State v. Long

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 29, 1998
• Docket: 03C01-9707-CR-00260
• Status: Published

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE July 29, 1998 MAY 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9707-CR-00260 ) vs. ) Sullivan County ) GERALD SCOTT LONG, ) Hon. R. Jerry Beck, Judge ) Appellant. ) (Sentencing) )

FOR THE APPELLANT: FOR THE APPELLEE:

CARY TAYLOR JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 547 E. Sullivan St. Kingsport, TN 37660 TODD R. KELLEY Asst. Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493

H. GREELEY WELLS, JR. District Attorney General

GREG NEWMAN Asst. District Attorney General P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:________________

AFFIRMED AND REMANDED

CURWOOD WITT, JUDGE OPINION

The defendant, Gerald Scott Long, appeals the manner of service of

his concurrent eleven month, 29 day sentences for his misdemeanor convictions of

casual exchange and reckless endangerment. The length of Long's sentences were

agreed upon as part of a guilty plea settlement, and the manner of service was left

for determination by the Sullivan County Criminal Court. Following a hearing, the

court denied alternative sentencing and ordered Long to serve his sentences in the

county jail.1 In this direct appeal, Long claims he should have received probation

or some other form of alternative sentencing. Following a review of the record, we

affirm the judgment of the trial court insofar as sentencing is concerned. However,

we remand this matter to the trial court for correction of an error on the judgment

form in case S37,948.

I

In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). This presumption is "conditioned upon the 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

our de novo review, we must consider the evidence at sentencing, the presentence

report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any mitigating and

enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code

Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal,

the appellant has the burden of showing that the sentence imposed is improper.

1 The court imposed 0% minimum service prior to work release and 30% minimum service prior to release.

2 Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby,

823 S.W.2d at 169.

We find that the trial court sentenced the defendant in accord with the

statutory framework; therefore, its determination is entitled to the presumption of

correctness.

At the sentencing hearing, the entirety of the evidence consisted of the

presentence report and a stipulation of the defendant's work history. The record

reflects that the defendant is a 27 year old single father of two children. The record

does not reflect whether he is the custodial parent of either of his children. He had

been employed until he lost his job as a result of being indicted for the instant

offenses. Thereafter, he became self-employed. He has a lengthy history of what

the trial court characterized as "petty" offenses spanning the twelve years prior to

the instant offenses. Notably, he has been given past chances to rehabilitate

himself through probation, drug treatment, shock incarceration, and the like, yet he

has continued to disregard the law. The defendant's criminal history is notable for

numerous previous speeding convictions, a reckless endangerment conviction and

a reckless driving conviction. According to the officer's statement in the

presentence report, the instant reckless endangerment charge arose from

dangerous driving and excessive speed. The defendant left the roadway, almost

hitting telephone poles. He disregarded traffic controls. The officer pursued the

defendant at speeds reaching 113 miles per hour and ultimately discontinued the

pursuit due to the defendant's dangerous actions. The defendant's criminal history

also included a violent offense. Two officers from the police department opposed

probation for the defendant because they believed the defendant was a major drug

dealer in Kingsport and because the defendant was not truthful after his arrest. One

of the officers also reported that the defendant was not cooperative after his arrest.

3 In finding the defendant an unsuitable candidate for alternative

sentencing, the trial court relied upon his past criminal history and the failure of less

restrictive and rehabilitation-oriented sentencing imposed for prior offenses. See

Tenn. Code Ann. § 40-35-103(1)(A), (1)(C), (5) (1997). The court found these

considerations weighty in comparison to favorable evidence of the defendant's good

work history. Moreover, the court apparently considered the defendant's concern

that he needed to be able to run his businesses so that he could support his

children because the court imposed 0% service prior to eligibility for work release.

In attempting to meet his appellate burden, Long conclusorily argues

that the "denial of probation makes no sense and is inconsistent with the overall

policy" of the Sentencing Act. He further claims that the "proof summarized by

counsel and the objective criteria . . . favors, if not presumes, a granting of probation

or alternative sentencing in this case." He offers no specifics pertinent to his case

to support these arguments. Further, he claims that a denial of probation should be

reversed upon a showing that the defendant is not a first priority for incarceration

under Code section 40-35-102(5), has not been the subject of failed rehabilitative

measures, is not a violent criminal, and shows potential for rehabilitation; however,

the record demonstrates that this defendant is not such an individual. Simply put,

we are unpersuaded by the defendant's arguments. He has failed to carry his

burden of showing that the manner of service imposed by the trial court is improper.

See Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997);

Ashby, 823 S.W.2d at 169.

II

Our review of the record has revealed an irregularity on the judgment

form for the casual exchange conviction, case number S37,948. The conviction is

4 classified on the judgment form as a Class C misdemeanor; however, casual

exchange is a Class A misdemeanor unless aggravating circumstances are present

to elevate it to felony classification. See Tenn. Code Ann. § 39-17-418 (1997). This

irregularity must be corrected by the trial court.

Accordingly, we affirm the trial court's sentencing determination and

remand this matter to the trial court for correction of the judgment form in case

number S37,948.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOE G. RILEY, JUDGE