            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            NOVEMBER 1997 SESSION              FILED
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9612-CR-00475

      Appellee,                 *      SHELBY COUNTY
                                                               February 10, 1998
VS.                             *      Hon. Joseph B. McCartie, Judge
                                       Hon. John P. Colton, Judge
MARK W. RAWLINGS,               *      (Post-Conviction)
                                                              Cecil Crowson, Jr.
      Appellant.                *      (Especially Aggravated Robbery)
                                                               Appellate C ourt Clerk




For Appellant:                         For Appellee:

Lila Kathleen Mitchell                 John Knox Walkup
Assistant Public Defender              Attorney General and Reporter
Shelby County Public
         Defender's Office             Georgia Blythe Felner
201 Poplar Avenue, Second Floor        Counsel for the State
Memphis, TN 38103                      450 James Robertson Parkway
(at trial)                             Nashville, TN 37243-0493

Paula L. Skahan, Attorney              Phillip Gerald Harris
140 North Third Street                 Assistant District Attorney General
Memphis, TN 38103                      Shelby County District Attorney
(on appeal)                                    General's Office
                                       201 Poplar Avenue
                                       Memphis, TN 38103




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Mark W. Rawlings, entered pleas of guilt to three

counts of especially aggravated robbery on June 16, 1992. Tenn. Code Ann. § 39-

13-403. The trial court imposed Range I sentences of eighteen years on each count

and ordered the terms to be served consecutively for an effective sentence of fifty-

four years. The defendant attempted to appeal to this court pro se but mailed the

notice to the wrong address. Thereafter, he filed a petition for post-conviction relief

alleging ineffective assistance of counsel and an involuntary guilty plea. The trial

court denied relief but, on direct appeal, this court granted a delayed appeal as to

the sentence:

                     The petitioner has failed to carry his burden of
              proving that the evidence preponderates against the
              lower court's findings that he pled guilty freely and
              voluntarily and that he received effective assistance of
              counsel in entering his plea. Therefore, we affirm the
              lower court's judgment denying post-conviction relief with
              respect to the defendant's conviction. However, because
              the defendant was denied effective assistance of counsel
              on appeal, we grant the defendant a delayed appeal with
              respect to his sentence only.

Mark W. Rawlings v. State, No. 02C01-9504-CR-00112, slip op. at 7-8 (Tenn. Crim.

App., at Jackson, Apr. 17, 1996).



              The grant of the delayed appeal on the sentence was based upon the

affirmative duty on the part of defense counsel to provide advice on the right to

appeal a sentence. The failure to do so qualifies as a deficiency in performance. A

finding of prejudice is not required for the grant of a delayed appeal. Pinkston v.

State, 668 S.W.2d 676 (Tenn. Crim. App. 1984); State v. Lester D. Herron, No.

03C01-9109-CR-00284, slip op. at 10 (Tenn. Crim. App., at Knoxville, Mar. 10,

1992).




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               In this appeal of the trial court's fifty-four-year sentence, the defendant

complains that the sentences are excessive, that the trial court failed to take into

account his medical condition, and that the sentences should not have been ordered

to be served consecutively. We reject each of those arguments and affirm the

judgment of the trial court.



               The prior opinion of this court summarized the facts which led to the

convictions:

                      On July 5, 1991, Rawlings approached an uncle
               ("Mr. Green") for a loan of money. At the time, another
               man and woman [Tom W. Barlow and Annie L. Williams]
               were visiting Mr. Green at his residence, both of whom
               also knew the petitioner [Rawlings]. Mr. Green refused
               to make the loan. The petitioner then asked to borrow a
               claw hammer. He subsequently beat Mr. Green and both
               of Mr. Green's visitors in the head with the hammer. He
               broke the woman's hands with the hammer as she
               attempted to ward off the blows to her head. After
               beating the victims, the petitioner robbed them. All of the
               victims were seriously injured. The woman was forty
               years old at the time of the offense and the two men
               were in their sixties; the petitioner was thirty-four. All of
               the victims identified Rawlings as the attacker.

Rawlings, slip op. at 2-3 (footnote omitted).



               The prior opinion of this court makes reference to the fact that the

state sought the maximum sentence possible and refused to offer a plea

agreement. Id. at 4. The defendant, who had a prior conviction for the voluntary

manslaughter of his first wife, entered a guilty plea when defense counsel was able

to persuade the state, for the upcoming sentencing hearing, to withhold a number of

graphic photographs of the victims at the crime scene and to refrain from using as a

witness the father of the woman the defendant had killed several years earlier. At

the sentencing hearing, the state sought three, consecutive twenty-five-year

sentences but withheld certain of the evidence as agreed. Id. at 6. While lengthy,


                                             3
the sentence imposed by the trial court was twenty-one years less than the

maximum possible.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for Class B, C, D, or E felony convictions at

the time of these offenses, the presumptive sentence is the minimum within the

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement factors but no mitigating factors, the trial court

may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A

sentence involving both enhancement and mitigating factors requires an assignment


                                           4
of relative weight for the enhancement factors as a means of increasing the

sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced

within the range by any weight assigned to the mitigating factors present. Id.



                 Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                 [C]onsecutive sentences should not be routinely imposed
                 ... and ... the aggregate maximum of consecutive terms
                 must be reasonably related to the severity of the
                 offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The defendant is an offender whose record of
                 criminal activity is extensive;

                 (3) The defendant is a dangerous mentally abnormal
                 person so declared by a competent psychiatrist who
                 concludes as a result of an investigation prior to


   1
    The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of
prior felony c onvictions , may en hance the sente nce ran ge but is n o longer a listed criterion. See
Tenn . Code A nn. § 40- 35-115 , Senten cing Co mm ission Co mm ents.

                                                    5
             sentencing that the defendant's criminal conduct has
             been characterized by a pattern of repetitive or
             compulsive behavior with heedless indifference to
             consequences;

             (4) The defendant is a dangerous offender whose
             behavior indicates little or no regard for human life, and
             no hesitation about committing a crime in which the risk
             to human life is high;

             (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;

             (6) The defendant is sentenced for an offense
             committed while on probation; or

              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



              In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



             More recently, in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),

our high court reaffirmed those principles and ruled that consecutive sentences

cannot be required for any of the classifications "unless the terms reasonably relate

to the severity of the offenses committed and are necessary in order to protect the

public from further serious criminal conduct by the defendant." Id. at 938. The

Wilkerson decision, which modified guidelines adopted in State v. Woods, 814


                                          6
S.W.2d 378, 380 (Tenn. Crim. App. 1991), governing the sentencing of dangerous

offenders, described sentencing as "a human process that neither can nor should

be reduced to a set of fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938

(footnote omitted).



              At the sentencing hearing on July 31, 1992, the trial judge found the

following enhancement factors applicable:

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

              (2) The offense involved more than one victim;

              (3) A victim of the offense was particularly vulnerable
              because of age or physical or mental disability;

              (4) The defendant treated or allowed the victim to be
              treated with exceptional cruelty during the commission of
              the offense;

              (5) The personal injuries inflicted upon or the amount of
              damage to property sustained by or taken from the victim
              was particularly great;

              (6) The defendant possessed or employed a firearm ...
              during the commission of the offense;

              (7) The defendant had no hesitation about committing a
              crime when the risk to human life was high;

              (8) The felony resulted in death or bodily injury or
              involved the threat of death or bodily injury to another
              person and the defendant has previously been convicted
              of a felony that resulted in death or bodily injury;

              (9) During the commission of a felony, the defendant
              willfully inflicted bodily injury upon another person, or the
              actions of the defendant resulted in the death of or
              serious bodily injury to a victim or a person other than the
              intended victim; and

              (10) The crime was committed under circumstances
              under which the potential for bodily injury to a victim was
              great.

Tenn. Code Ann. § 40-35-114(1), (3), (4), (5), (6), (9), (10), (11), (12), and (16).


                                            7
              While the trial court rejected Tenn. Code Ann. § 40-35-114(15), that

the defendant abused a position of public or private trust, it ruled as an aside that

because one of the victims was his uncle, there was a violation of a private trust.

The trial judge found no mitigating factors and refused to make a finding on Tenn.

Code Ann. § 40-35-113(7), that the defendant was motivated by a desire to provide

necessities for his family or himself. Finally, as his basis for ordering the

consecutive sentences, the trial court found that the defendant was a dangerous

offender whose behavior indicated little or no regard for human life and had "no

hesitation about committing a crime when the risk to human life was high." Tenn.

