                                                                                      01/27/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs December 13, 2016

            STATE OF TENNESSEE v. JONATHAN WAYNE UTZ

                  Appeal from the Circuit Court for Moore County
                  No. 15-CR-1363     Forest A. Durard, Jr., Judge


                            No. M2016-01244-CCA-R3-CD


The Defendant, Jonathan Wayne Utz, pled guilty to one count of aggravated sexual
battery, a Class B felony. See Tenn. Code Ann. § 39-13-504. The trial court sentenced
the Defendant as a Range I, standard offender to a term of imprisonment of nine years
and six months to be served at one hundred percent. In this appeal as of right, the
Defendant contends that “the sentence in this case is excessive and contrary to the law.”
Discerning no error, we affirm the judgment of the trial court.

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

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

Donna Orr Hargrove, District Public Defender; and Andrew Jackson Dearing III,
Assistant District Public Defender, for the appellant, Jonathan Wayne Utz.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Robert James Carter, District Attorney General; and Hollynn Eubanks,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       The Defendant was indicted for one count of rape of a child, a Class A felony.
See Tenn. Code Ann. § 39-13-522. The Defendant and the State entered into a plea
agreement in which the Defendant agreed to plead guilty to the lesser offense of
aggravated sexual battery. At the plea submission hearing, the State presented the
following factual basis to support the guilty plea. In early August 2015, the victim, the
Defendant’s four-year-old nephew, spent the weekend with the Defendant. Afterwards,
the victim told his mother that the Defendant had forced him to perform fellatio on the
Defendant. The Defendant testified that the State’s recitation was “an accurate
statement” and that he was “in fact guilty.”

        The victim’s mother testified at the sentencing hearing that the victim had “lost
[his] innocence,” was afraid of men, and “no longer want[ed] to be held or loved.” The
victim’s mother further testified that the victim was restless and had trouble sleeping
since the incident occurred. However, the victim’s mother admitted that she had not
sought any counseling for the victim. Additionally, the Defendant’s presentence report
was entered into evidence at the sentencing hearing. The report revealed that the
Defendant had one prior misdemeanor conviction for possession of drug paraphernalia.
The Defendant also admitted in the report to past marijuana use.

        The trial court found that the Defendant was a Range I, standard offender subject
to a sentencing range of “not less than eight (8) nor more than twelve (12) years” for the
Class B felony conviction. Tenn. Code Ann. § 40-35-112(a)(2). The trial court applied
the following enhancement factors: that the Defendant had a previous history of criminal
convictions or behavior, in addition to those necessary to establish the appropriate range,
and that the Defendant had abused a position of private trust. Tenn. Code Ann. § 40-35-
114(1), (14). The trial court also found that the “catchall” mitigating factor applied
because the Defendant pled guilty rather than subject the victim to a trial. Tenn. Code
Ann. § 40-35-113(13).

       The trial court stated that it placed more weight on the Defendant’s abuse of a
position of private trust than it did his history of criminal behavior, but gave “some
weight” to his past criminal behavior. The trial court gave “little weight” to the
“catchall” mitigating factor. Weighing the applicable enhancement and mitigating
factors, the trial court sentenced the Defendant to nine years and six months, just below
the midpoint of the applicable sentencing range. The Defendant now appeals to this
court.

       On appeal, the Defendant contends that “the sentence in this case is excessive and
contrary to the law.” The Defendant argues that the imposed sentence “does not fit the
crime or the offender” and that “[t]he facts of this case do not justify this sort of
sentence.” However, nowhere in his brief does the Defendant provide any specific
statement as to why a sentence of nine years and six months is excessive in light of the
circumstances of the offense. The Defendant also argues that a lesser sentence “would
help conserve prison resources.” The State responds that the trial court did not abuse its
discretion in imposing a nine-and-a-half-year sentence and that the Defendant has not
overcome the presumption of reasonableness granted to the in-range sentence.

      Appellate courts are to review “sentences imposed by the trial court within the
appropriate statutory range . . . under an abuse of discretion standard with a presumption
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of reasonableness.” State v. Bise, 380 S.W3d 682, 709 (Tenn. 2012) (internal quotation
marks omitted). A sentence will be upheld “so long as the statutory purposes and
principles [of the Sentencing Reform Act] . . . have been properly addressed.” Id. at 706.
If this is true, this court may not disturb the sentence even if a different result were
preferred. State v. Carter, 254 S.W.3d 335 (Tenn. 2008). Even if the trial court has
misapplied an enhancement or mitigating factor, the sentence will be upheld if “there are
other reasons consistent with the purposes and principles of sentencing, as provided by
statute . . . .” Bise, 380 S.W.3d at 706. On appeal, the burden is on the defendant to
show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d).

       The Sentencing Reform Act was enacted in order “to promote justice” by ensuring
that every defendant “be punished by the imposition of a sentence justly deserved in
relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to
implement the purposes of the Sentencing Reform Act, trial courts must consider several
sentencing principles. The sentence imposed for an offense “should be no greater than
that deserved for the offense committed” and “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.
§ 40-35-103(2), (4). Sentences involving incarceration “should be based on the following
considerations”:

      (A) Confinement is necessary to protect society by restraining a defendant
      who has a long history of criminal conduct;

      (B) Confinement is necessary to avoid depreciating the seriousness of the
      offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

      (C) Measures less restrictive than confinement have frequently or recently
      been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(2). Trial courts should consider the “potential or lack of
potential for the rehabilitation or treatment of the defendant” when “determining the
sentence alternative or length of term to be imposed.” Tenn. Code Ann. § 40-35-103(5).

       Additionally, the trial court must consider: (a) the evidence adduced at the trial
and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing
and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) evidence and information offered by the parties on the
enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-
35-113 and 40-35-114; (f) any statistical information provided by the Administrative
Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any
statement the defendant wishes to make in the defendant’s own behalf about sentencing.
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Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical that [a]
trial court[] adhere[s] to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulates in the record its reasons for imposing the specific
sentence. Bise, 380 S.W.3d at 705 n.41.

        The Defendant does not allege that the trial court misapplied any of the
enhancement or mitigating factors. The trial court, after determining the appropriate
sentencing range and applicable enhancement and mitigating factors, articulated its
reasons for enhancing the Defendant’s sentence from the minimum eight years to nine
years and six months. The trial court’s sentence was consistent with the purposes and
principles of sentencing. We do not believe that the trial court’s imposition of a sentence
below the midpoint of the applicable sentencing range was excessive in light of the
factual basis provided by the State for the Defendant’s guilty plea. Nor do we believe
that the addition of a year and a half to the Defendant’s sentence would place an undue
burden on “prison resources.” We conclude that the Defendant has not overcome the
presumption of reasonableness granted to the trial court’s in-range sentence and that the
trial court did not abuse its discretion in setting the length of the Defendant’s sentence.

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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