IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1998 FILED March 12, 1999
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9801-CR-00024 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge KEVIN S. PHILLIPS, ) ) (Reckless Aggravated Assault) Appellant )
For the Appellant: For the Appellee:
Nat H. Thomas John Knox Walkup 317 Shelby Street Attorney General and Reporter Suite 304 Kingsport, TN 37660 R. Stephen Jobe Assistant Attorney General and Criminal Justice Division 425 Fifth Avenue North Daniel B. Minor 2d Floor, Cordell Hull Building 247 Broad Street Nashville, TN 37243-0493 Suite 102 Kingsport, TN 37660 H. Greeley Wells, Jr. District Attorney General
Lewis Combs Asst. District Attorney General Blountville, TN 37617
OPINION FILED:
CONVICTION AFFIRMED; SENTENCE MODIFIED
David G. Hayes Judge OPINION
The defendant, Kevin S. Phillips, entered a nolo contendere plea to one
count of reckless aggravated assault, a class D felony. 1 Pursuant to the plea
agreement, he received a sentence of two years. Following a sentencing hearing,
the trial court ordered that the sentence be served in the Department of Correction.
The defendant appeals, contending that the trial court erred in failing to grant
probation or another sentencing alternative.
After review, we modify the sentence to reflect a sentence of split-
confinement.
BACKGROUND
The trial court's summarization of the nature and circumstances of the
offense as contained in its Order Denying Alternative Sentencing is recited as
follows:
The defendants, Phillips and Clark, on the evening of November 9, 1995, had been drinking and while traveling in an automobile on East Stone Drive in Kingsport, Sullivan County, Tennessee struck an automobile driven by Ms. Etta Luster.
A violent collision occurred and Etta Luster was seriously injured. . . .
When Kingsport Police Officer, Dion Spriggs, arrived at the scene of the accident, he talked with both defendants. Both subjects advised the police officer that the ". . . other subject was driving the vehicle. . . ." . . . Originally, the owner of the vehicle, Brian Clark, was charged. . . . Kevin Phillips was not charged.
Police Officer Spriggs did obtain hair samples embedded in the broken windshield of Clark's vehicle. The sample was removed from the portion of the windshield located directly in front of the steering wheel on the driver's side. Both defendants had frontal head injuries. . . .
1 The record provides no explanation as to why the defendant, who was indicted for vehicular assault, Tenn. Code Ann. § 39-13-106 (1991), was permitted to plead to the non lesser offense of aggravated as sault. Tenn. Code Ann. § 39-1 3-102(a)(2) (1995 Supp.).
2 The [co-]defendant Clark consistently stated he was not the driver of the car.[2]
At the preliminary hearing, Clark agreed to furnish saliva for DNA testing, but Phillips refused. . . .
The DNA test, to a high statistical probability, eliminated the [co-] defendant, Brian Clark, as source of the hair found imbedded in the driver's side windshield.
The Court was of the opinion that the DNA test eliminated Clark as the driver and would be strongly indicative that the defendant, Phillips, was the driver.[3]
It was revealed further at the sentencing hearing that Phillips had sued Clark on the theory that Clark was the driver in a civil tort action.
Clark testified that after the accident he had talked to Phillips and Phillips made admission to him stating that it was Phillips' family that was pushing the theory that Clark was driving. Phillips denied, in his testimony, that he made such admissions.
At the sentencing hearing, the proof further established that the defendant,
Phillips, was twenty-five years old, single and lived with his parents. He was
employed although his "employment record shows a lack of discipline." He has no
criminal history other than a conviction for fishing without a license.
At the conclusion of the hearing, the trial court granted co-defendant Clark
total probation and ordered penitentiary confinement for the defendant, Phillips. In
denying an alternative sentence, the trial court noted the defendant's eligibility for
alternative sentencing finding, however, that:
The defendant [Phillips] has been untruthful upon the issue of who was driving the vehicle and was untruthful concerning that issue before the Court on January 15, 1998. This Court is of the strong opinion that this negative factor outweighs all the positive factors combined.
2 At the hospital, the defendant, Phillips, advised personnel that he "didn't know if [he] was driving or not." Approximately four or five months later, it became clear to Phillips that he was not the driver.
3 As it became apparent that Clark and Phillips were at opposite poles, the court allowed Phillips' attorney to fully cross-examine Clark's witnesses and clearly advised Phillips' attorney of his rights in the action.
3 ANALYSIS
Again, the appellant contests the trial court’s denial of any alternative
sentence. In the present case, the trial court essentially imposed a sentence of
confinement based upon the appellant’s “lack of candor” at the sentencing hearing.
It is apparent that our Sentencing Act has framed the basis of individual
alternative sentencing determinations on the defendant’s potential for rehabilitation.
In this context, the truthfulness of the defendant becomes an important
consideration for the trial court. State v. Dowdy, 894 S.W.2d 301, 305-306 (Tenn.
