IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
APRIL 1998 SESSION
FILED
June 25, 1998
Cecil W. Crowson
) Appellate Court Clerk
STATE OF TENNESSEE ,
APPELLEE )
)
VS. ) C.C.A. No. 01C01-9707-CC-00252
) LAWRENCE COUNTY
) Honorable Jam es Weatherford
RODNEY J. D. SMITH )
APPELLANT. ) (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
Shara A. Flacy John Knox Walkup
Public Defender Attorney General and Reporter
22nd Judicial District 425 Fifth Avenue, N.
128 N. S econd S t. Nashville, TN 37243
Pulaski, TN 38478
Daniel J. Runde Karen M. Yacuzzo
Assistant Public Defender Assistant Attorney General
22nd Judicial District 425 Fifth Avenue, N.
128 N. S econd S t. Nashville, TN 378243
Pulaski, TN 38478
Mike Bottoms
District Attorney General
P. O. Box 459
Lawrenceburg, TN 38464
James G . White
Assistant District Attorney General
P. O. Box 459
Lawrenceburg, TN 38464
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendan t presents an appeal as of righ t from the judgm ent of the trial court
denying probation or an alternative sentence. On December 6, 1996, the defendant
entered a plea of nolo contendere in cause #15,529 to facilitation to commit murder
second degree, agreeing to a sentence of eight (8) years; in cause #15, 298, to the
offense of ro bbery, agre eing to a sen tence of thre e (3) years c onsecutive to #15, 529 ; in
cause #15, 299, in counts one and two to the offense of robbery, agreeing to a sentence
of six (6) yea rs concurre ntly on eac h count; in c ause # 15 ,300, in cou nts one an d two to
the offense of robbery, agreeing to a sentence of six (6) years concurrently on each
count; and in cause #15,301 to the offense of robbery, agreeing to a sentence of four (4)
years consecutive to cau ses #15,529 and #15,298. The ag reed sentence w as a Range I,
maximum of 15 years and it was understood the defendant would seek probation or an
alternativ e senten ce.
As part of the plea agreement, the State agreed to nolle prosequi causes #15,283
and #15 ,284, safe-cra cking and burglary th ird degree; # 15,331 m aking a false report to
police; and #15,364 burglary second degree.
After a review of the record and applicable law, we find that the trial court did
not err in denyin g the de fendan t’s reque st for pro bation a nd/or a n alterna tive sen tence.
The trial court’s judgment is affirmed.
HISTORY
The facts in this record are somewhat unusual in that the commission of these
offenses occurred in 1988-89, and the conclusion was in 1997. The record establishes,
originally, the defendant was accused in cause #15,297 of felony murder and armed
robbery of Bartlett M arston on January 2 9, 1989, via a knife. The defendant’s brother,
James E. Sm ith, Jr., and uncle, Michael M cConnell were indicted as co-defendan ts. In
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causes #15,298, #15,299, #15,300 and #15,301, the defendant was accused of six counts of
armed robbery involving six different victims between January 22, 1989, and January 30,
1989. The defendant, also, had been accused in causes #15,283 and #15,284 with safe-
cracking/burglary third, on January 17, 1989; #15,331, making false report on December
10, 1988; and #15,364, burglary second on December 20, 1988.
The reco rd reflects that th e defenda nt and his b rother, Jam es E. Sm ith, Jr., went
to trial on indictment #15,297 on May 6, 1991, before the Honorable William B. Cain,
Crim inal Co urt for L awren ce Co unty. O n Nov embe r 20, 19 90, the c o-defe ndant,
Michael M cConnell, had plead guilty to murder secon d degree, receiving a sen tence of
70 years. As part of his plea agreement, McConnell agreed to testify in behalf of the
State against both Smiths. McConnell, upon being called as a witness, refused to honor
his plea agreement and refused to testify against the Smiths. In an out of jury hearing,
McConnell did testify the Smiths were a part of the murder of Bartlett Marston. On
May 8, Judg e Cain , after a co nversa tion wi th the as sistant D istrict Att orney G eneral,
sua spon te granted a mistrial. At re-trial, the defendant filed a motion to dismiss on the
grounds of double jeopardy. Special Judge Allen Cornelius denied the motion and
permitted an interlocutory appeal to the Court of Criminal Appeals. In State v. S mith,
871 S.W.2d 677 (Tenn. 1994), the Supreme Court denied the motion and remanded the
case fo r a new trial. The defend ant wa s then re indicted in #15,5 29 for fe lony m urder,
first degree murder, and armed robbery of Marston. The armed robbery accusations
were k nown in Law rence C ounty a s the “A mish ro bberies .”
