IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SEPTEMBE R SESSION, 1999
FILED
December 6, 1999
STATE OF TENNESSEE, ) C.C.A. NO. E1998-
Cecil Crowson, Jr.
00364-CCA-R3-CD Appellate Court Clerk
)
Appe llant, )
)
) SULLIVAN COUNTY
VS. )
) HON. R. JERRY BECK
RONALD REECE CROSS, ) JUDGE
)
Appellee. ) (Direct Appeal - Sentencing)
FOR THE APPELLEE: FOR THE APPELLANT:
TERRY JORDAN PAUL G. SUMMERS
Office of the Public Defender Attorney General & Reporter
P. O. Box 839
Blountville, TN 37617 TODD R. KELLEY
Assistant Attorney General
GERALD L. GULLEY, JR. 425 Fifth Avenu e North
Contract Appellate Defender Nashville, TN 37243-0493
P. O. Box 1708
Knoxville, TN 37901-1708 GREELEY W ELLS
District Attorney General
JOSE PH E UGE NE P ERR IN
Assistant District Attorney
Main Street
Springfield, TN 37172
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On July 21, 19 98, Ro nald Re ece Cr oss (the “d efenda nt”) pled gu ilty to the
following charges arising out of a single incide nt: violatin g an h abitua l traffic
offender order, evading arrest, driving under the influen ce of alco hol (eighth
offense), running a stop sign, reckless driving, and violation of registration.
Following a sentencing hearing on the above charges, the trial court denied
alternative sentencing for the defendant, and instead ordered the defendant to
serve an effective ten (10) year, eleven (11) month, and twenty-nine (29) day
senten ce. The issues o n appe al are:
(1) whether the trial court erred in denying alternative sentencing to the
defendant, and
(2) whether the trial court erred in ordering the defendan t to serve
consecutive sentences.
Because we find that the trial court sentenced the defenda nt appropriately,
we affirm the judgm ent of the tria l court.
FACTUAL BACKGROUND
After the defen dant pled guilty to the above charges, the trial court held a
sentencing hearing. First, the defendant’s sister testified that, in her opinion, the
defendant had a “good heart,” but that he was an alcoholic. She also testified
that most of his extensive criminal record was a result of his drinking, and that
she would support her brother in any way possible. The state then
offered proof, in the form of several certified copies of convictions, that the
defendant was a Ra nge III, Persistent O ffender for sentencing purposes. The
defendant agreed.
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The state then offered evidence that the sentence should be enhanced
because (1) the defendant had five prior felony convictions,1 (2) the defendant
had a histo ry of un willingness to comply with the conditions of a sentence
involving release in the community, because in this case the defendant was
serving a community corrections sentence when he committed the instant
offenses,2 and (3) the defendant committed a felony wh ile on com munity
release.3 The defendant agreed that those enhancing factors applied. The
defendant argued, however, that because he was an alcoholic and had family
suppo rt, his sentence should be mitigated pursuant to Tenn Code Ann. § 40-35-
113(13), the catch-all provision for mitigating factors. Th e trial court agreed and
considered the defendant’s alcoholism as a mitigating factor in sentencing.
The state then argued that the defendant’s sentences should be served
consecu tively, because (1) the defendant had an extensive criminal record,4 and
(2) the defendant was on probation when he committed the offenses in this case.5
The d efense did not ob ject.
Consequently, the trial court fou nd the d efenda nt was a Rang e III,
Persistent Offender. Th e court denied alternative sentencing for the defen dant,
and instead sentenced the defendant to five (5) years incarceration for violating
an habitual traffic offender order, five (5) years for felony evading arrest, and
eleven (11) months and twenty-nine (29) days for DUI, eighth offen se. The co urt
ordered those sentences served consecutively. The court also sentenced the
defendant to six (6) months for reckless driving, thirty (30) days for running a stop
sign, and thirty (30) days for violating registration. The latter three (3) sentences
were ordere d to be served conc urren tly to the effective ten (10) year, eleven (11)
month and twenty-nine (29) day sentence arising out of the first three charges.
1
Tenn. Code Ann. § 40-35-114(1).
2
Tenn. Code Ann. § 40-35-114(8).
3
Tenn. Code Ann. § 40-35-114(13)(E) .
4
Tenn. Code Ann. § 40-35-115(2).
5
Tenn. Code A nn. § 40-35-115(6).
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STANDARD OF REVIEW
When an accused challenges the length, range or manner of service of a
sentence, this court has a duty to conduct a de novo review of th e sente nce with
the presu mptio n that the determ inations m ade by th e trial court a re correc t.
Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is conditioned upon an
affirmative indication in the record that the trial court cons idered all relevant fac ts
and circums tances . State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the
state conce des in its brief, the record in this case does not affirmatively in dicate
full compliance with the statutory principles of sentencing, and the presumption
of correctness cannot be applied. Thus, we must review the sentence de novo.
When conducting a de novo review of a sentence, this court must consider
the following: (a) the evidence, if any, received at trial and sentencing hearing;
(b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating and/or enhancement factors; (f) any
statemen t made by the defendan t regarding sen tencing; and (g )
the potential or lack of potential for rehab ilitation or treatm ent. State v. Thomas,
755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102,
-103, -210.
ALTERNATIVE SENTENCING
The defendant contends that the trial court erred by s entenc ing him to
incarceration. He claims tha t the trial court should ha ve sentence d him to serve
his sentence in the Community Corrections Program instead. We disagree. The
Com munity Corrections Act allows certain eligible offende rs to pa rticipate in
community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103.
Howeve r, a defendant m ust first be a suitable can didate for alternative
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sentencing. In this ca se, the defen dant w as no t suitab le for alternative
senten cing. Te nn. Co de Ann . § 40-35 -102(6) p rovides:
A defendant who does not fall within the parameters of
subdivision (5) and who is an especially mitigated or standard
offender convicted on a Class C, D, or E felony is p resum ed to
be a favorable candidate for alternative sentencing in the
absen ce of evide nce to the contrary.
(Emph asis added ).
The defendant was sentenced as a Range III, Persistent Offender. Thus, he
is not presumed to be a favorable candidate for alternative sentencing.
Furtherm ore, Te nn. Co de Ann . § 40-35 -103 pro vides:
(1) Sentences involving confinement should be based on the
following considerations:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of criminal
condu ct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offens e or co nfinem ent is p articula rly
suited to provide an effective deterren ce to othe rs likely to
comm it similar offenses; or
(C) Measures less restrictive than confinement have
freque ntly or rece ntly bee n app lied un succ essfu lly to the
defend ant.
In this case, the defendant conceded in his brief that he “mee ts the statutory
presumption that confin emen t is approp riate.” W e agree . The trial court
specifically held that confinem ent was neces sary to protect society from the
defend ant. 6 This finding was based on the defendant’s extensive record of
driving under the influence and violating habitual traffic offender orders. The
trial court could have also found that measures less restrictive than
confinement have been tried and failed . Indeed, the defendant committed the
offenses that gave rise to the instant charges while he was serving a
Com munity Corrections sentence. Thus, alternative sentencing is clear ly
inappro priate for this defend ant. This issue ha s no m erit.
CONSECUTIVE SENTENCES
6
At the sentencing hearing, the trial judge stated “I’m afraid you’re going to get out and run over
som ebody if you ju st keep it up.”
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The defendant also claims that the trial court erred in ordering h im to
serve consecutive sentences. The trial court specifically found that the
defendant had an extensive crim inal record pursua nt to Ten n. Cod e Ann. §
40-35-115(b)(2) and that the defendant was on probation pursuant to Tenn.
Code Ann. § 40-3 5-115(b)(6). The trial court found that the defendant was
on probation, for purposes of consecutive sentencing, because the defendant
was serving a community corrections sentence when he committed the
offenses in this case . Tenn. C ode An n. § 40-3 5-115(b )(6) provide s: “[t]he
court may ord er sente nces to ru n cons ecutively if the court finds by a
preponderance of the evidence that . . . [t]he defendant is sentenced for an
offense comm itted while o n proba tion.” Although “consecutive sentencing for
persons who commit offenses while on community corrections seems just as
approp riate as consecutive sentencing for persons who com mit offenses while
on probation[,]” State v. Pettus, 986 S.W .2d 540, 544 n.9 (Tenn. 1999), the
Supreme Cour t recen tly held that “the legislature did not intend a comm unity
corrections sentence and a probation sentence to be equivalents for purposes
of consecutive sentencing under Tenn. Code Ann. § 40-35-11 5(b)(6).” Id. at
544. Therefore, in this case the trial court erred when it found that the
defendant was on probation at the time he comm itted the offenses.
The trial court was c orrect , howe ver, in determining that the defendant
had an extensive criminal record. Tenn. Code Ann. § 40-35-115(b)(2) states:
“[t]he court may order sentence s to run conse cutively if the court finds by a
preponderance of the evidence that . . . [t]he defendant is an offender whose
record of crim inal ac tivity is exte nsive.” The tr ial cou rt spec ifically found five
prior felony convictions for the purposes of determining that the defendant
was a persistent offender. Furthermore, the presentence report contains a
record of numerous other convictions. The defendant’s record was c learly
extensive within the meaning of the statute. See Powe rs v. State 942 S.W.2d
551, 558 (Tenn. Crim. App. 1996)(holding four prior convictions supported trial
court’s finding the defendant had an extensive criminal record under the
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statute); see also State v. Chrisman 885 S.W.2d 834, 839 (Tenn. Crim. App.
1994)(finding four prior felony convictions and numerous traffic convictions
suppo rted trial cou rt’s finding of a n extens ive crimina l record).
The defendant also contends that the trial court e rred by refu sing to
consider the requirements of State v. Wilkerson, 905 S.W.2d 933 (Tenn.
1995). In Wilkers on, the Supreme Court found that, in order to sentence a
defendant to consecutive sentences because he was a “dangerous offender”
under Tenn . Code Ann. § 40-35-115(b)(4), a trial court must find (1) the
sentences were nece ssary to protect the p ublic from further misconduct by the
defendant and (2) the terms of the sentence were reasonably rela ted to the
severity of the offen ses. Id. at 938. Those cons ideratio ns, ho weve r, are on ly
manda tory when the trial court imposes consecutive sentences on “dangerous
offende rs.” State v. David Keith Lane, No. 03-S-01-98020CC00013 (Tenn.
Sept. 27, 199 9). In this case, the trial court sentenced the defendant
cons ecutive ly because he had an extensive criminal re cord; thu s, Wilkerson
does n ot apply. T his issue has no merit.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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State of Tennessee v. Ronald Reece Cross
Combined Opinion