        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 18, 2010

              STATE OF TENNESSEE v. EVETTA MAI McGEE

              Direct Appeal from the Circuit Court for Bedford County
                        No. 16773     Robert Crigler, Judge




              No. M2009-02266-CCA-R3-CD - Filed September 10, 2010


The Defendant, Evetta Mai McGee, pled guilty to rape, and the trial court sentenced her to
eleven years. On appeal, the Defendant contends the trial court erred when it enhanced her
sentence beyond the statutory minimum without explanation. After a thorough review of the
record and applicable law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and N ORMA M CG EE O GLE, JJ., joined.

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Evetta Mai McGee.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
John H. Bledsoe, Assistant Attorney General; Charles Crawford, District Attorney General;
Michael D. Randles, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Defendant’s rape of a fellow inmate while both were
incarcerated in the Bedford County Jail. At the time, the Defendant was serving a nine-year
sentence for manufacturing, possessing, or selling drugs. During the Defendant’s plea
submission hearing, the State set forth the following summary of the rape underlying this
appeal:

              [I]n August 2008 [the Defendant], Brooke Whitaker, Kelly Dodson,
       Brandy Holden, Kim O’Neal, and A.D.1 ] were all housed in the same cell at
       the Bedford County Jail.

               On the night of August 20th after lockdown, the lights are cut off by the
       facility and the door to the cell is locked. [A.D.] was in her bunk when she was
       approached by [the Defendant] and Brooke Whitaker. They held her down and
       they began sexually assaulting penetration of her vagina digitally [sic]. Also
       included oral sex in the form of cunnilingus performed on her.

             At one point Brooke Whitaker yelled for other girls to help hold her
       down. Kelly Dodson and Brandy Holden came over and assisted in holding
       down [A.D.] while the sexual assault continued.

                  They did ultimately let go. Essentially everyone let go.

              [The victim] checked herself that night. Basically had to cry herself to
       sleep. She is in the same room with these persons.

              The next day after many hours, ultimately she did report it to the
       authorities.

              Investigation was then done, led by Capt. Becky Hord of the sheriff’s
       department in which statements were obtained from numerous individuals.
       Virtually everyone in the cell gave a statement including Kim O’Neal who was
       not a participant. She was the only one that was not a participant as a victim
       or perpetrator. Also girls in other cells who heard [A.D.] screaming no, stop
       and things like that while the assault went on.

Based upon this conduct, a Bedford County grand jury indicted the Defendant for aggravated
rape. The Defendant pled guilty to rape, with the trial court to determine her sentence.

        The trial court held a sentencing hearing, wherein the following evidence was
presented: the State introduced the Defendant’s presentence report, which showed that the
Defendant, who was twenty-two at the time of her offense, was placed in the Department of
Children’s Services custody after she failed to attend school as a juvenile. In the eleventh
grade, she dropped out of Central High School in Shelbyville. Throughout the next four
years, the Defendant was sporadically employed and collected several criminal convictions,
which included the manufacture, sale, or possession of drugs; possession of less than .5

       1
           In order to protect the victim’s privacy, we will refer to her only by her initials.

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ounces of marijuana; shoplifting; and failure to use a safety belt/child restraint. The
Defendant violated a one-year probation sentence she received for her marijuana possession
and shoplifting convictions. She was serving the nine-year sentence she received for
possession, sale, or manufacture of drugs when she committed the rape in this case.

       The Defendant stated to the officer preparing her presentence report that she suffered
from depression and insomnia, that her mother was an alcoholic, and that she herself had
never used drugs. The Defendant testified at her sentencing hearing that she and the victim
had no “ill words or confrontation” the morning following the rape. At the conclusion of the
sentencing hearing, the trial court applied three statutory enhancement factors and sentenced
the Defendant, who the parties agreed was a Range I, Standard offender, to eleven years, to
be served consecutively to the nine-year sentence she was serving at the time of this offense.
The Defendant now appeals this judgment.

                                        II. Analysis

       On appeal, the Defendant does not challenge the trial court’s application of
enhancement factors but rather contends that the trial court did not sufficiently explain its
reasons, apart from the factors’ applicability, for sentencing the Defendant to three years
above the statutory minimum. The State responds that the trial court adequately stated on the
record its reasoning for departing from the minimum sentence.

       When a defendant challenges the length, range, or manner of service of a sentence,
this Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d) (2006). This presumption, however, is conditioned upon the affirmative
showing in the record that the trial court properly sentenced the defendant. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). As the Sentencing Commission Comments to this
section note, the burden is on the appealing party to show that the sentencing is improper.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts. If the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result was
preferred. T.C.A. § 40-35-103 (2006), State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v.
Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994). In the event the record fails to demonstrate the required
consideration by the trial court, appellate review of the sentence is purely de novo. Ashby,

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823 S.W.2d at 169.

