State v. Colin Steen

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

FILED

AT KNOXVILLE November 29, 1999

Cecil CROWS ON, Jr.

SEPTEMBE R SESSION, 1999 Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9811-CR-00419 )

Appe llant, )

)

) KNOX COUNTY

VS. )

) HON. RICHARD BAUMGARTNER COLLIN BENTLEY STEEN, ) JUDGE )

Appellee. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLEE: FOR THE APPELLANT:

JULIE A. MAR TIN PAUL G. SUMMERS P. O. Box 426 Attorney General & Reporter Knoxville, TN 37901-0426 ELLEN H. POLLACK

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

RANDALL E. NICHOLS

District Attorney General

ANNE S. CRISLER

Assistant District Attorney City-County Building

Knoxville, TN 37902

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

The appellant, Colin Bentley Steen, pled guilty in the Knox County Criminal Court to one (1) coun t of aggravated ro bbery, a Class B felony. The trial court sentenced him as a Rang e I, Stand ard Offe nder, to eight (8) years incarceration. On appe al, the appellant claims that the trial court erred in (1) failing to sentence him as an Especially Mitigated Offender; and (2) denying his reques t for alternative sentencing. After a thorough review of the record before this Court, we affirm the judgm ent of the tria l court.

I.

In the early morning hours of July 12, 1996, Jack Lawson was working as a night clerk at the Scottish In n Motel in Knoxville. A man c ame to the front door, and Lawson allowed him to come inside.1 The man asked for directions, and while he and Lawson were conversing, another man appeared wearing a bandana around the lower portion of his face. The second man, whom Lawson identified as the appellan t, brandished a gun and demanded money. Lawson showed him where he kept the evening’s earnings from the motel, and the appellant took an envelope containing approxim ately $90 0 - $1,00 0. The a ppellant a nd his ac comp lice left shortly ther eafter, an d Laws on con tacted the police.

The appellant subsequently pled guilty to one (1) count of aggravated robbery.

At the sentencing hearing, the appellant expre ssed remo rse for h is involve men t in the offense. He testified that he had been drinking and smoking marijuana on the day of the incident and co uld not rec all specific d etails abo ut the incid ent. He further expressed his desire to become a productive member of society should the trial court release him in a community-based alternative to incarceration.

1 Lawso n testified tha t he kep t the front do or locke d during th e night sh ift.

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As an enhancement factor, the trial court found that the appellant was a leader in the commission of the offense. Tenn. Code Ann. § 40-35-114(2). In mitigation, the trial court foun d that the a ppellant was remor seful and accep ted resp onsibility for his actions. Tenn. Code Ann. § 40-35-113(13). The trial court sentenced the appellant as a R ange I, Stand ard O ffende r, to eight (8) years, the minimum in the range for a Class B felony. The trial court further denie d any form o f alternative sente ncing . From his sen tence , the ap pellan t now b rings th is app eal.

II.

The appellant challe nges the se ntenc e imp osed by the tr ial cou rt in two ways.

First, he claims that the trial court erred in failing to sentence him as an Espe cially Mitigated Offender. Seco ndly, he argue s that th e trial co urt erre d in de nying h is request to serve his sen tence in the C omm unity A lternativ e to Prison Program (“CAPP ”) pursuant to T enn. Cod e Ann. § 40 -36-106(c).

A. Standard of Review

This Court’s review of the sentence imposed by the trial court is de novo with a presum ption of co rrectnes s. Tenn . Code Ann. § 4 0-35-40 1(d). This presumption is condition ed upo n an affirm ative show ing in the re cord tha t the trial judge considered the sente ncing prin ciples an d all relevan t facts and circums tances . State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comp ly with the statutory directives, there is no presumption of correctness and our review is de novo. State v. Poo le, 945 S.W .2d 93, 96 (T enn. 1997 ).

The burden is upon the ap pealing party to sh ow that the sen tence is impro per.

Tenn. Code Ann. § 40-35 -401( d) Se ntenc ing Co mm ission Commen ts. In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following factors in sentencing:

(1) [t]he evidence, if any, received at the trial and the sentencing hearing;

(2) [t]he pre senten ce repo rt;

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(3) [t]he principles of sentencing and arguments as to sentencing alternatives;

(4) [t]he nature and characteristics of the criminal conduct involved;

(5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;

and

(6) [a]ny statem ent the defen dant w ishes to ma ke in th e defe ndan t’s own behalf about sentencing.

B. Especially Mitigated Offender The appellant contends that the trial court erred in failing to sentence him as an Especially Mitigated Offender under Tenn. Code Ann. § 40-35-109(a). He alleges that the trial court’s application of Tenn. Code Ann. § 40-35-114(2) as an enhancement factor was erroneous because there is no evidence in the reco rd to support a finding that he was the leader in the commission of the offense. Thus, he reasons that because no enhancement factors are applicable , and the trial court found applic able m itigating factors , he sh ould have been sente nced as an Espe cially Mitigated Offen der.

Initially, this Cou rt notes tha t the appe llant never re queste d to be sentenced as an Especially Mitigated Offender at the sentencing hearing. As a result, the issue is waived. Tenn. R. App. P . 36(a); see State v. Duncan Johnson, C.C.A. No. 02C01- 9211-CC-00256, Gibson County, 1993 Tenn. Crim. App. LEXIS 508, at *2 (Tenn. Crim. App . filed August 4, 199 3, at Jackson ).

