State of Tennessee v. Timothy Clark Naifeh

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 16, 2016 Session Heard at Union University1

STATE OF TENNESSEE v. TIMOTHY CLARK NAIFEH

Appeal from the Circuit Court for Obion County
No. CC12CR134 James C. Beasley, Jr., Judge

No. W2015-01204-CCA-R3-CD - Filed May 27, 2016

The Defendant, Timothy Clark Naifeh, was convicted by an Obion County jury of six
counts of vehicular homicide. Prior to trial, the Defendant filed two motions challenging
his competence to stand trial, both of which were denied by the trial court. Following a
sentencing hearing, the trial court merged his convictions into three counts of vehicular
homicide by intoxication, a Class B felony. See T.C.A. § 39-13-213(a)(1). The sentence
was to be served by split confinement, with one year of incarceration and the remainder
on probation. On appeal, the Defendant argues that the trial court erred in finding that he
was competent to stand trial and that his sentence was improper. Upon our review, we
affirm the judgments of the trial court. However, for purposes of clarity, we remand this
matter for entry of corrected judgment forms in Counts 1, 2, and 3, specifying an
effective sentence of ten years, with one year of incarceration and the remaining nine
years on probation.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Charles S. Kelley, Sr., Dyersburg, Tennessee, for the Defendant-Appellant, Timothy
Clark Naifeh.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the Appellee, State of Tennessee.

1
Oral Argument was heard in this case on February 16, 2016, at Union University in Jackson,
Tennessee, as a part of the S.C.A.L.E.S (Supreme Court Advancing Legal Education for Students)
project.
 OPINION

On January 7, 2012, the Defendant, a licensed defense attorney, crashed his truck
into a vehicle occupied by four passengers.2 Two of the passengers, fifty-one-year-old
David Bell and eighty-one-year-old Frances Sue Bell, died immediately upon impact, and
a third, eighty-one-year-old Jack Bell, died at the hospital the next morning. The
Defendant sustained significant head trauma from the accident and was airlifted to
Regional Medical Center in Memphis, Tennessee, where he remained for several weeks.
He was later transferred to a rehabilitation facility in Atlanta, Georgia, and then to a
nursing home in Lake County, Tennessee, before returning home in April 2012. A
toxicology report on the Defendant‟s blood sample revealed that at the time of the
accident, the Defendant was under the influence of multiple prescription drugs, including
Valium, Xanax, and Phentermine.3 The Obion County Grand Jury subsequently indicted
the Defendant for three counts of vehicular homicide by intoxication, a Class B felony,
and three alternative counts of vehicular homicide by conduct creating a substantial risk
of death and serious bodily injury, a Class C felony. See T.C.A. § 39-13-213(a)(1)-(2).

Competency Proceedings. On April 19, 2013, the Defendant filed an eighty-
seven-page motion challenging his competence to stand trial based on the brain injuries
he sustained in the accident. The Defendant‟s motion was heard on May 23, 2014, by the
Criminal Court of Shelby County, sitting by interchange.

Defendant’s Experts. Dr. Robert Kennon, a licensed psychologist who had
performed approximately 150 competency evaluations, met with the Defendant on two
occasions in early 2013. The Defendant initially resisted and expressed concern over
how the information from Dr. Kennon‟s evaluation would be used. Dr. Kennon noted
that this suspicious reaction was unusual and that criminal defendants exhibiting
misleading or malingering behavior tend to be overly cooperative. Despite his initial
reluctance, the Defendant submitted to psychological testing by Dr. Kennon over a six
and a half hour period. The Defendant exhibited a full scale IQ score of 72 on the
Wechsler Adult Intelligence Scale, which placed the Defendant‟s intellectual level in the
bottom three percent of adults his age and indicated “a borderline mild mental retarded
classification range of intellectual abilities.” The Defendant also scored in the lower one

2
The transcript from the Defendant‟s jury trial is absent from the appellate record. Thus, we
deduce much of the factual background of this case from the trial exhibits, which, interestingly, were
included in the record on appeal.
3
Based on the exhibits from trial, it appears that the Defendant had a prescription for Xanax and
Phentermine but not Valium. Moreover, based on the August 11, 2014 correspondence from Forensic
Pathologist Dr. Gregory J. Davis, which was also introduced at trial, the Defendant‟s blood concentrations
for both Phentermine and Valium were well above the “therapeutic range.”
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percent in the subcategory of “processing speed,” which reflected “significant problems
with attention, concentration, processing information and doing it in a timely manner.”
On the Wide Range Brain Achievement Test, the Defendant “functioned relatively well”
in the categories of reading and spelling, although his reading comprehension level was
lower than Dr. Kennon expected. In contrast, the Defendant‟s math skills were at an
eighth grade equivalency level, which Dr. Kennon attributed to the Defendant‟s inability
to concentrate.

On the Wechsler Memory Scale, which specifically tested the Defendant‟s
auditory and visual memory, the Defendant scored in the lower one percent in immediate
memory and the lower .3 percent in delayed memory. Dr. Kennon explained that these
scores indicated a “moderate[ly] to severely impaired range of functioning in these
areas.” He further noted that the Defendant fell into the lower .2 percent in visual
memory, which was consistent with the right frontal lobe injury to the Defendant‟s brain.
The Defendant also exhibited “significant visual spacial deficits” on the Rey Complex
Figure Test, falling in the lower two percent range in immediate memory recall and the
lower one percent range in delayed memory recall.

On the Millon Clinical Multiaxial Inventory, an objective true-false test used to
assess personality characteristics and psychopathology, the Defendant portrayed himself
in a “fairly positive light” and reported that he had no psychological issues. Finally, on
the Beck Depression Inventory, a subjective assessment designed to measure a subject‟s
level of depression, the results indicated that the Defendant had mild symptoms of
depression. Dr. Kennon testified that the fact that the Defendant did not exaggerate his
condition or portray himself as more impaired on either the Millon or Beck inventories
suggested that he was not malingering.

