State v. Bevelyn Bailey

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED FEBRUARY SESS ION, 1998 March 27, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9705-CC-00185 )

Appellee, )

) HARDEMAN COUNTY

V. )

)

) HON. JON KERRY BLACKWOOD, BEVELYN BAILEY, ) JUDGE )

Appe llant. ) (THEFT)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP 113 North Court Squ are Attorney General & Reporter P.O. Box 26 Wa verly, TN 37185 JANIS L. TURNER (ON AP PEAL O NLY) Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

GARY F . ANTRICAN ELIZABETH T. RICE District Public Defender District Attorn ey Ge neral

JEANNIE KAESS JERRY W. NORWOOD Assistant Public Defender Assistant District Attorney General P.O. Box 700 Hardeman County Courthouse Somerville, TN 38068 Bolivar, TN 38008

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION

The Defen dant, Bevelyn Bailey, appeals as of right the sentence imposed by the trial court upon his conviction of theft. Defendant was indicted by the Hardeman Coun ty Grand Jury of burglary, theft and criminal impersonation. Defendant pled guilty to theft of property worth between $1,000 and $10,000 in violation of Tennessee Code Annotated section 39-14-103. The trial court sentenced Defendant to eight (8) years incarc eration as a R ange II Multiple O ffender and de nied Defendant’s request for alternative sentencing. The sentence was ordered to run consecutively to a prior fifteen (15) year sentence imposed in Fayette County, for which he was on parole at the time of the present offense. In this appeal, Defendant argues that the trial co urt erred in senten cing him to eight (8) years incarceration and in finding that he was not a favorable candidate for alternative sente ncing of split confinement or Community Corrections. We affirm the judgment of the trial court.

Defendant testified on his own behalf at the sentencing hearing. He testified that in the past he wa s “just w ild” but th at he “g rew up men tally” wh ile he w as in prison. He stated that he obtained a job when he was on parole, but became addicted to crack c ocaine in 1995. D efendant testified that this addiction to crack cocaine caused him to skip work and to ultimately quit his job. He further testified he would not ha ve comm itted the present offense of theft if he had not been on cocaine .

When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 4 0-35-40 1(d). Th is presum ption is “co nditioned upon th e affirmative showing in the record that the trial court considered the sentencing principles and

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all relevant facts and circums tances .” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). There are, however, exceptions to the presumption of correctness. First, the record must demonstrate that the trial court considered the sentencing principles and all relevant facts and circums tances . Id. Seco nd, the presu mptio n doe s not a pply to the legal conclusion s reached by the trial court in sentenc ing. Third, the presum ption does not ap ply when the d eterminations made b y the trial court are predicated upon u ncontro verted fac ts. State v. Smith, 898 S.W.2d 742, 745 (Tenn. Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn . 1995).

Our review requires an analysis of: (1) 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 defen dant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, & - 210; see Sta te v. Smith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentenc e after having given due consideration and proper weight to the facts and principles set out under the sentencing law, and that the trial court’s findings of fact are ad equa tely supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).

Upon review of the record, we find that the trial court failed to state specific findings of fact justifying the enhancement and mitigating factors applied and how

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it determined the weigh t to be app lied to eac h of them . Furthermo re, the trial court did not explicitly se t forth its reasoning for the sentence imposed or for the denial of alternative sentencing, and hence, failed to follow proper statutory sentencing procedure. Therefore, review by this Court is de novo without a presumption of correctness.

Defendant first argues that the eight (8) year sentence imposed was excess ive. At the brief sentencing hearing, the trial court noted two enhancement factors to be applicable: (1) D efendant ha d a previous h istory of criminal convictions or criminal behavior; and (2) the felony was com mitted while on parole from a prior felony conviction. Tenn. Code Ann. § 40-35-114(1) and (13)(B). T he trial court considered two mitigating factors: (1) that the offense neither caused nor threatened bodily injury; and (2) Defendant admitted guilt. Tenn. Code Ann. § 40-35-113(1) and (13).

The pre-sentence report indicates that Defendant was previously convicted of the follo wing o ffense s: seco nd de gree b urglar y in 1976, two cou nts of attem pt to com mit the felony of burglary in 1979, possession of stolen property in 1980, receiving stolen property in 1982, first-degree burglary on two separate occasions in 1985, and larceny, second-degree burglary and first-degree burglary in 1988. At the time he committed the present offense, he was on parole from a prior fifteen (15) year sen tence im posed in 1988 in Fayette C ounty.