Second ly, the mere absence of applicable enhancement factors does not necessitate a find ing that the appe llant is an Espec ially Mitigated Offende r. Tenn. Code Ann. § 4 0-35-10 9(a) prov ides that a trial court “may find the defendant is an espe cially mitigated offender, if: (1) the defendant has no prior felony convictions; and (2) the court finds m itigating, but no enha nceme nt factors.” (Emp hasis adde d). This provision is not manda tory, but discre tionary. State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App . 1993). Whether a defendant is sentenced as an es pecia lly mitigated offender is a determ ination tha t rests within the sound discretion of the trial court. State v. Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v. Braden, 867 S.W.2d at 762-63. Especially mitigated status is reserved for

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“instances where the trial judge may desire to depart from even the minimum sentence for a Range I offende r and im pose les ser pen alties.” Tenn . Code Ann. § 40-35-109, Sentencing Commission Comm ents.

In any event, the trial court did not err in applying Tenn. Code Ann. § 40-35-

114(2) as an enhancement factor in this case. The victim testified that the co- defendant came into the Sc ottish Inn M otel, asking for directions. W hile he and Lawson were talkin g, the appellant appeared, pointed a gun at Lawson and demanded money. Lawson testified that the co-defendant stepped aside and “let the [appellan t] do his job.” The evidence in the reco rd sup ports th e trial co urt’s conclusion that the appellant was a leader in the commission of the offense. Tenn. Code A nn. § 40-35-1 14(2).

Furthermore, although the trial court did not find that the appe llant’s history of prior criminal conduct, his admitted illegal drug use, was applicable as an enhancement factor, Tennessee Code Annotate d § 40 -35-1 14(1) , this Co urt is authorized, under o ur powe r of de novo review, to consider any e nhancem ent factors supported by the rec ord. State v. Claybrooks, 910 S.W.2d 868, 873 (T enn. Crim. App. 1994). We find this enhancement factor applicable in this case.

Two enhan ceme nt factors a re applica ble to the appellant’s sentence for aggravated robbery. Thus, the appellant is statutorily ineligible to be classified as an Especially Mitigated Offender. Tenn. Code Ann. § 40-35-109(a)(2). This issue is without m erit.

C. Alternative Sentencing In his next issue, the appellant asserts that the trial court erred in refusing to place him on community corrections. He maintains that he qualifies for the CAPP Program under the “special needs” provision o f Tenn . Code Ann. § 40-36-106(c) due to his drug and alcohol use.

An especially mitigated or standard o ffender convicted of a Class C , D or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of eviden ce to the c ontrary. T enn. C ode An n. § 40-35-102 (6). A trial court must presume that a defenda nt sentence d to eight years or less and who is not an

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offender for whom inc arceration is a priority is subject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a sentence other than incarceration would result in successful rehabilitation unless re butted b y sufficient ev idence in the reco rd. Id. at 380.

Under the 1989 Sentencing Act, sentences which involve con fineme nt are to be based on the following considerations:

(A) [c]onfinement is necessary to protect society by restraining a defend ant who has a lon g history of c riminal co nduct;

(B) [c]onfinem ent is nec essary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) [m]easure s less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.

Tenn. Code Ann. § 4 0-35-10 3(1); State v. Boston, 938 S.W .2d 435, 4 38 (Tenn. Crim. App . 1996).

As the state correctly points out, the appellant is not statutorily entitled to the presumption of alternative sentencing. Under Tenn. Code Ann. § 40-35-102(6), an espe cially mitigated or s tanda rd offen der co nvicted of a Cla ss C, D or E felo ny is presumed to be a favorable candidate for alternative sentencing. Because the appellant was convicted of aggravated robbery, a Class B felony, he is not presumed to be a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 39- 13-402(b).

Moreover, it is well-settled that a defendant must be eligible for probation before he may be sentenced pursuant to Tenn . Code Ann. § 4 0-36-10 6(c). State v. Grigsby, 957 S.W .2d 541, 546 (Ten n. Crim. A pp.), perm. to app. denied (Tenn. 1997); State v. Boston, 938 S.W .2d at 438 -39; State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). The appellant is statutorily ineligible for probation because he was convicted of aggravated robbery under Tenn. Code Ann. § 3 9-13-40 2. See Tenn. Code Ann. § 40-35-303(a). Therefore, the appellant is ineligible to be sentenced under Te nn. Code Ann. § 40-3 6-106(c).

In addition, we agree with the trial court that the evidence in the record does not support a finding that the appellant meets the requirements of the “spec ial

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needs” provision under Tenn. Code Ann. § 40-36-106. In order to qualify for this provision , the trial court m ust deter mine th at:

(1) the offender has a history of chronic alcohol, drug abuse, or mental health problem s; (2) these factors were reasonably related to and contributed to the o ffende r’s crim inal co nduc t; (3) the identifia ble special need(s) are treatable, and (4) the treatment of the special need could be bes t served in th e com munity ra ther than in a correc tional institution.

State v. Grigsby, 957 S.W.2d at 546-47.

The trial court found no proof that the appellant suffered from a chronic drug and/or alcohol abuse problem. The record demonstrates that the trial court considered the relevant fac ts and circumstances; thus, this Court must presume that the trial court’s findin gs are co rrect. See Tenn. C ode Ann . § 40-35-401 (d); State v. Ashby, 823 S.W.2d at 169.

Furthermore, even assuming that the appellant has a chronic alcohol and/or drug abuse problem, the appellant has not established a causal connection between his drug/alcohol problem and his criminal conduct. The appellant testified that he had been smoking marijuana and drinking on the day of the incident and could not recall the specific details of the incident. However, the victim and another witness testified at the sentencing hearing that the appellant did not appear to be intoxicated or unde r the influen ce at the tim e of the inc ident.

The trial court correctly determined that the appellant does not qualify for alternative sentencing under Tenn. Code Ann. § 40-36-106(c). This issue has no merit.

III.

After a thorough review of the record before this Court, we conclude that the trial court properly sentenced the appellant as a Range I, Standard Offender, to eight (8) years incarceration. Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

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CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE