State v. Justes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JULY SESSION, 1997 September 30, 1997

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9610-CR-00368
)
Appellee, )
)
) MORGAN COUNTY
VS. )
) HON. ROBERT W. WEDEMEYER
GLEN JUSTES, ) JUDGE (By Interchange)
)
Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF MORGAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

ANDREW N. HALL JOHN KNOX W ALKUP
P.O. Box 345 Attorney General and Reporter
W artburg, TN 37887
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 5th Avenue North
Nashville, TN 37243

CHARLES E. HAW K
District Attorney General

ROGER DELP
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. Upon his plea of guilty, the Defendant was convicted of the

Class C felony offense of theft of property over the value of ten thousand

($10,000) dollars.1 The trial judge sentenced the Defendant to four years in the

Department of Correction, with the sentence to be served on probation except for

120 days to be served during weekends in the local jail. The judge also ordered

restitution in the amount of thirty-thousand dollars ($30,000), to be paid in

monthly installments. It is from the sentence imposed by the trial court that the

Defendant appeals. W e affirm the judgment of the trial court.

During the course of his employment with a bail bonding company, the

Defendant stole a considerable amount of money from his employer. He

apparently would post bail bonds, collect the fee from the customer and not remit

to his em ployer the amount due. It appears that he either would not report

posting the bond at all or he would not report the full amount of the fee collected

from the customer. The illegal activity occurred during a substantial portion of the

ten years that he worked for the bonding company.

In this appeal, the Defendant complains of the length of his sentence, the

fact that he was denied full probation, and the amount the trial judge ordered as

restitution.

1
Tenn. Code Ann. §§ 39-14-103,-105.

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 W hen an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

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 circum stances." State v. Ashby, 823 S.W .2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard offender convicted

of a Class C, D, or E felony is presumed to be a favorable candidate for

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alternative sentencing options in the absence of evidence to the contrary.” Tenn.

Code Ann. § 40-35-102(6). Our sentencing law also provides that “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 sentences

involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant

sentenced to eight years or less who is not an offender for whom incarceration

is a priority is presumed eligible for alternative sentencing unless sufficient

evidence rebuts the presumption. However, the act does not provide that all

offenders who meet the criteria are entitled to such relief; rather, it requires that

sentencing issues be determined by the facts and circumstances presented in

each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

Additionally, the principles of sentencing reflect that the sentence should

be no greater than that deserved for the offense committed and should be the

least severe measure necessary to achieve the purposes for which the sentence

is imposed. Tenn. Code Ann. § 40-35-103(3) - (4). The court should also

consider the potential for rehabilitation or treatment of the defendant in

determining the sentence alternative. Tenn. Code Ann. § 40-35-103(5).

In determining whether to grant probation, the judge must consider the

nature and circumstances of the offense, the defendant’s criminal record, his

background and social history, his present condition, including his physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best interests of both the public and the defendant. Stiller

v. State, 516 S.W .2d 617, 620 (Tenn. 1974). The burden is on the Defendant to

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show that the sentence he received is improper and that he is entitled to

probation. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991).

The presentence report reflects that the Defendant was forty-four years

old, married and had four children. Although he had not com pleted high school,

he had received his GED. Both the Defendant and his wife had rather significant

health problems. The Defendant had worked for the bail bonding company for

about ten years but at the time of sentencing was not em ployed. The

Defendant’s wife was employed as a waitress. The Defendant had no significant

criminal history.

The owner of the bail bond company testified that he thought the total

amount taken by the Defendant was over sixty-eight thousand dollars ($68,000).

In fact, at one point the Defendant had signed a promissory note in the amount

of thirty-five thousand seven hundred eighty-eight dollars ($35,788) representing

money he had taken from the bonding company. Subsequent thereto, the

Defendant had signed another prom issory note for fifty-one thousand four

hundred forty dollars ($51,440), which included the amount of the first note and

some additional money that he had supposedly taken. The Defendant testified

that he signed these notes only because his em ployer asked him to and because

he hoped that by signing them he could avoid prosecution. The Defendant

testified that he began taking the money from the company because he needed

money for his family. He also stated that he posted a number of bonds for friends

and acquaintances without collecting any fee and that this was a portion of the

amount which had been computed by his employer.

