IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
APRIL 1998 SESSION
FILED
June 25, 1998
Cecil W. Crowson
) Appellate Court Clerk STATE OF TENNESSEE , APPELLEE )
)
VS. ) C.C.A. No. 01C01-9707-CC-00252 ) LAWRENCE COUNTY
) Honorable Jam es Weatherford RODNEY J. D. SMITH )
APPELLANT. ) (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
Shara A. Flacy John Knox Walkup Public Defender Attorney General and Reporter 22nd Judicial District 425 Fifth Avenue, N. 128 N. S econd S t. Nashville, TN 37243 Pulaski, TN 38478
Daniel J. Runde Karen M. Yacuzzo Assistant Public Defender Assistant Attorney General 22nd Judicial District 425 Fifth Avenue, N. 128 N. S econd S t. Nashville, TN 378243 Pulaski, TN 38478 Mike Bottoms
District Attorney General P. O. Box 459
Lawrenceburg, TN 38464
James G . White
Assistant District Attorney General P. O. Box 459
Lawrenceburg, TN 38464
OPINION FILED: _______________________
AFFIRMED
L. T. LAFFERTY, SPECIAL JUDGE OPINION
The defendan t presents an appeal as of righ t from the judgm ent of the trial court denying probation or an alternative sentence. On December 6, 1996, the defendant entered a plea of nolo contendere in cause #15,529 to facilitation to commit murder second degree, agreeing to a sentence of eight (8) years; in cause #15, 298, to the offense of ro bbery, agre eing to a sen tence of thre e (3) years c onsecutive to #15, 529 ; in cause #15, 299, in counts one and two to the offense of robbery, agreeing to a sentence of six (6) yea rs concurre ntly on eac h count; in c ause # 15 ,300, in cou nts one an d two to the offense of robbery, agreeing to a sentence of six (6) years concurrently on each count; and in cause #15,301 to the offense of robbery, agreeing to a sentence of four (4) years consecutive to cau ses #15,529 and #15,298. The ag reed sentence w as a Range I, maximum of 15 years and it was understood the defendant would seek probation or an alternativ e senten ce.
As part of the plea agreement, the State agreed to nolle prosequi causes #15,283 and #15 ,284, safe-cra cking and burglary th ird degree; # 15,331 m aking a false report to police; and #15,364 burglary second degree.
After a review of the record and applicable law, we find that the trial court did not err in denyin g the de fendan t’s reque st for pro bation a nd/or a n alterna tive sen tence. The trial court’s judgment is affirmed.
HISTORY
The facts in this record are somewhat unusual in that the commission of these offenses occurred in 1988-89, and the conclusion was in 1997. The record establishes, originally, the defendant was accused in cause #15,297 of felony murder and armed robbery of Bartlett M arston on January 2 9, 1989, via a knife. The defendant’s brother, James E. Sm ith, Jr., and uncle, Michael M cConnell were indicted as co-defendan ts. In
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causes #15,298, #15,299, #15,300 and #15,301, the defendant was accused of six counts of armed robbery involving six different victims between January 22, 1989, and January 30, 1989. The defendant, also, had been accused in causes #15,283 and #15,284 with safe- cracking/burglary third, on January 17, 1989; #15,331, making false report on December 10, 1988; and #15,364, burglary second on December 20, 1988.
The reco rd reflects that th e defenda nt and his b rother, Jam es E. Sm ith, Jr., went to trial on indictment #15,297 on May 6, 1991, before the Honorable William B. Cain, Crim inal Co urt for L awren ce Co unty. O n Nov embe r 20, 19 90, the c o-defe ndant, Michael M cConnell, had plead guilty to murder secon d degree, receiving a sen tence of 70 years. As part of his plea agreement, McConnell agreed to testify in behalf of the State against both Smiths. McConnell, upon being called as a witness, refused to honor his plea agreement and refused to testify against the Smiths. In an out of jury hearing, McConnell did testify the Smiths were a part of the murder of Bartlett Marston. On May 8, Judg e Cain , after a co nversa tion wi th the as sistant D istrict Att orney G eneral, sua spon te granted a mistrial. At re-trial, the defendant filed a motion to dismiss on the grounds of double jeopardy. Special Judge Allen Cornelius denied the motion and permitted an interlocutory appeal to the Court of Criminal Appeals. In State v. S mith, 871 S.W.2d 677 (Tenn. 1994), the Supreme Court denied the motion and remanded the case fo r a new trial. The defend ant wa s then re indicted in #15,5 29 for fe lony m urder, first degree murder, and armed robbery of Marston. The armed robbery accusations were k nown in Law rence C ounty a s the “A mish ro bberies .”
