IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED AUGUST SESSION, 1997 October 23, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00005 ) Appellee, ) ) SHELBY COUNTY ) V. ) ) HON. ARTHUR T. BENNETT, CONNIE L. FULTON, ) JUDGE ) Appe llant. ) (THEFT O VER $ 500.00)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT M. BRANNON, JR. JOHN KNOX WALKUP 295 Washington, Suite 3 Attorney General & Reporter Memphis, TN 38103 DEBORAH A. TULLIS Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
JOHN W. PIEROTTI District Attorney General
PERRY HAYES Assistant District Attorney General 201 Poplar Street, Suite 301 Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defe ndan t, Con nie L. Fulton, appeals as of right the determination of
the Shelby County Criminal Court that the sentences she received for various
convictions shou ld be served by incarceration and not by alternative sentencing.
The Defen dant en tered gu ilty pleas to three counts of theft, one count of reckless
driving, and one count of driving a moto r vehicle while her license was revoked,
canceled, or sus pend ed. Pu rsuan t to a ne gotiated plea agreement, the
Defendant was sentenced to two years as a Range I Standard Offender for her
convic tion for theft over $500. This sentence was ordered to be served
conc urren tly with her two nine-m onth se ntence s for theft under $500, her 90-day
sentence for reckless driving, and her 90-day sentence for driving while her
license was revoked, suspended, or canceled. After an evidentiary hearing, the
trial court ordered the sentences to be served to tally by incarc eration. In her s ole
issue on app eal, the Defendant argues that the trial court erred in denying her
alternative s entenc ing. W e affirm the judgm ents of the trial 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 rele vant facts and circu mstan ces." State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
-2- In conducting a de novo review of a sentence, this Court must consider the
evidence adduc ed at trial and the sentencing hearing, the presentence report, the
principles of sentencing, the arguments of counsel relative to sentencing
alternatives, the natur e of the offe nse, an d the de fendan t’s potential for
rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945,
955-56 (T enn. Crim A pp. 1996).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial cou rt's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon
review of the record, we find that the trial court considered all the proper
sentencing principles and stated its reasons and findings on the record.
Therefore, review by this court is de novo with a presumption of correctness.
Tennessee Code Annotated section 40-35-102 outlines when alterna tive
sentencing is appropriate. A defendant “who is an especially mitigated or
standard offender convicted of a Class C, D or E felony is presumed to be a
favora ble candida te for alternative sentencing options in the absence of evidence
to the contra ry.” Tenn . Code Ann. § 40-35-102(6). Our sentencing law also
provides that “convicted felons c omm itting the most seve re offenses, possessing
criminal histories e vincing a c lear disreg ard for the laws and morals of soc iety,
and evincing failure of pa st efforts at re habilitation s hall be give n first priority
regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).
-3- Thus, a defendant sentenced to eight years or less who is not an offender for
whom incarc eration is a prio rity is pre sum ed elig ible for alternative sentencing
unless sufficient evidence rebuts the presumption. However, the act does not
provide that all o ffende rs who mee t the crite ria are entitled to such relief; rather,
it requires that sentencing issues be determined by the facts and circumstances
presented in each c ase. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 19 87).
Additionally, the princip les of se ntenc ing refle ct that th e sen tence shou ld
be no grea ter than tha t deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is impos ed. Ten n. Cod e Ann. § 40-35-1 03(2) an d (4). The court should also
consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in
determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).
The Defen dant arg ues tha t the trial judge erred when he s tated: “You’ve
got to convince me that you don’t need to go to jail and stay there as long as we
can keep you there,” because this denied her the presumption of being a
favora ble candidate for alternative sentencing pursuant to Tenn. Code Ann. § 40-
35-102(6). Although the judge may have acted prematurely in implying that the
Defendant did not ha ve that pre sump tion, after a carefu l review of the re cord it
appears that the judge was knowledgeable of the Defend ant’s criminal history
prior to the s entenc ing hea ring.
