Cyril v. Fraser

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE APRIL SESSION, 1995 FILED October 17, 1995

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 03C01-9410-CR-00369 Appellee ) ) BLOUNT COUNTY vs. ) ) Hon. D. Kelly Thomas, Jr., Judge MARJORIE JEANETTE SNEED,) ) (Forgery, six counts; Criminal Appellant ) Simulation, five counts)

For the Appellant: For the Appellee:

Mack Garner Charles W. Burson District Public Defender Attorney General and Reporter 318 Court Street Maryville, TN 37804 Cyril V. Fraser Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

Michael L. Flynn District Attorney General

Edward P. Bailey, Jr. Asst. District Attorney General 363 Court Street Maryville, TN 37804-5906

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Marjorie Jeanette Sneed, entered pleas to two counts of

forgery over $1000, four counts of forgery over $500, and five counts of criminal

simulation. Pursuant to the plea agreement, the appellant received two two-year

sentences for the convictions of forgery over $1000, four one-year sentences for

the convictions of forgery over $500, and five one-year sentences for the criminal

simulation convictions. The trial court ordered all of the sentences to run

concurrently. After imposition of the above sentences, the trial court suspended

all but thirty days of each offense, followed by supervised probation for three

years and eleven months. The appellant now appeals from the sentences

imposed, contending that she should have been granted full probation on all

sentences.

After a review of the record, we affirm the judgment of the trial court.

A sentencing hearing was held on May 31, 1994 to determine the manner

of service of the sentences imposed. The evidence at the hearing established

that the appellant was a twenty-five year old mother of four. The proof further

established that she was separated from her husband at the time of the hearing,

and had surrendered custody of her children to her husband's relatives. The

appellant was employed by Water Service, Inc., making $4.75 per hour. The

presentence report revealed that the appellant has one prior felony conviction for

attempt to commit false pretenses, for which she received a one-year suspended

sentence. The appellant also admitted during testimony that she had knowingly

passed several bad checks in the past, all of which she had paid or was currently

paying off. The appellant also testified that she had had a drug and alcohol

problem in the past, but that she had been drug-free for approximately one year

2 and was willing to undergo treatment for her drug problem.

Appellate review of a sentence is de novo, with a presumption that

the determinations made by the court from which the appeal is taken are correct.

Tenn. Code Ann. § 40-35-401(d) (1990). The appellant has the burden of

establishing that the sentence imposed by the trial court was erroneous. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785,

786 (Tenn. Crim. App. 1991). In determining whether the appellant has met this

burden, we must consider the evidence received at the trial and the sentencing

hearing, the presentence report, the principles of sentencing, argument of

counsel, the nature and characteristics of the offenses, existing mitigating and

enhancing factors, statements made by the offender, and the potential for

rehabilitation. Ashby, 823 S.W.2d at 168; Tenn. Code Ann. § 40-35-210 (1990).

The presumption of correctness is "conditioned upon the affirmative showing in

the record that the trial court considered the sentencing principles and all

relevant facts and circumstances." Ashby, 823 S.W.2d at 169. At the

conclusion of the sentencing hearing, the trial court imposed the sentences upon

the appellant without explanation or entry of any findings of fact. The

presumption of correctness therefore does not apply.

The appellant argues that she is entitled to the presumption of being a

favorable candidate for alternative sentencing found in Tenn. Code Ann. § 40-

35-102(6). This argument is correct. However, the appellant fails to recognize

that she did in fact receive an alternative sentence. The appellant was

sentenced to split confinement, which is listed as an alternative sentencing

option in Tenn. Code Ann. § 40-35-104(c)(3) (1994 Supp.). The presumption of

alternative sentencing therefore has no application to the determination of the

issue before us.

3 Even though the appellant is entitled to the presumption of alternative

sentencing, she has the burden of establishing her suitability for full probation.

See State v. Bingham, No. 03C01-9404-CR-00127 (Tenn. Crim. App. Knoxville,

Feb. 14, 1995); Tenn. Code Ann. § 40-35-303(b) (1994 Supp.). To meet the

burden of establishing suitability for full probation, the appellant must

demonstrate that probation will "subserve the ends of justice and the best

interest of both the public and the defendant." State v. Dykes, 803 S.W.2d. 250,

259 (Tenn. Crim. App. 1990).

In the instant case, the appellant has not met the burden of establishing

suitability for full probation. The appellant contends that she is a superior

candidate for rehabilitation, but her work and social history indicate otherwise.

On the date of the sentencing hearing, the appellant had been working for two

months. However, at the time the presentence report was prepared, she had

been gainfully employed only one day during her adult life. The circumstances of

the offenses and the appellant's prior criminal history are indicative that some

period of confinement is appropriate. The appellant was charged and convicted

on eleven separate felony counts. She has a previous felony conviction for a

crime involving dishonesty for which she received probation. The appellant has

admitted to passing bad checks in Loudon and Knox Counties for the purchase

of drugs. As noted, measures less restrictive than confinement have been

applied unsuccessfully to the appellant. See Tenn. Code Ann. § 40-35-103(c)

(1990). Under these facts, we cannot conclude that the appellant has

demonstrated her suitability for full probation.

The judgment of the trial court is affirmed.

____________________________________

4 DAVID G. HAYES, Judge

CONCUR:

__________________________________ DAVID H. WELLES, Judge

__________________________________ JOHN A. TURNBULL, Special Judge