IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1997
FILED STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9609-CR-00305 ) August 22, 1997 Appellee, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR. DAVID E. JOHNSON, ) JUDGE ) Appellant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY E. FITZGERALD JOHN KNOX W ALKUP 22 N. Second St., Ste. 410 Attorney General and Reporter Memphis, TN 38103 GEORGIA BLYTHE FELNER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
KEVIN R. RARDINI Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defendant appeals as of right from the sentence imposed on
him by the trial court upon the Defendant’s plea of guilty to a charge of Class D
felony theft. The Defendant was sentenced to the minimum of two years for his
crime, with ninety days to be served in confinement and the balance to be served
on probation. On appeal, he argues that the trial court erred in denying him full
probation. We affirm the judgment of the trial court.
W hile the record on appeal does not contain a detailed statement of the
underlying facts of the offense, it is apparent that the Defendant was involved in
the theft of a fairly substantial amount of property from his employer, with whom
he had been employed for several years, first as a salesman and then as a store
manager. At least one other employee was involved in the theft, and the illegal
activity took place over a period of about one and one half years. At the time of
the Defendant’s arrest, his base salary was approximately forty-eight thousand
dollars ($48,000) annually, and he was eligible for bonuses. At the conclusion
of the sentencing hearing, the trial court ordered that three months of his
sentence be served in confinement. The Defendant argues that he should have
received full probation.
W hen 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
-2- 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).
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 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,
and -210; see State v. Sm ith, 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 sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court'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).
A defendant who “is an especially 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 severe offenses, possessing criminal histories
evincing a clear disregard for the laws and m orals of society, and evincing failure
-3- of past efforts at rehabilitation, shall be given first priority regarding sentences
involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant
sentenced to eight years or less who is not an offender for whom incarceration
is a priority is presumed eligible for alternative sentencing unless sufficient
evidence rebuts the presumption. However, the act does not provide that all
offenders who meet the criteria are entitled to such relief; rather, it requires that
sentencing issues be determ ined by the facts and circumstances presented 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 that deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court should also consider
the potential for rehabilitation or treatment of the defendant in determining the
sentence alternative. Tenn. Code Ann. § 40-35-103(5).
Because the Defendant was a standard offender convicted of a Class D
felony, he was presumed to be a favorable candidate for an alternative
sentencing option. The trial judge gave the Defendant the benefit of this
presumption, sentencing him to split confinement. Tenn. Code Ann. § 40-35-
104(c)(5). The Defendant seeks the more favorable alternative of total probation.
Tenn. Code Ann. § 40-35-104(c)(3). As we have stated, the Defendant has the
burden of establishing suitability for full probation, even though he is entitled to
the statutory presum ption of alternative sentencing. See State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995). There is no “bright line rule” for
determining when a defendant is entitled to full probation. Id. at 456. A trial
-4- judge is vested with a great deal of discretion on the issue of probation. Factors
to be considered are whether probation will serve the ends of justice and the best
interest of both the public and the Defendant, the nature and circumstances of
the crime, the Defendant’s potential for rehabilitation, whether full probation
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY SESSION, 1997
FILED STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9609-CR-00305 ) August 22, 1997 Appellee, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR. DAVID E. JOHNSON, ) JUDGE ) Appellant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
LARRY E. FITZGERALD JOHN KNOX W ALKUP 22 N. Second St., Ste. 410 Attorney General and Reporter Memphis, TN 38103 GEORGIA BLYTHE FELNER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
KEVIN R. RARDINI Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION
The Defendant appeals as of right from the sentence imposed on
him by the trial court upon the Defendant’s plea of guilty to a charge of Class D
felony theft. The Defendant was sentenced to the minimum of two years for his
crime, with ninety days to be served in confinement and the balance to be served
on probation. On appeal, he argues that the trial court erred in denying him full
probation. We affirm the judgment of the trial court.
