State of Tennessee v. Ronald Reece Cross

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

SEPTEMBE R SESSION, 1999

FILED

December 6, 1999

STATE OF TENNESSEE, ) C.C.A. NO. E1998-

Cecil Crowson, Jr.

00364-CCA-R3-CD Appellate Court Clerk )

Appe llant, )

)

) SULLIVAN COUNTY

VS. )

) HON. R. JERRY BECK

RONALD REECE CROSS, ) JUDGE )

Appellee. ) (Direct Appeal - Sentencing)

FOR THE APPELLEE: FOR THE APPELLANT:

TERRY JORDAN PAUL G. SUMMERS Office of the Public Defender Attorney General & Reporter P. O. Box 839 Blountville, TN 37617 TODD R. KELLEY Assistant Attorney General GERALD L. GULLEY, JR. 425 Fifth Avenu e North Contract Appellate Defender Nashville, TN 37243-0493 P. O. Box 1708 Knoxville, TN 37901-1708 GREELEY W ELLS District Attorney General

JOSE PH E UGE NE P ERR IN Assistant District Attorney Main Street

Springfield, TN 37172

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On July 21, 19 98, Ro nald Re ece Cr oss (the “d efenda nt”) pled gu ilty to the following charges arising out of a single incide nt: violatin g an h abitua l traffic offender order, evading arrest, driving under the influen ce of alco hol (eighth offense), running a stop sign, reckless driving, and violation of registration. Following a sentencing hearing on the above charges, the trial court denied alternative sentencing for the defendant, and instead ordered the defendant to serve an effective ten (10) year, eleven (11) month, and twenty-nine (29) day senten ce. The issues o n appe al are:

(1) whether the trial court erred in denying alternative sentencing to the defendant, and (2) whether the trial court erred in ordering the defendan t to serve consecutive sentences.

Because we find that the trial court sentenced the defenda nt appropriately, we affirm the judgm ent of the tria l court.

FACTUAL BACKGROUND

After the defen dant pled guilty to the above charges, the trial court held a

sentencing hearing. First, the defendant’s sister testified that, in her opinion, the defendant had a “good heart,” but that he was an alcoholic. She also testified that most of his extensive criminal record was a result of his drinking, and that she would support her brother in any way possible. The state then offered proof, in the form of several certified copies of convictions, that the defendant was a Ra nge III, Persistent O ffender for sentencing purposes. The defendant agreed.

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The state then offered evidence that the sentence should be enhanced because (1) the defendant had five prior felony convictions,1 (2) the defendant had a histo ry of un willingness to comply with the conditions of a sentence involving release in the community, because in this case the defendant was serving a community corrections sentence when he committed the instant offenses,2 and (3) the defendant committed a felony wh ile on com munity release.3 The defendant agreed that those enhancing factors applied. The defendant argued, however, that because he was an alcoholic and had family suppo rt, his sentence should be mitigated pursuant to Tenn Code Ann. § 40-35-

113(13), the catch-all provision for mitigating factors. Th e trial court agreed and considered the defendant’s alcoholism as a mitigating factor in sentencing.

The state then argued that the defendant’s sentences should be served consecu tively, because (1) the defendant had an extensive criminal record,4 and (2) the defendant was on probation when he committed the offenses in this case.5 The d efense did not ob ject.

Consequently, the trial court fou nd the d efenda nt was a Rang e III, Persistent Offender. Th e court denied alternative sentencing for the defen dant, and instead sentenced the defendant to five (5) years incarceration for violating an habitual traffic offender order, five (5) years for felony evading arrest, and eleven (11) months and twenty-nine (29) days for DUI, eighth offen se. The co urt ordered those sentences served consecutively. The court also sentenced the defendant to six (6) months for reckless driving, thirty (30) days for running a stop sign, and thirty (30) days for violating registration. The latter three (3) sentences were ordere d to be served conc urren tly to the effective ten (10) year, eleven (11)

month and twenty-nine (29) day sentence arising out of the first three charges.

1 Tenn. Code Ann. § 40-35-114(1).

2 Tenn. Code Ann. § 40-35-114(8).

3 Tenn. Code Ann. § 40-35-114(13)(E) .

4 Tenn. Code Ann. § 40-35-115(2).

5 Tenn. Code A nn. § 40-35-115(6).

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STANDARD OF REVIEW

When an accused challenges the length, range or manner of service of a

sentence, this court has a duty to conduct a de novo review of th e sente nce with the presu mptio n that the determ inations m ade by th e trial court a re correc t. Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is conditioned upon an affirmative indication in the record that the trial court cons idered all relevant fac ts and circums tances . State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the state conce des in its brief, the record in this case does not affirmatively in dicate full compliance with the statutory principles of sentencing, and the presumption of correctness cannot be applied. Thus, we must review the sentence de novo.