Dr. Kennon gave the Defendant a score of thirty-eight out of ninety-nine on the
Global Assessment Functioning Scale (“GAF”), which is a “subjective appraisal of an
individual‟s functional capacity.” This score indicated “major impairment in his capacity
to work, his capacity to handle daily activities, his capacity to make appropriate
judgments, his ability to remember information and focus and concentrate.” However,
Dr. Kennon noted that GAF scores were extremely subjective and had recently been
discredited. Dr. Kennon additionally testified that “given the cognitive impairment that
[the Defendant] has suffered . . . I found he suffered from retro grade amnesia of th[e]
accident.” Dr. Kennon ultimately concluded that the Defendant was not competent to
stand trial. He added,

Well, he possesses very poor cognitive - low cognitive function that
falls in the borderline range. His ability to encode, to retrieve, to remember
information has also been significantly impacted by this traumatic brain
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 injury. He possessed limited to no insight as to what happened, what
occurred and as a result of that I do not - I found that he was not able to
assist his attorney in providing information about or details about the - or
for that matter, reliable facts about the incident. That he is disadvantaged
due to his – to challenge witnesses. He‟s not able to recognize distortions
in what someone may or may not say. He‟s not able to encode information
about details during the process of a court hearing. I don‟t think that he
possesses the adequate attention and concentration to recall information
during a trial. I also do not think that he possesses the capacity to deal with
multiple details and to recall that information like the test results I think
support that.

...

He‟s overly suspicious and those factors, I think, will also or further the
deterrence to his capacity to work with his attorney.

Dr. Kennon opined that the Defendant‟s condition was unlikely to improve.

On cross-examination, Dr. Kennon testified that the Defendant was fully
cooperative with testing despite his original suspiciousness. He also conceded that the
Defendant‟s inability to recall the accident could have been affected by the drugs he was
on at the time of the accident. He agreed that the Defendant understood that he was
charged with a crime and could go to jail. Moreover, he admitted that the Defendant was
able to carry on a coherent conversation and could at least talk to counsel about various
issues. He agreed that the major issue with regard to the Defendant‟s competency to
stand trial was the effect the Defendant‟s impaired memory would have on his ability to
assist in preparing a defense. He explained that the Defendant would not be able to
challenge witnesses or testify because he could not independently recall anything from
the day of the accident. In addition, the Defendant exhibited “disbelief” that three people
were killed in the accident, although he remarked on the severity of his own injuries. Dr.
Kennon was struck by how “egocentric” the Defendant‟s account of the accident was,
noting “[i]t was very much . . . about [him]” and “very little about anybody else.” In
response to questions from the trial court, Dr. Kennon recounted the Defendant‟s
description of the accident as follows:

[The Defendant] said, “I was banged up good.” He said - I said –
“They say I hit somebody head on. I don‟t know.” He said, “It was just a
bump.” I said, “You mean like a speed bump?” And he said “Yeah, it was
just a bump in the road.” He said, “May have been a pot hole. I was in a
truck. Went to the hospital in a helicopter.” He said, “I went to a local
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 hospital and then was transferred to the MED and after that, different ones.”
And he had difficulty telling me which ones.

The trial court interjected and was concerned that the issue of competency was
complicated by the fact that the Defendant was a licensed attorney that had practiced
criminal law and was reluctant to answer questions that he felt would get him into
trouble. In response to the trial court‟s concerns, Dr. Kennon stated,

I think he‟s going to have difficulty comprehending a trial dealing
with that information and assembling that and being able to recall what‟s
been said, what‟s not been said and therefore to assist his attorney in that
process. He‟s not able to because of his lack of recollection whether that‟s
related to substance abuse or to the trauma. I suspect it‟s trauma. . . . This
man suffered severe trauma, head trauma with -- I mean, some of the
trauma that he experienced not many people live through that. . . .
[B]ecause he‟s an attorney and I -- I‟m with you, I struggle with this
greatly. Because of that fact that he‟s an attorney I would propose to you
that some of the behaviors that you‟re seeing are even further of this – not
blatant malingering, but some of the behaviors that you‟re witnessing with
him “I don‟t want to answer that”, I‟m hesitant -

....

. . . is suggestive of his lack of insight. It‟s suggestive of poor judgment.
That‟s what I think. I think it‟s a matter of poor judgment.

Dr. Robert Murray, a psychiatrist, interviewed the Defendant on December 10,
2012, for approximately an hour. After his initial evaluation of the Defendant‟s mental
condition, he closely reviewed the psychological testing performed by Dr. Kennon. Dr.
Murray confirmed that he utilized Dr. Kennon‟s test results to assist in his own
evaluation of the Defendant. He noted that Dr. Kennon conducted a standard “mini”
mental status exam, which he described as a “very well standardized” evaluation of
cognitive function, and that the Defendant scored a seventeen out of thirty. Dr. Murray
explained that this score was consistent with substantial impairment and “at least 10
points short of where [the Defendant] should be.” He further explained that the
Defendant‟s IQ of 72 was not consistent with his previous level of intelligence as a
practicing attorney. Moreover, Dr. Murray agreed that the Defendant‟s scores on the
Wechsler Memory Scale reflected that the Defendant‟s long-term visual memory had
suffered the most significant impairment.

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 Dr. Murray did not notice any major changes in the Defendant‟s condition during
his second evaluation on February 24, 2014. He observed that the Defendant was
“functioning on a reasonable level in terms of knowing where he was and getting around”
but that “his gait was clumsy.” Dr. Murray explained that the damage to the frontal lobe
portion of the Defendant‟s brain was consistent with memory loss, paranoia, and poor
judgment. Dr. Murray also noted that this sort of injury would create “a significant
personality change as a result of the trauma,” and he opined that the Defendant‟s
condition was unlikely to improve.

Although Dr. Murray did not believe that the Defendant was malingering, he
conceded that the Defendant had previously made statements recognizing that
participating in testing was not necessarily in his self-interest. He also agreed that notes
from Western Mental Health Institute (“WMHI”), the inpatient facility where the State
had the Defendant evaluated, reflected that the Defendant made somatic complaints that
made it impossible to administer psychological tests. However, he noted that Dr. Kennon
found no evidence of misleading behavior and that the tests Dr. Kennon used were
designed to detect malingering tendencies. Still, Dr. Murray agreed that “[the
Defendant‟s] understanding of the legal proceedings [was] not bad” and that “the primary
issue [was] the lack of memory.” Dr. Murray opined that the Defendant‟s limited
retention rendered him incapable of assisting his counsel in the preparation of his defense
at trial.

On cross-examination, Dr. Murray admitted that the Defendant generally
understood legal workings and stated, “[t]here [were] some ways he understood that
better than I do.” He conceded that the Defendant was able to carry on a coherent
conversation and could at least consult with counsel. He noted, however, that the
Defendant‟s head trauma as well as the Valium in his system at the time of the accident
would have led to significant memory loss. Although Dr. Murray acknowledged that the
Defendant had a different attitude about being tested by Dr. Kennon than he did about
being tested at WMHI, he attributed this variation to the Defendant‟s poor judgment and
paranoia. On redirect, Dr. Murray noted that there would likely be some variability with
the Defendant‟s mental condition even on a daily basis. Finally, in response to questions
raised by the trial court, Dr. Murray testified that the Defendant suffered the most
memory loss near the time of the accident because his “memory coding system was being
derailed” during that interval.

