IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SEPTEMBER SESSION, 1998 FILED
October 15, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) No. 03C01-9710-CR-00433
Appellee )
) CAMPBELL COUNTY
vs. )
) Hon. Lee Asbury, Judge
JOHNNY LEE DAVIS, )
) (Sentencing - Denial of Alternative)
Appellant )
For the Appellant: For the Appellee:
Martha Yoakum John Knox Walkup
District Public Defender Attorney General and Reporter
Charles Herman Todd R. Kelley
Asst. District Public Defender Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William Paul Phillips
District Attorney General
P. O. Box 323
Jacksboro, TN 37757
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Johnny Lee Davis, 1 appeals the sentencing decision of the
Campbell County Criminal Court following his guilty pleas to two counts of sexual
battery, one count of arson, and one count of theft of property over one thousand
dollars. Under the terms of the plea agreement, the appellant agreed to an effective
fifteen year sentence, however, he remained eligible for alternative sentencing as no
single conviction was in excess of eight years. The plea agreement further provided
that the manner of service of the sentences was to be submitted to the trial court for
determination. The trial court ordered total confinement. The appellant appeals
contending that the trial court erred in failing to grant alternative sentences.
After review of the record, we affirm the judgment of the trial court pursuant to
Rule 20, Tenn. Ct. Crim. App. R.
This appeal originates from cases, C-8805 and C-9105, which were
consolidated for sentencing purposes. In October of 1995, the appellant was
charged, by indictment, in case C-8805, with one count of rape of a child, a class A
felony, and one count of aggravated sexual battery, a class B felony. The incident
leading to these charges occurred between January and November 21, 1993, and
involved the appellant’s step-daughter. The appellant agreed to plead guilty to two
counts of the lesser offense of sexual battery, a class E felony. The agreement
provided that the appellant would be sentenced, as a range III persistent offender, to
five years on one count and, as a range II multiple offender, to four years on the
remaining count. It was further agreed that counts one and two would run
consecutive to each other for an effective sentence of nine years, with the manner
of service to be submitted to the trial court for determination.
1
The ind ictmen t indicated th at the app ellant was also kn own as “Butch D avis.”
2
After the charges in case C-8805 were pending against the appellant, a
Campbell County Grand Jury, in October of 1996, returned a second indictment,
case C-9105, against the appellant, charging him with one count of arson, a class C
felony, and one count of theft of property over one thousand dollars, a class D
felony. These offenses resulted from the appellant’s employment at Discount
Pagers in LaFollette, Tennessee. While employed as the manager of Discount
Pagers, the appellant had stolen merchandise from his employer. In an attempt to
avoid prosecution, the appellant set fire to the business, resulting in the destruction
of the premises and numerous surrounding businesses/establishments. Indeed, a
fair estimate of the damages caused by the arson totals approximately $637,398.33.
As in case C-8805, the appellant agreed to plead guilty to these charges. The plea
agreement provided that the appellant would be sentenced as a range II multiple
offender to six years on each count, to be served concurrent with each other but
consecutive to those sentences imposed in case C-8805. Again, the manner of
service was reserved for the determination of the trial court.
A sentencing hearing was held on September 2, 1997. Neither party
presented any witnesses, relying solely on the presentence report and argument of
counsel. After considering the evidence, the trial court imposed a sentence of total
incarceration. Specifically, the trial court found:
In this particular case, the Court is compelled to find that [an
alternative sentence] would be inappropriate. This defendant has a
long criminal record.[2] These are very serious matters that he has
been convicted of. He has been on probation before . . .which did not
seem to deter him in committing other crimes. Considering the totality
of the circumstances, it is the opinion of the Court that split
confinement, community corrections and/or probation are
inappropriate and will not be applied in the sentences heretofore
imposed and these sentences are to be carried out.
2
The presentence report indicates that the appellant has eight prior felony convictions and
eight misdemeanor convictions.
3
When the sentencing court properly considers the relevant sentencing
considerations, this court conducts a de novo review with the presumption that the
determination made by the trial court is correct. Tenn. Code Ann. § 40-35-
401(d)(1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Moreover, the
appellant bears the burden of showing that the sentence imposed by the trial court
is improper. See Tenn. Code Ann. § 40-35-210(b)(3)(1997).
Initially, we note that, because the appellant agreed to be sentenced as both
a multiple and persistent offender and because he has a criminal history evincing a
"clear disregard for the laws and morals of society" and a "failure of past efforts at
rehabilitation," he is not presumed a favorable candidate for alternative sentencing.
Tenn. Code Ann. § 40-35-102 (5), -102(6) (1997). Moreover, we agree with the trial
court’s findings that, even if the appellant was entitled to the presumption, the
presumption is rebutted by "evidence to the contrary,” i.e., that confinement is
necessary based upon the appellant's history of criminal conduct, his failure at past
efforts of rehabilitation, and the seriousness of the offenses. Tenn. Code Ann. §§
40-35-103(1)(A), -103(1)(B), -103(1)(C) (1997).
The appellant has not met his burden of demonstrating the impropriety of the
trial court’s denial of alternative sentencing. The record fully supports the trial
court’s determination denying the appellant a non-incarcerative sentence. We
agree with the trial court that a sentence of incarceration is justified.
Accordingly, the trial court’s imposition of a sentence of total confinement is
affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R.
4
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_____________________________________
JOHN H. PEAY, Judge
_____________________________________
JOSEPH M. TIPTON, Judge
5
State v. Johnny Davis
Combined Opinion