IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1998 March 17, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9701-CR-00012 )
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
FRANKLIN W. CAMPBELL, ) JUDGE )
Appe llant. ) (Sentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
DEANNA BELL JOHNSON JOHN KNOX WALKUP 211 T hird Aven ue No rth Attorney General and Reporter Nashville, TN 37201 GEORGIA BLYTHE FELNER
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
STEVE DOZIER
Assistant District Attorney General Washington Square, Suite 500 222 Se cond A venue N orth Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED AS MODIFIED DAVID H. WELLES, JUDGE
OPINION
The Defendant, Franklin W. Campbell, appeals as of right p ursua nt to R ule 3 of the Tennessee Rules of Appellate Procedure. He pleaded guilty to one coun t of sim ple robbery and was se ntence d as a sta ndard, R ange I o ffender to six years of incarceration. The trial cou rt denied probatio n and c omm unity corrections. The Defendant now appeals his sentence and argues that the trial court erred by sentencing him to the maximum sentence and for denying him an alternative to incarceration. We affirm the judgment of the trial court ordering the Defendant to serve his sentence in confinement but m odify the length of the sentence to five years.
In Septem ber of 19 95, the D efenda nt beca me ac quainte d with Christina Marie Gribbin, who he knew was a prostitute. The Defendant allowed Gribbin to stay at his apartment with him. The Defendant is a transsexual and dresses as a woma n. Gribb in aske d the D efend ant on occa sions to acc omp any he r while she worked, and he had sat in the car while she went inside a man’s house on at least one occasion. On September 18, 1995, Gribbin asked the Defe ndant to ride in her car with her while she went to get some money. The Defendant denied that he knew that she intended to co mmit a rob bery.
The Defendant was drinking alcohol and using Valium that day. He rode with Gribbin to an ATM in Madison, Tennessee. Patricia Cam pbell, th e victim in this case, withdrew cash from the machine and then drove four miles to the Chestnut Villa Ap artme nts on Due W est Av enue . Gribb in and the Defendant first
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observed the victim at the ATM, then followed her to the apartment complex. The victim’s three grandchildren, ages four, five, and six, we re with he r. Gribbin got out of her vehicle, went to the victim as she exited her car, and held a knife to her throat. Gribbin said: “Give me your purse or I will kill you.” The Defendant was yelling from Gribbin’s car, “Hurry up!” Gribbin grabbed the victim’s purse and fled in her vehic le, a mar oon Fo rd Esco rt. The v ictim st ated th at the p asse nger in the vehicle was a white female.
The police were ca lled and a des cription of the robbe rs was broadca st.
Shortly thereafter, Gribbin and the Defendant were apprehended in a maroon Escort at Ga llatin Ro ad an d Stra tford A venue . The o fficers fo und th e victim ’s purse sitting on the Defendant’s lap, and found the knife used in the robbery and the victim’s ATM card under the driver’s seat. The victim identified Gribbin and the De fendan t as the pe rsons w ho had robbed her.
Gribb in and the Defendant were charged with aggravated robbery, and the Defendant plead ed gu ilty to sim ple robbery. See Tenn. Code Ann. § 39-13-402; Tenn. Code Ann. § 39-13-40 1. The trial judge se ntenced him to six years imprison ment. After conducting a hearing on August 1, 1996, the trial judge denied the Defendant’s request to s erve h is sent ence on pro bation or in comm unity corrections. The D efenda nt now a ppeals , contend ing that the length of his sen tence is exce ssive a nd tha t the trial c ourt erred by denying probation
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or com mun ity corrections. Although these issues may be somewhat moot, we nonetheless consider them on the merits.1
When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial cou rt are corre ct. 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 relevant facts and circums tances ." State v. Ashby, 823 S.W.2d 166, 16 9 (Ten n. 1991 ).
In conducting a de novo review of a sentence, this court must consider: (a)
the eviden ce, if an y, rece ived at th e trial and the sentencing hearing; (b) the presentence report; (c) the principles o f sentenc ing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement that the defen dant made on his own behalf; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 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
1 We note that the Defendant received pre-sentence jail credit and was incarcerated during the initial pendency of this appeal. According to Department of Correction records the Defendant was paroled on October 24, 1997. The Department’s records further reflect that a parole violation warrant was issued on November 10, 1997, and was served on the Defendant on February 20, 1998.