State’s Experts. Dr. Doug King, a staff psychiatrist at Pathways Behavioral
Health Services, met with the Defendant for approximately an hour on May 14, 2013, to
assess the Defendant‟s competency to stand trial. The Defendant was largely cooperative
with the evaluation; however, Dr. King noted,

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 [The Defendant] made a statement, after I explained the purpose of
the interview, that some of the things he said might go against him. He did
not explicitly state at any time „I refuse to answer something‟ or get
belligerent about questions. There was one question about illicit drugs and
he - his affect changed at that point and I would have to look at my report
to know exactly what he said but, he sort of balked at that and said
something like he probably should not answer that question.

On May 15, 2013, Dr. King wrote a letter to the trial court that advised, “a more
comprehensive evaluation is needed in order to make a determination of [the
Defendant‟s] competency to stand trial,” and recommended that the court order a
comprehensive inpatient evaluation.

Dr. King felt that the Defendant would be better assessed over a thirty-day period
in light of inconsistencies between the Defendant‟s responses and behavior. Dr. King
testified that, although the Defendant claimed that he did not understand the charges
against him, the Defendant was aware that he would not face trial if he was found to be
incompetent. Moreover, the Defendant was able to remember and articulate details about
his family, including his son‟s upcoming appointment at West Point. Dr. King was
surprised that the Defendant could discuss “over learned” details about his family history
but had no “over learned knowledge” about courtroom protocol after being an attorney
for many years. On cross-examination, Dr. King explained that “over learned
knowledge,” is “information repeated over and over and integrated into the individual[‟]s
nervous system more than necessary to just retain information. . . . . [I]t becomes
automatic, habitual.”

In response to questions raised by the trial court, Dr. King testified that he was
also surprised that the Defendant was so cordial and articulate after reviewing the
Defendant‟s records. He noted that, although the Defendant gave some indication of
short-term memory impairment, he remembered which door led to the lobby from Dr.
King‟s office and remembered that he was supposed to call his brother to pick him up.
Dr. King was unable to determine whether the Defendant would benefit from medication;
however, he did not believe that the Defendant suffered from depression. Finally, Dr.
King noted that high-functioning individuals like the Defendant generally had a better
ability to recover from trauma.

Upon Dr. King‟s recommendation, the trial court ordered that the Defendant
submit to a thirty-day, comprehensive inpatient evaluation at WMHI. Dr. Hillary Linder,
a staff psychiatrist at WMHI, determined that the Defendant was competent to stand trial
based on his interaction with the Defendant during that time. Dr. Linder explained that
the Defendant demonstrated problems with his memory and mobility but otherwise
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communicated well and got along with others. Dr. Linder testified that the Defendant
engaged in normal activities without trouble, showed no signs of paranoia, and remained
consistent in his behavior and overall mental status throughout the thirty-day assessment.
Dr. Linder did not believe that the Defendant was exhibiting malingering behavior;
however, he noted that the Defendant made statements like, “you‟re not my guy” to the
WMHI doctors and refused to answer questions about the accident. Moreover, the
Defendant refused to participate in psychological testing because he felt that it was not in
his best interest.

On cross-examination, Dr. Linder agreed that the Defendant was generally
cooperative but that he refused to speak with them about his evaluation or his memory
situation. Dr. Linder disagreed with the findings of Dr. Kennon and “was surprised that
[the Defendant] functioned as low on the memory retention as Dr. Kennon sa[id].” He
agreed, however, that the WMHI staff had no test results to compare with Dr. Kennon‟s
because the Defendant refused for thirty days to participate in testing. Moreover,
although Dr. Linder gave the Defendant a similar GAF score as Dr. Kennon, he explained
that GAF scores are inexact and primarily used for people with mental illness rather than
people with brain injury related to head trauma. Dr. Linder conceded that the
Defendant‟s CAT scan reviewed multiple hemorrhages in his brain. However, he did not
schedule the Defendant to meet with a neuropsychologist because he did not think the
Defendant would cooperate with testing. He was unsure of what the results of additional
testing would have been and agreed that the Defendant may have hurt himself even more
by refusing to participate.

Dr. Suzanne Tauseff, a staff psychologist at WMHI, was a member of the team
that evaluated the Defendant and observed the Defendant in both individual and group
settings. She testified that the Defendant initially refused to undergo psychological
testing because he “fe[lt] that that would not be in his best legal interest” and “might hurt
him in terms of his legal charges.” However, he eventually became more cordial and
began citing various physical issues in order to avoid testing. Likewise, the Defendant
would not discuss his accident because he did not feel that it was in his best legal interest,
and he seemed unsure of whether his recollection of the event was based on his actual
memory or based on things other people had told him.

Dr. Tauseff testified that the Defendant spoke like an attorney and appeared to
have a very good understanding of the legal process. She noted that he gave a few
nuanced responses indicating that he had retained forensic knowledge from practice,
including an explanation of congruent and consecutive sentencing and the benefit of a
criminal defendant having twelve jurors, rather than six. Dr. Tauseff noted, however, that
the Defendant was inconsistent and that he mostly responded to forensic questioning
with, “I don‟t know” or “I‟m not sure.” In general, Dr. Tauseff did not have a problem
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carrying on a normal conversation with the Defendant and based on her observations, she
believed that the Defendant “possess[ed] the requisite capacities for competency to stand
trial.”

On cross-examination, Dr. Tauseff agreed that most of the tests administered by
Dr. Kennon were standardized, although she noted that not all psychologists use the same
tests. While there were no neuropsychologists at WMHI, Dr. Tauseff stated that some
measure of the Defendant‟s neuropsychological functioning would be helpful in assessing
his memory. However, she thought that any attempt to have the Defendant evaluated by
a neuropsychologist would have been futile because he refused to participate in testing.
Dr. Tauseff also testified that she did not detect any malingering by the Defendant but
that he did use language like “you‟re not my guy” as an explanation for his
noncompliance. Dr. Tauseff acknowledged that the Defendant tested poorly in his prior
assessments but noted that “testing is not a magical thing. It‟s a starting point.” She
continued,

[E]ven though [the Defendant‟s] scores looked very, very low[,] he
was still able to navigate socially in a very difficult environment over a
thirty day period. Never had any behavioral discontrol and basically
educated the team in terms of some of the forensic knowledge that he had.
So he had a very high understanding of that . . . material.

