IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY 1998 SESSION
August 25, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9708-CC-00357
Appellee, )
) Williamson County
V. )
) Honorable Henry Denmark Bell, Judge
UTHER CHRISTIAN, )
) (Sentencing - Probation Denial)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
John H. Henderson John Knox Walkup
District Public Defender Attorney General & Reporter
407 C Main Street
P.O. Box 68 Elizabeth B. Marney
Franklin, TN 37065-0068 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Joseph D. Baugh
District Attorney General
John Barringer
Assistant District Attorney General
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
On January 3, 1997, the appellant, Uther Christian, pled guilty to
possession of cocaine over .5 grams with intent to sell or deliver, which is a
Class B felony. Following a sentencing hearing on June 27, 1997, the trial court
fined the appellant $2,000 and sentenced him to serve eight years in the
Tennessee Department of Correction.
The appellant’s sole issue for our review is whether the trial court erred in
failing to order an alternative sentence. We affirm.
The appellant argues that the trial court erred by denying him an
alternative sentence. In his brief, the appellant admits that he has eight prior
misdemeanor convictions; one prior felony conviction in 1979 for simple robbery
for which he received a three-year suspended sentence; a pending charge for
failure to appear; and a pending charge for aggravated robbery, which he denies.
The appellant’s argument essentially consists of his assertion that he should not
be ordered to serve his sentence in confinement because he is addicted to crack
cocaine and needs drug treatment. The appellant testified at the sentencing
hearing that although he had been in a veterans’ hospital in the last five or six
years, he did not receive treatment for his drug problem. He contends that he
was in the mental health department at the hospital and received treatment for
depression.
The state contends that the trial court properly denied alternative
sentencing. It asserts that the appellant, by pleading guilty to a Class B felony, is
not entitled to the statutory presumption that he is a suitable candidate for
alternative sentencing. In fact, the state, in its brief, contends that the
appellant’s criminal history indicates “a clear disregard for the laws of society and
evinces a failure of past effort[s] at rehabilitation.” It notes that in addition to the
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appellant’s previous convictions, he had pending charges for failure to appear
and for aggravated robbery at the time of the sentencing hearing. Furthermore,
the state argues that the appellant “has previously benefitted from lenient
sentencing but has continued to violate the law.” Specifically, it notes that the
appellant’s conviction in the case sub judice occurred just ten days after his
conviction for criminal trespass in February 1996. Finally, the state insists that
past efforts to rehabilitate the appellant have failed because he has been in a
hospital for drug rehabilitation several times during the last five or six years.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1997). However, this presumption is conditioned on an affirmative
indication in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
The appellant bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and (f)
the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-103(5), -210(b) (1997).
The first step is to determine whether the appellant is entitled to the
statutory presumption that he is a favorable candidate for alternative sentencing.
For a defendant to be entitled to this presumption, three criteria must be met
under Tennessee Code Annotated §§ 40-35-102(5) and -102(6) (1997): the
defendant must be an especially mitigated or standard offender; he or she must
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be convicted of a Class C, D, or E felony; and he or she must not fall within the
parameters of Tennessee Code Annotated § 40-35-102(5), which states that a
defendant cannot have a criminal history that shows a “clear disregard for the
laws and morals of society” or “failure of past efforts at rehabilitation.” The
appellant pled guilty to a Class B felony, has a prior criminal history, and has
been on probation in the past. Thus, based upon the foregoing, he is not entitled
to the statutory presumption as a suitable candidate for alternative sentencing.
Tennessee Code Annotated § 40-35-103 (1997) provides the following
guidance regarding sentencing:
(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 conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to others likely to commit similar
offenses; or
(C) Measures less restrictive than confinement have frequently
or recently been applied unsuccessfully to the defendant.
Furthermore, Tennessee Code Annotated § 40-35-103(5) provides that the
“potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term
to be imposed.”
The appellant, not the state, has the burden of establishing suitability for
full probation. Tenn. Code Ann. § 40-35-303(b) (1997). To meet this burden,
the appellant must illustrate how probation will “subserve the ends of justice and
the best interest of both the public and the defendant.” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d
250, 259 (Tenn. Crim. App. 1990)).
In its decision, the trial court found that the three enhancement factors
relied upon by the state outweighed the six mitigating factors relied upon by the
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defense. With numerous misdemeanor convictions, one prior felony conviction,
and two pending charges, one for aggravated robbery and one for failure to
appear, at the time of the sentencing hearing for the instant offense, the
appellant has had every opportunity to prove that he can function in society
without being a threat to others. However, he has allowed his drug addiction to
control his behavior; and the appellant, who has suffered gunshot wounds, is not
only a threat to others but also to himself. Furthermore, at the sentencing
hearing, the appellant admitted that he had violated his probation once or twice
in the past. He has failed to carry the burden of proving that an alternative
sentence would be in his best interest or in the best interest of the public.
We affirm the trial court’s judgment.
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________________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JERRY L. SMITH, Judge
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