State of Tennessee v. Quincy Bryan Banks

Citation: Not availableDocket: M2009-00421-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; April 14, 2010; Tennessee; State Appellate Court

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Quincy Bryan Banks appeals the consecutive-sentencing decision from the Davidson County Criminal Court, originally imposed following a remand for resentencing. The Court of Criminal Appeals, upon de novo review, vacates the trial court's judgments and remands for further sentencing proceedings, noting that the consecutive sentences lacked the necessary justification. Banks was convicted of two counts of aggravated rape and one count of especially aggravated kidnapping, receiving concurrent twenty-three-year sentences for the rapes and a consecutive twenty-three-year sentence for kidnapping. The court affirms the convictions but mandates a new sentencing hearing because Banks was sentenced under amendments effective after the commission of the crimes without a waiver of his ex post facto protections. The court also emphasizes that the sentencing record did not adequately demonstrate the considerations required for imposing consecutive sentences. The underlying incident involved Banks threatening and assaulting Kathleen Baker, a store manager, after entering the store where she was alone.

The defendant, armed with a knife, forcibly entered a storage area with Ms. Baker, where he sexually assaulted her by compelling her to perform oral sex, followed by vaginal and anal rape, while threatening her life. During the assault, the knife was either held or placed nearby. Concerned by Ms. Baker's cries for help, a colleague called 911. Officer Robert Peterson responded, discovered evidence of a struggle, and found the defendant partially undressed with Ms. Baker on the floor. Peterson secured the scene, observed a knife near the defendant, and handcuffed him. Ms. Baker, described as extremely upset, was taken to the hospital where a rape kit revealed physical injuries and DNA evidence linking the defendant to the assault. Both Ms. Baker and the defendant tested HIV-positive. The defendant was convicted of four counts of aggravated rape and one count of especially aggravated kidnapping, receiving a combined 46-year sentence. The case raised issues regarding the application of sentencing laws, as the crimes occurred before the 2005 amendments, but sentencing occurred in 2007 without an ex post facto waiver, leading to the conclusion that the pre-2005 law should apply.

Remand is ordered for sentencing under the pre-2005 provisions, as modified by State v. Gomez, allowing the defendant to opt for post-amendment sentencing upon waiving ex post facto protections. At the re-sentencing, both parties may introduce new evidence relevant to sentencing. The defendant challenges three enhancement factors: (1) prior criminal history, (5) exceptional cruelty towards the victim, and (21) knowledge of being HIV-positive during the offense. For factor (1), only the misdemeanor theft conviction can be considered under pre-2005 law; pending aggravated robbery charges require a factual finding that would violate Blakely if not established. Under post-amendment law, pending charges can be included due to supporting testimony and evidence. Factor (5) is not supported by the record, as no finding of exceptional cruelty was made. The court must determine and apply this factor upon remand. The defendant argues the trial court improperly ordered consecutive sentences for especially aggravated kidnapping, leading to a forty-six-year sentence, claiming lack of justification and failure to articulate reasons for consecutive sentencing. The trial court deemed the defendant a dangerous offender based on the infliction of bodily harm and HIV transmission, but this alone is insufficient for consecutive sentences. The court must also find that the aggregate sentences protect the public and relate reasonably to the severity of the offenses, as mandated by Tennessee law.

The case record lacks essential considerations for determining the appropriate length and consecutive nature of the defendant's sentences, necessitating a remand. The defendant was sentenced under pre-2005 law without an ex post facto waiver, which restricts the trial court from extending sentences beyond the presumptive minimum based solely on enhancement facts, except for prior convictions. Consequently, the trial court reduced each 23-year sentence to 20 years without requiring additional fact-finding. However, the court maintained a partially consecutive sentencing structure without fulfilling the factual findings mandated by earlier rulings.

The trial court's authority to impose consecutive sentences relies on classification as a 'dangerous offender' under Tennessee law, which necessitates evidence that the imposed terms correlate with the severity of offenses and are necessary for public safety. The mere commission of inherently dangerous crimes does not justify consecutive sentences alone, given existing penalties for such offenses.

In this appeal, a de novo review was conducted since the trial court failed to provide the requisite findings for consecutive sentencing. The appellate court noted that no new evidence was presented to support the consecutive alignment, as the record remained unchanged from the initial appeal. It inferred concerns about the defendant's potential for future offenses due to pending aggravated robbery charges at the time of original sentencing, but constitutional constraints limited sentence enhancements without a conviction for those charges.

The trial court failed to make necessary findings regarding the defendant's commission of aggravated robberies and the resulting convictions, which are critical for determining consecutive sentencing under the pre-2005 sentencing law. While the court characterized the defendant as dangerous, it did not establish that he was aware of his HIV infection at the time of the offenses. Consequently, the appellate court concluded that the trial court did not comply with the remand order to make appropriate findings for consecutive sentencing. As a result, the court vacated the portion of the amended judgments concerning consecutive sentencing and remanded the case for further hearings and necessary findings in accordance with the law.