Dr. Tauseff explained that behavioral observations and forensic questioning, although not
standardized, were very important assessment tools. Moreover, she stated that her unit
often found individuals with lower IQ scores than 72 to be competent.

Defendant’s Lay Witnesses. Cristy Cooper Davis, a former Assistant Public
Defender in Dyer County, testified that she met the Defendant in 2005 and that they had
rekindled a romantic relationship shortly before the accident in January 2012. The
Defendant resided with Davis4 at her home in Dyersburg for about six months after the
accident. Davis explained that the Defendant could eat, shower, and dress himself
without help but that he would often forget when he had done so. Davis also observed
that the Defendant could not stay focused on the subject matter of a conversation for any
extended period or comprehend routine tasks like remembering to take his medication
each day. She further testified that the Defendant had no “realistic recollection” of the
accident. Based on her background in criminal law and her interactions with the

4
We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. or Mrs. or by his or her proper title.
-9-
Defendant, she did not believe that he could rationally understand the proceedings against
him or assist counsel in preparing his defense.

Attorney Jason Creasy met with the Defendant on March 10, 2014, and again on
April 22, 2014, in order to assess his competency to stand trial. Although Creasy and the
Defendant had previously worked together, the Defendant did not initially recognize
Creasy and had no recollection of a high-profile case that they had been working on
together at the time of the accident. Moreover, the Defendant had no recollection of
anything from the day of his accident and could not answer basic questions about the
elements of crimes or legal processes such as jury selection. The Defendant also could
not recall events in his life that were unrelated to the case, such as the name of his
divorce attorney or the birth dates of his children. Creasy did not believe the Defendant
was capable of understanding the proceedings against him or rationally consulting with
his attorney. On cross-examination, Creasy conceded that Defendant seemed to
understand that he was charged with a criminal offense and that he could be incarcerated
if convicted. He agreed that the Defendant could converse with him but felt that the
Defendant‟s memory and concentration issues would make it difficult to build a defense.

James T. Powell, a criminal defense attorney, interviewed the Defendant for two
hours in February 2013 to assess whether he could assist in his own defense. Powell
questioned him as if he were preparing a defense. The Defendant could not remember
the accident or any of the events leading up to it and “did not have a good grasp” on legal
processes such as jury selection. Moreover, the Defendant became very agitated when
asked if he would testify on his own behalf. Powell did not believe that the Defendant
was capable of understanding his charges or assisting his attorney in preparing a defense.
On cross-examination, Powell testified that when he asked the Defendant if he
understood why he was there, the Defendant responded, “It‟s something about my
driving.” Powell noted that although the Defendant “wasn‟t babbling,” he “just didn‟t
have any grasp . . . of what had happened.” Furthermore, the Defendant told Powell that
he wanted to testify but could not say what, if anything, he would testify to. In response
to questions raised by the trial court, Powell testified that the Defendant could not
remember a prior occasion when he and Powell had played golf together. On recross-
examination, Powell conceded that criminal clients had often lied to him in the past.

Lake County Sheriff Bryan Avery, who had known the Defendant for thirty-five
years, noticed a significant difference in the Defendant‟s demeanor since the accident.
For example, he recalled that in the spring of 2013, the Defendant came to the Sheriff‟s
Department and tried to have his mother evicted. Sheriff Avery‟s brother Kevin Avery, a
close friend of the Defendant‟s, testified that since the accident, the Defendant would lose
focus and repeated himself frequently during a conversation. Avery also noted that the
Defendant would never have had a pet turtle before but now had two turtles and a snake.
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 Lake County Mayor Macey Roberson and her assistant secretary, Darlene Jones,
long-time friends and colleagues of the Defendant, testified that after his accident, the
Defendant had a difficult time carrying on a conversation because he would forget what
they were talking about, jump around to different topics, and repeat himself.

Lori Campbell and Amy Howell, both of whom had previously worked for the
Defendant, testified similarly that the Defendant could no longer stay focused during a
conversation. Campbell noted that the Defendant‟s brother had to change the door locks
at the Defendant‟s office to keep him from getting inside. Moreover, Howell stated that
the Defendant often brought up old cases as if he were still practicing law, could not
remember how old his children were, and referred to his pet turtle as his roommate.
Vicky Lebo, an employee of Northwest Correctional Complex and long-time friend of
the Defendant‟s, testified that the Defendant would “lose[] track in the middle of a
conversation,” forget things, and ask her to take him shopping for items he had just
bought. Finally, she noted that “[the Defendant‟s] life pretty much revolves around [his
pet] turtle now,” and that he would ask her if she thought the turtle was listening when he
spoke to it.

Captain Dennis Dean of the Obion County Sheriff‟s Department served as the
administrative officer of the county jail and was present when the Defendant was booked
in October of 2012. The Defendant‟s brother had to assist Captain Dean in booking the
Defendant because the Defendant was unable to answer routine questions or provide
information such as phone numbers and emergency contacts.

The Defendant‟s older brother, Dr. James Naifeh, testified that the Defendant was
a much higher level functioning person before his accident and that he could no longer
practice law or care for his own finances. He further noted the Defendant was now easily
angered and often violent toward his family members, particularly his mother and
younger brother, Chris. Dr. Naifeh testified that, although the Defendant‟s intellect was
good, he could not rationalize or make decisions because there was no longer a
connection between certain parts of his brain.

Chris Naifeh, the Defendant‟s younger brother, testified that he was appointed the
Defendant‟s conservator two months after the accident and that he had the most contact
with the Defendant. He recalled one occasion where the Defendant abruptly exited a
restaurant where they were eating and attempted to walk back to his home in Tiptonville.
Naifeh said that he had to “manhandle” the Defendant and physically carry him back
inside the nursing home facility where he resided at the time. Naifeh further testified that
the Defendant would often become agitated and violent toward him and their elderly
mother, and Naifeh believed the Defendant‟s irate behavior stemmed from his brain
injury.
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 State’s Rebuttal Lay Witness. Susan Wallace, the Defendant‟s ex-wife, testified
that she and the Defendant were married for thirteen years, had three children together,
and still spoke regularly. Three weeks prior to the competency hearing, the Defendant
called and asked her to testify on his behalf. At that time, the Defendant also told
Wallace that he remembered the accident, and she described their conversation, in
relevant part, as follows:

I said, “Do you remember?” And he said, “Yes.” And I said, “What
happened that day?” I said, “Did you fall asleep? You were texting with
Cristy Cooper? . . . [W]ere [you] texting her back? What made you cross
that center line?”

