IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JANUARY 2000 SESSION
February 15, 2000
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
) NO. W1999-00809-CCA-R3-CD
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
MICHAEL STEVENSON, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
ARCH B. BOYD III PAUL G. SUMMERS
217 Exchange Ave. Attorney General and Reporter
Memphis, TN 38105-3503
MARVIN S. BLAIR, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
STEPHEN P. JONES
Assistant District Attorney General
201 Poplar Avenue, Ste. 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
The defendant pled guilty to two counts of promoting prostitution, Class E
felonies. He was sentenced as a Range I standard offender to one year on the first
charge and given a consecutive six-month sentence on the second charge. In this
appeal as of right, defendant challenges:
(1) the length of his sentence;
(2) the consecutive nature of his sentences; and
(3) the denial of his request for alternative sentencing.
Upon our review of the record, we AFFIRM the judgment of the trial court.
I. FACTS
The defendant owned a massage parlor, "Lisa Dreammakers." On May 29,
1997, as a result of an undercover operation, the defendant was arrested and
charged with promoting prostitution.
While free on bond for the above charge, defendant once again opened a
similar business under the name "Pink Flamingo." On November 8, 1997, the vice
squad conducted an undercover investigation of the new establishment. Defendant
was again arrested and charged with promoting prostitution.
While on bond for this second charge, defendant again opened a similar
business under the name “American Way Mini Spa.” Several months later the
women were arrested, and defendant closed the establishment. Defendant was not
charged with regard to the third establishment.
On May 18, 1998, defendant pled guilty to both charges of promoting
prostitution and was sentenced for these Class E felonies as a Range I standard
offender to one year on the first charge and received a consecutive six-month
sentence on the second charge. Defendant appeals these sentences.
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II. SENTENCING
A. Length of Sentence
Defendant contends the trial court inappropriately weighed the enhancement
and mitigating factors and imposed excessive sentences. However, as the State
points out, the statutory minimum sentence for a Range I, Class E felony is one
year. Tenn. Code Ann. § 40-35-112(a)(5). However, Tenn. Code Ann. § 40-35-
211(2) authorizes the trial court to impose a lesser punishment where the minimum
punishment is one year. In case number 98-00989 defendant was given a sentence
of one year, and in case number 98-07416 defendant was given a six-month
sentence. Since the defendant has failed to assert any credible argument as to why
his sentences should be further mitigated, we find this issue to be without merit.
The state contends the six-month sentence for the Class E felony is not
authorized; therefore, the state seeks an increased sentence to one year. As
previously stated, Tenn. Code Ann. § 40-35-211(2) specifically authorizes such a
sentence. The state’s issue is likewise without merit.
B. Consecutive Sentencing
Defendant argues consecutive sentencing was inappropriate. Defendant
claims his family history, work history, and church and community involvement since
his arrests should outweigh the factors for consecutive sentencing.
Defendant was on bail for the first felony offense when he committed the
second felony offense. Thus, consecutive sentencing was mandatory. See Tenn.
R. Crim. P. 32(c)(3)(C). This issue is without merit.
C. Alternative Sentencing
Defendant argues that an offender who commits a Class E felony is
presumed to be a favorable candidate for alternative sentencing. See Tenn. Code
Ann. § 40-35-102(6). Therefore, he claims the trial court erred in denying his
request for alternative sentencing.
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Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. An especially mitigated or standard
offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing options in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The trial court heard impressive testimony concerning the defendant’s efforts
toward rehabilitation which began after his last illegal business was closed.
However, the trial court noted the defendant’s previous history. The defendant has
sixteen prior convictions, two of which were for promoting prostitution, and has been
on probation on four separate cases. While on bond for the first charge of
promoting prostitution, the defendant opened his business under another name and
continued to violate the law. When he was arrested a second time and again
released on bond, defendant opened the business under yet a third name. He only
ceased to conduct illegal activities when the women in his establishment were
arrested. It is clear from defendant’s conduct that less restrictive measures of
punishment and past attempts at rehabilitation have, in the words of the trial judge,
“failed miserably.” The trial court correctly held that defendant’s “criminal history is
so bad... [i]t would depreciate the seriousness of these offenses if [he] just walks
out free after slapping the law in the face on numerous occasions.”
In light of the defendant’s prior criminal history, we are unable to find error
in the denial of alternative sentencing. This issue is without merit.
CONCLUSION
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We find no reason to disturb the sentence of the trial court. Therefore, we
AFFIRM the judgment below.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOHN EVERETT WILLIAMS, JUDGE
____________________________
ALAN E. GLENN, JUDGE
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