When imposing a sentence of total con fineme nt, our Criminal Sentencing
Reform Act mandates the trial court to base its decision on the considerations set
forth in Tenn essee Code Annota ted section 40-3 5-103. These considerations
-4- which militate against alternative s entenc ing includ e: the nee d to prote ct society
by restrain ing a d efend ant ha ving a lo ng his tory of cr imina l conduct, whether
confinement is particularly appropriate to effectively deter others likely to c omm it
a similar offen se, the ne ed to avoid depreciating the seriousness of the offense,
and the ne ed to o rder co nfinem ent in cases in which less restrictive measures
have often or re cently bee n unsu ccessfu lly applied to th e defen dant. Tenn. Code
Ann. § 4 0-35-10 3(1)(A) - (C ).
In the case sub judice, the trial court found that the Defendant did not meet
the appropriate criteria to be eligible for alternative sentencing. The Defendant
has an extens ive crim inal rec ord da ting ba ck to 1 986. S he ha s bee n prev iously
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED AUGUST SESSION, 1997 October 23, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00005 ) Appellee, ) ) SHELBY COUNTY ) V. ) ) HON. ARTHUR T. BENNETT, CONNIE L. FULTON, ) JUDGE ) Appe llant. ) (THEFT O VER $ 500.00)
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT M. BRANNON, JR. JOHN KNOX WALKUP 295 Washington, Suite 3 Attorney General & Reporter Memphis, TN 38103 DEBORAH A. TULLIS Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243
JOHN W. PIEROTTI District Attorney General
PERRY HAYES Assistant District Attorney General 201 Poplar Street, Suite 301 Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION
The Defe ndan t, Con nie L. Fulton, appeals as of right the determination of
the Shelby County Criminal Court that the sentences she received for various
convictions shou ld be served by incarceration and not by alternative sentencing.
The Defen dant en tered gu ilty pleas to three counts of theft, one count of reckless
driving, and one count of driving a moto r vehicle while her license was revoked,
canceled, or sus pend ed. Pu rsuan t to a ne gotiated plea agreement, the
Defendant was sentenced to two years as a Range I Standard Offender for her
convic tion for theft over $500. This sentence was ordered to be served
conc urren tly with her two nine-m onth se ntence s for theft under $500, her 90-day
sentence for reckless driving, and her 90-day sentence for driving while her
license was revoked, suspended, or canceled. After an evidentiary hearing, the
trial court ordered the sentences to be served to tally by incarc eration. In her s ole
issue on app eal, the Defendant argues that the trial court erred in denying her
alternative s entenc ing. W e affirm the judgm ents of the trial 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 rele vant facts and circu mstan ces." State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
-2- In conducting a de novo review of a sentence, this Court must consider the
evidence adduc ed at trial and the sentencing hearing, the presentence report, the
principles of sentencing, the arguments of counsel relative to sentencing
alternatives, the natur e of the offe nse, an d the de fendan t’s potential for
rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945,
955-56 (T enn. Crim A pp. 1996).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial cou rt's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon
review of the record, we find that the trial court considered all the proper
sentencing principles and stated its reasons and findings on the record.
Therefore, review by this court is de novo with a presumption of correctness.
Tennessee Code Annotated section 40-35-102 outlines when alterna tive
sentencing is appropriate. A defendant “who is an especially mitigated or
standard offender convicted of a Class C, D or E felony is presumed to be a
favora ble candida te for alternative sentencing options in the absence of evidence
to the contra ry.” Tenn . Code Ann. § 40-35-102(6). Our sentencing law also
provides that “convicted felons c omm itting the most seve re offenses, possessing
criminal histories e vincing a c lear disreg ard for the laws and morals of soc iety,
and evincing failure of pa st efforts at re habilitation s hall be give n first priority
regarding sentencing involving incarceration.” Te nn. Code Ann. § 40-3 5-102(5).