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 The Defendant first argues that the trial judge erred by enhancing his

sentence to four years rather than sentencing him to the minimum sentence of

three years. The State argues that the Defendant’s plea agreement called for a

sentence of four years, with the manner of service of the sentence being left to

the trial court. The State thus argues that the issue of the length of the sentence

has been waived by the plea agreement. The petition requesting the trial judge

to accept the guilty plea does provide for a recommended sentence of four years

to be served as a Range I standard offender, with all other sentencing issues to

be reserved for decision by the trial court. We therefore agree with the State that

the issue concerning the length of the sentence has been waived and is not

reviewable on appeal. See Dixon v. State, 934 S.W .2d 69, 73 (Tenn. Crim. App.

1996). W e also note that this record would support the imposition of a four-year

sentence.

Because the Defendant was a standard offender convicted of a Class C

felony, he was presumed to be a favorable candidate for an alternative

sentencing option. The trial judge gave the Defendant the benefit of this

presumption, sentencing him to periodic confinement in conjunction with a term

of probation. Tenn. Code Ann. § 40-35-104(c)(4) (Supp. 1996). The Defendant

seeks the more favorable alternative of total probation. Tenn. Code Ann. § 40-

35-104(c)(3). As we have stated, the Defendant has the burden of establishing

suitability for full probation, even though he is entitled to the statutory

presumption of alternative sentencing. See State v. Bingham, 910 S.W .2d 448,

455 (Tenn. Crim. App. 1995). There is no “bright line rule” for determining when

a Defendant is entitled to full probation. Id. at 456. A trial judge is vested with a

great deal of discretion on the issue of probation. Factors to be considered are

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whether probation will serve the ends of justice and the best interest of both the

public and the Defendant, the nature and circumstances of the crime, the

Defendant’s potential for rehabilitation, whether full probation would unduly

depreciate the seriousness of the offense, and whether full probation would serve

the need to provide an effective deterrent. See Bingham, 910 S.W .2d at 456.

In denying the Defendant total probation, the trial judge told the Defendant

that he did not think the Defendant “really appreciated how wrong what you’ve

done is.” The trial judge questioned whether the Defendant felt any remorse.

The judge also expressed his opinion that total probation would depreciate the

seriousness of the offense. The judge had noted that the theft of this substantial

amount of money took place over an extended period of time and violated the

private trust which the Defendant’s employer had placed in the Defendant. Trial

judges are traditionally vested with broad discretionary powers in sentencing

matters. From this record, we cannot conclude that the trial judge erred or

abused his discretion in denying this Defendant full probation.

The Defendant also complains of the amount set as restitution. In

determining the amount of restitution, the trial judge heard estimates ranging from

the Defendant’s suggestion of five thousand dollars ($5,000) to the victim’s

testimony of sixty-eight thousand four hundred fifteen dollars ($68,415). The

victim presented promissory notes signed by the Defendant totaling fifty-one

thousand four hundred forty dollars ($51,440). The trial judge noted that the

figure of thirty thousand dollars ($30,000) was somewhat arbitrary but “anything

less than that, I think would be not believable.” The judge set minimum paym ents

of seventy-five dollars ($75) a month for twelve months, one hundred fifty dollars

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($150) a month for twelve months, and three hundred dollars ($300) a month

thereafter. The judge acknowledged that if the Defendant made only the

minimum payments the full amount would not be totally paid during the four-year

probationary period, but the court obviously realized the Defendant’s ability to pay

more was very limited.

This court has held that on appeal our review of the amount of restitution

and the manner in which it was computed shall be conducted de novo on the

record with a presumption that the determination made by the trial court is

correct. State v. Rex Blankenship, C.C.A. No. 02C01-9507-CC-00195, Madison

County (Tenn. Crim. App., Jackson, Jan. 31, 1996); State v. Frank Stewart,

C.C.A. No. 01-C-01-9007-CC-00161, Maury County (Tenn. Crim. App., Nashville,

Jan. 31, 1991). There is substantial evidence in this record to support the finding

of the trial judge. W e cannot conclude that the trial judge erred or abused his

discretion in setting restitution.

For the reasons stated in this opinion, the judgment of the trial court is

affirmed.

____________________________________
DAVID H. WELLES, JUDGE

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CONCUR:

___________________________________
THOMAS T. WOODALL, JUDGE

___________________________________
JOHN K. BYERS, SENIOR JUDGE

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