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that the trial court's findings of fact are adequately supported by the record, then we may not m odify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
W e believe the record is clear that the trial court failed to properly consider the statutory se ntencing principles and state them on the record. In imposing the sentence, the trial court referred to the fact that the Defendant had prior convictions, but did not further e laborate his sente ncing de cision oth er than to state that to even “think about” putting the Defedant on proba tion wa s “abs olutely ridiculous .” Therefore, we must we conduct a de novo review of the D efend ant’s sentence. The presentence report reflects that the Defend ant was thirty-five at the time of sentencing, divorced, with an eight-year-old daughter. He had not held steady employment for the past five years, but had worked as a female impersonator on a spora dic basis. He was currently a transsexual and was taking female hormones . He stated that he had a prescription drug addiction that began when he was a teenager. He had used Valium, pain pills, and alcoho l, and bing ed on c ocaine every cou ple of mo nths. He stated that he has had drug a nd alc ohol tre atme nt, as w ell as several psychiatric hospitalizations. The Defe ndan t’s prior convictions include the unlawful sale of liquor, two DUIs, driving without a license, and shoplifting.
Patric ia Cam pbell c omp leted a victim im pact s tatem ent in which she stated that she has had insomnia, headaches and recurring fear because of the crime. She missed twenty days of work. Her grandchildren have continued to ask why the crime occurred and have had nightmares about “nanny” being killed. The victim received some counseling regarding the offense.
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Pam ela Warden testified at the sentencing hearing that she would provide the Defendant a place to live and allow him to work for her as a housekeeper. She had know n the Defen dant for years and stated that he r childre n liked him well. The D efenda nt testified that, at the time of the robbery, he had a recent breakup, had only known Gribbin for a few days, and had just been released from a psychiatric hospital the week before. The Defendant testified regarding his se x- change process and his concerns about being incarcerated. He stated that he was currently in the Davids on Coun ty Criminal Justice Center in the Special Needs Facility. He te stified that he could no t go to the g ym for fea r of other inmates, and tha t two me n nearly fo rced him to perform ora l sex. He denied that he knew a bout the robbery in advanc e and s tated that h e felt remorseful about the crime. T he De fendan t admitte d that he fled to Florida when his last sentencing hearing was sch eduled , but return ed and turned h imself in. He initially denied a prior criminal record, but then admitted he had lied and that he had two DUIs.
Darw in Mitchell, an emp loyee from a D avidson Co unty correctional facility, testified that the Defendant could be housed in the Special Management area. The inmates there are locked down for twenty-two hours and are out for two hours, five days per week. Some cells house two persons, the others hold o nly one. Inmates who request special protection may be housed there. Mitche ll did not know of any inmates there who were transsexuals. The Special Needs unit provides care for those with m edica l proble ms. T he inm ates a re out o f their cells eight hours a day. Mitchell suggested that the Special Management segregation unit wou ld be app ropriate for the Defe ndant.
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The Defenda nt argues that a ppropriate m itigating circum stanc es in th is case are (a) That he played a minor role in the commission of the offense; and (b)that he was under great stress and the influence of drugs and alcohol when the crime was c omm itted. Tenn. Code Ann. § 40-35-113(4), (3). We find the argument for the app lication of factor (3) unconvincing. As for factor (4), one could consider that the Defendant remained in the c ar and did no t actua lly physic ally perform the act that constituted the aggravated robbery. However, the evidence also shows that the Defenda nt yelled “Hurry up!” to his accomplice as she robbed the victim. Moreover, when the Defendant was captured, he was holding the victim’s purse. The circumstances suggest that the Defendant was intima tely involved with the crime and we cannot conclude that it would be appropriate to a pply factor (4).
The State proposes the application of three enhancement factors: (a) That the Defendant has previous history of criminal convictions; (b) that the Defendant possessed or employed a firearm, explosive device, or other deadly weapon during the commission of the offense; and (c) that the Defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code A nn. § 40-35-1 14(1), (9), (10).
The record is clear that the Defendant has had several prior criminal convictions. Therefore, the applic ation o f this en hanc eme nt facto r is appropriate. Next, the State argues that factor (9), that the Defendant employed a weapon during the offense, should be applied. While it is true that a weapon was employed by his accomplice during the commission of the offense, there is no evidence that the “defendant possessed or em ployed” the knife. Tenn. Code
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Ann. § 40-35 -114(9). A s a result, fac tor (9) sho uld not be applied. Finally, the State contends that factor (10), that the Defendant had no hesitation about committing a crime when the risk to human life was high, may be applie d in this case. We agree. Here , the Defenda nt and his coh ort covertly observed, then followed the victim several miles to an apartment complex. In broad daylight, the Defendant urged on Ms. Gribbin to perpetrate the robbery using a knife, which she held to the victim’s thro at. Moreover, the victim’s young grandchildren were present and were also at risk of being harmed during the commission of the crime. The Defendant was convicted of simple robbery, thus, factor (10) is not precluded as being an eleme nt of the offe nse. See State v. Hicks, 868 S.W.2d 729, 73 2 (Ten n. Crim. A pp. 199 3). The refore, facto r (10) ma y be app lied.