Tennessee Code Annotated section 40-35-210(c) provides that the minimum sentence within the range is the presumptive sentence for a Class D fe lony. If there are enhancing and mitigating factors, the court must start at the minimum sentence

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in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). It was stipulated by the parties that the Defendant would be senten ced as a Ran ge II Multiple O ffender. T heft of prop erty between $1,000 and $10,000, a Class D felony, has a sentence range of four (4) to eight (8) years for a Range II offender. Tenn. Code Ann. §§ 40-35-1 12(b)(4), 39-14- 103 and 39-14-105(3). Even if some evidence of mitigation existed, which was acknowledged by the tr ial court, where the mitigating factors are strongly outweighed by the enhancement factors, the maximum senten ce is warra nted. State v. Ruane, 912 S.W.2d 766, 785 (Tenn. Crim. A pp. 1995). Based upon Defendant’s lengthy criminal history and the fact that the present offense was committed while Defendant was on parole, it was well within the trial court’s discretion to impose the maximum sentence. Thus, the trial was justified in imposing the maximum sentence of eight (8) years.

Tennessee Code A nnotated se ction 40-35-10 2 outlines whe n alternative sentencing is appropriate. A defendant who “is an especially mitigated or standard offender convicted of a Clas s C, D or E felony is pres ume d to be a favor able candid ate for altern ative se ntenc ing options in the absence of evidence to the contrary.” Tenn . Code Ann. § 40-35-102(6). As noted above, Defen dant ag reed to plead guilty as a Range II Multiple Offender, so he is not within the parameters of Tennessee Code A nnotated se ction 40-35-102(6), and is therefore not presumed to be a favo rable can didate for a lternative se ntencing . Our sentencing law also provides that “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and

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evincing failure of past efforts at rehabilitation shall be given first priority regarding sentences involving incarceration.” T enn. Cod e Ann. § 40 -35-102(5).

When imposing a sentence of total confinement, our Criminal Sentencing Reform Act mandates the trial court to base its decision on the considerations set forth in Tennessee Code Annotated section 40-35-103. These considerations which militate against alternative sentencing include: the need to protect society by restraining a defendant having a long history of criminal conduct, whether confinement is partic ularly ap propr iate to e ffectively deter o thers lik ely to com mit a similar offense, th e need to avoid depreciating the seriousness of the offense, and the need to order confinement in cases in which less restrictive measures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35- 103(1)(A ) - (C).

In the case sub judice, we find tha t confin eme nt is neces sary to pro tect socie ty from Defendant b ased o n his exten sive crimin al record dating ba ck to 197 6. See Tenn. Code Ann. § 4 0-35-10 3(1)(A). He has been previously convicted of numerous felony offenses and the present offense was c omm itted wh ile on parole from a prior felony conviction . The D efenda nt has apparently failed at all past efforts of rehabilitation. See Tenn. Code Ann. § 40-35-103(5). Based on these facts, the Defendant apparently has a total disregard for the laws and morals of society. Regarding Defe ndan t’s reque st for sp lit confin eme nt, this Court has h eld that where a defend ant’s histor y indicates a clear dis regard fo r the law an d mora ls of society and a failure of p ast efforts to rehabilitate , the trial judg e doe s not a buse his discretion in denying probatio n. State v. Chrisman, 885 S.W.2d 834 (Tenn. Crim . App. 19 94).

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The Defendant also argues that Com mun ity Corre ctions would be a su itable alternative to incarce ration. The Com mun ity Corre ctions Act allo ws ce rtain eligible offenders to participa te in community based alternatives to incarceration, how ever, a defendant must first be a suitable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-104(9). Therefore, since the Defendant is n ot a su itable candid ate for alternative sentencing because of the factors discus sed a bove, this preclud es him from pa rticipating in th e Com munity C orrection s progra m.

W hile the trial court may h ave failed to specify certain facts to support the sentence imposed, we find that the record provides the facts necessary to affirm the trial court’s decision. Based upon the evidence presented at the sentencing hearing, the presentence report, the princip les of sen tencing s et forth in T enn. C ode An n. § 40-35-102, -103, -104, the nature of the offense, and the Defendant’s potential for rehabilitation, we find that the trial court did not err in imposing the maximum senten ce and denying the Defe ndant a ny type of a lternative se ntencing .

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Accordingly, the judgment of the trial court is affirmed.

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THOMAS T. W OODALL, Judge

CONCUR:

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JOSEPH B. JONES, Presiding Judge

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JOHN H. PEAY, Judge