IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
MAY SESSION, 1999
FILED
August 6, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9806-CR-00166 Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, )
) SHELBY COUNTY
V. )
)
KAVIOUS L. NEWSOM and ) HON. CHRIS CRAFT, JUDGE SHANDRA WASHINGTON, )
)
Appellants. ) (THEFT OVER $1,000.00)
FOR THE APPELLANTS: FOR THE APPELLEE:
CHRISTINE D. WORLEY PAUL G. SUMMERS Attorney for Defendant Newsom Attorney General & Reporter 200 Jefferson Avenue, Suite 1313 Memphis, TN 38103 PATRICIA C. KUSSMANN Assistant Attorney General BILL AN DER SON , JR. 2nd Floor, Cordell Hull Building Attorney for Defendant Washington 425 Fifth Avenue North 142 North Third Street, Third Floor Nashville, TN 37243 Memphis, TN 38103 JOH N W. P IERO TTI
District Attorn ey Ge neral
DAN BYER
Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendants, Kavious L. Newsom and Shandra Washington, appeal as of
right from their se ntence s impo sed by th e Shelb y Coun ty Crimina l Court. Bo th Defen dants pled g uilty to the charge of theft over $1,000.00. Defendant Newsom petitioned the cour t for suspe nsion of h is sentence or place ment in comm unity corrections. Defendant Washington requested judicial diversion. At the sentencing hearing, the trial court denied any form of alternative sentencing for Defendant Newsom, instead s entenc ing him to serve two (2) years of incarceration. Defendant Washington was sentenced to serve three (3) years. Of this sentence, Washington was ordered to serve sixty (60) days incarceration on the weekends and was placed on probation by the trial court for two (2) ye ars. Both Defendants appeal the manner of service of their sentences. We affirm as to both Defendants.
When an accused challenges the length, range or the manner of service o f 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. § 40-35-40 1(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 circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
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 condu ct involved; (e) any statutory mitigating or enhancement factors; (f) any statem ent tha t the de fenda nt ma de on his
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own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. Code Ann. § § 40-35-1 02, -103 , and -21 0; see State v. S mith, 735 S.W.2d 859, 863 (T enn. Crim. A pp. 1987).
If our rev iew refle cts tha t the trial court followed the statutory sentencing procedure, impo sed a lawful s enten ce afte r havin g given due consideration and proper weight to the factors and principles set out u nder the sentencing law, and made finding s of fac t adeq uately supported by the record, then we may not mo dify the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
At the guilty plea hearing, the Assistant District Attorney announced the proof it would have presen ted had there be en a trial. The owners of the organization Pop Tunes became aware of substantial losses they had sustained. The owners hired private investigators to use surveillance cameras and to perform physical surveillance of the store to determine the source of the losses in the amount of $180,000.00. While conducting the surveillance, the investigators observed these Defendants involved in a joint effort to steal many compact discs from Pop Tunes.
The Defen dants requested a lternative sentencing. Minnie Patricia Newsom, Defendant New som ’s mo ther, tes tified on his behalf. Mrs. Newsom stated that she did not agree with the Defendant’s actions. The Defendant was em ployed w ith General Construction Company at the time of the hearing, attended Sunday School and helped to coach a baske tball progra m at a local high school. Because she has diabetes, Defendant Newsom assisted in caring for her. Mrs. Newsom was not
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aware of the amount or value of stolen compact discs the Defendant had stolen from Pop T unes.
Defendant Newsom testified that he was married and had two (2) children, one from a previous marriage. Newsom had been employed as a field supervisor for General Construction Contractors since August of 1996 at the time of the hearing. He was also enrolled at the Shelby State Community College in pursuit of his respiratory therapy license. Defendant Newsom denied using drugs. He admitted to consuming alcohol, but only on special occasions. Newsom acknowledged his prio r felony drug c onvictio n in 19 91. He served a sen tence of split confinement involving four (4) months of incarceration, followed by probation. He also admitted having pending charges for driving on a revoked license, but stated that he no w had a valid driver’s lice nse.
Defendant News om de scribed h is actions in this theft as “just bad ju dgme nt.”
Defendant was not an employee of Pop Tunes, but his girlfriend, Defendant Washington, was the store manager. Newsom estimated that he had stolen compact discs from the store on approximately three (3) or four (4) occasions, taking an average of three (3 ) to five (5) discs each tim e. Howeve r, Newsom admitted that on the last occasion during which he was caught by the investigators, he had taken many more th an three (3) to five (5) dis cs. Newsom explained that he took so many more on tha t occa sion b ecau se it wa s Defe ndan t W ashin gton’s last nig ht work ing at Pop Tunes. He described that on the evening he was caught by the investigators, he walked throughout the store, picked up discs off the racks, and then took them to the counter. Defendant Washington then removed the security wrapping and put them in a box. After the box was full, Newsom exited the store with th e box. He
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would not state how many discs were stolen that night. Newsom stated that he was willing to do whatever it took to conform to any terms of probation imposed.