       In conducting a de novo review of a sentence, we must consider: (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 Tennessee Code Annotated
sections 40-35-113 and -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 made in the defendant's own behalf about sentencing. See T.C.A.
§ 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

       The Criminal Sentencing Act of 1989 and its amendments describe the process for
determining the appropriate length of a defendant's sentence. Under the Act, a trial court
may impose a sentence within the applicable range as long as the imposed sentence is
consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006);
see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The Tennessee Code allows a
sentencing court to consider the following enhancement factors, among others, when
determining whether to enhance a defendant’s sentence:

      (1) The defendant has a previous history of criminal convictions or criminal
      behavior, in addition to those necessary to establish the appropriate range;

      ...

      (3) The offense involved more than one (1) victim;

      ...

      (13) At the time the felony was committed, one (1) of the following
      classifications was applicable to the defendant:
              ...
              (I) Incarcerated in any penal institution on a misdemeanor or felony
              charge or a misdemeanor or felony conviction

T.C.A. § 40-35-114(1), (3), and (13) (2006).

        In order to ensure “fair and consistent sentencing,” the trial court must “place on the
record” what, if any, enhancement and mitigating factors it considered as well as its “reasons
for the sentence.” T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing

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Act, both the State and a defendant could appeal the manner in which a trial court weighed
enhancement and mitigating factors it found to apply to the defendant. T.C.A. §
40-35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a
claim that the trial court did not properly weigh the enhancement and mitigating factors. See
2005 Tenn. Pub. Acts ch. 353, §§ 8, 9. In summary, although this Court cannot review a trial
court’s weighing of enhancement factors, we can review the trial court’s application of those
enhancement factors. T.C.A. § 40-35-401(d) (2006); see Carter, 254 S.W.3d at 343.

        In this case, the parties agree that the trial court properly applied enhancement factors
(1), (2), and (13) to enhance her sentence. The Defendant argues, however, that the trial
court failed to offer sufficient additional explanation for raising the Defendant’s sentence
above the statutory minimum eight-year sentence for a Class B felony committed by a Range
I, Standard offender.

       The trial court first noted that, in setting the Defendant’s sentence, it relied on the
proof adduced at the plea and sentencing hearings, the principles of sentencing, the nature
and characteristics of the criminal conduct, the applicable enhancement factors, and the
Defendant’s rehabilitative potential or lack thereof. The parties agreed that the Defendant
was a Range I, Standard offender. The trial court declined to apply two enhancement factors
requested by the State but applied enhancement factor (1), that the Defendant had a long
criminal record; enhancement factor (2), that the Defendant was a leader in the offense; and
enhancement factor (13), that the Defendant was incarcerated at the time of the felony she
committed.

       The trial court described the Defendant’s offense as “extremely serious” and
determined that, given the fact that incarceration clearly did not deter the Defendant from re-
offending, “the length of sentence just has to go up to try to create deterrence.” Finally,
noting that the Defendant’s prior record was shorter than that of her co-defendant, Brooke
Whitaker, the trial court sentenced the Defendant to eleven years.

       This eleven-year sentence was, by operation of law, to be served consecutively to the
nine-year sentence the Defendant was serving during the commission of this offense.
Exceeding its procedural obligations, however, the trial court made additional Wilkerson 2


       2
        State v. Wilkerson discusses two findings a trial court must make in order to impose
consecutive sentencing based upon criteria (3), that the defendant is a dangerous offender. 905
S.W.2d 933 (Tenn. 1995). In this case, consecutive sentencing was mandatory given that the
offense was committed during the Defendant’s service of a jail term, so the trial court’s
Wilkerson findings were ultimately unnecessary. The trial court noted that its findings might be
“redundant and unnecessary” but explained it made the findings in an abundance of caution.

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findings that the Defendant’s resultant twenty-year sentence was “justly deserved in relation
to the seriousness of the offense” and that her sentence was “no greater than that deserved
under the circumstances.”

       The trial court properly relied on the principles of sentencing, the facts of the offense,
and the applicable enhancement factors. T.C.A. § 40-35-103. It emphasized the “extremely
serious” nature of the victim’s rape as well as the apparently irrepressible nature of the
Defendant’s criminal conduct when it raised the Defendant’s sentence above the statutory
minimum. Thus, the trial court properly “placed its reasons” for the Defendant’s eleven-year
sentence on the record. See T.C.A. § 40-35-210(e). We conclude the trial court properly
sentenced the Defendant. She is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the facts and relevant authorities, we conclude the trial
court properly sentenced the Defendant. As such, we affirm the trial court’s judgment.

                                                   __________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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