IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
September 16, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9710-CC-00476
Appellee, )
) Marshall County
v. )
) Honorable Charles Lee, Judge
JEFFREY DAVID HAHN, )
) (Sentencing)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Julie A. Martin John Knox Walkup
P. O. Box 426 Attorney General & Reporter
Knoxville, TN 37901-0426 425 Fifth Avenue, North
(On Appeal) Nashville, TN 37243-0493
Michael D. Randles Georgia Blythe Felner
Assistant Public Defender Assistant Attorney General
218 North Main 425 Fifth Avenue, North
Shelbyville, TN 37160 Nashville, TN 37243-0493
(At Trial)
William M. McCown
OF COUNSEL: District Attorney General
John Harwell Dickey 215 East College
District Public Defender Fayetteville, TN 37334-0878
105 South Main
Fayetteville, TN 37334 Weakley E. Barnard
(At Trial) Assistant District Attorney General
Marshall County Courthouse
Lewisburg, TN 37091
OPINION FILED: _____________________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, Jeffery David Hahn, appeals as of right from the manner of service
of sentence imposed by the Marshall County Circuit Court for the offenses of forgery,
passing worthless checks, and failure to appear. As a result of a guilty plea, the defendant
received a sentence of eight (8) years, Range II, for the offense of forgery; a sentence of
two (2) years, Range II, for the offense of passing worthless checks; and a sentence of two
(2) years, Range II, for the offense of failure to appear, all to run consecutively in the
Department of Correction. As part of the plea agreement, the defendant requested
placement in the community corrections program under Tenn. Code Ann. § 40-36-106.
After a sentencing hearing, the trial court denied placement in the community corrections
program. The defendant complains the trial court erred by not properly considering the
defendant’s eligibility for alternative sentencing in the community corrections program.
After a review of the evidence in this record, the briefs of the parties, and the
applicable law, we affirm the trial court’s judgment.
FACTS
On March 20, 1996, the Marshall County Grand Jury indicted the defendant in cause
no. 12805 in twenty-four (24) counts of forgery and uttering various checks of the Columbia
Hearth & Home, Inc., between December 6, 1995 and December 21, 1995, totaling
approximately $11,000.00. On August 21, 1996, the defendant was indicted for two counts
of passing worthless checks in cause no. 12944, on June 29, 1996 for $503.90 and on July
3, 1996 for $60.90. On December 11, 1996, the defendant was indicted for the offense
of failure to appear on September 18, 1996 before the Marshall County Circuit Court for
an official proceeding.
GUILTY PLEAS
On February 19, 1997, the defendant entered a plea of guilty to the offense of
forgery, agreeing to a sentence of eight (8) years, Range II, in count one of cause no.
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12805. As part of the plea agreement, counts two (2) through twenty-four (24) would be nol
prosed. Also, the defendant agreed to restitution to be determined at the sentencing
hearing based on all counts. The defendant stipulated on December 19, 1995 he stole a
check from his employer, Mr. Frank Broom, owner of Columbia Hearth and Home, Inc., and
cashed the check in the amount of $7,000. The defendant was identified as the party who
cashed the check.
In cause no. 12944, the defendant agreed he passed a worthless check in the
amount of $504.90, on June 29, 1996 to the Marshall Farmers Co-op. Count two (2) was
nol prosed.
In cause no. 13016, the defendant entered a guilty plea to failure to appear in the
Marshall County Circuit Court on September 18, 1996.
SENTENCING HEARING
At the sentencing hearing, the defendant testified he was 41 years old and spent
some time in the U. S. Navy. The defendant was presently married and raising one child
and a 17-year-old stepdaughter. The defendant had been married four times with three
additional children, but had difficulty in making his child support payments. The defendant
attributed this difficulty to being in jail most of the time and “games his ex-wife was playing.”
The defendant’s present wife is unable to work due to a nerve problem. While the
defendant was in jail, his wife was receiving some sort of government assistance.
If released from jail on the community corrections program, the defendant would
contact Margaret Hereford, associated with a vocational rehabilitation program in Marshall
County, for job training. The defendant agreed to make restitution payments beginning with
$250 a month, plus $1,000 in a savings account. The defendant was sent to Middle
Tennessee Mental Health Institute. The defendant testified the Institute, upon his release,
would set up a case manager to work with the defendant to pay his bills, budget his money
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and make sure he stays on his medicine. The defendant testified he was taking Paxil “for
something in the head.” Also, the defendant took Klonopin for seizures.
As to the offenses the defendant stated, “I admit it since I got picked up on it.” The
defendant agreed the offenses were his fault. The defendant agreed that for the past
twenty (20) years he has been in trouble with the law, such as convictions ranging from
stealing a truck in Texas, receiving three years, 14 counts of passing worthless checks in
Humphreys County, bail jumping, a DUI conviction in Williamson County, and passing
worthless checks in Marshall County in 1989. As for the present offenses, the defendant
testified he was on a drinking binge.
In summary, the defendant testified, in his plea for an alternative sentence:
Well, I have got a wife and kids to worry about now. I didn’t
before. I think after going to the--I was at Parthanon Pavillion.
They did a lot of counseling with me. Then turned around and
I went to Middle Tennessee; got a lot of counseling down
there. I feel a lot better about myself than I did before all of this
ever got started.