W hile the record on appeal does not contain a detailed statement of the
underlying facts of the offense, it is apparent that the Defendant was involved in
the theft of a fairly substantial amount of property from his employer, with whom
he had been employed for several years, first as a salesman and then as a store
manager. At least one other employee was involved in the theft, and the illegal
activity took place over a period of about one and one half years. At the time of
the Defendant’s arrest, his base salary was approximately forty-eight thousand
dollars ($48,000) annually, and he was eligible for bonuses. At the conclusion
of the sentencing hearing, the trial court ordered that three months of his
sentence be served in confinement. The Defendant argues that he should have
received full probation.
W hen 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
-2- 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).
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 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,
and -210; see State v. Sm ith, 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 sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court'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).
A defendant who “is an especially 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 severe offenses, possessing criminal histories
evincing a clear disregard for the laws and m orals of society, and evincing failure
-3- of past efforts at rehabilitation, shall be given first priority regarding sentences
involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant
sentenced to eight years or less who is not an offender for whom incarceration
is a priority is presumed eligible for alternative sentencing unless sufficient
evidence rebuts the presumption. However, the act does not provide that all
offenders who meet the criteria are entitled to such relief; rather, it requires that
sentencing issues be determ ined by the facts and circumstances presented 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 that deserved for the offense committed and should be the
least severe measure necessary to achieve the purposes for which the sentence
is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court should also consider
the potential for rehabilitation or treatment of the defendant in determining the
sentence alternative. Tenn. Code Ann. § 40-35-103(5).
Because the Defendant was a standard offender convicted of a Class D
felony, he was presumed to be a favorable candidate for an alternative
sentencing option. The trial judge gave the Defendant the benefit of this
presumption, sentencing him to split confinement. Tenn. Code Ann. § 40-35-
104(c)(5). The Defendant seeks the more favorable alternative of total probation.
Tenn. Code Ann. § 40-35-104(c)(3). As we have stated, the Defendant has the
burden of establishing suitability for full probation, even though he is entitled to
the statutory presum ption of alternative sentencing. See State v. Bingham, 910
S.W.2d 448, 455 (Tenn. Crim. App. 1995). There is no “bright line rule” for
determining when a defendant is entitled to full probation. Id. at 456. A trial
-4- judge is vested with a great deal of discretion on the issue of probation. Factors
to be considered are whether probation will serve the ends of justice and the best
interest of both the public and the Defendant, the nature and circumstances of
the crime, the Defendant’s potential for rehabilitation, whether full probation
would unduly depreciate the seriousness of the offense, and whether full
probation would serve the need to provide an effective deterrent. See Bingham,
910 S.W.2d at 456.
The Defendant was twenty-nine years old and a high school graduate with
a good employment record. He was married and the father of two children. His
only record of criminal activity was an arrest for assault and battery in 1989,
which resulted in a nolle prosequi.
It is clear from reviewing the transcript of the sentencing hearing that the
trial judge in large part based his decision of denying full probation on his
observation of the Defendant’s demeanor and the trial court’s determination that
the Defendant was untruthful in his testimony and lacked remorse for his offense.
It is also apparent that the trial judge based his decision in part upon the
credibility that the judge gave to the testimony of a co-defendant. The co-
defendant was sentenced at the same time the Defendant was sentenced,
although the record on appeal does not contain a transcript of the co-defendant’s
testimony. The trial judge clearly communicated to the Defendant the judge’s
observation of the Defendant’s credibility when he stated, “You just talked
yourself into some jail time.” The truthfulness or untruthfulness of a defendant
has long been recognized as a permissible factor for a trial judge to consider on
the issue of probation. See State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984).
-5- A defendant’s untruthfulness and lack of remorse are obviously factors to be
considered in determining his potential for rehabilitation. The trial court is in a
much better position to determine the Defendant’s credibility and feelings of
remorse than an appellate court can determine from the record.
Trial judges are traditionally vested with broad discretionary powers in
sentencing matters. From this record, we cannot conclude that the trial judge
erred or abused his discretion in denying this Defendant full probation. The
judgment of the trial court is affirmed.
____________________________________ DAVID H. WELLES, JUDGE
CONCUR:
___________________________________ JOE B. JONES, PRESIDING JUDGE
___________________________________ JOE G. RILEY, JUDGE
-6-