....

And he told me that his attorney and he had decided that they would
go with sleep apnea, that he was suffering from sleep apnea and that‟s the
reason why he crossed the line.

Following closing remarks by counsel, the trial court took the matter under
advisement to determine whether additional testimony regarding the Defendant‟s
competency was necessary. In a written order issued on August 25, 2014, the trial court
found that the Defendant was competent to stand trial.

Renewed Motion to Declare the Defendant Incompetent to Stand Trial. On
September 17, 2014, the Defendant filed a second motion challenging his competency to
stand trial, wherein he claimed that he had sustained further physical and mental injury
since the first hearing. The renewed motion was heard on November 25, 2014. Dr.
James Naifeh testified that the Defendant passed out during a hunting trip with his son on
August 24, 2014. The Defendant was transported by ambulance to Dyersburg Regional
Medical Center and remained hospitalized there for several days before being transferred
to Jackson-Madison County Hospital for additional treatment. He eventually moved to a
nursing rehabilitation center in Ridgely, Tennessee, for approximately one month.

After the Defendant was released, a follow-up MRI was taken of his brain. The
MRI revealed damage to his frontal lobe, but the radiologist could not determine whether
this injury was new or old.5 However, the MRI also revealed a new stroke that was not
detected prior to the Defendant‟s hospitalization in August 2014. Dr. Naifeh testified that

5
Notably, the report on a CAT scan taken on August 23, 2014, which is attached as an exhibit to
the Defendant‟s original motion to reconsider, identifies the Defendant‟s right frontal lobe damage as an
“Old right frontal infraction.”

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the Defendant‟s memory and ambulation had declined since the August stroke, noting,
“He stumbles, he stutters.” Dr. Naifeh explained that a stroke could affect numerous
neurological issues and that it affects each person differently. However, he conceded that
a stroke could disturb movement and speech without affecting mental issues and that the
damage to the Defendant‟s right frontal lobe, which controls “thinking [and] thought
processes,” was consistent with his previous injuries from the accident. Moreover, he
testified that the Defendant suffered from sleep apnea and had been prescribed a CPAP
machine after the accident to help him breathe at night.

On cross-examination, Dr. Naifeh testified that the Defendant was living at home
and was “functional.” He confirmed that the Defendant still had difficulty walking but
was not bedridden. He noted that he was planning to consult a neurologist to evaluate the
Defendant‟s mental condition but had not yet made an appointment. Although he was
sure that the Defendant had suffered a recent stroke in the left basal ganglia portion of his
brain, he was unsure of what that portion of the brain does. Dr. Naifeh also testified that
the Defendant had suffered cerebral atrophy or shrinkage of brain matter.

At the conclusion of the hearing, the trial court orally denied the Defendant‟s
motion to reconsider, and a written order was filed on January 9, 2015. In its reasoning,
the court expressed concern over the Defendant‟s worsening physical condition but
ultimately determined that the Defendant was competent to stand trial. The trial court
subsequently granted the Defendant‟s request to file an application for an interlocutory
appeal of the competency determination pursuant Rule 9 of the Tennessee Rules of
Appellate Procedure. See Tenn. R. App. P. 9(a). On April 17, 2015, this court denied the
Defendant‟s application. The Defendant‟s case proceeded to a jury trial, and the
Defendant was convicted as charged of six counts of vehicular homicide on May 12,
2015.

Sentencing Hearing. At the June 29, 2015 sentencing hearing, the State entered
the Defendant‟s presentence report into evidence. The report reflected that he had a prior
conviction for possession of cocaine in June 1992. It also included victim impact
statements from seven members of the victims‟ family. The State then requested
enhancement of the Defendant‟s sentence based on the application of enhancement factor
(10), that the Defendant had no hesitation about committing a crime when the risk to
human life was high. See T.C.A. § 40-35-114(10). In support of enhancement, the State
noted that several motorists testified at trial that the Defendant nearly struck them before
he eventually collided into the victims‟ vehicle. The State also sought consecutive
sentencing under the dangerous offender category. See T.C.A. § 40-35-115(b).

The State then presented four witnesses. First, Obion County Sheriff Jerry
Vastbinder testified that he had arranged for the Defendant to serve any sentence of
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incarceration in a Tennessee Department of Correction (“TDOC”) special needs facility.
Next, Judy Bell, the widow of victim David Bell and daughter-in-law of victims Jack and
Frances Sue Bell, testified that the Defendant should be held responsible for his behavior.
Addressing the Defendant, she stated,

You made a decision that you were well aware of. . . . [Y]ou chose to take
drugs. You are a man that was well-educated, that was an attorney for
Tennessee. You knew the consequences of your behavior. You chose to
ignore them. . . . [Y]ou chose a selfish act that devastated my family.

She further stated that the achievements of her three children had been overshadowed by
the death of their father and grandparents and that holidays continued to be difficult.
Jonathan Bell, the son of David Bell and grandson of Jack and Frances Sue Bell, testified
that he no longer visited his relatives in Tennessee because he associates pain and
hardship with the location of the accident. Kathy Bell Gray, the daughter of Jack and
Frances Sue Bell and older sister of David Bell, testified, “The people I trusted most in
my life are gone.” She described the devastating impact of losing three loved ones and
pointed out that the Defendant had made no expression of remorse or sorrow for his
actions whatsoever. She felt that justice was necessary, would benefit the community,
and would “make a better man out of [the Defendant].”

Seven witnesses testified on the Defendant‟s behalf. Reed Yates, the Mayor of
Tiptonville, testified that he had known the Defendant his entire life and that, before the
accident, the Defendant had served as the city attorney, the county attorney, and the
attorney for Reelfoot Utility District. He said that the Defendant had enjoyed a high
character in the community and had a reputation for being honest, charitable, and a great
father. Ricky Gooch and Shane Hamilton, longtime friends of the Defendant and his
family, testified similarly that the Defendant had a reputation for truth and veracity.
Hamilton noted that the Defendant was known for being charitable and was “willing to
help anybody[.]” Amy Howell and Lori Campbell, both of whom worked for the
Defendant, testified that the Defendant had a reputation for being honest and that he often
volunteered for various organizations.

