IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
June 16, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE )
) NO. 03C01-9706-CC-00211
Appellee )
) COCKE COUNTY
v. )
) HON. REX HENRY OGLE
CHRISTINE D. GILLILAND )
) (Sentencing)
Appellant. )
)
)
For the Appellant: For the Appellee:
Tim S. Moore John Knox Walkup
396 Moore Brand Way Attorney General & Reporter
Newport, TN. 37821
Sandy C. Patrick
Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0943
Alfred C. Schmutzer, Jr.
District Attorney General
Charles E. Atchley, Jr.
Assistant District Attorney General
Sevier County Courthouse
125 Court Avenue, Suite 301
Sevierville, TN. 37862
OPINION FILED:____________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Christine D. Gilliland, appeals as of right the sentence she
received following a guilty plea in the Circuit Court of Cocke County. Pursuant to a
plea agreement, appellant pled guilty to aggravated assault and received a six (6) year
sentence. The trial court ordered her to serve one hundred and twenty (120) days,
day for day, in the Tennessee Department of Correction, with the remainder of her
sentence to be served in supervised probation. Appellant was also required to pay
restitution in the amount of $1,761 dollars for the victim’s medical expenses.
On appeal, the appellant contends that she is entitled to full probation and that
the order of restitution should not have accompanied her sentence of confinement.
After a review of the record and applicable law, we affirm the judgment of the trial
court.
This case is yet another illustration of how jealousy can lead to violence. On
the evening of March 20, 1996, the appellant shot the victim, Nancy Raines Frazier, at
point blank range. The shooting occurred around 9:30 p.m. after the appellant
returned home and discovered her then boyfriend, Albert Frazier, engaged in sexual
intercourse with the victim.1 The appellant, armed with a .38 caliber pistol,
approached the couple in the living room before they noticed her presence. Upon
discovering appellant with the gun, the two jumped up and pleaded for her not to
shoot. Nevertheless, appellant pointed her weapon at the victim and fired a bullet
striking her in the right cheek bone. The bullet fractured the victim’s jaw and exited
through her right ear. The victim immediately fled out the back door and went to a
neighbor’s house to call 911.
The victim testified at the sentencing hearing that she was unaware of her
injury until blood began to run down her face. She was taken by ambulance to a
1
At the time of the shooting, appellant and Mr. Frazier lived together and owned the house
jointly. The appellant apparently spent many nights away from home while working as a truck driver for
the United States Postal Service.
2
nearby hospital and given medical treatment there for two days. The bullet wound
caused her to suffer physical injuries including a broken jaw, temporary blindness,
nerve damage, loss of a tear-duct gland in her right eye, sinus trouble, and forty
percent hearing loss in her right ear. The victim testified that her medical expenses
totaled approximately seventeen hundred ($1,700) to eighteen hundred ($1,800)
dollars.
The appellant testified that she did not intend to shoot the victim and that the
entire incident was a mistake. According to appellant, she fired the gun with the sole
intention of scaring the victim and Mr. Frazier. She contended that the victim
somehow jumped into the path of the bullet when she and Mr. Frazier arose from the
living room floor.
Appellant further testified that she owned the .38 caliber pistol and carried it for
protection while working as a truck driver. She stated that although she normally kept
the pistol in her truck, she brought it into the house on the night of the shooting. She
denied knowing that the victim was with Mr. Frazier before entering the house.2
The Cocke County Grand Jury indicted appellant on attempted second degree
murder and aggravated assault. Following plea negotiations, appellant entered a
guilty plea to aggravated assault and received a six (6) year sentence.3 The manner
of serving her sentence, however, was to be determined by the trial court following a
sentencing hearing. According, after conducting a sentencing hearing, the trial court
ordered that the six (6) year sentence was to be suspended upon service of one
hundred and twenty (120) days in jail. The trial court further ordered restitution in the
amount of $1,761 as a condition of probation.
2
There was evidence that the appellant had caught Mr. Frazier together with the victim on a prior
occ asio n. Th e app ellant , how ever , testif ied th at sh e did n ot su spe ct Mr . Fraz ier of b eing w ith the victim
on the night in question. To the contrary, she stated that she did not see the victim’s car parked at the
house and that s he firm ly believed M r. Frazier ha d ende d his relation ship with the victim.
3
Under the plea agreement, the prosecution agreed to dismiss the attempted murder charge.
3
I.
The appellant first contends that she is entitled to full probation for her six (6)
year sentence. This issue is without merit.
When a defendant complains of his or her sentence, we must conduct a de
novo review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1996). The
sentence imposed by the trial court is accompanied by a presumption of correctness
and the appealing party has the burden of showing that the sentence is improper.
See Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). However,
the presumption of correctness is conditioned upon an affirmative showing in the
record that the trial court considered the sentencing principles and all relevant factors
and circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
To determine the appropriate sentence, the trial court must consider the
following: (1) evidence from the trial and sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and the arguments concerning sentencing
alternatives; (4) the nature and characteristics of the offense; (5) information offered
by the State or the defendant concerning enhancing or mitigating factors; and (6) the
defendant’s statements in her own behalf about sentencing. See Tenn. Code Ann. §
40-35-210(b); see also State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In this case, the trial court considered the evidence from the sentencing
hearing, the presentence report, the circumstances of the offense, and the arguments
of counsel before ordering the appellant to serve one hundred and twenty (120) days
in confinement. We, therefore, review appellant’s sentence with a presumption of
correctness.
The appellant was a presumable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102.4 She pled guilty to aggravated
4
Ten nes see Cod e An nota ted s ectio n 40- 35-1 02(5 ) prov ides that c onvic ted fe lons who com mit
the most severe offenses, possess criminal histories, or demonstrate an inability to reform under past
efforts at rehabilitation shall be given first priority for sentences involving incarceration. Under section
40-35-102(6), “[a] defendant who does not fall within the parameters of subdivision (5) and is an
especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a
4
assault, a Class C felony, and was sentenced as a Range I standard offender. The
trial court noted that presumption and ordered appellant to serve the remainder of her
six (6) year sentence on supervised probation, upon completion of the initial jail term.
The trial court, however, determined that the appellant was not entitled to full
probation. Based upon the risk of death and the degree of injury caused by
appellant’s actions, the trial court ruled that one hundred and twenty (120) days of
incarceration was appropriate. On appeal, the appellant has the burden of showing
that the manner of her sentence was erroneous and that she is entitled to full
probation.5
There is no bright line rule for determining when probation should be granted.
Nevertheless, the appellant must demonstrate that probation will “subserve the ends
of justice and the best interest of both the public and the defendant.” See State v.
Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990). The following criteria is
relevant to that determination: (1) the nature and circumstances of the criminal
conduct; (2) the appellant’s potential or lack of potential for rehabilitation, including the
risk that during the period of probation the appellant will commit another crime; (3)
whether a sentence of full probation would unduly depreciate the seriousness of the
offense; and (4) whether a sentence other than full probation would provide an
effective deterrent to others likely to commit similar offenses. See State v. Bingham,
910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995).
The appellant does not rely upon those factors, but instead, contends that a
probationary sentence is appropriate based upon her willingness to plead guilty and
her status as a first-time offender. We disagree. The record reflects that the trial
court focused on the violent nature of appellant’s offense to deny full probation. The
court found that the appellant’s act of shooting a defenseless victim at point blank
favorab le candid ate for altern ative sen tencing o ptions in the absen ce of ev idence to the contra ry.”
5
Even though appellant was a presumable candidate for alternative sentencing, she had the
burden of estab lishing suitab ility for full probation. See Tenn. Code A nn. § 40-35-303(b) (Supp. 199 6);
State v. Bingham, 910 S.W .2d 448, 4 55 (Te nn. Crim . App. 199 5), perm. app. denied (Tenn. 1995).
5
range was both “atrocious” and life threatening. That finding was clearly within the
discretion of the trial court and the appellant has failed to demonstrate error.
This Court has previously held that the circumstances surrounding a criminal
offense may provide the sole basis for denying probation when they are of such a
nature as to outweigh all other factors favoring probation. See State v. Fletcher, 805
S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). We conclude that the circumstances in
this case justify confinement and accordingly affirm the denial of full probation.
II.
The appellant next contends that the trial court erred in ordering both
incarceration and the payment of restitution. She argues that the sentencing laws in
effect at the time of her offense precluded the order of restitution as part of a custodial
sentence.
We conclude that the order of restitution was proper as a condition of
appellant’s supervised probation. Tenn. Code Ann. § 40-35-304(a) (Supp. 1996).
The appellant was sentenced in 1997 for the aggravated assault committed on
March 20, 1996. Her sentence included a one hundred and twenty (120) day jail term,
a subsequent period of supervised probation, and an order to pay $1,761 dollars in
restitution. The appellant contends that restitution was improper in conjunction with
her sentence of confinement. The record, however, reflects that restitution was
imposed as a condition of appellant’s supervised probation, not as a part of the
custodial sentence.
While we agree that, at the time of appellant’s offense, the trial court lacked
authority to order restitution as part of incarceration,6 we conclude that restitution was
proper in this case. Tennessee Code Annotated section 40-35-304(a) authorizes trial
courts to impose restitution as a condition of probation. The appellant was ordered to
6
See State v. Da vis, 940 S.W.2d 558, 562 (Tenn. 1997) (holding that restitution may only be
imposed as a condition of a probationary sentence). In Dav is, our supreme c ourt noted that, effective
July 1, 1996 , the state leg islature am ended Tenn essee Code Annota ted sec tion 40-35 -104(c )(2), to
allow restitution together with a sen tence o f confine men t. See 940 S .W .2d a t 561 , n.6. H owe ver, in
appellan t’s case, th at am ended statute wa s not in effe ct when she co mm itted the agg ravated assau lt.
6
serve the remainder of her six (6) year sentence on supervised probation after
completion of her jail term. Restitution to compensate the victim’s medical expenses
was specifically made a part of the subsequent probation.
In sum, we affirm the trial court’s denial of full probation and conclude that the
order of restitution was proper as a condition of appellant’s supervised probation.
Accordingly, the judgment of the trial court is affirmed.
___________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
___________________________
JOSEPH M. TIPTON, JUDGE
___________________________
CURWOOD WITT, JR., JUDGE
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