State v. Anthony Holt

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED DECEMBE R SESSION, 1998 March 19, 1999

Cecil Crowson, Jr.

Appe llate Court C lerk

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00272 )

Appellee, )

) HENDERSON COU NTY

V. )

)

) HON . FRA NKL IN MU RCH ISON , ANT HON Y HO LT, ) JUDGE )

Appe llant. ) (VOLU NTAR Y MA NSLA UGH TER)

FOR THE APPELLANT: FOR THE APPELLEE:

CARTHEL L. SMITH, JR. JOHN KNOX WALKUP 85 East Church Street Attorney General & Reporter Lexington, TN 38351 DOUGLAS D. HIMES

Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North

Nashville, TN 37243

JAMES G. WOODALL

District Attorn ey Ge neral

BILL R . MAR TIN

Assistant District Attorney General Village Square, Suite M

777 West Church Street

Lexington, TN 38351

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Defend ant, An thony Holt, ap peals as of rig ht follow ing his sente ncing hearing in the C ircuit C ourt of H ende rson C ounty . Defe ndan t was in dicted on a charge of committing second degree murder on July 10, 1996, but he eventually pled guilty to a reduced charge of voluntary manslaughter. Pursuant to the plea agreem ent, the trial court was to determine both the length and manner of service of the sentence at the sen tencing h earing. T he trial cou rt ordered Defen dant to serve a sentence of 4.5 years in the Tennessee Department of Correction, denying any form of alternative sentence. The Defendant’s sole issue on appeal is the denial of alternativ e sente ncing. W e affirm the judgm ent of the tria l court.

When an accused challenges the length, range or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (Te nn. 199 1).

In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal condu ct involved; (e) any s tatutory mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

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own behalf; and (g) the potential or lack of potential for rehabilitation or treatme nt. Tenn. Code Ann. § 4 0-35-10 2, -103 a nd -210 ; see State v. S mith, 735 S.W.2d 859, 863 (Tenn . Crim. App. 19 87).

If our rev iew re flects th at the tria l court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and the proper weight to the factors and prin ciples se t out unde r the sen tencing la w, and made findings of fact adeq uately su pported by the rec ord, then we m ay not m odify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A defen dant w ho “is a n esp ecially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102 (6). Our sentencing law also provides that “convicted felons committing the most se vere offenses , possessing criminal histories evinc ing a clear disrega rd for the laws and morals of society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding sentences involving incarcer ation.” Tenn. C ode An n. § 40-3 5-102(5 ). Thus, a d efenda nt senten ced to eight (8) years or less who is not an offender for whom incarcera tion is a priority is presumed eligible for altern ative s enten cing u nless sufficie nt evid ence rebuts the presumption. Howe ver, the ac t does no t provide th at all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be

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determined by the fac ts and circ umsta nces p resente d in each case. See State v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

Additionally, the principles of sentencing reflect that the sentence should be no greater than tha t deserved for the offense committed and should be the least severe meas ure nec essary to achiev e the pu rposes for which the sente nce is imposed. Tenn. Code Ann. § 40-3 5-103(3) an d (4). The cou rt also should consider the potential for rehabilitation or treatment of the defendant in determining the senten ce alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).

Defendant does not contest the length of the sentence, on ly that the trial court denied alternative sentencing. The trial court held that alternative sentencing was inappropriate in this case, reasoning as follows:

This man [victim], as I said to repeat, was very brutally killed, and the Defen dants escaped a charge of second degree murder. When I say escaped, I say they are not guilty. They are not going to trial on second degree murde r. It’s unfortunate that [the victim] behaved the way he did, and it’s equally unfortunate and sad that the Defendants responded the way they did, with extreme violence. As I said, alternative sentencing is not appropriate, and I rely upon and follow Section 40-35-

103.

Confinement is necessary to avoid depreciating the seriousness of the offense, for confinement is particularly suited to provide an effective deterrence to o thers likely to commit a similar offense. Here we have a man again who was killed, who is dead, who was a pathetic man, but he was a child of God as we all are and he was killed, and this has caused much grief to his family. And we have heard from the Defendants, or the Defendants’ family, we have not heard from the Defen dants themselves, that they are rem orseful ab out this thing . It is a sad thing, a tragic thing, for [the victim], his family and now the Defen dants’ fam ily.

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At the sente ncing hearin g, the tria l court a ppare ntly relied upon the nature of the circumstances of the offense to justify the denial of alternative sentencing and to impose a sentence of total incarceration. For such a denial to occur, though, the circumstances of the offense must be “especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and the nature of the offense must outweigh all factors favoring a sentence other than confinement.” State v. Bingham, 910 S.W .2d 448, 455 (Tenn. Crim . App. 1995 ). This standard was essentially codified by section 40-35-103(1)(B) which provides for confineme nt if “necessary to a void deprec iating the seriousn ess of the offens e.”

When impos ing a sen tence o f total confinement, our Criminal Sentencing Reform Act mandates the trial court to base its decision on th e considerations set forth in Tennessee Code Annotated section 40-35-103. These considerations which militate against alternative sentencing include: the need to prote ct society by restraining a defendant with a long history of criminal conduct; whether confinement is particularly approp riate to effectively deter others likely to commit a similar offense; the ne ed to a void depreciating the seriousness of the offense, and the need to order c onfine men t in cases in which less restrictive measures have often or recently been unsuc cessfully a pplied to th e defen dant. Tenn. Code Ann. § 40-35- 103(1).

In determining whether to grant probation, the judge mu st consider the n ature and circumstances of the offense, the defendant’s criminal record, his background and social history, his present condition, including his physical and mental condition,

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the deterrent effect on other criminal activity, a nd the likelihoo d that p robatio n is in the best intere sts of both the pub lic and the defend ant. Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). T he burd en is on th e Defe ndant to show that the sentence he received is improper and that he is entitled to probation. State v. Ashby, 823 S.W.2 d 166, 1 69 (Ten n. 1991 ).

We note that the transcript from the guilty plea hearing was not included in the record on appeal. From our review of the sentencing hearing transcript, the trial court apparently relied upon p roof it had h eard du ring the gu ilty plea hea ring. It is the duty of the party seeking appellate review to prepare a rec ord which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the app eal. State v. Ballard, 855 S.W.2d 557,560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). When there is less than an adequate record on ap peal, th is cour t mus t presu me th at the tria l court’s rulings were suppo rted by su fficient evide nce. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. A pp. 199 1) (citations omitted) .

Based upon this presumption, this court concludes that the extremely violent nature of the beating of the victim as noted by the trial court is a sufficient basis upon which to deny alternative sentencing. The State met its burden in proving the “espe cially violent, horrifying, shocking, reprehensible and offensive” circumstances surrounding the victim’s death and the nature of Defendant’s offense outw eighs all factors favoring a sentence other tha n confine ment. Bingham, 910 S.W.2d at 455. While the existence of a death by itself cannot justify a sentence of total

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confinem ent, the circumstances surrounding Defendant’s actions were such that justify his sente nce. Similar to a previous decision by a panel of this court regarding the trial court’s denial of a completely suspended sentence, the Defendant in the case sub judice violently beat a total stranger who was apparently intoxicated, striking and kicking him repeate dly. See State v. Brandon Harrison, 02C01-9206- CR-00138, Shelby Coun ty (Tenn . Crim. A pp., at Jackson, August 4, 1993) (No Rule 11 application filed). Particular ly in light of the fa ct that we do not ha ve the gu ilty plea transcript by which to review the circumstances of the offense, we presume that the trial cou rt aptly described the extremely violent and horrifying circumstances of the bea ting whic h resulted in the victim ’s death.

Moreov er, from a review of the Defendant’s presentence report, it is clear that he has a history of misdemeanor offenses, including theft, bad check violations and numerous traffic offenses. Despite past leniency and opportunities for rehabilitation, the Defendant “has shown neither respect for the prior reprieves from incarceration, nor efforts toward conforming his conduct to the dictates of the law. Having no regard for measures less restrictive than confinement, the Defendant has through his own a ctions rebutte d the p resum ption o f his favorable candidacy for alternative senten cing.” State v. Randal Thies, No. 02C01-9708-CC-00299, slip op. at 9, Tipton Coun ty (Tenn. Crim. App., at Jackson, April 24, 1998) (No Rule 11 ap plication filed).

In addition to the circumstances of the offense justifying the denial of an alternative sentence due to the seriousness of the Defendant’s offense, the trial court noted a lack o f remorse by the Defend ant. Lack of remorse is sufficient

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evidence by whic h a trial cou rt may d eny an alternative sentence. Smith , 735 S.W.2d at 864. The presentence report does not include any statement on be half of the Defendant. There is no justification provided by the Defendant to explain the degree of force us ed.

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There is not sufficient evidence whereby the sentence of total confinement was not justified. A fter a thoro ugh rev iew, we affirm the ju dgme nt of the trial co urt.

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THOMAS T. WO ODALL, Judge

CONCUR:

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GARY R. WADE , Presiding Judge

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JOHN EVERET T WILLIAMS, Judge