Code Ann. § 40-35-115(4).



              Initially, the defendant challenges the application of enhancement

factors (3), (5), (6), (9), (12), and (16). He does not challenge the applicability of

factors (1), (4), (10), and (11). The state acknowledges that the application of

enhancement factors (3) and (12) were erroneous because the defendant was

separately punished for crimes against each of the victims. State v. Lambert, 741

S.W.2d 127 (Tenn. Crim. App. 1987); State v. Williamson, 919 S.W.2d 69, 82

(Tenn. Crim. App. 1995). The state also concedes that the trial judge committed

error by applying enhancement (12) because "serious bodily injury" qualifies as an

element of the offense of especially aggravated robbery. State v. Gregory Maurice

Brooks, No. 02C01-9411-CV-00261 (Tenn. Crim. App., at Jackson, July 19, 1995);

see Tenn. Code Ann. § 39-13-403(a). Finally, the state acknowledges the

erroneous application of factors (6), (9), and (16) because the factors had been

included in the definition of the elements of especially aggravated robbery. State v.

Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Thus, the only disputed

question is whether factor (5), that the defendant treated or allowed the victims to be

treated with exceptional cruelty, was properly applied in each of the three


                                            8
sentences. A secondary issue is whether enhancement factor (15), relative to the

position of private trust, applies because the victim Green was the defendant's

uncle.



              In State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997), our supreme court

ruled "'exceptional cruelty' is not an element of especially aggravated robbery." If

the facts of the case demonstrate "'a culpability distinct from and appreciably greater

than that incident to'" the crime, it may be applied. Id. (citations omitted). The

defendant's beating the victims about the head with a claw hammer establishes

exceptional cruelty. In our view, this factor was properly applied. Moreover, the

victim Green's kinship to the defendant and his willingness to loan his claw hammer

was evidence of a private trust. Thus, the factor might appropriately be considered

as to that single sentence. See State v. Adams, 864 S.W.2d 31 (Tenn. 1993).



              The defendant has claimed that his history of drug and alcohol abuse,

his attempts at treatment, and a diabetic condition warranted application of Tenn.

Code Ann. § 40-35-113(8):

              The defendant was suffering from a mental or physical
              condition that significantly reduced the defendant's
              culpability for the offense; however, the voluntary use of
              intoxicants does not fall within the purview of this factor.

While the defendant's voluntary use of illegal drugs or alcohol does not qualify as a

mitigating factor, a diabetic can be considered. In our view, however, there is

insufficient evidence in this record to suggest that the condition "significantly

reduced the defendant's culpability for the offense." Tenn. Code Ann. § 40-35-

113(8). That is, no causal link has been established between the ailment and the

offense.




                                            9
              Obviously, the trial court cited several enhancement factors which

should not have been applied. The presumption of correctness is conditioned upon

the consideration of all of the appropriate factors in the imposition of a sentence.

Yet at least four enhancements remain as to each offense. Because there are no

mitigating factors, a low to mid-range sentence on each count would be appropriate.

Here, the defendant attacked two elderly men and a woman with a claw hammer.

All three individuals were seriously injured and required significant medical care.

There were major medical expenses involved. The defendant had a prior criminal

history which included taking the life of his first wife. In sentencing, the primary

purpose is to impose "a sentence justly deserved in relation to the seriousness of

the offense." Here, a low to mid-range sentence of eighteen years on each count,

when the range is from fifteen to twenty-five years, is fully warranted.



              Finally, because the defendant qualifies as a dangerous offender,

consecutive sentences are permissible. Tenn. Code Ann. § 40-35-115(b)(4). This

court cannot disagree with the state's assertion that the defendant's behavior

demonstrated a contemptible lack of concern for human life and an absence of

basic human decency. There were multiple blows to each of the victims causing

life-threatening injuries. The victim Green requires the use of a walker to assist his

ambulation. The victim Williams has not fully recovered despite three operative

procedures. The victim Barlow requires weekly medical care due to abnormal blood

pressure. In our view, the crimes involved aggravating circumstances. The

aggregate term imposed, while significant in length, reasonably reflects the

necessity of protecting the public from the defendant.



              Accordingly, the judgment is affirmed.




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                                ________________________________
                                Gary R. Wade, Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Joe G. Riley, Judge




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