Cyril v. Fraser

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY 1995 SESSION October 12, 1995

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, * C.C.A. # 01C01-9502-CR-00031

APPELLEE, * DAVIDSON COUNTY

VS. * Hon. J. Randall Wyatt, Jr., Judge

ROSCOE C. SMITH, * (Theft)

APPELLANT. *

For the Appellant: For the Appellee:

Joan A. Lawson Charles W. Burson Senior Asst. Public Defender Attorney General and Reporter (at trial) 450 James Robertson Parkway Nashville, TN 37243-0493 and Cyril V. Fraser Jeffrey A. Devasher Counsel for the State 1202 Stahlman Building 450 James Robertson Parkway Nashville, TN 37201 Nashville, TN 37243-0493 (on appeal) Nicholas Bailey Asst. District Attorney General Washington Square, Suite 500 222 Second Avenue South Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED Gary R. Wade, Judge OPINION

The defendant, Roscoe C. Smith, was convicted for

theft of property of more than $500.00 but less than $1,000.00

and theft of property of less than $500.00. The trial court

sentenced the defendant as a career offender to six years on

Count I. The sentence on Count II of ll months and 29 days at

50% was ordered to be served consecutively to the sentence

imposed for Count I.

In this appeal of right, the defendant contends that

the trial court erred by imposing the maximum possible

sentence for the theft of $500.00 or less and by ordering that

the two sentences be served consecutively.

We disagree and affirm the judgment of the trial

court.

The defendant was convicted after a trial by jury.

The state established that during the early morning hours of

December 29, 1993, the defendant stole two purses from women

who were asleep on the waiting room floor of the Baptist

Hospital in Nashville. Roy Petty, who was present during the

theft, was awakened by a noise and saw the defendant take the

two purses and run for the door. The purse of one of the

victims, Deidre Sage, of Dickson, contained cash, jewelry, and

other items valued at over $600.00. The purse of the second

victim, Angelique Wilson, of Nashville, contained only a

"small amount of money" and some personal items. Petty chased

the defendant, struck him, and held him in custody until

3 security personnel arrived at the scene. Each of the victims

recovered their purses and all of the contents. The defendant

offered no proof in defense.

I

The defendant first complains that the ll month, 29

day sentence for the theft of less than $500.00 is excessive.

In response, the state asserts that the sentence was not

excessive because the judgment form failed to include any

reference to a minimum percentage of service of sentence and

the statute requires that the "percentage [for release

eligibility] be considered zero percent." Tenn. Code Ann. §

40-35-302(d).

Initially, when there is a conflict between the

transcript and the judgment or the minutes, the content of the

transcript prevails. State v. Zyla, 628 S.W.2d 39 (Tenn.

Crim. App. 1981). Here, the transcript clearly reflects a

sentence of ll months and 29 days on Count II with a 50%

percentage of service required before the defendant becomes

eligible for relief. We must, therefore, disagree with the

position of the state.

We now turn to the question of whether the six-month

sentence is excessive. In our view, it is not.

When a challenge is made to the length, range, or

manner of service of a sentence, it is the duty of this court

to conduct a "de novo review ... with a presumption that the

4 determinations made by the court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-40l(d). The

Sentencing Commission Comments provide that the burden is on

the defendant to show the impropriety of the sentence.

Our review requires an analysis of (l) the evidence,

if any, received at the trial and sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and the

arguments of counsel relative to sentencing alternatives; (4)

the nature and characteristics of the offense; (5) any

mitigating or enhancing factors; (6) any statements made by

the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§

40-35-l02, -l03, and -2l0.

Among the factors applicable to the defendant's

application for probation are the circumstances of the

offense, the defendant's criminal record, social history, and

present condition, and the deterrent effect upon and best

interest of the defendant and the public. State v. Grear, 568

S.W.2d 285 (Tenn. 1978), cert. denied, 439 U.S. 1077 (1979).

In misdemeanor sentencing, a separate sentencing

hearing is not mandatory but the court is required to provide

the defendant with a reasonable opportunity to be heard as to

the length and manner of the sentence. Tenn. Code Ann. § 40-

35-302(a). Misdemeanor sentences must be specific and in

accordance with the principles, purposes, and goals of the

Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§

5 40-35-104, -117, and -302. The misdemeanor offender must be

sentenced to an authorized determinant sentence with a

percentage of that sentence designated for eligibility for

rehabilitative programs. Generally, a percentage of not

greater than 75% of the sentence should be fixed for a

misdemeanor offender; however, a DUI offender may be required

to serve the full 100% of his sentence. State v. Palmer, 902

S.W.2d at 391, 393-94 (Tenn. 1995). In determining the

percentage of the sentence, the court must consider

enhancement and mitigating factors as well as the legislative

purposes and principles related to sentencing. Id.

