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State v. York10/17/2001
Assigned on Briefs August 21, 2001
The defendant, Ricky Franklin York, appeals from his sentence of six years as a Range I, standard offender that he received upon his guilty plea to aggravated assault, a Class C felony. He contends that the trial court erred by enhancing his sentence based upon enhancement factors contained in Tenn. Code Ann. § 40-35-114(10) and (16), which he claims are inapplicable. Although we conclude that the facts do not justify application of factors (10) and (16), we affirm the sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Joseph M. Tipton, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and John Everett Williams, JJ., joined.
OPINION
This case relates to the defendant's assaulting his father, Gary York, who had physically disciplined the defendant's young son. Because of drug abuse by the defendant and his wife, the defendant's parents obtained custody of their three minor children, which they ultimately shared equally with the children's maternal grandparents. In late 1999, the defendant and his wife separated, and he moved in with his parents.
On February 9, 2000, the defendant learned that his father had hit his youngest child on the back with a switch. The defendant became angry and began a fight with his father. He got his father to the floor and kept hitting him. The defendant's mother tried to stop the defendant and hit him on the head and back with a stick, similar to a broom handle. The defendant pushed her away and continued to hit his father. The defendant's father died on the floor.
The defendant was originally charged with second degree murder. However, the pathologist who performed the autopsy concluded that death was caused by hypertensive cardiovascular disease. His report states that the victim "died as the result of hypertension ("high blood pressure"), with associated arteriosclerosis ("hardening of the arteries"), acute and chronic ethanolism, micronodular cirrhosis of the liver, and pulmonary emphysema. The blood alcohol level is 0.25 gram % ethyl alcohol, a level which can be in and of itself fatal." Although the doctor reported a "plethora" of head, neck, and shoulder cuts and bruises, he did not relate any of the injuries to the victim's cause of death. The grand jury returned an indictment for aggravated assault by causing serious bodily injury.
The record reflects that while the defendant was on bail in this case, his mother reported to the police that the defendant argued with her regarding discipline. Mrs. York attempted to call her brother during the argument, but the defendant grabbed the telephone and ripped the cord from the wall. She told the police that this was not the first time that the defendant had become violent with her and had broken things inside the residence. She said that the defendant had never hit her but that he had threatened to harm her. She said that she feared for her safety.
Also while on bond, the defendant was charged with assaulting his in-laws' eight-year-old neighbor. The defendant claimed that the boy had taken his own son's ball and was playing with it. The defendant ran into the boy's yard, knocked him down, and took the ball. The defendant told the boy that he would rip his "g-d head off next time." The defendant pled guilty to this assault at the same time he pled guilty to the aggravated assault in this case.
The defendant was convicted of assault in 1996 and of possession of cocaine and carrying a weapon in 1992. Although the defendant's father- in-law testified at the sentencing hearing that he would accept the defendant
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