The record before us does not contain a transcript of the stipulated facts entered
at the plea proceedings as to the exact involvement of the defendant in these criminal
offenses. The State argues that since the defendant failed to include a transcript of the
plea hearing, this Court should not consider the merits of the defendant’s claim. The
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defendant counters tha t the entry of a plea of nolo contendere does not require the trial
court to accept a factual basis for the plea, citing Raybin, Tennessee Criminal Practice
and Procedure §§ 22.14, 22.102. We agree with the defendant that sufficient facts
were d evelop ed at the senten cing he aring fo r this Co urt to co nduct a proper review .
The State had am ple oppor tunity to sub mit this transc ript.
SENTENCING HEARING
The defe ndant sub mitted an a rray of imp ressive evid ence to assis t the trial court
in its determination of the request for probation and/or an alternative sentence. Testifying
for the defendant were his wife, Diana Smith and his employer, Steven Cheatwood. The
defendant also testified. Several certificates of awards, including a G.E.D. certificate
and five letters in support of the defendant’s request were admitted at the hearing.
A summary to the evidence reveals that the defendant was released on bail in the
amount of $5 0,000 on June 1 0, 1991, while aw aiting a re-trial. Prior to the defendant’s
arrest, he had been trained as a Geriatric Nursing Assistant and was employed at the
Lawrenceburg Manor Nursing Home. The defendant was arrested February 2, 1989, for
these offenses. While in the Lawrence County Jail, the defendant achieved the status of
trustee a nd stud ied cou rses for o btaining a G.E.D ., which he obta ined up on relea se.
Upon release, the defendant found sporadic employment until November, 1991. During
September, 199 1, the defendant wa s married and sub sequently divorced. In N ovember
the defendant found employment at the Lawrencebu rg Manor Nursing Hom e as a nurse
technician where he met his wife, Diana Smith.
Mrs. Smith testified that she worked with the defendant on and off for four years
at the nursing home. They married on October 7, 1994. Mrs. Smith had two children,
ages seven and eight, who treated the defendant as their father. Mrs. Smith describes
the defend ant’s relationsh ip with her c hildren as v ery good . He helps w ith their
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homework, assists in getting them ready for school and is supportive of her and the
children. The defendant has established a good relationship with Mrs. Smith’s family
by putt ing a ro of on h er aunt’ s hom e and h elping a family mem ber m ove to T enness ee.
Mrs. Smith describes her husband as a good worker, who brings his paycheck home
and does not drink or use illegal drugs. As to the murder charge, Mrs. Smith testified
that the defendant denies any involvement, but admits to the “Amish robberies” as
stupid and he “feels terrible about it.” In conclusion, Mrs. Smith loves her husband
and is sure he will abide by any conditions of probation or an alternative sentence
imposed by the Co urt.
The defendant’s employer, Mr. Steven Cheatwood, testified he hired the
defendant in 1995 as a bricklayer. Mr. Cheatwood described the defendant as being
a very good worker, dependable, gets along well with his fellow employees and has no
drinking or drug problems. At the time of the hearing the defendant was making
$9.00/hour and if he remained employed, the defendant could expect $14.00/hour and
possibly be made a foreman. Mr. Cheatwood testified he would continue to employ the
defendant if Mr. Smith were placed on work release.
In his testimony, the defendant described his family background, educational
progress and work history until these charges. The defendant corroborated the
testimony of his wife and employer about his family and employment history. The
defendan t tendered to the court the results of a po lygraph ex amination in regard to h is
alleged inv olveme nt in the M arston mu rder. It was a lleged the res ults would corrobora te
or support the defend ant’s claim of innocen ce. The trial court permitted, ove r the State’s
objection, a p roffer, but ruled the results w ould not b e considere d by the C ourt in its
determin ation. As to th e Marsto n murd er the defen dant cons istently main tained his
innocence and entered his nolo plea in order to bring “some resolution and some
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resolvement to the case for all parties concerned, including the victim’s family.” In open
court, the defendant advised the Marston family, “I truly feel sorry for you and I hope
that this will bring some kind of resolution to you, and I’m truly sorry.” As to the
“Amish robberies,” the defendant admitted his involvement attributing the reason being
as “riding around, drinking, and smoking dope ... I was quite young, dumb, and stupid
and I’m here to take my responsibility for that.” There was little or no cross-examination
by the State of the defen dant.
Mr. Steven Long, grandson of the victim Bartlett Marston, the murder victim,
testified it was n ot necessar y for the def endant to k ill his grandfath er and that th ey could
have done something else besides stabbing him sixteen times. The record established
that the victim was quite elderly, in po or health, an d had lim ited hearing . The Co urt
infers M r. Long was in oppos ition to a ny altern ative relie f for the d efenda nt. Also ,
Mrs. Virginia Long, daughter of the victim, testified about her father’s condition and
age of eighty-eight years. Mrs. Long was in opposition to any probation for the
defendan t.
The trial court, in its opinion, set out several reasons for the denial of probation
and an alter native sente nce. The tria l court com mented on the defe ndant’s ach ievemen ts
upon release from jail, his steady employment, care of his family, and no legal problems
other than the seriousness of these multiple violent offenses. The trial court stated:
Like I say, I th ink the State has show n mercy and I think th at this
court has shown mercy in accepting the fifteen year sentence. But when I
look at this record and every crime that I’m dealing with here is a crime of
violence against a person, and I have to take into consideration the victims
here wh ich, as I me ntioned, w as an eighty -eight year o ld man w ho was in
poor physical condition and couldn’t move around without a walker, and
then I believe every other person that was a victim was Mennonite, which as
I mentioned is very passive people who don’t resist. They’ll give you
whatever they’ve got, but they won’t resist. They won’t commit violence.
So unde r these circum stances, I cou ld not feel satisfie d with this
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fifteen year sentence, which I feel shows mercy on the part to the state and
the part of this court for accepting it, I feel that Mr. Smith has received an
abundance of mercy in this case.
I’m going to impose the sentence agreed upon between the State and
the defendant, which is a fifteen year sentence and that will be to the
Departmen t of Correction[].
SENTENCING CONSIDERATIONS
When a defendant complains of his or her sentence, we must conduct a de novo
review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). Therefore,
the bur den of s howin g that the senten ce is im proper is upon the app ealing p arty. Id.
The presumption that determinations made by the trial court are correct is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
princip les and all releva nt facts a nd circu mstan ces. State v. Ashby, 823 S.W.2d 166
(Tenn. 19 91); State v. S mith, 898 S.W.2d 742 (Tenn. C rim. App. 1994 ).
If appellate review reflects the trial court properly considered all relevant facts
and its finding of facts are adequately supported by the record, this Court must affirm
the sentences, “even if we would have preferred a different result.” State v. F letcher,
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination
of an ap propria te senten ce, the tria l court m ust con sider (1) the evid ence, if a ny,
received at the plea of guilty or in these facts nolo contendere and the sentencing
hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments
as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statem ents the defendant w ishes to make in the d efendant’s
behalf about the sentencing; and (7) the potential for rehabilitation or treatment. Tenn.
Code A nn. §§ 40 -35-102, -1 03, and -21 0 (a), (b) (199 7); State v. Holland, 860 S.W.2d
53 (Tenn. Crim . App. 1993).
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In this case the trial court wa s required to consider an application fo r full
probation or an alternative sen tence, such as work release, split confinement or
weekends in custody. Based on the decision of the trial judge to deny any relief we
conduct o ur review with the pre sumption that the trial judg e was co rrect.