Defendant Washington did not present any evidence at the sentencing hearing.
The trial court stated that D efend ant “jus t shou ld have know n bette r. He’s already had an alternative sentence.” In reviewing the factors of probation, the trial court found that Defendant basically went through the store choosing which compact discs he wanted to steal and then took them. In reviewing De fenda nt Ne wsom ’s prior criminal history, he found that Defendant had either sold or possessed drugs with the intent to sell before and was given the oppo rtunity for an alternative sentence on that c harge. In addition, Defendant Newsom had been arrested for driving on a revoked licens e and onc e for failure to pay patern ity support. The court stated it could not find that Defendant might “reasonably expect to be s ucce ssfully rehab ilitated a lready beca use a ppare ntly jail did n’t mean that mu ch to him the first time. He just didn’t get the point. He didn’t, quote, learn his lesson, unquote.” In addition, the trial court found that the society had an interest in being protected from future crim inal cond uct by De fendan t News om.
It is correct that the trial court stated during its ruling that an important factor in denyin g an alternative sentence was that measures less restrictive than confinement had recen tly and frequently been applied unsuccessfully to the Defen dant. Since the previous conviction of Defendant N ewsom was in 1991, we are unable to agree that a sentence less restrictive th an co nfirme nt had “recen tly and frequently” been applied unsuccessfully to the Defendant. However, the trial
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court also noted that the Defenda nt was previous ly allowed to serve only a portion of his previou s senten ce by inca rceration , and that h e, neverth eless, contin ued to com mit crimes, i.e . theft of the m usical co mpac t discs. The trial court w as ob viously conce rned with the “callou s and o pen” na ture of the th eft in the pre sent cha rges.
The trial court went on to ob serve that while he could not completely put the loss upon the shoulders of Defendant Newsom as he was not an employee of the store, Defendant, “without any regards for it at all . . . stole thousands of dollars from this comp any. Th at’s the pro blem. I do n’t -- I just don’t se e that he’s repe nted.” Finally, the trial court found as relevant the fact that Defendant Newsom had two (2) homes, one (1) of which he had $40,000.00 equity, and was driving two (2) nice automobiles (a 1993 Le xus and a 1 996 Che vrolet Tahoe ). The court noted that Defendant and his w ife were employed and were able to provide for themselves, and that therefore, this was “an absolutely useless, needless crime, and the only thing I know to do it just to m ake h im serve it.” The trial court found that the presumption of alternative sentencing was overcome because the Defendant Newsom had an alternative senten ce previo usly and it did not wo rk. See Tenn. Code Ann. § 40-35- 102(5).
Defendant Newsom argues that this co urt shou ld review his sentence de novo without a presumption of correctness. W hile he correctly notes that the trial court made several misstatements regarding the facts of the case and his prior criminal record, the trial court la ter corr ected hims elf on th ese m isstate men ts and did no t rely on any incorrect facts in determining Defenda nt’s sentence. R ather, the trial court determined the presumption in favor of alternative sentencing was overcome prima rily beca use m easu res les s restric tive than confin ement had recently been
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applied unsu cces sfully to Defendant Newsom. Defendant Newsom ’s presentence report reflects that he was convic ted of a drug o ffense , but tha t convic tion wa s six (6) years prior to this offense. He served four (4) months in prison, with the remainder of his three (3) year se ntence for the dru g convictio n on pro bation. As stated above , we fail to find tha t this previous instance of alternative sentencing was either frequently or recently applied as related to his current conviction. In addition, there was no specific proof of deterrence within the jurisdiction which the trial court could have relied upon as a factor overshadowing Defendant Newsom’s presu mptio n for an alterna tive senten ce. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995 ) (citation s om itted). T herefo re, our review of Def enda nt Ne wsom ’s sentence is de novo without a presumption of correctness.
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 morals of society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding sentences involving incarcer ation.” Tenn. Code Ann. § 4 0-35-10 2(5). Th us, a defe ndant s entenc ed to eight (8) years or less who is not an offender for who m inc arcera tion 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 en titled to such relief; rather, it requires that sentencing issues be determined by the facts and circu mstan ces pre sented in each c ase. See State v. Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).
