State v. Anthony Sanders

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 24, 1999 Cecil Crowson, Jr. JULY SESSION, 1999 Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9811-CR-00392 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK, ANTHONY D. SANDERS, ) JUDGE ) Appe llant. ) (Sentencing) ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY FOR THE APPELLANT: FOR THE APPELLEE: THOMAS R. BRANDY PAUL G. SUMMERS 245 Broad Street Attorney General and Reporter Kingsport, TN 37660 ERIK W. DAAB JULI E A. M ART IN (O n App eal) Assistant Attorney General P.O. Box 426 425 Fifth Avenu e North Knoxville, TN 37901-0426 Nashville, TN 37243 GREELEY W ELLS District Attorney General TERESA MURRAY-SMITH MARY K. HARVEY Assistant District Attorneys General Blountville, TN 37617 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Defen dant, An thony D . Sande rs, appe als as of righ t pursua nt to Rule 3 of the Tennessee Rules of Appellate Procedure. He wa s con victed, u pon h is plea of guilty, of vehicular homicide by intoxication,1 a Class C felony at the time the offense was committed.2 The agreed sentence was the statutory minimum of three yea rs as a R ange I standard offender. The manner of service of the sentence was left to the discretion of the trial judge. The judge ordered that the sentence be served in the Department of Correction. The Defendant appeals, arguing that the trial judge erred b y not allowing his sen tence to be se rved on probation or allowing some other se ntencing alternative to incarc eration. W e affirm the ju dgme nt of the trial co urt. The Defendant was the drive r of an a utom obile in volved in a on e-veh icle acciden t. The passenger of the vehicle, who w as the Defe ndan t’s brother-in-law at the tim e, was thrown from th e vehic le and killed w hen th e vehic le ran off the road and ove rturned. S hortly after the acciden t, the Defendant gave conflicting statem ents concerning whether it was the Defendant or his passenger who was driving. The Defendant’s blood alcohol content was determined to be .22 percen t. When an accused challenges the length, ran ge, or m anner o f service of a sentence, this Court has a duty to conduct a de novo review of th e sente nce with 1 Tenn. Code Ann. § 39-13-213(a)(2)(1991). 2 The legislature has subsequently amended the vehicular homicide statute, providing that a conviction involving intoxication constitutes a Class B felony. Tenn. Code Ann. § 39-13- 213(b)(1995). -2- a presumption that the determinations made by the trial co urt are co rrect. Tenn. Code Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91). When conducting a de novo review of a sentence, this Court must consider: (a) the e videnc e, if any, received at the trial and sentencing hearing; (b) the presentence re port; (c) the p rinciples o f sentenc ing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Tenn . Code Ann. §§ 40-35-1 02, -103 , - 210; State v. Thomas, 755 S.W .2d 838, 844 (Tenn. Crim . App. 1988 ). If our review reflects that the trial court followed the statutory sentencing procedure, that the co urt imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then w e may no t modify the sen tence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991 ). Tennessee Code A nnotated § 4 0-35-102 outlines whe n alternative sentencing is appropriate. A defendant who is "an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a -3- favora ble candida te for alternative sentencing options in absence of evidenc e to the contrary." Tenn. Code Ann. § 40-35-102(6). Furthermore, the trial court must presume that a defendant sentenced to eight years or less and not an offender for whom incarceration is a priority is subject to alternative sentencing and that a sentence other than incarceration would result in successful rehabilitation unless sufficient evidence rebuts the presumption. Even though probation must be considered, a defendant is not autom atically entitled to proba tion as a m atter of law. Fletcher, 805 S.W.2d at 787. Factors such as the defendant's potential for rehabilitation, the nature and seriousness of the offense, and deterrence o f others in committing the crime, and whether the record reflects multiple or recent unsuccessful sentencing measures other than confinement, can be us ed to rebut the p resump tion that alternative senten cing is ap propriate . Id. at 788-89. The sentencing of this Defendant is governed by the Sentencing Reform Act of 1989. Through the enactment of Tennessee Code Annotated § 40-35-102, the legislature establishe d certain senten cing principles which include the following: (5) In recognition that state prison capac ities and the funds to build and m aintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing -4- failure of past effo rts at rehab ilitation shall be given first prior ity regardin g sente ncing invo lving incarc eration; Tenn. C ode Ann . § 40-35-102 (5). The Defen dant wa s convicte d of a Class C felony which carries with it the statutory presumption that he is a favorable candidate for alternative sentencing options in the abs ence o f evidence to the contrary. Even though a Class C felony may be qu ite a se rious o ffense , the leg islature has provided that there is a presu mptio n of eligibility for alternative sentencing options for all Class C felonies. Also, the principles of sentencing reflect that the sentence should be no greater than that dese rved for the offense committed and should be the least severe measure necessary to achie ve the p urpos es for w hich th e sen tence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider the poten tial for reh abilitatio n or trea tmen t of the D efend ant in d eterm ining the sentence a lternative. Tenn. C ode Ann . § 40-35-103 (5). At the time of the sentencing h earing, the De fendant was twenty-four years old and married. He dropped out of high school during the tenth grade. He had one child by a prior marriage, and he was providing some support for this child. He had held a variety of jobs a nd ha d app arently been regularly employed since the time he dropped out of school. At the time o f the ac ciden t which led to h is conviction for vehicular homicide, he had no history of criminal convictions, although he admitted to a history of alcohol usage while under age and also to a history of some marijuana usage. In determining that the State had presented su fficient eviden ce to overcome the presumption that the Defendant was a favorable candidate for -5- alternative sentencing options, the trial judge noted the Defendant’s history of illegal drug usage, observed that the Defendant had been untruthful to the police officers shortly after th e accide nt occurred, and expressed his opinion that confinement was necessary to avoid depreciating the seriousness of the offense and to provide deterren ce. Beyond these conc erns, howe ver, it is obvious from this record that the trial judge was concerned primarily with the D efend ant’s condu ct subsequent to the accident which caused the death of the victim. The vehicular homicide occurred on February 26, 1995. The Defendant was found guilty of a DUI which occurred on April 25, 1996. While on probation for the DUI conviction he was found guilty of driving on a revoked license on June 15, 1996 and ag ain on F ebruary 19, 199 7. At the sentencing hearing in October of 1998, a witness testified that she had observed the De fenda nt drivin g, aga in with his license revoked, in July of 1998. We believe that these actions by the Defen dant, which obviously reflect adversely on the Defendant’s potential for rehabilitation, weigh heavily in favor of upholding the presumptively correct discretion exercised by the trial judge in this case.3 The record in this ca se affirm atively shows that the trial judge considered the sentencing principles and all relevant facts and circumstances. Trial judges are traditionally vested with broad discretion ary autho rity in sentencing matters. Based upon our careful review of this record, and particularly in view of the Defe ndan t’s continued disregard for the laws of this state, we are unab le to 3 The record on appeal reflects that the Defendant was sentenced on October 16, 1998. The Defendant testified at that time that he no longer consumed alcoholic beverages. He was released on appeal bond. On November 21, 1998 he was arrested on a charge of public intoxication which led to the revocation of his appeal bond. -6- conclude that the trial judge erred or abused his discretion by ordering that the Defe ndan t’s sentence be served in the Department of Correction. The judgment of the trial court is affirmed. ____________________________________ DAVID H. WELLES, JUDGE CONCUR: ___________________________________ GARY R. WADE, PRESIDING JUDGE ___________________________________ JOE G. RILEY, JUDGE -7-