IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
April 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9604-CC-00162
) CARTER COUNTY
Appellee, )
) Hon. Arden L. Hill, Judge
VS. )
) (SENTENCING)
MILES V. TOLLEY, ) No. 11612 BELOW
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT Y. OAKS JOHN KNOX WALKUP
Office of the Public Defender Attorney General and Reporter
Main Courthouse
Elizabethton, TN 37643 WILLIAM DAVID BRIDGERS
Assistant Attorney General
RANDALL E. REAGAN 450 James Robertson Parkway
602 Gay Street, Suite 905 Nashville, TN 37243-0493
Knoxville, TN 37902
DAVID E. CROCKETT
District Attorney General
Rt. 19, Box 99
Johnson City, TN 37601
KENNETH C. BALDWIN
Assistant District Attorney General
Carter County Courthouse Annex
Elizabethton, TN 37643
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK,
Special Judge
OPINION
The defendant was charged in the indictments with attempted aggravated
rape and aggravated burglary. He entered a plea of guilty to attempted aggravated
rape. Following his sentencing hearing, he was sentenced to serve eight years in
the Department of Corrections. The trial court denied the petitioner’s request for
suspended sentence.
The only issue presented for review in this appeal as of right is the trial
court’s denial of the defendant’s petition for probation or alternative sentencing to
community corrections. A brief review of the facts is necessary for a determination
of the issue.
At around midnight on September 18, 1994, the defendant entered the
residence of the victim, wearing a towel around his face and carrying a butcher
knife. He placed the knife at the victim’s throat and attempted to rape her. The
victim managed to knock the knife from the defendant’s hand, and a scuffle ensued.
As a result of the altercation the victim’s glasses were broken, her nose was cut,
and she suffered bruises on her body, problems with her arms, and massive TMJ.
Additionally, since the incident the victim is continuously afraid. She no longer feels
safe at home unless her doors are locked. Her husband must lock her in the house
when he leaves so that she feels safe.
The defendant, who was a neighbor of plaintiff, denied that he entered the
home with any intention of raping the victim. He blamed his long-term alcoholism
for the events in question. He contended that he was so drunk on the day in
question that he had no idea what he was doing. He expressed remorse for his
actions and testified that since the occurrence he had participated in two different
treatment programs. His wife testified that since his treatment for alcoholism he is
a very different person. She also testified that she and defendant both had current
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medical problems and that she needed the defendant to receive probation so that
he could take care of her.
At the conclusion of the hearing on defendant’s application for probation, the
trial judge denied the request for either probation or community corrections, finding
that the defendant was a dangerous violent person who used a deadly weapon in
the commission of his offense.
When a defendant complains of his sentence, we must conduct a de novo
review with the presumption of correctness of the actions of the trial court. T.C.A.
§40-35-401(d). The burden of showing that the sentence is improper is upon the
appealing party. Id. Sentencing Commission Comments; State v. Holland, 860
S.W.2d 53, 60 (Tenn. Crim. App. 1993). 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).
The defendant entered a plea of guilty to attempt to commit aggravated rape,
a Class B felony. As part of the plea agreement he received the minimum Range I
sentence of eight years. The only issue before the court is whether he should
receive some form of alternative sentencing.
The defendant is not entitled to a community corrections sentence. Persons
convicted of violent felony offenses or felony offenses involving possession of a
weapon are not eligible for such alternative sentencing. See T.C.A. §40-36-
106(a)(3)-(4). Attempt to commit aggravated rape is such an offense. W hile it is
true that persons who commit such crimes but have special treatable needs
treatable as a result of chronic alcohol abuse, drug abuse, or mental health
problems, may be admitted to the community corrections program, Tenn. Code
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Ann. §40-36-106(c), there is no proof in the record that defendant’s needs could
best be met by this alternative. Defendant acknowledges that he has had a
significant drinking problem for well over thirty years. Until he was arrested for this
offense, he never took steps to correct that problem. His voluntary intoxication at
the time of the offense is not a defense. This issue is without merit.
Under T.C.A. §40-35-303(a), a defendant is eligible to be considered for
probation after being sentenced to a term of eight years for a Class B felony
offense. However, he is not considered to be a favorable candidate for such a
sentencing option. T.C.A. §40-35-102(5)-(6). It is the defendant who has the
burden of establishing suitability for probation. See T.C.A. §40-35-303(b). Eligibility
may be defeated if any of the following factors outweigh the defendant’s
rehabilitative capabilities: (1) confinement is necessary to protect society by
restraining a defendant who has a long history of criminal conduct; (2) confinement
is necessary to avoid depreciating the seriousness of the offense or it is particularly
suited to provide an effective deterrence to others likely to commit similar offenses;
or (3) measures less restrictive than confinement have frequently been applied
unsuccessfully to the defendant. See T.C.A. §40-35-103(1)(A) - (C); State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The trial court relied upon the second
sentencing consideration, finding that confinement was necessary to deter others
from committing similar crimes, and because the crime involved violence and the
threat of violence.
The offense in this case is a violent felony perpetrated by the use of a deadly
weapon. It resulted in physical and emotional injury to the victim. The defendant
has not overcome the presumption of correctness of the sentence imposed upon
him.
The judgment of the trial court is affirmed.
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__________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
__________________________________
JOHN H. PEAY
JUDGE
__________________________________
PAUL G. SUMMERS
JUDGE
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IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9604-CC-00162
) CARTER COUNTY
Appellee, )
) Hon. Arden L. Hill, Judge
VS. )
) (SENTENCING)
MILES V. TOLLEY, ) No. 11612 BELOW
)
Appellant. )
JUDGMENT
Came the appellant, Miles V. Tolley, by counsel and also came the attorney
general on behalf of the state, and this case was heard on the record on appeal
from the Criminal Court of Carter County; and upon consideration thereof, this court
is of the opinion that there is no reversible error in the judgment of the trial court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Carter
County for execution of the judgment of that court and for collection of costs
accrued below.
It appears that the appellant is indigent. Costs of this appeal will be paid by
the State of Tennessee.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge