IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1998 SESSION
FILED
December 2, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9708-CR-00310
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT,
MARY R. BRUNSON, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. DUNLAP JOHN KNOX WALKUP
GERALD D. WAGGONER Attorney General and Reporter
1433 Poplar Avenue
Memphis, TN 38104-2934 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
JERRY R. KITCHEN
Assistant District Attorney General
201 Poplar Ave, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Mary R. Brunson, appeals the trial court's sentence
imposed after she pled guilty to solicitation to commit voluntary manslaughter.
Specifically, she contends the trial court erred in failing to sentence her as an
especially mitigated offender and ordering six (6) months incarceration. After a
careful review of the facts of the case and applicable law, we AFFIRM the
judgment of the trial court.
FACTS
The defendant lived in the marital home with her two children in Memphis.
Her husband, Sergeant First Class Curtis Brunson, was stationed with the United
States Army at Fort Knox, Kentucky. Sergeant Brunson spent every other
weekend at home. Sergeant Brunson paid the mortgage on the family home as
well as having $700 directly placed in the defendant's checking account every
month.
In August 1995, Sergeant Brunson realized his wife was not timely paying
the household bills. Upon further inquiry, Sergeant Brunson discovered the
defendant had amassed a substantial credit card debt and had withdrawn most
of their savings from the bank. Sergeant Brunson subsequently hired a private
investigator to follow the defendant. The investigator reported the defendant
was engaged in an extramarital affair. The defendant also falsified a lease
during this period in order to qualify for food stamps.
Sergeant Brunson began to secretly record the telephone conversations
in the family home. A recorded conversation between the defendant and her
nephew indicated a plot to have Sergeant Brunson killed. Sergeant Brunson
took the tape to the Memphis police.
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The defendant was subsequently indicted for solicitation to commit first
degree murder, a Class B felony. See Tenn. Code Ann. § 39-11-117(a)(3). She
was allowed to plead guilty to solicitation to commit voluntary manslaughter, a
Class E felony, with an agreed sentence of eighteen (18) months. The manner
of service of the sentence was left to the discretion of the trial court.
At the sentencing hearing, the defendant testified that she was not serious
when she discussed her husband's murder with her nephew. She stated that
she had been drinking at the time, and just "lost it" due to pressure and her
husband’s abusive behavior. The defendant, however, admitted telling her
nephew that she would profit financially from her husband’s death. She further
admitted the mortgage insurance would pay the amount owed on the house, and
she would receive a pension from the military.
SENTENCING
This Court’s review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the
trial judge considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A. Especially Mitigated Offender Status
The defendant contends she should have been sentenced as an
especially mitigated offender. A defendant may be classified as an especially
mitigated offender when:
(1) The defendant has no prior felony convictions;
and
(2) The court finds mitigating, but not
enhancement factors.
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Tenn. Code Ann. § 40-35-109.
The question of whether a defendant should be sentenced as an
especially mitigated offender rests within the sound discretion of the trial court.
State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App. 1993). While the trial
court found the defendant had no prior felony convictions, it noted the defendant
fraudulently obtained food stamps by falsifying a lease on the family home.
Additionally, we note the defendant admitted to prior marijuana use. There was
no abuse of discretion in the failure to classify the defendant as an especially
mitigated offender.
This issue is without merit.
B. Confinement
The defendant’s second sentencing issue is that the trial erred in
sentencing her to six (6) months confinement as opposed to “granting probation
or another sentencing alternative.”
A defendant is eligible for probation if the sentence is eight years or less.
Tenn. Code Ann. § 40-35-303(a). 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 in the absence of evidence to the contrary. Tenn. Code
Ann. § 40-35-102(6). However, the defendant has the burden of establishing
suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.
App. 1996); see Tenn. Code Ann. § 40-35-303(b). A defendant seeking full
probation bears the burden on appeal of showing the sentence imposed is
improper, and that full probation will be in the best interest of the
defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim.
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App. 1997).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, social
history and present condition, the need for deterrence, and the best interest of
the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v.
Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Lack of credibility is also
an appropriate consideration and reflects on a defendant's potential for
rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).
Sentences which involve confinement are based on the following
considerations contained in Tenn. Code Ann. § 40-35-103(1):
(A) [c]onfinement is necessary to protect society by
restraining a defendant who has a long history of
criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating
the seriousness of the offense or confinement is
particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have
frequently or recently been applied unsuccessfully to
the defendant.
See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.
Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
The defendant was afforded the statutory presumption and given
alternative sentencing in the form of split confinement. However, in finding some
period of confinement appropriate, the court noted that, but for law enforcement
intervention, the case could easily have been an unsolved murder. The court
also noted the defendant was allowed to plead to a lesser offense, and
confinement was necessary to avoid depreciating the seriousness of the offense.
Further, the trial court found the defendant to be “one of the least credible
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witnesses I’ve seen.” The trial court is in a much better position to assess
credibility than this Court since it can assess the appearance and demeanor of
the defendant.
The defendant has not met her burden of establishing suitability for total
probation. We see no reason to disturb the sentence imposed by the trial court.
This issue is without merit.
CONCLUSION
For the reasons stated above, the sentence imposed by the trial court is
AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
PAUL G. SUMMERS, JUDGE
_________________________
DAVID H. WELLES, JUDGE
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