Upon service of that percentage, the administrative

agency governing the rehabilitative programs determines which

among the lawful programs available is appropriate. The trial

court retains the authority to place the defendant on

probation either immediately or after a period of periodic or

continuous confinement. Tenn. Code Ann. § 40-35-302(e). The

legislature has encouraged courts to consider public or

private agencies for probation supervision prior to directing

supervision by the Department of Correction. Tenn. Code Ann.

§ 40-35-302(f). The governing statute is designed to provide

the trial court with continuing jurisdiction in misdemeanor

cases and a wide latitude of flexibility. The misdemeanant,

unlike the felon, is not entitled to the presumption of a

minimum sentence. State v. Creasy, 885 S.W.2d 829 (Tenn.

Crim. App. 1994).

Here, the defendant's chief complaint is that the

6 trial court failed to weigh the mitigating and enhancing

factors before the misdemeanor sentence. The defendant

correctly points out that the presumptive correctness of the

sentence depends upon the trial court's consideration of the

principles of sentencing and all other relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). Here, however, it really makes no difference whether

the trial judge considered all factors. The defendant had a

lengthy prior criminal history and had failed, on prior

occasions, to comply with the conditions of a sentence

involving release in the community. Tenn. Code Ann. § 40-35-

114(1) and (8). While the prosecution at the sentencing

hearing argued for the application of another enhancement

factor, that the offense involved more than one victim, the

record does not indicate that the trial court considered that

in the imposition of the misdemeanor sentence. See Tenn. Code

Ann. § 40-35-114(3). If he had, that, of course, would have

been erroneous since there was only one victim in each of the

two thefts. See State v. Lambert, 741 S.W.2d 127, 134 (Tenn.

Crim. App. 1987). Because the misdemeanant is not entitled to

any presumption of a minimum sentence and there were readily

identifiable enhancement factors, we fully approve of the ll

month, 29 day sentence with a 50% release eligibility. That

would be true whether our scope is de novo or de novo with the

presumption of correctness.

II

Next, the defendant complains that the trial court

should not have ordered the sentences to be served

7 consecutively. The state argues otherwise. We agree with the

assessment of the trial court.

Prior to the enactment of the Criminal Sentencing

Reform Act of l989, the limited classifications for the

imposition of consecutive sentences were set out in Gray v.

State, 538 S.W.2d 39l, 393 (Tenn. l976). In that case, our

supreme court ruled that aggravating circumstances must be

present before placement in any one of the classifications.

Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. l987), the

court established an additional category for those defendants

convicted of two or more statutory offenses involving sexual

abuse of minors. There were, however, additional words of

caution:

[C]onsecutive sentences should not be routinely imposed ... and ... the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved.

739 S.W.2d at 230. The Sentencing Commission Comments adopted

the cautioning language. Tenn. Code Ann. § 40-35-115. The

l989 act is, in essence, the codification of the holdings in

Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that

one or more of the following criteria1 exist:

(l) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose

1 The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony convictions, may enhance the sentence range but is no longer a listed criterion. See Sentencing Commission Comments.

8 record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-ll5(b).

The trial court based its decision to impose

consecutive sentences for two reasons: first, that the

defendant was "a professional criminal who has knowingly

devoted himself to criminal acts as a major source of

livelihood"; and, second, the defendant qualified as "an

offender whose record of criminal activity is extensive."

Tenn. Code Ann. § 40-35-115(b)(1) & (2).

The defendant argues that he does not qualify as a

professional criminal because the record does not establish

that he has "acquired significant wealth" through his unlawful

9 activities. We reject that argument outright. While the

amount of income derived from illegal acts may be significant,

it is not determinative. Only a "major source of livelihood

or ... a substantial income or resources not shown to be

derived from ... other than criminal activity" is required.

Gray, 538 S.W.2d at 393. Here, the defendant has involved

himself in a range of criminal activities over a period of

twenty-seven years. Most involved theft, burglary, larceny,

shoplifting, or robbery. He has also sold illegal drugs. The

presentence report provides that he has been employed for only

about five years since he became an adult. He has apparently

had no employment since 1987. From these circumstances, we

believe that the trial court had good reason to infer that the

defendant qualified as a professional criminal.

In any event, the defendant also qualifies as having

an extensive prior criminal record. Tenn. Code Ann. § 40-35-

115(b)(2). While each of the two sentences of the defendant

may have been enhanced by his prior criminal history, his

record is so lengthy as to warrant consecutive sentences. He

would have qualified as either a "persistent" or a "multiple"

offender under the Gray rationale.

Consecutive sentences should not be routinely

imposed, even for the offender whose record of criminal

activity is extensive. The ultimate purpose, however, is to

protect the public. Gray, 538 S.W.2d at 393; State v.

Wilkerson, ______ S.W.2d ______ (Tenn. 1995). Here, the

record has established that the public needs to be protected

for (at least) the length of the misdemeanor sentence from the

continuing criminal activities of the defendant.

10 Accordingly, the judgment is affirmed.

_____________________________________ Gary R. Wade, Judge

CONCUR:

________________________________ John H. Peay, Judge

________________________________ David H. Welles, Judge