Dr. James Naifeh, the Defendant‟s older brother, testified that the Defendant had
high blood pressure, high cholesterol, brain injuries, and issues with mobility. He
emphasized that the Defendant was completely disabled, that his disability would not
ever improve, and that he could not return to work as an attorney, drive, or even cook for
himself. He further explained that it would be very difficult for the Defendant to adapt to
the structure and regulations of a penal institution because he was incapable of following
directions due to his memory and processing deficits. He noted that the Defendant was
unable to discern when he needs to eat or if he is cold. Dr. Naifeh was unfamiliar with
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the TDOC special needs facility and could not render an opinion on how the Defendant
would function in that facility.

Chris Naifeh, the Defendant‟s younger brother, testified that he was primarily
responsible for the Defendant‟s needs and that he saw the Defendant at least every other
day. He confirmed that the Defendant was drawing 100 percent disability and that he
took care of all of the Defendant‟s financial affairs. He also stated that the Defendant
could not drive and was entirely dependent on others for transportation. Naifeh felt that
the Defendant “would never be the same” and that he lost his brother on January 7, 2012.
On cross-examination, Naifeh apologized to the family of the victims.

The Defendant, who did not testify, stated, “[I want to] [t]hank the Court for its
time and attention. I‟m very sorry for what happened. It destroyed lots of lives, and I‟m
very sorry for what happened.”

Following arguments from counsel, the trial court merged the Defendant‟s
convictions into three counts of vehicular homicide by intoxication and imposed a
midrange sentence of ten years for each count. The court denied consecutive sentencing
but ordered that the Defendant serve one year of incarceration, followed by ten years of
probation.6 The Defendant immediately filed a motion for new trial on June 29, 2015,
which was heard and denied that same day.7 In denying relief, the court again addressed
the issue of competency:

I‟ve had several observations during the course of the proceedings and the
trial that give me indication to think that [the Defendant], at least in limited
capacity, but has some capacity to understand the proceedings. I‟ve noted
throughout that he takes notes. Obviously, I don‟t know what he‟s putting
on his notes, but it‟s obvious that he was taking notes, that he had a special
interest, at least in one or two of the witnesses who testified that I saw
where he positioned himself in the courtroom in a position where he could
look at exhibits and some other things that just gave me an impression that
he kind of understood what was going on. I‟ve never said that I felt that he
was a hundred percent capable of doing everything that you would like for

6
We note that the trial court‟s language appears inconsistent with its prior imposition of an
effective ten-year sentence. However, based on our interpretation of the record, we understand the
sentence to be ten years, with one year of service and the remainder on probation. See infra Part II.
7
It appears from the record that there was a brief recess during the sentencing hearing, at which
time defense counsel, for expediency purposes, submitted a motion for new trial to be heard in the same
proceeding.
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 a client to do, but I did find that there was enough, in my opinion, legally,
to find that he was competent to assist counsel[.]

This timely appeal followed.

ANALYSIS

I. Competency Determination. On appeal, the Defendant, citing Dusky v.
United States, 362 U.S. 402 (1960) (per curiam) and State v. Harrison, 270 S.W.3d 21
(Tenn. 2008), contends that the trial court erred in finding that he was competent to stand
trial. He maintains that, based on the evidence presented at both competency hearings,
his mental condition did not satisfy the legal competency standard. He emphasizes that
he was unable to work, to drive, to handle his own finances, to follow instructions, or to
carry on a consistent conversation, and that he was receiving disability benefits for his
injuries. Upon review, we conclude that the trial court did not err in finding that the
Defendant was competent to stand trial.

“[T]he Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee Constitution prohibit the trial of a person who is mentally
incompetent.” State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000) (citing Pate v.
Robinson, 383 U.S. 375, 385 (1966); Berndt v. State, 733 S.W.2d 119 (Tenn. Crim. App.
1987)). In Dusky, the United States Supreme Court articulated the test for competency to
stand trial as “whether [the defendant] has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding and whether he has a rational
and factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402; see
also Blackstock, 19 S.W.3d at 205. Our supreme court, adopting the Dusky factors, held
that “[t]he standard for determining competency to stand trial is whether the accused has
„the capacity to understand the nature and object of the proceedings against him, to
consult with counsel and to assist in preparing his defense.‟” State v. Black, 815 S.W.2d
166, 174 (Tenn. 1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App.
1975)); see also Harrison, 270 S.W.3d at 33. The burden of establishing incompetence to
stand trial rests with the defendant, and the defendant must establish his incompetency by
a preponderance of the evidence. See State v. Reid, 164 S.W.3d 286, 307 (Tenn. 2005);
State v. Leming, 3 S.W.3d 7, 13-14 (Tenn. Crim. App. 1998). “The trial court‟s findings
„are conclusive on appeal unless the evidence preponderates otherwise.‟” Reid, 164
S.W.3d at 306 (quoting State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991)).

“Amnesia in and of itself does not constitute incompetency to stand trial.”
Leming, 3 S.W.3d at 16; (citing State v. Dempsey Ray, No. 86-290-III, 1988 WL 18350,
at *4 (Tenn. Crim. App., at Nashville, Mar. 2, 1988)); see also State v. Neil M. Friedman,
No. 03C01-9704-CR-00140, 1998 WL 170133, at *2-4 (Tenn. Crim. App., at Knoxville,
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Apr. 14, 1998) (rejecting a defendant‟s claim that he was deprived of a fair trial due to his
inability to remember the events of the crimes). Where memory is at issue in determining
competency, two inquiries must be made to ensure that a defendant receives the
guarantees of due process. Leming, 3 S.W.3d at 16. First, the trial court must analyze
whether the defendant‟s level of competency satisfies the Dusky factors. Id. (citing
Dusky, 362 U.S. at 402). “Second, there must be an analysis of whether the defendant
can receive a fair trial despite the amnesia, considering such factors as whether the crime
and the defendant‟s whereabouts can be reconstructed without the defendant‟s testimony
and whether access to government files would assist the defendant in preparing a
defense.” Id. (citing United States v. Swanson, 572 F.2d 523, 527 (5th Cir. 1978);
Dempsey Ray, 1988 WL 18350, at *7).

In denying the Defendant‟s first incompetency motion, the trial court noted that
both of the Defendant‟s experts conceded that the Defendant possessed at least a general
understanding of the legal proceedings against him as well as the ability to converse with
his counsel. The court further noted that two of the State‟s experts, Dr. Linder and Dr.
Touseff, determined that the Defendant met the legal competency standard based on their
personal observations of the Defendant during his thirty-day inpatient assessment at
WMHI. Furthermore, despite extensive testimony from the Defendant‟s lay witnesses
regarding his mental and physical deterioration, the trial court emphasized that the
Defendant was a licensed attorney and pointed to instances where “[the Defendant‟s]
answers to questions and comments to witnesses indicate[d] that he still ha[d] a rational
understanding of the proceedings against him.” The trial court also credited the rebuttal
lay testimony from the Defendant‟s ex-wife, who stated that the Defendant told her
several weeks prior to the competency hearing that he remembered the accident and
planned to assert a defense of sleep apnea. Based on the proof, the trial court determined
“that [the Defendant] ha[d] a rational understanding of the proceedings against him and
the ability to consult with his attorney, thereby satisfying the Dusky requirements.” The
court acknowledged the Defendant‟s diminished mental condition, noting that “[i]t may
be difficult and it may take time to explain issues to him,” but nonetheless thought “that
[the Defendant] [was] capable of understanding the issues and discussing them with his
attorney.” Moreover, the trial court adopted the same reasoning in denying the
Defendant‟s second incompetency motion. Although the court expressed concern over
the Defendant‟s physical deterioration, it determined that no major changes in his mental
condition had occurred. Consequently, the trial court ultimately found that, based on the
expert proof, the only dispositive issue regarding the Defendant‟s competency was the
effect of his impaired memory on his ability to assist in his defense. See Harrison, 270
S.W.3d at 33.

The record does not preponderate against the finding of the trial court. The expert
proof reflects that the Defendant was not cooperative with testing administered by the
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State and made various statements recognizing that answering the questions posed by the
State‟s experts was not in his best self-interest. Moreover, both the Defendant‟s and
State‟s experts consistently testified the Defendant understood various legal processes
and could carry on a conversation with an attorney. The Defendant‟s experts conceded
that the primary issue regarding the Defendant‟s competency to stand trial was his
impaired memory. Although the Defendant emphasizes the testimony of various lay
witnesses, including criminal defense attorneys, about the potential impact of his
diminished intellectual ability at trial, the expert proof reflects that the Defendant met the
competency prongs of Dusky.

We must now review whether the Defendant‟s impaired memory impacted his
ability to assist in his defense to such an extent that he was not competent to stand trial.
See Leming, 3 S.W.3d at 16. The trial court determined that the Defendant‟s inability to
recall the accident did not amount to incompetence because the degree of his amnesia did
not hinder his ability to establish a defense. The court reasoned:

Will the defendant‟s input to counsel and/or testimony even make much of
a difference? . . . The Court has not heard the proof but my understanding is
that the issue is not going to be identity or how the accident actually
happened but rather the cause. All of the factual issues can be provided by
the State and the Court would order the State to make all statements of
witnesses and investigative reports available to defense counsel. The Court
is not aware of the defense theory but based upon testimony so far two
theories appear to be possible, ingestion of valium or sleep apnea. Both of
those theories can be put forth without the defendant‟s testimony.
Although it may be difficult to consult with, explain to and analyze issues
with the defendant the Court feels under the law it is possible. The
defendant has the burden to establish incompetence by a preponderance of
the evidence . . . [and] [t]he Court feels that burden has not been met.

Here, the record does not reflect, and the Defendant does not show, that the trial
court‟s determination was erroneous. Our review of this issue is hindered by the fact that
the Defendant failed to include a transcript of the jury trial in the record on appeal. At
oral argument, defense counsel advised the court that not including the transcript was
intentional. He did not believe it was necessary for the resolution of the issues raised in
this appeal. We disagree. It is extremely difficult, if not impossible, to determine what
effect, if any, that the Defendant‟s impaired memory had on preparing his defense at trial
without a transcript of his jury trial in the appellate record. We do not know the
strategies employed by the defense, the defense theory, or how the evidence adduced at
trial could have been impacted by the Defendant‟s condition. Ordinarily, without a
transcript, we are left to presume that the trial court was correct. State v. Bibbs, 806
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S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812
(Tenn. Crim. App. 1979) (“In the absence of an adequate record on appeal, we must
presume that the trial court‟s ruling was supported by the evidence.”); Vermilye v. State,
584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). However, in this case, the Defendant
has also failed to provide any argument or produce any evidence demonstrating how his
inability to recall the accident rendered him incompetent to assist in his defense. Finally,
defense counsel conceded during oral argument that the Defendant‟s inability to assist in
his defense ultimately made no difference in the outcome at trial. Accordingly, the
Defendant is not entitled to relief on this issue.

II. Sentencing. The Defendant also argues that his sentence was improper. First,
he contends that the trial court erred by enhancing his sentence from eight to ten years
based on a theory of general deterrence not supported by the record. Moreover, he
maintains that the trial court wrongly denied a sentence of full probation. The State
responds that the Defendant has waived consideration of issues related to sentencing by
failing to include the trial transcripts in the record on appeal. The State further asserts
that, waiver notwithstanding, the Defendant‟s sentence was proper. Upon review, we
agree with the State.

We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, the misapplication of
enhancement or mitigating factors does not invalidate the imposed sentence “unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. This standard of review also applies to “questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). “A court only abuses its discretion when it „applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.‟” State v. Sihapanya, -- S.W.3d -- , No. W2012-
00716-SC-R11-CD, 2014 WL 2466054, at *2 (Tenn. Apr. 30, 2014) (quoting State v.
Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). The defendant has the burden of showing
the impropriety of the sentence on appeal. T.C.A. § 40-35-401(d), Sentencing Comm‟n
Cmts.

Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant‟s specific sentence and the
appropriate combination of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;
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 (2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the courts
as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant‟s own behalf
about sentencing.

T.C.A. § 40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the
sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5). A court
must impose a sentence “no greater than that deserved for the offense committed” and
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. §§ 40-35-103(2), (4).

As Range I, standard offender, the Defendant was subject to a sentencing range of
eight to twelve years for each of his three convictions for vehicular homicide by
intoxication, a Class B felony. See T.C.A. § 40-35-112(a)(2). Thus, the trial court‟s
sentence was well within the statutory range. However, the Defendant argues that the
trial court improperly enhanced his sentence to ten years based on the need for “general
deterrence.” He maintains that the record did not support enhancement and that the State
otherwise failed to show that enhancement was appropriate. Despite the Defendant‟s
contentions, it is clear from the record that the court carefully weighed the relevant
statutory factors, as well as the sentencing principles, in determining the length of the
Defendant‟s sentence. Although the trial court prefaced its analysis with an extensive
discussion about the seriousness of driving under the influence, it is clear that the court
also relied on the application of enhancement factor (10), that the Defendant had no
hesitation about committing a crime when the risk to human life was high, as a basis for
imposing a ten-year sentence. See T.C.A. § 40-35-114(10).

