State of Tennessee v. Michael Robey

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 6, 1997
• Docket: 01C01-9607-CR-00291
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY 1997 SESSION June 6, 1997

Cecil W. Crowson Appellate Court Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9607-CR-00291 Appellee, ) ) Sumner County V. ) ) Honorable Jane Wheatcraft, Judge ) MICHAEL WAYNE ROBEY, ) (Sentencing) ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

David Allen Doyle Charles W. Burson District Public Defender Attorney General & Reporter

Pamela E. Beck Karen M. Yacuzzo Deputy Public Defender Assistant Attorney General 117 East Main Street Criminal Justice Division Gallatin, TN 37066 450 James Robertson Parkway Nashville, TN 37243-0493

Lawrence Ray Whitley District Attorney General

C. Wayne Hyatt Assistant District Attorney General 113 West Main Street Gallatin, TN 37066

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, Michael Wayne Robey, was indicted on two counts of

aggravated burglary and two counts of theft. As part of a plea agreement, the

two theft charges were dismissed; and he pled guilty to two counts of aggravated

burglary. The appellant was classified as a Range II, multiple offender and the

state recommended concurrent sentences of seven years at 35%.

After a sentencing hearing, the trial court accepted the state's

recommendation and sentenced the appellant to seven years in the Department

of Correction. He appeals challenging the manner of service of his sentence.

Upon review, we affirm.

The appellant contends that the trial court abused its discretion in failing

to grant him alternative sentencing. He contends that proof adduced at the

sentencing hearing shows that he has drug and alcohol problems which can best

be treated in a community-based alternative to incarceration.

Appellate review of a sentencing issue is de novo. Tenn. Code Ann. § 40-

35-401(d) (1990). The appellant has the burden of establishing the sentence

imposed by the trial court was erroneous. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In determining whether the appellant has carried this burden, this

Court must consider: (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and

(f) the appellant's potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103(5), - 210(b) (1990).

The appellant argues that he is entitled to presumptive suitability for

alternative sentencing because he committed a nonviolent offense carrying a

sentence of less than eight years. We disagree. Tenn. Code Ann. § 40-35-

102(6) provides this presumption only to those offenders classified as especially

-2- mitigated or standard offenders. The appellant can be considered for alternative

sentencing; but he is not entitled to a presumption for alternative sentencing

because he was classified as a Range II, multiple offender.

The trial judge considered several factors in sentencing the appellant to

seven years incarceration. She considered the appellant's extensive criminal

history1 and his admitted drug and alcohol problem. Furthermore, she found the

appellant to be insincere in his desire for treatment. One of the counts of his

probation revocation warrant was his failure to report to ordered counseling.

Finally, the trial judge stated that she felt the appellant was a threat to society.

We find that measures less restrictive than confinement have frequently

and recently been applied unsuccessfully to the appellant.2 He has received

repeated alternative sentences for past convictions. Nothing in the record

suggests that the trial judge made an erroneous decision. The appellant has

not carried his burden. He has well earned his status as a guest of the

Commissioner of the Department of Correction.

Appellant’s sentence is affirmed.

__________________________ PAUL G. SUMMERS, Judge

1 The record and the presentence report reveal that the appellant has been previo usly convicted 25 times for various offenses. Four of these were felony convictions. Also, it appears the appellant was arrested on several other occasions and the charges were dismissed .

2 The appellant was on probation when he committed the two instant offenses.

-3- CONCUR:

__________________________ DAVID G. HAYES, Judge

__________________________ JERRY L. SMITH, Judge

-4-