The record before us does not contain a transcript of the stipulated facts entered at the plea proceedings as to the exact involvement of the defendant in these criminal offenses. The State argues that since the defendant failed to include a transcript of the plea hearing, this Court should not consider the merits of the defendant’s claim. The
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defendant counters tha t the entry of a plea of nolo contendere does not require the trial court to accept a factual basis for the plea, citing Raybin, Tennessee Criminal Practice and Procedure §§ 22.14, 22.102. We agree with the defendant that sufficient facts were d evelop ed at the senten cing he aring fo r this Co urt to co nduct a proper review . The State had am ple oppor tunity to sub mit this transc ript.
SENTENCING HEARING
The defe ndant sub mitted an a rray of imp ressive evid ence to assis t the trial court in its determination of the request for probation and/or an alternative sentence. Testifying for the defendant were his wife, Diana Smith and his employer, Steven Cheatwood. The defendant also testified. Several certificates of awards, including a G.E.D. certificate and five letters in support of the defendant’s request were admitted at the hearing.
A summary to the evidence reveals that the defendant was released on bail in the amount of $5 0,000 on June 1 0, 1991, while aw aiting a re-trial. Prior to the defendant’s arrest, he had been trained as a Geriatric Nursing Assistant and was employed at the Lawrenceburg Manor Nursing Home. The defendant was arrested February 2, 1989, for these offenses. While in the Lawrence County Jail, the defendant achieved the status of trustee a nd stud ied cou rses for o btaining a G.E.D ., which he obta ined up on relea se. Upon release, the defendant found sporadic employment until November, 1991. During September, 199 1, the defendant wa s married and sub sequently divorced. In N ovember the defendant found employment at the Lawrencebu rg Manor Nursing Hom e as a nurse technician where he met his wife, Diana Smith.
Mrs. Smith testified that she worked with the defendant on and off for four years at the nursing home. They married on October 7, 1994. Mrs. Smith had two children, ages seven and eight, who treated the defendant as their father. Mrs. Smith describes the defend ant’s relationsh ip with her c hildren as v ery good . He helps w ith their
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homework, assists in getting them ready for school and is supportive of her and the children. The defendant has established a good relationship with Mrs. Smith’s family by putt ing a ro of on h er aunt’ s hom e and h elping a family mem ber m ove to T enness ee. Mrs. Smith describes her husband as a good worker, who brings his paycheck home and does not drink or use illegal drugs. As to the murder charge, Mrs. Smith testified that the defendant denies any involvement, but admits to the “Amish robberies” as stupid and he “feels terrible about it.” In conclusion, Mrs. Smith loves her husband and is sure he will abide by any conditions of probation or an alternative sentence imposed by the Co urt.
The defendant’s employer, Mr. Steven Cheatwood, testified he hired the defendant in 1995 as a bricklayer. Mr. Cheatwood described the defendant as being a very good worker, dependable, gets along well with his fellow employees and has no drinking or drug problems. At the time of the hearing the defendant was making $9.00/hour and if he remained employed, the defendant could expect $14.00/hour and possibly be made a foreman. Mr. Cheatwood testified he would continue to employ the defendant if Mr. Smith were placed on work release.
