I am often asked, “Why do I have so many sex offense charges?” This is because defendants in sex offense cases often receive a multiple-count indictment since each allegation of unlawful sexual contact can be considered a separate count. If a defendant were accused of touching a victim inappropriately on different occasions, he or she will receive an indictment with an additional count for each alleged occasion.
A defendant could also receive consecutive sentencing for charges stemming from one incident, such as that the defendant both initiated sexual contact with the victim (first charge), and videotaped it (second charge).
The biggest concern with a multiple-count indictment is whether it would result in consecutive (rather than concurrent) sentencing.
- Consecutive sentencing means that the counts would run one after another. If a defendant had two convictions on Class B felonies, he or she would serve first the first eight to twelve years, and then afterward begin serving the second eight to twelve years. This would result in an effective sentence of sixteen to twenty four years.
- Concurrent sentencing If a person received two convictions on Class B felonies, he or she would serve both counts at the same time, for an effective sentence of eight to twelve years total.
If a person is charged with five counts of Rape of a child, and each count could result in fifteen to twenty-five years of prison (a Class A felony), it would certainly make one consider pleading to one or two counts, regardless of actual guilt or innocence. This is another reason that prosecutors like to pile on charges – so that a defendant thinks it must be lucky to get a settlement offer to plead to only one or two counts.
They also like to charge multiple counts because it makes it more likely that the fifth statutory factor below in bold type will occur. Additionally, multiple counts raise the stakes because a jury may convict on all or none of the counts, rarely understanding or considering the evidence only as it relates to each specific allegation. A friend of mine puts it this way, “Threaten people with death, and they’ll take sickness.”
This is just one more way that a defendant charged with a sex offense has more significant challenges than other criminal defendants (and why you need a Sex Crime Attorney).
Here are the factors that the court will consider when determining a consecutive or concurrent sentence:
- Whether sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion of the trial court. Tenn. v. James, 688 S.W.2d 463, 465, 1984 Tenn. Crim. App. LEXIS 2703, 3 (Tenn. Crim. App. 1984).
- A trial court may order multiple sentences to run consecutively if it finds, by a preponderance of the evidence (51%), that at least one of the seven statutory factors exists.
- (1) The defendant is a professional criminal who has knowingly devoted the defendant’s life 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 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.
- T.C.A. § 40-35-115(b)(1)-(7) (2014).
- In addition to these criteria, consecutive sentencing is subject to the general sentencing principle that the length of a sentence should be “justly deserved in relation to the seriousness of the offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-102(1), -103(2) (2014). State v. Coleman, 2014 Tenn. Crim. App. LEXIS 1101 (Tenn. Crim. App. Dec. 9, 2014)