When conducting a de novo review of a sentence, this court must consider the following: (a) the evidence, if any, received at trial and sentencing hearing; (b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating and/or enhancement factors; (f) any statemen t made by the defendan t regarding sen tencing; and (g ) the potential or lack of potential for rehab ilitation or treatm ent. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

ALTERNATIVE SENTENCING

The defendant contends that the trial court erred by s entenc ing him to

incarceration. He claims tha t the trial court should ha ve sentence d him to serve his sentence in the Community Corrections Program instead. We disagree. The Com munity Corrections Act allows certain eligible offende rs to pa rticipate in community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103. Howeve r, a defendant m ust first be a suitable can didate for alternative

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sentencing. In this ca se, the defen dant w as no t suitab le for alternative senten cing. Te nn. Co de Ann . § 40-35 -102(6) p rovides:

A defendant who does not fall within the parameters of subdivision (5) and who is an especially mitigated or standard offender convicted on a Class C, D, or E felony is p resum ed to be a favorable candidate for alternative sentencing in the absen ce of evide nce to the contrary.

(Emph asis added ).

The defendant was sentenced as a Range III, Persistent Offender. Thus, he is not presumed to be a favorable candidate for alternative sentencing.

Furtherm ore, Te nn. Co de Ann . § 40-35 -103 pro vides:

(1) Sentences involving confinement should be based on the following considerations:

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

(B) Confinement is necessary to avoid depreciating the seriousness of the offens e or co nfinem ent is p articula rly suited to provide an effective deterren ce to othe rs likely to comm it similar offenses; or (C) Measures less restrictive than confinement have freque ntly or rece ntly bee n app lied un succ essfu lly to the defend ant.

In this case, the defendant conceded in his brief that he “mee ts the statutory presumption that confin emen t is approp riate.” W e agree . The trial court specifically held that confinem ent was neces sary to protect society from the defend ant. 6 This finding was based on the defendant’s extensive record of driving under the influence and violating habitual traffic offender orders. The trial court could have also found that measures less restrictive than confinement have been tried and failed . Indeed, the defendant committed the offenses that gave rise to the instant charges while he was serving a Com munity Corrections sentence. Thus, alternative sentencing is clear ly inappro priate for this defend ant. This issue ha s no m erit.

CONSECUTIVE SENTENCES

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At the sentencing hearing, the trial judge stated “I’m afraid you’re going to get out and run over som ebody if you ju st keep it up.”

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The defendant also claims that the trial court erred in ordering h im to serve consecutive sentences. The trial court specifically found that the defendant had an extensive crim inal record pursua nt to Ten n. Cod e Ann. § 40-35-115(b)(2) and that the defendant was on probation pursuant to Tenn. Code Ann. § 40-3 5-115(b)(6). The trial court found that the defendant was on probation, for purposes of consecutive sentencing, because the defendant was serving a community corrections sentence when he committed the offenses in this case . Tenn. C ode An n. § 40-3 5-115(b )(6) provide s: “[t]he court may ord er sente nces to ru n cons ecutively if the court finds by a preponderance of the evidence that . . . [t]he defendant is sentenced for an offense comm itted while o n proba tion.” Although “consecutive sentencing for persons who commit offenses while on community corrections seems just as approp riate as consecutive sentencing for persons who com mit offenses while on probation[,]” State v. Pettus, 986 S.W .2d 540, 544 n.9 (Tenn. 1999), the Supreme Cour t recen tly held that “the legislature did not intend a comm unity corrections sentence and a probation sentence to be equivalents for purposes of consecutive sentencing under Tenn. Code Ann. § 40-35-11 5(b)(6).” Id. at 544. Therefore, in this case the trial court erred when it found that the defendant was on probation at the time he comm itted the offenses.

The trial court was c orrect , howe ver, in determining that the defendant had an extensive criminal record. Tenn. Code Ann. § 40-35-115(b)(2) states: “[t]he court may order sentence s to run conse cutively if the court finds by a preponderance of the evidence that . . . [t]he defendant is an offender whose record of crim inal ac tivity is exte nsive.” The tr ial cou rt spec ifically found five prior felony convictions for the purposes of determining that the defendant was a persistent offender. Furthermore, the presentence report contains a record of numerous other convictions. The defendant’s record was c learly extensive within the meaning of the statute. See Powe rs v. State 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996)(holding four prior convictions supported trial court’s finding the defendant had an extensive criminal record under the

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statute); see also State v. Chrisman 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994)(finding four prior felony convictions and numerous traffic convictions suppo rted trial cou rt’s finding of a n extens ive crimina l record).

The defendant also contends that the trial court e rred by refu sing to consider the requirements of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In Wilkers on, the Supreme Court found that, in order to sentence a defendant to consecutive sentences because he was a “dangerous offender” under Tenn . Code Ann. § 40-35-115(b)(4), a trial court must find (1) the sentences were nece ssary to protect the p ublic from further misconduct by the defendant and (2) the terms of the sentence were reasonably rela ted to the severity of the offen ses. Id. at 938. Those cons ideratio ns, ho weve r, are on ly manda tory when the trial court imposes consecutive sentences on “dangerous offende rs.” State v. David Keith Lane, No. 03-S-01-98020CC00013 (Tenn. Sept. 27, 199 9). In this case, the trial court sentenced the defendant cons ecutive ly because he had an extensive criminal re cord; thu s, Wilkerson does n ot apply. T his issue has no merit. Accordingly, the judgment of the trial court is AFFIRMED.

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JERRY L. SMITH, JUDGE

CONCUR:

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GARY R. WADE, PRESIDING JUDGE

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JAMES CURWOOD WITT, JR., JUDGE