IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION
February 10, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9701-CC-00007
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. DONALD P. HARRIS,
HARRY REED, ) JUDGE
)
Appellant. ) (Full Probation Denial)
FOR THE APPELLANT: FOR THE APPELLEE:
VIRGINIA LEE STORY JOHN KNOX WALKUP
P. O. Box 1608 Attorney General & Reporter
Franklin, TN 37065
DARYL J. BRAND
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
MARK PURYEAR
Asst. District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was charged in the indictment with aggravated assault. By
agreement with the State, he entered a best interest guilty plea to the lesser included
charge of simple assault. A sentencing hearing was held and at its conclusion, the trial
judge sentenced the defendant to a term of six months in the local workhouse,
suspended after serving forty-five days. He was then placed on probation for eleven
months and twenty-nine days.
In this appeal as of right, the defendant contends that the trial judge erred
in failing to grant the defendant full probation “or other alternative sentencing.” After
considering the record before this Court, we find the defendant’s allegations to be without
merit and affirm the judgment of the trial court.1
The evidence developed at the sentencing hearing revealed that the
defendant’s girlfriend had been involved in a previous relationship with the victim. The
proof was uncontradicted that the victim had been a violent person with numerous
convictions for minor offenses, especially while a juvenile. The victim had come to the
defendant and his girlfriend’s house on several occasions in a drunken condition and had
on one occasion become violent, kicking in the front door and using profanity toward the
defendant and his girlfriend. After the fourth such intrusion, the defendant and a friend
went to the victim’s home where a fight ensued. There was testimony that the victim had
dived off the porch at the defendant with a knife. The defendant retrieved a baseball bat
from his car, as did his friend, and they struck the victim a number of times with the bats.
The proof further showed that the defendant was the father of a one-year-
1
Although the defe ndant’s iss ue is fram ed to includ e the den ial of “other a lternative se ntencing ,”
the C om mu nity Co rrec tions prog ram is lim ited to felon y offe nde rs. Als o, the defe nda nt’s b rief on ly
argues the denial of full probation.
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old child whom he visited on a regular basis and for whom he made regular child support
payments. Further, the defendant had been employed more than three years with the
same employer who was holding the defendant’s job pending the outcome of this hearing.
The trial court found as enhancing factors that the defendant had a previous
criminal history, that he was a leader in the offense, and that the potential for bodily injury
was great. See T.C.A. § 40-35-114(1), (2) and (16). As mitigating factors, the trial judge
found that the defendant acted under strong provocation and that substantial grounds
existed tending to excuse or justify the defendant’s criminal conduct, though failing to
establish a defense. See T.C.A. § 40-35-113(2) and (3). After considering the enhancing
and mitigating factors and the weight to which each was entitled, the trial judge imposed
a six month workhouse sentence suspended after service of forty-five days with the
defendant to remain on probation for eleven months and twenty-nine days.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d)
Sentencing Commission Comments. This presumption, however, “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).
T.C.A. § 40-35-103 sets out sentencing considerations which are guidelines
for determining whether or not a defendant should be incarcerated. These include the
need “to protect society by restraining a defendant who has a long history of criminal
conduct,” the need “to avoid depreciating the seriousness of the offense,” the
determination that “confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses,” or the determination that “measures less
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restrictive than confinement have frequently or recently been applied unsuccessfully to
the defendant.” T.C.A. § 40-35-103(1).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any 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 and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the
defendant’s statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-
210(b). In addition, the legislature established certain sentencing principles which include
the following:
(5) In recognition that state prison capacities and the funds to
build and maintain them are limited, convicted felons
committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of
society, and evincing failure of past efforts at rehabilitation
shall be given first priority regarding sentencing involving
incarceration; and
(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 favorable candidate for alternative sentencing options in
the absence of evidence to the contrary.
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
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The presentence report indicates that the defendant had been convicted
previously of simple possession and possession of drug paraphernalia which resulted in
a sentence of eleven months and twenty-nine days, suspended after the service of fifteen
days. This conviction was in December of 1995. In January of 1995, the defendant was
convicted of possession of alcohol by an underage person and sentenced to eleven
months and twenty-nine days, suspended after service of forty-eight hours. He was also
sentenced to thirty days in September of 1992 for theft under five hundred dollars
($500.00), said sentence being suspended after service of seventy-two hours.
Our review of the record indicates that the trial judge followed the sentencing
requirements. Therefore, the presumption of correctness attaches to the sentence
imposed. The defendant has failed to demonstrate that his sentence was improper. The
evidence does not preponderate against the findings of the trial court.
Having found no merit to the defendant’s claims, we affirm the trial court’s
sentencing determinations.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
DAVID H. WELLES, Judge
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