PROBATION/ALTERNATIVE SENTENCE
First, we will address the denial of full probation. Since the defendant entered
nolo pleas to the re duced of fenses of ro bbery, w hich are C lass C felon ies, the defen dant
is presumed to be a favorable candidate for probation, in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). In State v. B ingham , 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995), this Court cited four factors which, although “not controlling
the discretion of the sentencing court” should be considered in determining the
appropriateness of probation:
(1) The nature and characteristics of the crime, under Tenn. Code
Ann. § 40-35 -210 (b)(4) (1990);
(2) The defendant’s potential for rehabilitation under Tenn. Code
Ann. § 40-35 -103(5) (1990);
(3) Whether full probation would “unduly depreciate the seriousness
of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and
(4) Whether a sentence of full probation would “provide an effective
deterrent” under Ten n. Code An n. § 40-35-103(1)(B ) (1990).
As to the defenda nt’s plea of nolo contendere to the offens e of facilitation to
commit murder second degree, which is a Class B felony, the defendant is not entitled
to the presumption to be a favorable candidate for alternative sentence. Thus the burden
is on the defendant to estab lish reasonable ground s for relief.
In arrivin g at its de cision, th e trial cou rt consid ered the require ments of Ten n.
Code An n. § 40-35-103(19 90):
(1) Sentences involving confinement should be based on the following
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considerations:
(A) Confinement is necessary to protect society by restraining the
defendan t who ha s a long histo ry of crimin al conduc t;
(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 a pplied u nsucce ssfully to the defe ndant[ .]
The trial court in its analysis commented on Tenn. Code Ann. § 40-35-103,
subsections (A) and (C) and, more particularly, the defendant’s lack of trouble with the
law sin ce relea se on b ail, fam ily relatio nships , and ste ady em ploym ent. Als o, Ten n.
Code Ann. § 40-35-103(C) was not applicable since the defendant had not been on
prior restrictive c onfinem ent. It is obviou s that the trial cou rt found “th at confinem ent
was necessary to avoid depreciating the seriousness of the offense” and believed the
violent nature and numerous offenses called for incarceration.
The defendan t argues that the trial court utilized deterrence as an in valid factor
to deny alternative relief because there was no affirmative proof that these offenses
would a ct as a deterre nt to like-min ded perso ns in Law rence Co unty. The trial court
did not mention the word deterrence in its ruling b ut was referring to the first part of
Tenn. Code Ann. § 40-35 -130(B).
This Court has held it was proper for trial courts to deny full probation because
of the nature and/or seriousness of offenses:
In order to deny an alternative sentence based on the seriousness of
the offense, “the circumstances of the offenses as committed must be
especially violent, horrifying, shocking, reprehensive, offensive, or
otherwise of an excessive or exaggerated degree,” and the nature of the
offense must outweigh all factors favoring a sentence other than
confinem ent.
Bingh am, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S .W.2d 370 (T enn. C rim.
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App. 19 91)); Zeolia, supra at 462.
The limited facts surroun ding the death of B artlett Marston, an eighty-eight-yea r-
old man in very poor health, stabbed 16 times without justification, and with less than
$100 s tolen fro m him , could v ery eas ily fall w ithin the descrip tive term s, supra.
Also, the trial c ourt can co nsider that the se crimes in volved vio lence again st six
different indiv iduals with d eadly we apons, and one involv ed the dea th of an elde rly
person, combin ed with intoxication and abuse of drugs, in determ ining whether
probat ion or a n alterna tive sen tence is a pprop riate. State v. B utler, 880 S.W.2d 395,
(Tenn. C rim. App . 1994); State v. Gennoe, 851 S.W.2d 8 33 (Tenn. Crim . App. 1992);
State v. H ollingsw orth, 647 S.W.2d 937 (Tenn. 198 3).
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In conclusion, we find the trial court did not abuse its discretion in denying an
alternative sen tence to the d efendant a nd affirm th e trial court’s jud gment.
_________________________
L. T. Lafferty, Special Judge
CONCUR:
_____________________________
Gary R. Wade, Presiding Judge
_____________________________
Thomas Woodall, Judge
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