range for a Range I, Standard Offender, is two (2) to four (4) years. The trial

court enhanced defendant’s sentence based on one (1) statutory enhancement factor,

the victim was particularly vulnerable because of age, and two (2) non-statutory

enhancement factors, that the defendant was on misdemeanor probation and abuse of

the corpse. The court found no mitigating factors and imposed the maximum sentence

within the range.

       The state concedes and we agree that the trial court erroneously relied upon the

above two non-statutory enhancement factors. See State v. Strickland, 885 S.W.2d 85

(Tenn. Crim. App. 1993). Upon our de novo review, however, we find the record

establishes that the victim was treated with exceptional cruelty. Tenn. Code Ann. § 40-

35-114(5). According to the medical examiner, the victim was left to suffer “the most

painful injury a human body can suffer” for a period up to six (6) hours. During this time,

the defendant did not seek medical assistance and chose to socialize with friends.

Based upon the enhancement factors and the absence of any mitigating factors, the

maximum sentence of four (4) years is clearly justified.




                               II. Consecutive Sentencing




                                               4
        The defendant argues the trial court erred in ordering a consecutive sentence.

Specifically, he contends that he is not a dangerous offender and that the trial court

failed to consider all of the applicable criteria as required by State v. Wilkerson, 905

S.W.2d 933 (Tenn. 1995).

        Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115. The trial

court may order sentences to run consecutively if it finds by a preponderance of the

evidence that one or more of the required statutory criteria exist. State v. Black, 924

S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the court is required to

determine whether the consecutive sentences (1) are reasonably related to the severity

of the offenses committed; (2) serve to protect the public from further criminal conduct

by the offender; and (3) are congruent with general principles of sentencing. State v.

Wilkerson, 905 S.W.2d at 939.

          The trial court specifically found the defendant to be a dangerous offender

under Tenn. Code Ann. § 40-35-115(b)(4). We agree, especially since other persons

besides the victim were put at great risk by setting fire to the residence. Furthermore,

consecutive sentencing is appropriate since the defendant was on probation at the time

of the instant offense. Tenn. Code Ann. § 40-35-115(b)(6). The trial court found

defendant to be a “risk to society” which, in essence, is a finding that consecutive

sentencing is necessary to protect the public from further criminal acts by the defendant.

Our de novo review also indicates that the consecutive sentence is reasonably related

to the severity of the offenses. An effective sentence of twenty-nine (29) years for

aggravated arson and reckless homicide is also congruent with the general principles

of sentencing. Accordingly, the consecutive sentences were properly imposed by the

trial court.




        The judgment of the trial court is AFFIRMED.




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                                    JOE G. RILEY, JUDGE

CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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