IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9611-CR-00432
Appellee, * SHELBY COUNTY
January 13, 1998
VS. * Hon. Carolyn Wade Blackett, Judge
GREG SIMMONS, * (Sentencing)
Cecil Crowson, Jr.
Appellant. *
Appellate C ourt Clerk
For Appellant: For Appellee:
William D. Massey John Knox Walkup
Attorney Attorney General and Reporter
3074 East Street
Memphis, TN 38128 Georgia Blythe Felner
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
James Challen
Assistant District Attorney General
Shelby County District Attorney
General's Office
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Greg Simmons, pled guilty to two counts of driving on
a revoked license, reckless driving, and simple possession of cocaine. For these
four Class A misdemeanors, the trial court imposed concurrent sentences of ninety
days and fines of $500.00 on each count. The single issue presented for our review
is whether the trial court erred by denying probation or an alternative sentence
under the Community Corrections Act. We find no error and affirm the judgment of
the trial court.
The possession of cocaine conviction, reduced by agreement of the
state from possession with the intent to sell or deliver, resulted from an incident
which took place on or about March 10, 1995. One of the convictions for driving on
a revoked license was based upon an incident occurring on or about June 13, 1995.
The second conviction for driving on a revoked license and the reckless driving
offense resulted from an incident occurring September 11, 1995.
The defendant, age twenty-three at the time of the sentence, is single
but resides with Barbara Love, with whom he has one child, Gregory Simmons, Jr.,
now two years of age. Expelled from school in the tenth grade for smoking
marijuana, the defendant obtained his GED from the Shelby Training Center in
1990. At the time of his arrest, he managed a beauty salon and worked in a fish
market. He estimated that he worked a total of sixty hours each week in providing
support for his family. While acknowledging that he had smoked marijuana on a
daily basis, the defendant claimed that his last use of the drug was some seven
months prior to his sentencing hearing.
The presentence report indicates a prior criminal history which began
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at the time he was seventeen years of age and includes three prior instances of
driving on a revoked license, speeding, possession of marijuana, and the unlawful
possession of a weapon. He has served jail terms for two of the prior instances of
driving on a revoked license, criminal trespass, driving under the influence, a prior
possession of a controlled substance conviction, and a felony conviction for
possession of a controlled substance with intent to sell or deliver. During the
sentencing, the defendant conceded that he was not entitled to probation but sought
placement in a Community Corrections Program based in great part on his desire to
receive treatment for substance abuse.
The trial court noted that the defendant had been unsuccessful in
completing a prior probationary term. While complimenting the defendant for
undergoing a voluntary drug treatment program, the trial court expressed concern
about the defendant's having sold drugs. The decision to deny an alternative
sentence was based primarily upon the defendant's prior criminal history and his
failure to meet the conditions of probation on his prior three-year felony sentence.
The trial court left open the question of whether the defendant would be placed in a
Community Corrections Program upon the completion of a portion of his sentence.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court 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
Sentencing Commission Comments provide that the burden is on the defendant to
show the impropriety of the sentence.
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Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
social history and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-
102(6). With certain statutory exceptions, none of which apply here, probation must
be automatically considered by the trial court if the sentence imposed is eight years
or less. Tenn. Code Ann. § 40-35-303(a), (b).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902 S.W.2d
391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an
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authorized determinant sentence with a percentage of that sentence designated for
eligibility for rehabilitative programs. Generally, a percentage of not greater than
75% of the sentence should be fixed for a misdemeanor offender; however, a DUI
offender may be required to serve the full 100% of his sentence. Palmer, 902
S.W.2d at 393-94. In determining the percentage of the sentence, the court must
consider enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a period of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing
statute is designed to provide the trial court with continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the
felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829 (Tenn. Crim. App. 1994).
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
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does not mean that he is entitled to be sentenced under the Act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987). The following
offenders are eligible for Community Corrections:
(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
The defendant is eligible for consideration of both probation or an
alternative sentence under the Tennessee Community Corrections Act. In his favor,
he has demonstrated a good work ethic and has provided support for his girlfriend
and his son. He has expressed regret for his actions and has voluntarily sought
treatment for substance abuse, completing a program on August 31, 1995.
On the other hand, the defendant conceded that he had sold cocaine
while on probation for his prior felony offense. He explained that "my family needed
a place to stay at the time ..., business was slow ..., [and] and I wasn't making too
much money." Traditionally, the trial courts have been permitted to look to the true
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circumstances of the crime regardless of whether the original indictment, a felony in
this case, had been reduced to misdemeanor simple possession. Here, there were
four offenses committed in three separate incidents occurring over a period of six
months. After being arrested for driving on a revoked license, the defendant
continued to drive until caught a second time. During this time, he was on probation
for a felony conviction.
The primary purpose of the Criminal Sentencing Reform Act of 1989 is
to impose "a sentence justly deserved in relation to the seriousness of the offense."
Tenn. Code Ann. § 40-35-102. Punishment is appropriate to restrain "defendants
with a lengthy history of criminal conduct." Tenn. Code Ann. § 40-35-102(3)(B).
While it is entirely appropriate to consider the least necessary sentence and to
consider alternative sentences, confinement is warranted when less restrictive
measures have been unsuccessfully applied to the defendant. Tenn. Code Ann. §
40-35-103(1)(C) and (6).
This record demonstrates that the trial considered the sentencing
principles and all relevant facts and circumstances. Ashby, 823 S.W.2d at 169.
Whether the issue is probation or placement in Community Corrections, the trial
court must be afforded some discretion in determining the appropriate sentence.
The facts in each case control the ultimate disposition. Taylor, 744 S.W.2d at 922.
That a defendant qualifies for probation consideration or meets the minimum criteria
of the Community Corrections Act does not mean he is entitled to an alternative
sentence. Here, the presumption of correctness prevails. While demonstrating that
he is amenable to rehabilitation and that he has other favorable qualities, the
defendant has earned the ninety-day sentence. His prior criminal history, his failure
to meet the terms of his probation, the circumstances of the crime, and our own
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desire to insure that the trial courts retain a considerable measure of flexibility in the
disposition of misdemeanor cases, warrant the denial of relief.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David G. Hayes, Judge
_____________________________
Joe G. Riley, Judge
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