IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
March 19, 1998
STATE OF TENNESSEE, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9705-CR-00188
)
) Shelby County
v. )
) James C. Beasley, Jr., Judge
)
) (Sentencing)
CONNIE L. FULTON, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert M. Brannon, Jr. John Knox Walkup
Attorney at Law Attorney General & Reporter
295 Washington Ave., Suite 3 425 Fifth Avenue, North
Memphis, TN 38103 Nashville, TN 37243-0493
Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Karen Cook
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:_________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Connie L. Fulton (defendant), appeals as of right from a judgment
of the trial court revoking her probation and refusing to impose a second alternative
sentence. In this court, the defendant challenges the refusal of the trial court to impose
a second alternative sentence after revoking her probation. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this court that the judgment of the trial court should be affirmed.
This court’s review is hampered by the failure of the defendant to include a
presentence report in the record. This court assumes a presentence report was prepared
and considered by the trial court. The trial court alluded to certain salient facts which are
not included in the record. These facts are extremely relevant to whether the defendant
should receive another alternative sentence.
The defendant entered a plea of guilty to the possession of cocaine with intent to
sell, a Class C felony, on February 5, 1993. The trial court entered a judgment of
conviction on June 4, 1993. The defendant was sentenced as a Range I standard
offender. The sentence consisted of a $2,000 fine and confinement for five (5) years in the
Shelby County Correctional Center. The court suspended all but fifty (50) days of the
sentence, which was to be served on weekends, and placed the defendant on probation
for five (5) years.
On September 3, 1996, the State of Tennessee (state) filed a petition to revoke the
defendant’s probation. The petition alleged the defendant had failed to report to the
probation officer as directed and she had been arrested and convicted of one felony and
four misdemeanors while on probation for the offense in question. An evidentiary hearing
was held on December 17, 1996. The trial court revoked the defendant’s probation and
ordered that she serve the remainder of the sentence.
The defendant was required to report to her probation officer each month. The
evidence introduced by the state revealed the defendant did not report to the probation
officer from September 30, 1994 until March of 1995. The probation officer attempted to
contact the defendant by telephone and by letter on numerous occasions. The defendant
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admitted she was living at the same address the entire time, but she never received the
letters sent to that address.
When the defendant reported to the probation officer in March, she advised the
officer she had been arrested for the commission of new offenses. The officer advised the
defendant a revocation proceeding would be instituted because she had violated the terms
of her probation. Although the defendant was advised to continue to report, the defendant
did not report after the March meeting.
In refusing to impose an alternative sentence, the trial court stated the defendant
had been convicted of seven counts of shoplifting and several misdemeanors before she
was placed on probation for the offense in question. On August 6, 1996, the defendant
entered pleas of guilty to theft over $500, a Class E felony, two counts of theft under $500,
Class A misdemeanors, driving after her license had been suspended, revoked or
canceled, also a Class A misdemeanor, and reckless driving, a Class B misdemeanor.
When an accused challenges the refusal of a trial court to impose an alternative
sentence to incarceration, it is the duty of this court to conduct a de novo review on the
record with a presumption that “the determinations made by the court from which the
appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing 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 presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Smith, 891 S.W.2d
163, 166 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). However, this court is
required to give great weight to the trial court’s determination of controverted facts as the
trial court’s determination is based upon the witnesses’ demeanor and appearance when
testifying.
In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, when
available, (c) the principles of sentencing, (d) the arguments of counsel relative to
sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating
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or enhancing factors, (g) any statements made by the accused in her own behalf, and (h)
the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.
§§ 40-35-103 and -210. State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app.
denied (Tenn. 1987).
When the accused is the party challenging the sentence, the accused has the
burden of establishing that the sentence imposed by the trial court was erroneous.
Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d
at 169.
While the defendant is entitled to the presumption of being fit for alternative
sentencing, Tenn. Code Ann. § 40-35-102(6), the record clearly rebuts this presumption.
The trial court noted the defendant had been convicted of seven counts of shoplifting and
other misdemeanors prior to being placed on probation in this case. While on probation,
the defendant committed and has been convicted of a felony and three misdemeanor
offenses. As the trial court insinuated, releasing the defendant back into the community
would result in the defendant committing additional criminal acts.
Confinement in this case is necessary to protect society due to the defendant’s long
history of criminal conduct, Tenn. Code Ann. § 40-35-103(1)(A), and to avoid depreciating
the seriousness of the offense and deter the defendant and others from engaging in the
same course of conduct. Tenn. Code Ann. § 40-35-103(1)(B). Also, measures less
restrictive than confinement have recently been applied unsuccessfully to the defendant,
Tenn. Code Ann. § 40-35-103(1)(C), and it is apparent the defendant lacks the potential
for rehabilitation given her prior record and proclivity to commit a multitude of offenses
while on probation. Tenn. Code Ann. § 40-35-103(5).
This court is of the opinion the trial court properly denied the defendant’s request
to be considered for a second alternative sentence for the foregoing reasons. Thus, the
judgment of the trial court is affirmed.
___________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
______________________________________
JOHN H. PEAY, JUDGE
______________________________________
THOMAS T. WOODALL, JUDGE
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