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Defendant argues the trial court erred in refusing to sentence him to an alternative senten ce und er the Co mm unity Cor rections A ct. The C omm unity Corrections Act allows certain eligib le offende rs to participate in community-based alternatives to incarceration. Tenn. Code Ann. § 40-36-103. A defendant must first be a suitab le can didate for altern ative se ntenc ing. If so , a defe ndan t 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). The statute provides that the criteria shall be interpreted as minimum standards to guide a trial court’s determination of whether that offe nder is eligible for comm unity corre ctions. Te nn. Co de Ann . § 40-36 -106(d).
Under the statutory guidelines, Defe ndant is an eligible candidate for comm unity corrections. He was convicted of a property-related felony offense which was ne ither violent n or involved a crime against a person . Tenn. Code Ann. § 40- 36-106(a)(2) and (3). In addition, Defendant did not possess a weapon, and he has not demonstrated a present or past pattern of committing violent offenses. Tenn. Code Ann. § 40-36-106(a)(4), (5) and (6). Defendant’s presentence report indicated he was a favorable candidate for the community corrections program. In addition, Defendant’s emplo ymen t history dem onstrate d his willingn ess to wo rk and to contribute to society. He has continued his education an d supports h is family. Howeve r, after our review of the entire recor d in this cas e, we are constrain ed to agree with the trial court that D efenda nt New som h as sho wn a failure of past effo rts at rehabilitation, and should be given a first priority regarding a sentence involving incarceration. This being the case, Defendant is no longer presumed to be a favorable candidate for alternative sentencing options. Tenn. Code Ann. § 40-35- 102(5) and (6).
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In regards to sentencing Defendant Washington, the trial court found that two (2) enhancement factors applied. First, the Defendant Washington was a lead er in the comm ission of an offens e involving two (2) or m ore criminal actors, to which he gave great we ight. See Tenn. Code Ann. § 40 -35-114(2). In ad dition, the court noted that Defendant Washington abused a positio n of pu blic or private trust in that she was the store’s manager and was allowing p eople to s teal from the store. See Tenn. Code Ann. § 40-35-114(15). As the trial court aptly noted, Defendant Washington was being paid by the company not to allow this s ort of even t to occur, but was instead doing it herself by allowing her boyfriend and others to take thousands of dolla rs wort h of m ercha ndise . The tr ial cou rt noted that this criminal activity occurred over a period of months, and was not a one-time occurrence. The continuing nature of the offen se was pa rticularly disturbing to the trial cou rt. In addition, the amount of property dam age to the victim w as particularly great. Fina lly, the deterrence value was considered as “enorm ous” to the trial c ourt in th at if peo ple knew that a manager of a store allowed systematic theft from the store and was then allowed to have her offense erased from her record, that it would be devastating to comp anies in th e com munity.
The trial court gave great weight to the first two (2) enhancement factors and sentenced her to three (3) years. However, looking at the presumption for an alternative sentence, the trial court placed Defendant Washington on two (2) years of proba tion afte r she c omp leted service of sixty (60) days of her sentence on the weekends. Because there was not an exact amount proven for restitution to the victim, the trial court did not require restitution as a condition of her sentence.
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Defendant Washington argues the trial cou rt erred in refusing to grant judicial diversion. The question of wheth er or no t to gran t judicia l diversio n is with in the trial court’s discretion; this court will not interfere with the trial court’s den ial if there is “any substantial evidence to sup port the refusal con tained in the reco rd.” State v. Bonestel, 871 S.W .2d 163, 168 (Tenn. Crim . App. 1993 ) (citation omitted). The guidelines applicable in probation cases are applicable in diversion cases. They are, however, more stringently applied in diversion cases. State v. Holland, 661 S.W.2d 91, 93 (T enn. C rim. App . 1983).
Based upon the findings of the trial court and the record, we find that the trial court did not abuse its discretion in denying Defendant W ashington judicial diversion. The record supports the trial court’s findings that allowing judicial diversion would not properly re flect the se riousne ss of this offe nse. Defen dant, entrusted as manager of Pop T unes , system atically allowed others to steal from the store resulting in a loss of great value to that store. While Defendant Washington may not have a prior criminal record, there is som e proof in the reco rd that she led others to commit these offenses. Both th e circu msta nces of this o ffense and th e bes t interes t of the p ublic do not favor judicial diversion for Defendant Newsom. Defendant’s sentence of three (3) years, with o nly sixty (60) days of incarceration to be served on weekends, is an appropriate alternative sentence in the case sub judice, and the trial cou rt did not abu se its discre tion in den ying judicia l diversion.
C ONCLUSION
Based upon our rev iew of th e reco rd, brief s of the parties , and th e app licable law, we affirm the judgments of the trial court as to both Defendants.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
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JOHN H. PEAY, Judge
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JOE G. RILEY, Judge