In his testimony, the defendant described his family background, educational progress and work history until these charges. The defendant corroborated the testimony of his wife and employer about his family and employment history. The defendan t tendered to the court the results of a po lygraph ex amination in regard to h is alleged inv olveme nt in the M arston mu rder. It was a lleged the res ults would corrobora te or support the defend ant’s claim of innocen ce. The trial court permitted, ove r the State’s objection, a p roffer, but ruled the results w ould not b e considere d by the C ourt in its determin ation. As to th e Marsto n murd er the defen dant cons istently main tained his innocence and entered his nolo plea in order to bring “some resolution and some
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resolvement to the case for all parties concerned, including the victim’s family.” In open court, the defendant advised the Marston family, “I truly feel sorry for you and I hope that this will bring some kind of resolution to you, and I’m truly sorry.” As to the “Amish robberies,” the defendant admitted his involvement attributing the reason being as “riding around, drinking, and smoking dope ... I was quite young, dumb, and stupid and I’m here to take my responsibility for that.” There was little or no cross-examination by the State of the defen dant.
Mr. Steven Long, grandson of the victim Bartlett Marston, the murder victim, testified it was n ot necessar y for the def endant to k ill his grandfath er and that th ey could have done something else besides stabbing him sixteen times. The record established that the victim was quite elderly, in po or health, an d had lim ited hearing . The Co urt infers M r. Long was in oppos ition to a ny altern ative relie f for the d efenda nt. Also , Mrs. Virginia Long, daughter of the victim, testified about her father’s condition and age of eighty-eight years. Mrs. Long was in opposition to any probation for the defendan t.
The trial court, in its opinion, set out several reasons for the denial of probation and an alter native sente nce. The tria l court com mented on the defe ndant’s ach ievemen ts upon release from jail, his steady employment, care of his family, and no legal problems other than the seriousness of these multiple violent offenses. The trial court stated:
Like I say, I th ink the State has show n mercy and I think th at this court has shown mercy in accepting the fifteen year sentence. But when I look at this record and every crime that I’m dealing with here is a crime of violence against a person, and I have to take into consideration the victims here wh ich, as I me ntioned, w as an eighty -eight year o ld man w ho was in poor physical condition and couldn’t move around without a walker, and then I believe every other person that was a victim was Mennonite, which as I mentioned is very passive people who don’t resist. They’ll give you whatever they’ve got, but they won’t resist. They won’t commit violence.
So unde r these circum stances, I cou ld not feel satisfie d with this
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fifteen year sentence, which I feel shows mercy on the part to the state and the part of this court for accepting it, I feel that Mr. Smith has received an abundance of mercy in this case.
I’m going to impose the sentence agreed upon between the State and the defendant, which is a fifteen year sentence and that will be to the Departmen t of Correction[].
SENTENCING CONSIDERATIONS When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). Therefore, the bur den of s howin g that the senten ce is im proper is upon the app ealing p arty. Id. The presumption that determinations made by the trial court are correct is conditioned upon the affirmative showing in the record that the trial court considered the sentencing princip les and all releva nt facts a nd circu mstan ces. State v. Ashby, 823 S.W.2d 166 (Tenn. 19 91); State v. S mith, 898 S.W.2d 742 (Tenn. C rim. App. 1994 ).
If appellate review reflects the trial court properly considered all relevant facts and its finding of facts are adequately supported by the record, this Court must affirm the sentences, “even if we would have preferred a different result.” State v. F letcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In arriving at the proper determination of an ap propria te senten ce, the tria l court m ust con sider (1) the evid ence, if a ny, received at the plea of guilty or in these facts nolo contendere and the sentencing hearing; (2) the pre-sentence 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 enhancement and mitigating factors; (6) any statem ents the defendant w ishes to make in the d efendant’s behalf about the sentencing; and (7) the potential for rehabilitation or treatment. Tenn. Code A nn. §§ 40 -35-102, -1 03, and -21 0 (a), (b) (199 7); State v. Holland, 860 S.W.2d 53 (Tenn. Crim . App. 1993).
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In this case the trial court wa s required to consider an application fo r full probation or an alternative sen tence, such as work release, split confinement or weekends in custody. Based on the decision of the trial judge to deny any relief we conduct o ur review with the pre sumption that the trial judg e was co rrect.