Crim. App. 1994). Indeed, Tenn. Code Ann. § 40-35-103(5) (1990) provides that the
potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to
be imposed. Consequently, this court has routinely held that "untruthfulness" or
“lack of candor” can be the basis for a denial of total probation. See Dowdy, 894
S.W.2d at 305; State v. Chrisman, 885 S.W.2d 834, 940 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1994); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim.
App. 1992). Additionally, this court has upheld the denial of judicial diversion on the
basis of untruthfulness. See State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim.
App. 1992). The question before us in this case, however, is whether a defendant's
"untruthfulness" may per se warrant a denial of all alternative sentencing options,
thus, resulting in a sentence of total confinement. We hold that it will not.
When imposing a sentence of total confinement, the trial court should base
its decision on the considerations listed in Tenn. Code Ann. § 40-35-103(1):
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1998 FILED March 12, 1999
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9801-CR-00024 Appellee ) ) SULLIVAN COUNTY vs. ) ) Hon. R. Jerry Beck, Judge KEVIN S. PHILLIPS, ) ) (Reckless Aggravated Assault) Appellant )
For the Appellant: For the Appellee:
Nat H. Thomas John Knox Walkup 317 Shelby Street Attorney General and Reporter Suite 304 Kingsport, TN 37660 R. Stephen Jobe Assistant Attorney General and Criminal Justice Division 425 Fifth Avenue North Daniel B. Minor 2d Floor, Cordell Hull Building 247 Broad Street Nashville, TN 37243-0493 Suite 102 Kingsport, TN 37660 H. Greeley Wells, Jr. District Attorney General
Lewis Combs Asst. District Attorney General Blountville, TN 37617
OPINION FILED:
CONVICTION AFFIRMED; SENTENCE MODIFIED
David G. Hayes Judge OPINION
The defendant, Kevin S. Phillips, entered a nolo contendere plea to one
count of reckless aggravated assault, a class D felony. 1 Pursuant to the plea
agreement, he received a sentence of two years. Following a sentencing hearing,
the trial court ordered that the sentence be served in the Department of Correction.
The defendant appeals, contending that the trial court erred in failing to grant
probation or another sentencing alternative.
After review, we modify the sentence to reflect a sentence of split-
confinement.
BACKGROUND
The trial court's summarization of the nature and circumstances of the
offense as contained in its Order Denying Alternative Sentencing is recited as
follows:
The defendants, Phillips and Clark, on the evening of November 9, 1995, had been drinking and while traveling in an automobile on East Stone Drive in Kingsport, Sullivan County, Tennessee struck an automobile driven by Ms. Etta Luster.
A violent collision occurred and Etta Luster was seriously injured. . . .
When Kingsport Police Officer, Dion Spriggs, arrived at the scene of the accident, he talked with both defendants. Both subjects advised the police officer that the ". . . other subject was driving the vehicle. . . ." . . . Originally, the owner of the vehicle, Brian Clark, was charged. . . . Kevin Phillips was not charged.
Police Officer Spriggs did obtain hair samples embedded in the broken windshield of Clark's vehicle. The sample was removed from the portion of the windshield located directly in front of the steering wheel on the driver's side. Both defendants had frontal head injuries. . . .
1 The record provides no explanation as to why the defendant, who was indicted for vehicular assault, Tenn. Code Ann. § 39-13-106 (1991), was permitted to plead to the non lesser offense of aggravated as sault. Tenn. Code Ann. § 39-1 3-102(a)(2) (1995 Supp.).
2 The [co-]defendant Clark consistently stated he was not the driver of the car.[2]
At the preliminary hearing, Clark agreed to furnish saliva for DNA testing, but Phillips refused. . . .
The DNA test, to a high statistical probability, eliminated the [co-] defendant, Brian Clark, as source of the hair found imbedded in the driver's side windshield.
The Court was of the opinion that the DNA test eliminated Clark as the driver and would be strongly indicative that the defendant, Phillips, was the driver.[3]
It was revealed further at the sentencing hearing that Phillips had sued Clark on the theory that Clark was the driver in a civil tort action.
Clark testified that after the accident he had talked to Phillips and Phillips made admission to him stating that it was Phillips' family that was pushing the theory that Clark was driving. Phillips denied, in his testimony, that he made such admissions.
At the sentencing hearing, the proof further established that the defendant,
Phillips, was twenty-five years old, single and lived with his parents. He was
employed although his "employment record shows a lack of discipline." He has no
criminal history other than a conviction for fishing without a license.
At the conclusion of the hearing, the trial court granted co-defendant Clark
total probation and ordered penitentiary confinement for the defendant, Phillips. In
denying an alternative sentence, the trial court noted the defendant's eligibility for
alternative sentencing finding, however, that:
The defendant [Phillips] has been untruthful upon the issue of who was driving the vehicle and was untruthful concerning that issue before the Court on January 15, 1998. This Court is of the strong opinion that this negative factor outweighs all the positive factors combined.