-3- Thus, a defendant sentenced to eight years or less who is not an offender for
whom incarc eration is a prio rity is pre sum ed elig ible for alternative sentencing
unless sufficient evidence rebuts the presumption. However, the act does not
provide that all o ffende rs who mee t the crite ria are entitled to such relief; rather,
it requires that sentencing issues be determined by the facts and circumstances
presented in each c ase. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 19 87).
Additionally, the princip les of se ntenc ing refle ct that th e sen tence shou ld
be no grea ter than tha t deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is impos ed. Ten n. Cod e Ann. § 40-35-1 03(2) an d (4). The court should also
consider the po tential fo r rehab ilitation o r treatm ent of th e defe ndan t in
determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).
The Defen dant arg ues tha t the trial judge erred when he s tated: “You’ve
got to convince me that you don’t need to go to jail and stay there as long as we
can keep you there,” because this denied her the presumption of being a
favora ble candidate for alternative sentencing pursuant to Tenn. Code Ann. § 40-
35-102(6). Although the judge may have acted prematurely in implying that the
Defendant did not ha ve that pre sump tion, after a carefu l review of the re cord it
appears that the judge was knowledgeable of the Defend ant’s criminal history
prior to the s entenc ing hea ring.
When imposing a sentence of total con fineme nt, our Criminal Sentencing
Reform Act mandates the trial court to base its decision on the considerations set
forth in Tenn essee Code Annota ted section 40-3 5-103. These considerations
-4- which militate against alternative s entenc ing includ e: the nee d to prote ct society
by restrain ing a d efend ant ha ving a lo ng his tory of cr imina l conduct, whether
confinement is particularly appropriate to effectively deter others likely to c omm it
a similar offen se, the ne ed to avoid depreciating the seriousness of the offense,
and the ne ed to o rder co nfinem ent in cases in which less restrictive measures
have often or re cently bee n unsu ccessfu lly applied to th e defen dant. Tenn. Code
Ann. § 4 0-35-10 3(1)(A) - (C ).
In the case sub judice, the trial court found that the Defendant did not meet
the appropriate criteria to be eligible for alternative sentencing. The Defendant
has an extens ive crim inal rec ord da ting ba ck to 1 986. S he ha s bee n prev iously
convicted more than ten times for shoplifting. The Defendant was on bond
awaiting trial when she committed four of the five current charges, and
furthermore, she wa s on pro bation for p ossess ion of cocaine when she
committed all of the present offenses. The D efend ant ha s app arently failed a t all
past efforts of reh abilitation. Because of these facts, the trial court reasoned that
the Defendant has a total disregard for the laws and morals of soc iety. The court
further found that granting alternative sentencing would depreciate the
seriousness of the crime. This court has held that wh ere a defend ant’s history
indicates a clear disregard for the laws and morals of society and a failure of past
efforts to reha bilitate, th e trial judge does not abuse his discretion in denying
probation. State v. Chrisman, 885 S.W .2d 834 , 840 (T enn. C rim. App . 1994).
The Defenda nt argues that she is an eligible can didate for C omm unity
Corrections because she meets the minimum require men ts outlin ed in
Tennessee Code Annotated section 40-36-106. The Community Corrections Act
-5- allows certain eligible offenders to participate in community based alternatives to
incarceration, however, a defendant must first be a suitable candidate for
alternative sentencing. Tenn. Code Ann. §§ 40-36-103 and 40-35-104(9).
Therefore, since the court found the Defen dant to be ineligible for altern ative
sentencing because of the factors discussed above, this precludes her from
participatin g in the C omm unity Cor rections p rogram .
Based upon the evidence presented at the sentencing hearing, the
presen tence re port, the pr inciples of s entenc ing set forth in Tenn . Code Ann.
§ 40-35-102, -103, -104, the arguments made by counse l, the nature of the
offense, and the Defend ant’s potential for rehab ilitation, we find that the trial court
did not err in denying the Defendant alternative sentencing. This issue is without
merit.
We affirm the ju dgme nts of the tria l court.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID G. HAYES, Judge
___________________________________ JERRY L. SMITH, Judge
-6-