The presentence report in this record establishes the defendant has a substantial
history of criminal convictions and behavior: (1) the defendant was convicted of larceny
in Texas, in March, 1977, received a three-year sentence, and placed on parole; (2) on
November 20, 1985, the defendant was convicted in Humphreys County of 17 counts of
passing worthless checks, sentenced to five years on three counts in the Department of
Correction and eleven months and twenty-nine days on 14 counts, and placed on probation
for five years; (3) on November 16, 1987, the defendant was convicted of petit larceny,
sentenced to six months, and placed on probation for one year; (4) on June 27, 1988, the
defendant was convicted of DUI, sentenced to eleven months and twenty-nine days, and
placed on probation after serving 48 hours; (5) on December 28, 1989, the defendant was
convicted of bail jumping and sentenced to three years; (6) on December 15, 1989, the
defendant was convicted of passing worthless checks in Marshall County and sentenced
to six years, Range II; (7) on December 15, 1989, the defendant was convicted of passing
two worthless checks and received sentences of eleven months and twenty-nine days; (8)
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between June 26, 1991 and October 20, 1992, the defendant was arrested four times and
convicted of driving on a revoked license; and (9) on October 11, 1994, the defendant was
convicted of passing a worthless check and received a sentence of eleven months and
twenty-nine days.
As part of the defendant’s criminal history, the defendant had two periods of
probation revoked.1
Based upon this evidence, the trial court denied placement in the community
corrections program.
DENIAL OF COMMUNITY CORRECTIONS
The defendant contends the trial court failed to consider the sentencing principles
in the Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-103. The defendant
argues the trial court appears to have decided this case on the basis of one problem it
perceives in the criminal justice system. Further, the defendant contends the trial court
failed to appropriately consider the defendant’s potential for rehabilitation and treatment,
since he had already begun mental health counseling and drug treatment for his alcohol
and mental health problems.
The defendant must establish the burden of showing that the manner of the service
of a sentence imposed by a trial court is improper. State v. Holland, 860 S.W.2d 53, 60
(Tenn. Crim. App. 1993). This Court must conduct a de novo review of the sentence with
a presumption that the determinations made by the trial court are correct. Tenn. Code Ann.
§ 40-35-401(d). The “presumption of correctness which accompanies the trial court’s
action is conditioned upon the affirmative showing in the record that the trial court
1
For some strange reason the defendant’s parole was never revoked with numerous
arrests and convictions during the parole period. It should be noted the defendant’s parole
expired April 3, 1995, and in less than eight months the defendant committed these
offenses.
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considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Thus, if there is no presumption of correctness,
this Court conducts a de novo review without the presumption of correctness. State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993).
The defendant contends he is eligible for placement in the community corrections
program under Tenn. Code Ann. § 40-36-106 (a):
(1) Persons who, without this option, would be incarcerated in
a correctional institution;
(2) Persons who are convicted of property-related or
drug/alcohol-related felony offenses or other felony offenses
not involving crimes against the person as provided in title 39,
chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the
use or possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern
of behavior indicating violence;
(6)(c) Felony offenders not otherwise eligible under subsection
(a), and who would be usually considered unfit for probation
due to histories of chronic alcohol, drug abuse, or mental
health problems, but whose special needs are treatable and
could be served best in the community rather than in a
correctional institution, may be considered eligible for
punishment in the community under the provisions of this
chapter.
In response to the defendant’s plea for an alternative sentence, the trial court found
that normally the defendant would be a suitable candidate for an alternative sentence.
However, the defendant was not entitled to such a presumption since the defendant was
a Range II offender and facing cumulative sentences of 12 years. In denying an alternative
sentence, the trial court stated:
Would that there could be some pill we could administer to
keep people form violating the law, but there is not such
medication. The Court finds the defendant has failed to carry
his burden of proof and with this comment, one of the reasons
in this court’s opinion that our criminal justice system continues
to take a backward slide is that there is not certainty any more
in the law. There once was a virtual certainty that a person with
a record that Mr. Hahn has would go to the penitentiary if he
violated the law. The mere fact this court has to conduct a
sentencing hearing with such a record indicates as well as
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apparently Mr. Hahn felt that he might have a chance at
alternative sentencing, ergo there is no certainty in the law. We
will continue to slip backwards with such a velocity.
Although the trial court did not articulate in its ruling the sentencing requirements of
Tenn. Code Ann. § 40-35-103, it was following these requirements in spirit. This statute
in pertinent part states:
(1) Sentences involving confinement should be based on
the following considerations:
(A) Confinement is necessary to protect society
by restraining the defendant who has a long
history of criminal conduct;
*****
(C) Measures less restrictive than confinement
have frequently or recently been applied
unsuccessfully to the defendant.
The defendant called the court’s statements a diatribe concerning the criminal justice
system, but it appears more that the trial court was expressing its frustration with the
defendant’s total lack of personal responsibility for his actions.
In conclusion, we find from our de novo review that the record is adequate to
support the denial of an alternative sentence under the Community Corrections Act. The
judgment is affirmed.
__________________________________
L. T. LAFFERTY, SPECIAL JUDGE
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CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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