2 At the hospital, the defendant, Phillips, advised personnel that he "didn't know if [he] was driving or not." Approximately four or five months later, it became clear to Phillips that he was not the driver.
3 As it became apparent that Clark and Phillips were at opposite poles, the court allowed Phillips' attorney to fully cross-examine Clark's witnesses and clearly advised Phillips' attorney of his rights in the action.
3 ANALYSIS
Again, the appellant contests the trial court’s denial of any alternative
sentence. In the present case, the trial court essentially imposed a sentence of
confinement based upon the appellant’s “lack of candor” at the sentencing hearing.
It is apparent that our Sentencing Act has framed the basis of individual
alternative sentencing determinations on the defendant’s potential for rehabilitation.
In this context, the truthfulness of the defendant becomes an important
consideration for the trial court. State v. Dowdy, 894 S.W.2d 301, 305-306 (Tenn.
Crim. App. 1994). Indeed, Tenn. Code Ann. § 40-35-103(5) (1990) provides that the
potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to
be imposed. Consequently, this court has routinely held that "untruthfulness" or
“lack of candor” can be the basis for a denial of total probation. See Dowdy, 894
S.W.2d at 305; State v. Chrisman, 885 S.W.2d 834, 940 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1994); State v. Gennoe, 851 S.W.2d 833, 837 (Tenn. Crim.
App. 1992). Additionally, this court has upheld the denial of judicial diversion on the
basis of untruthfulness. See State v. Anderson, 857 S.W.2d 571, 574 (Tenn. Crim.
App. 1992). The question before us in this case, however, is whether a defendant's
"untruthfulness" may per se warrant a denial of all alternative sentencing options,
thus, resulting in a sentence of total confinement. We hold that it will not.
When imposing a sentence of total confinement, the trial court should base
its decision on the considerations listed in Tenn. Code Ann. § 40-35-103(1):
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary 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) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
4 In the present case, the defendant has, in effect, no criminal record. Thus,
we only need to consider evidence showing that confinement is necessary to avoid
depreciating the seriousness of the offense or necessary to provide a deterrent to
others. See Tenn. Code Ann. § 40-35-103(1)(B). There was no evidence
presented at the sentencing hearing supporting the need to deter others likely to
commit a similar offense, thus deterrence is not applicable to this case. See State
v. Bonestel, 871 S.W.2d 163, 169 (Tenn.Crim.App.1993) (holding that there must be
evidence in the record that the sentence imposed will have a deterrent effect within
the jurisdiction).
Additionally, to deny alternative sentencing based upon the seriousness of
the offense, the "'circumstances of the offense must be especially violent, horrifying,
shocking, reprehensible, offensive, or otherwise of an excessive or exaggerated
degree,'" and the nature of the offense must outweigh all factors favoring a sentence
other than confinement. State v. Bingham, 910 S.W.2d 448, 454
(Tenn.Crim.App.1995) (citing State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim.
App. 1991)). Although the circumstances of the present case demonstrate the
appellant's callous indifference to the safety of motorists and pedestrians alike on
the night of November 9, 1995, we are unable to conclude that the circumstances
of this offense are especially violent, horrifying, shocking or reprehensible. Indeed,
again, we note that the trial court's only finding of reprehensible conduct related to
the defendant's untruthfulness at sentencing and not to the "circumstances" of the
aggravated assault. Having so concluded, we find no facts to support total
confinement pursuant to the sentencing considerations of section 103.
In conclusion, we agree with the trial court's finding that the defendant's
untruthfulness to the police and to the court is reprehensible. The defendant's
unwillingness to accept responsibility for his involvement in the offense is a
5 circumstance which is relevant in determining his rehabilitative potential. As such,
we also agree with the trial court that the sentencing alternatives of judicial diversion
and total probation are not warranted under these facts. However, it is clear from
the plain language of Tenn. Code Ann. § 40-35-103 that the untruthfulness of the
defendant is relevant "in determining the sentence alternative" and not as authority
to deny all forms of alternatives to incarceration.4 Thus, we conclude, upon de novo
review of the record before us, that a sentence of split confinement would both
serve the ends of justice and fulfill the rehabilitative needs of the appellant.
Accordingly, the appellant's sentence of two years is modified to reflect that he will
be required to serve sixty days in jail followed by two years of supervised probation.
This case is remanded for entry of a judgment of conviction consistent with
this opinion and for imposition of other conditions and terms of supervision the trial
court deems appropriate as defined by Tenn. Code Ann. § 40-35-303.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
__________________________________ JERRY L. SMITH, Judge
__________________________________ JAMES CURWOOD WITT, JR., Judge
4 “In co nsid ering false testim ony of a def end ant in the s ente ncin g pro ces s, the trial co urt is therefore exercising its traditional discretion by evaluating the defendant's personality and prospe cts for reh abilitation. See Williams, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). It is through this evaluation that the trial court, pursuant to Tenn. Code Ann. § 40-35- 103(5), can determ ine the appropriate alternative sentence for each defendant.” Dowdy, 894 S.W.2d at 306.