The sentence range for a Range I offender for robbery, a Clas s C felony, is three (3) to (6) years. Tenn. Code Ann. § 40-35-101. While we recognize the seriousness of the offense committed, our de novo review of the record leads us to conclude that a sentence in the upper end of the range is warranted, but that the circumstances do not merit the maximum sentence in the range. From our de novo review and in consideration of enhancem ent factors (1) and (10), we modify th e Defe ndant’s s entenc e to five (5) ye ars.
Next, the Defendant argues that the trial court erred by denying probation or community corrections. Although probation "must be automatically considered as a sentencing option for eligible defendants, the defen dant is not au toma tically entitled to probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990) (Sentencing Com miss ion Co mm ents). T his Co urt mu st beg in its sentencing determination by reviewing the purposes of sentencing set forth in Tennessee
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Code Annotated section 40-35-102. State v. Davis , 940 S.W.2d 558,559 (Tenn. 1997).
If an accused has been convicted of a Class C, D or E felony and sentenced as an especially mitigated or standard offender, there is a presumption, rebuttable in nature, that the accused is a favorable candidate for alternative sentencing unless disqualified by some provision of the Tennessee Criminal Sentencing Reform Act of 1989. Tennessee Code Annotated section 40-35-1 02 provid es in part:
(5) In recognition that state prison capacities and the funds to build and main tain them are limited, convicted felons comm itting the most seve re offenses, possessing criminal histories evincing a clear disregard for the laws a nd m orals o f socie ty, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration; and
(6) A defendant who does not fall within the parameters of subdivision (5) and is an es pecia lly mitigate d or stan dard offe nder co nvicted of a Class C, D o r E felon y is presumed to be a favorable candidate for alternative senten cing options in the absence of evidence to the contrary.
The sentencing proce ss m ust ne cess arily commence with a determination of whether the accused is entitled to th e bene fit of the pres umptio n. Ashby, 823 S.W.2d at 169. As our supreme court said in Ashby: "If [the] de termin ation is favora ble to the defe ndant, the trial court m ust presu me tha t he is subject to alternative sentencing. If the court is presented with evidence sufficient to overcome the presumption, then it may sentence the defendant to confinement accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be found in app lying the cons ideratio ns tha t gover n sen tence s involving
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confinem ent, which are set forth in Tennessee Code Annotated section 40-35-103 (1):
(A) Conf inem ent is n eces sary to protec t socie ty by restraining a defend ant who has a lon g history of c riminal co nduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinem ent is particularly suited to provid e an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently b een ap plied uns uccess fully to the de fendan t.
In the case at bar, the De fendan t was convicted of the Class C felony of robbery, for which he is presumptively entitled to an alternative sentence. Howeve r, the record reflects that the trial judge was concerned with the Defe ndan t’s focus on his problems and a lack of consideration for the victim. Apparen tly, the trial court determ ined that c onfinem ent was neces sary to avoid depreciating the seriousness of the offense.
The potential or lack of potential for rehab ilitation o f a defe ndan t shou ld be considered in determining w hether he sh ould be gran ted an alternative sentence. Tenn . Code Ann. § 4 0-35-10 3(5). The record reflects that the Defendant failed to ap pear at h is first senten cing hea ring beca use he fled to Florida. Although he d id return to Tennessee, this behavior would certainly be sufficient to unde rmine th e trial court’s c onfiden ce in the D efenda nt’s ability to abide by the term s of an alte rnative se ntence . See State v. Williams, 914 S.W.2d 940, 950 (Tenn. Crim. App. 1995). Although Ms. Warden offered the Defendant a place to work and live , the D efend ant ha s had an un stable work history in the
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past and has had a long history of drug abuse and psychiatric problems that have not abated with treatment. Fina lly, the Defendant demonstrated a lack of candor while testifying at the sentencing hearing. The Defendant's lack of credibility and unwillingness to accept respons ibility for his crime reflect a dvers ely on h is rehab ilitation p otentia l. See State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). In light of the evidence in the record, we cannot conclude that the trial court erred by orderin g the De fendan t to serve his senten ce in con fineme nt.
The Community Corrections A ct allows ce rtain eligible o ffenders to particip ate in community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103 . A defendan t must first be a suitable candidate for alternative sentencing. If so, a defendant is then eligible for participation in a community corrections program if he also satisfies several minimum eligibility criteria set forth at Tennessee Code Annotated section 40-36-106(a). Because the Defendant has failed to establish tha t he is a qualified cand idate for alternative sentencing, he is not eligible for community corrections.
According ly, we affirm the judgment of the trial court ordering the Defendant to serve his sentence in confineme nt, but modify the se ntence to five years. This case is remanded to the trial court for entry of an order consistent with this opinion.
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DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JERRY L. SMITH, JUDGE
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THOMAS T. WOODALL, JUDGE