State v. Charles Reed

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 20, 1999
• Docket: 01C01-9801-CC-00012
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE 1999 SESSION September 20, 1999

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9801-CC-00012 Appellee, ) ) Bedford County v. ) ) Honorable W illiam Charles Lee, Judge CHARLES MICHAEL REED, ) ) (Sentencing) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

DONNA L. HARGROVE PAUL G. SUMMERS District Public Defender Attorney General & Reporter

ANDREW JACKSON DEARING, III CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 105 South Main Street 425 Fifth Avenue North P. O. Box 1119 Nashville, TN 37243-0493 Fayetteville, TN 37334-1119 WILLIAM MICHAEL McCOWN District Attorney General

ROBERT G. CRIGLER Assistant District Attorney General One Public Square, Suite 100 Shelbyville, TN 37160-3953

OPINION FILED: _______________________________

AFFIRMED

ALAN E. GLENN, JUDGE OPINION

The defendant, Charles Michael Reed, was indicted for burglary and felony theft.

A Bedford County jury found him guilty of the lesser included offenses of criminal trespass

and theft of property under $500. The trial court sentenced him to ten months and sixteen

days for theft of property and to eighteen days for criminal trespass. The two sentences

were to run concurrently. The defendant now appeals the imposition of his sentence,

arguing he should have received alternative sentencing. Based on our review of this

matter, we affirm the decision of the trial court.

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 the sentence with the

presumption that the determinations made by the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d). In conducting a de novo review of a sentence, the court must consider:

(a) the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to sentencing

alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any

statutory mitigating or enhancement factors; (f) any statement that the defendant made on

his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-102, -103, & -210. See State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987). In felony cases, the presumption of correctness is "conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). However, our supreme court has held that trial judges in misdemeanor

cases are not required to make specific findings of fact on the record regarding sentencing

decisions. State v. Troutman, 979 S.W.2d 271, 273-74 (Tenn. 1998).

The defendant does not challenge the length of his sentence, rather only the

manner in which it is to be served. He introduced testimony describing the hardships his

wife and two young children would face were he to lose his job because of a lengthy jail

2 sentence. For this reason, he argued he should receive some form of probation or work

release to allow him to keep his job. A review of the record reveals the trial court

considered the sentencing principles and all relevant facts and circumstances before

sentencing the defendant. The trial court found that there were no mitigating factors but

that two enhancing factors existed, the defendant had a history of criminal convictions and

he had “recently and frequently” been unsuccessful in an alternative sentence imposed

upon him. We agree with the trial court in this regard.

The defendant was convicted of burglary third degree on March 9, 1989, in the

Bedford County Circuit Court, Case No. 11669, and sentenced to three years

imprisonment. In exchange for the defendant’s guilty plea in that case, it was agreed that

he would not be prosecuted for the additional offense of burglary of a truck. He was found

guilty of burglary in Case No. 12435 in the Bedford County Circuit Court on October 29,

1990, and sentenced to two years imprisonment. He was found guilty on May 9, 1995, in

the Bedford County General Sessions Court, Case No. 80786-109-258, of DUI, first

offense, sentenced to confinement for eleven months and twenty-nine days, with all but

forty-eight hours suspended, fined $350, and ordered to pay court costs and to attend DUI

school.

On May 26, 1995, a probation revocation warrant was served on the defendant as

to the DUI conviction, alleging that he had violated the terms of probation by being

arrested, while on probation, and charged with public intoxication. On May 31, 1995, the

Bedford County General Sessions Court ordered that he serve ten days on the DUI

conviction, this sentence to be consecutive to that which he had received for public

intoxication. Additionally, a second probation revocation warrant was issued on December

5, 1995, seeking revocation of the DUI suspended sentence because the defendant had

subsequently been arrested for vandalism, aggravated criminal trespass, and public

intoxication, according to the warrant. On January 16, 1996, the trial court ordered that the

defendant serve sixty days of the DUI sentence.

3 Finally, on June 25, 1997, the defendant was charged with domestic abuse. He

entered a guilty plea to this offense on July 29, 1997, and received a sentence of eleven

months and twenty-nine days, all of which was suspended. The defendant was ordered

to pay court costs and to attend a domestic violence class. Thus, based on the

defendant’s extensive criminal history and his inability to comply with the terms and

conditions of a previous order of probation, we cannot say the trial court abused its

discretion in choosing the manner of sentence in this case.

For these reasons, we affirm the decision of the trial court.

________________________________________ ALAN E. GLENN, JUDGE

CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOE G. RILEY, JUDGE