The Defendant does not challenge the trial court‟s reliance on enhancement factor
(10) and, to the extent that the trial court‟s reliance stemmed from evidence introduced at
trial, the Defendant has waived consideration of such by failing to include the trial
transcript in the appellate record. Nevertheless, we conclude that the record adequately
-20-
supports the trial court‟s application of enhancement factor (10). Here, it is undisputed
that the Defendant operated his vehicle while under the influence of multiple drugs, at
least one of which was not prescribed, which resulted in the death of three people as well
as significant injury to the Defendant himself. The fact that the Defendant was an
experienced defense attorney made this factor particularly significant, as he fully
understood the potential consequences of driving while impaired. Although the court
applied one mitigating factor in light of the Defendant‟s brain damage, it was within the
discretion of the court to determine the weight to afford each factor. We note that we are
bound to a trial court‟s imposition of a within-range sentence that is otherwise consistent
with the purposes and principles of the Sentencing Act. See State v. Carter, 254 S.W.3d
335, 346 (Tenn. 2008). Moreover, because the statutory enhancement and mitigating
factors are advisory only, and because “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion[,]” we conclude that the
trial court did not err in its sentencing determinations because the record supports the
within-range sentences imposed. See T.C.A. § 40-35-114(c)(2) (2010); Carter, 254
S.W.3d at 345.

Next, the Defendant argues that the trial court should have imposed a sentence of
full probation rather than imposing one year of incarceration. He maintains that
confinement is inappropriate “based on the unrebutted proof that [the Defendant] needs
regular medical care, and is not capable of following the rules and structure of a penal
institution.” Any sentence that does not involve complete confinement is an alternative
sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). In determining
whether to deny alternative sentencing and impose a sentence of total confinement, the
trial court should consider whether:

(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;

(B) Confinement 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) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]

Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

A trial court‟s determination of whether the defendant is entitled to an alternative
sentence and whether the defendant is a suitable candidate for full probation are different
inquiries with different burdens of proof. State v. Boggs, 932 S.W.2d 467, 477 (Tenn.
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Crim. App. 1996). “A defendant‟s sentence is based on „the nature of the offense and the
totality of the circumstances in which it was committed, including the defendant‟s
background.‟” State v. Trotter, 201 S.W.3d 651, 653 (Tenn. 2006) (quoting Ashby, 823
S.W.2d at 168). The seriousness of the offense alone may justify a trial court‟s denial of
alternative sentencing. See Trotter, 201 S.W.3d at 655. Following the 2005 amendments
to the Sentencing Act, a defendant is no longer entitled to a presumption that he or she is
a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347.

Here, the Defendant was eligible for probation because each sentence was ten
years or less and because the offenses were not specifically excluded by statute. See
T.C.A. § 40-35-303(a); State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986)
(concluding that a defendant is eligible for probation if each sentence is ten years or less
regardless of the effective sentence). However, an eligible defendant “is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b),
Sentencing Comm‟n Cmts. Although the trial court shall automatically consider
probation as a sentencing alternative for eligible defendants, the defendant bears the
burden of proving his or her suitability for probation. Id. The defendant must
demonstrate that probation would serve “the ends of justice and the best interests of both
the public and the defendant.” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim. App.
2002) (citations omitted). When considering probation, the trial court should consider the
nature and circumstances of the offense, the defendant‟s criminal record, the defendant‟s
background and social history, the defendant‟s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). “[A] trial court‟s
decision to grant or deny probation will not be invalidated unless the trial court wholly
departed from the relevant statutory considerations in reaching its determination.”
Sihapanya, 2014 WL 2466054, at *3.

We conclude that the trial court did not abuse its discretion by denying full
probation. Although the Defendant references his injuries and his history of being a good
citizen, he puts forth no legal basis for why this would otherwise entitle him to a sentence
of full probation. Nevertheless, the record reflects that trial court carefully analyzed the
propriety of an alternative sentence in light of the circumstances of the Defendant‟s case.
Because the Defendant‟s sentence resulted from his convictions for Class B felonies, he
is not a favorable candidate for alternative sentencing. See T.C.A. § 40-35-102. In
addition, the trial court determined that the facts surrounding the offense, and the nature
of the Defendant‟s criminal conduct weighed against probation. Further, the court noted
that the crimes involved numerous victims and emphasized the emotional impact that the
Defendant‟s criminal behavior had on the victims. The court also found that
incarceration was necessary because a sentence of full probation would unduly depreciate
-22-
the seriousness of the offense. Because the trial court properly considered the evidence,
the enhancement and mitigating factors, and the purposes and principles of sentencing
prior to imposing a within-range sentence of ten years, with one year to be served in
confinement, the Defendant has failed to establish that his sentence was improper.

Finally, although not raised by either on appeal, there are inconsistencies on the
judgment forms. Although the trial court imposed an effective sentence of ten years, the
court later ordered that the Defendant “serve one year in prison, followed by 10 years of
probation.” Similarly, on the judgment forms for Counts 1, 2, and 3, under the section
entitled “Sentencing Length,” the trial court listed the Defendant‟s sentence as “10
Years,” but handwrote “10 years to serve 1 year in jail followed by 10 years of
probation” in the “Special Conditions” section of the judgment form. The trial court
listed that the Defendant serve a twelve-month period of incarceration prior to his release
on probation but nonetheless listed the length of probation as ten years “when not in jail.”
Despite these linguistic inconsistencies, we conclude that the trial court meant to impose
an effective sentence of ten, rather than eleven years. This is particularly so given that a
sentence greater than ten years would render the Defendant ineligible for an alternative
sentence. See T.C.A. § 40-35-303(a) (“A defendant shall be eligible for probation under
this chapter if the sentence actually imposed upon the defendant is ten (10) years or
less.”). This was clearly not the intention of the trial court. Thus, for clarity, we remand
this matter for entry of corrected judgment forms in Counts 1, 2, and 3, reflecting a total
effective sentence of ten years in the TDOC, suspended to split confinement with twelve
months of incarceration at the Obion County jail and the remaining nine years on
probation. See T.C.A. § 40-35-306(a) (“A defendant receiving probation may be
required to serve a portion of the sentence in continuous confinement for up to one (1)
year in the local jail or workhouse[.]”); see also T.C.A. § 40-35-319(a), Sentencing
Cmm‟n Cmts.

CONCLUSION

Upon review, we affirm the judgments of the trial court. However, we remand
this matter for entry of corrected judgment forms in Counts 1, 2, and 3, consistent with
this opinion.

_________________________________
CAMILLE R. McMULLEN, JUDGE

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