PROBATION/ALTERNATIVE SENTENCE First, we will address the denial of full probation. Since the defendant entered nolo pleas to the re duced of fenses of ro bbery, w hich are C lass C felon ies, the defen dant is presumed to be a favorable candidate for probation, in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). In State v. B ingham , 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), this Court cited four factors which, although “not controlling the discretion of the sentencing court” should be considered in determining the appropriateness of probation:
(1) The nature and characteristics of the crime, under Tenn. Code Ann. § 40-35 -210 (b)(4) (1990);
(2) The defendant’s potential for rehabilitation under Tenn. Code Ann. § 40-35 -103(5) (1990);
(3) Whether full probation would “unduly depreciate the seriousness of the offense,” under Tenn. Code Ann. § 40-35-103(1)(B) (1990); and
(4) Whether a sentence of full probation would “provide an effective deterrent” under Ten n. Code An n. § 40-35-103(1)(B ) (1990).
As to the defenda nt’s plea of nolo contendere to the offens e of facilitation to commit murder second degree, which is a Class B felony, the defendant is not entitled to the presumption to be a favorable candidate for alternative sentence. Thus the burden is on the defendant to estab lish reasonable ground s for relief.
In arrivin g at its de cision, th e trial cou rt consid ered the require ments of Ten n.
Code An n. § 40-35-103(19 90):
(1) Sentences involving confinement should be based on the following
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considerations:
(A) Confinement is necessary to protect society by restraining the defendan t who ha s a long histo ry of crimin al conduc t;
(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 a pplied u nsucce ssfully to the defe ndant[ .]
The trial court in its analysis commented on Tenn. Code Ann. § 40-35-103, subsections (A) and (C) and, more particularly, the defendant’s lack of trouble with the law sin ce relea se on b ail, fam ily relatio nships , and ste ady em ploym ent. Als o, Ten n. Code Ann. § 40-35-103(C) was not applicable since the defendant had not been on prior restrictive c onfinem ent. It is obviou s that the trial cou rt found “th at confinem ent was necessary to avoid depreciating the seriousness of the offense” and believed the violent nature and numerous offenses called for incarceration.
The defendan t argues that the trial court utilized deterrence as an in valid factor to deny alternative relief because there was no affirmative proof that these offenses would a ct as a deterre nt to like-min ded perso ns in Law rence Co unty. The trial court did not mention the word deterrence in its ruling b ut was referring to the first part of Tenn. Code Ann. § 40-35 -130(B).
This Court has held it was proper for trial courts to deny full probation because of the nature and/or seriousness of offenses:
In order to deny an alternative sentence based on the seriousness of the offense, “the circumstances of the offenses as committed must be especially violent, horrifying, shocking, reprehensive, offensive, or otherwise of an excessive or exaggerated degree,” and the nature of the offense must outweigh all factors favoring a sentence other than confinem ent.
Bingh am, 910 S.W.2d at 454 (quoting State v. Hartley, 818 S .W.2d 370 (T enn. C rim.
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App. 19 91)); Zeolia, supra at 462.
The limited facts surroun ding the death of B artlett Marston, an eighty-eight-yea r-
old man in very poor health, stabbed 16 times without justification, and with less than $100 s tolen fro m him , could v ery eas ily fall w ithin the descrip tive term s, supra.
Also, the trial c ourt can co nsider that the se crimes in volved vio lence again st six different indiv iduals with d eadly we apons, and one involv ed the dea th of an elde rly person, combin ed with intoxication and abuse of drugs, in determ ining whether probat ion or a n alterna tive sen tence is a pprop riate. State v. B utler, 880 S.W.2d 395, (Tenn. C rim. App . 1994); State v. Gennoe, 851 S.W.2d 8 33 (Tenn. Crim . App. 1992); State v. H ollingsw orth, 647 S.W.2d 937 (Tenn. 198 3).
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In conclusion, we find the trial court did not abuse its discretion in denying an alternative sen tence to the d efendant a nd affirm th e trial court’s jud gment.
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L. T. Lafferty, Special Judge
CONCUR:
_____________________________
Gary R. Wade, Presiding Judge
_____________________________
Thomas Woodall, Judge