IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1999 SESSION
STATE OF TENNESSEE, )
) C.C.A. No. W1999-01760-CCA-R3-CD
Appellee, )
) Shelby County
v.
CARLOS A. CURRY,
)
)
)
FILED
Honorable Carolyn Wade Blackett, Judge
) (Sentencing)
Appellant. ) December 16, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
FOR THE APPELLANT: FOR THE APPELLEE:
MARK A. MESLER PAUL G. SUMMERS
Ballin, Ballin & Fishman Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103 J. ROSS DYER
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
MICHAEL H. LEAVITT
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103-1947
OPINION FILED: __________________________________________
AFFIRMED
ALAN E. GLENN, JUDGE
OPINION
The defendant, Carlos A. Curry, was indicted by the Shelby County Grand Jury and
charged with evading arrest in a motor vehicle and possession of a handgun in a public
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place. Pursuant to a negotiated plea agreement, he pleaded guilty to both of these
offenses, receiving sentences of six months for evading arrest and thirty days for
possession of a handgun in a public place. The trial court denied his petition to suspend
these sentences, a decision which he timely appealed. Based upon our review, we affirm
the judgment of the trial court.
FACTS
During the hearing on the defendant’s petition for suspension of sentence, it was
made clear that there was substantial variance between the defendant’s version of the
incident which resulted in his arrest and that of the police officers. According to the
assistant district attorney representing the State of Tennessee, the officers reported that
the following occurred [Questions by General Leavitt]:
At a high rate of speed. You turned onto I-40. The officers
initiated the emergency equipment and siren. You accelerated
to approximately eighty miles an hour, then slowed to thirty
miles an hour and pulled to the emergency lane but still did not
stop. You continued for approximately one mile nearly causing
an accident at Perkins on the entrance ramp.
They observed Mr. Austin throwing baggies from the
passenger window, and observed you and Mr. Austin making
movements and passing a silver object back and forth.
When finally pulled to a stop and both of you bailed out.
Defendant was apprehended after a short chase. The
defendant while running pulled the pistol from his waistband
and threw it to the ground. The weapon was loaded with one
in the chamber and five in the magazine.
You were arrested. The gun was recovered. And they
went back and they found two plastic bags with marijuana
residue, one in the vehicle and one on the ground beside the
vehicle. Both you and Mr. Austin said that the gun belonged
to the other person.
In contrast, the defendant gave the following explanation of the incident:
Me and Jack, we left the house and we got off on Perkins.
The undercover cop he was trailing us behind. He pulled us
over at the Perkins exit.
I got out, went to the car. I came back to my car. Then at
the time I found out that Jack had a pistol. So I knew that I’m
a felon already on a pistol charge, so I told him, I said you are
going to take that charge and he said no, he’s not going to take
the charge. So I jumped out of the car and I ran.
According to the presentence report, the defendant was 25 years old, married, with
two children, and employed for approximately the past six months as a forklift driver. He
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was a graduate of Byhalia, Mississippi, High School. He had two prior convictions. In
1994, he was convicted of attempt to commit a felony, for which he had received a two-
year sentence at the Shelby County Correctional Center. He was convicted in 1994 of a
“weapons offense” and sentenced to a six months sentence. He did not seek probation
for these sentences which were served concurrently. According to the defendant, he was
attending a heating and air conditioning school at the time of the hearing.
In denying the petition for suspension of sentence, the trial court stated:
Mr. Curry, would you please stand up. The Court has
looked at your criminal history, and you do have several other
offenses that you’ve been convicted of. In addition to that, the
Court does not believe that you have been very candid with the
Court in terms of what exactly happened out there, whether or
not it was your gun or someone else’s gun, what you were
exactly doing.
It seems very unlikely that undercover cops would just pull
over a car for no reason. And it seems even more unlikely that
you would take the gun out of your car and run with it. I don’t
know where you thought you were running to and how you
thought you could outrun a car. But that’s neither here nor
there.
You should know that understand that today is your day
in Court. And today was your day to establish to the Court that
you were a worthy probationary candidate, which you didn’t do.
In response to the request of defense counsel that the defendant be allowed to
serve his sentence on the weekends, the court stated:
The only reason why I won’t is because I don’t believe
what he said, not for one minute, and I don’t think you did
either. And that was basically based upon the fact that it was
not only you, Mr. Mesler, but Mr. Leavitt didn’t believe it, I didn’t
believe it, and today was his day.
I am not going to sit here -- I don’t think it is my role to sit
here and pull the truth out of people. I’ve done it a couple of
times already today, but I’m not going to do it any more. So
the answer to that is no.
ANALYSIS
Since the defendant has challenged the manner of service of his sentence, we must
conduct a de novo review, presuming that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). The burden is on the defendant to show that
confinement is improper. State v. Bult, 989 S.W.2d 730, 734 (Tenn. Crim. App. 1998),
perm. app. denied (Tenn. 1999). Even if we applied a presumption favoring probation, as
the defendant urges, he would not be helped. Here, he has two prior convictions, one of
which was a felony, for which he served concurrent sentences at the Shelby County
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Correctional Center. Additionally, we note that his version of the incident which resulted
in his arrest was vastly different from that set out by the arresting officers. The comments
by the trial court made it clear that the defendant’s version of the events was not
believable. The court specifically told the defendant that his petition for suspended
sentence was being denied because of his prior convictions and his lack of candor while
testifying during the petition hearing.
In denying probation, it is clear that the trial court properly considered the relevant
factors, including the defendant’s criminal record. State v. Black, 924 S.W.2d 912, 917
(Tenn. Crim. App. 1995); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).
Additionally, it was proper for the court to consider the defendant’s lack of truthfulness.
“The defendant’s truthfulness at a trial or sentencing hearing is a factor that may be
considered. A trial judge may deny probation on this ground.” State v. Dykes, 803 S.W.2d
250, 259-260 (Tenn. Crim. App. 1990).
The defendant has urged that we should apply the sentencing considerations of
Tenn. Code Ann. § 40-35-102(6) to this matter and consider alternative sentencing options.
However, even following such an application, the defendant’s case would fail because of
his prior record of convictions and lack of candor:
The trial court denied alternative sentencing based upon the
defendant’s lengthy history of criminal behavior, his
unsuccessful completion of less restrictive measures, and his
lack of truthfulness. See T.C.A. § 40-35-103(1)(A) and (C);
State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim. App.
1992) (lack of candor may be considered in denying alternative
sentencing). These are all proper considerations in the
determination of alternative sentencing and reflect negatively
on the defendant’s potential for rehabilitation. We agree with
the trial court’s determinations and affirm the trial court’s denial
of alternative sentencing.
State v. Anderson, 985 S.W.2d 9, 21 (Tenn. Crim. App. 1997).
Applying the holding in Anderson to this matter, we likewise agree with the decision
of the trial court that the defendant was not an appropriate candidate for alternative
sentencing.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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_____________________________________
ALAN E. GLENN, JUDGE
CONCUR:
__________________________________
JOHN H. PEAY, JUDGE
__________________________________
NORMA McGEE OGLE, JUDGE
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