IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED OCTOBER 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9710-CC-00446 February 17, 1999 Appellee, * BLOUNT COUNTY
VS. * Hon. D. Kelly Thomas, Jr., Judge Cecil Crowson, Jr. MARTY THATCHER, * (Aggravated Assault) Appellate C ourt Clerk
Appellant. *
For Appellant: For Appellee:
Gregory D. Smith John Knox Walkup Contract Appellate Defender Attorney General & Reporter One Public Square, Ste. 321 Clarksville, TN 37040 Clinton J. Morgan Assistant Attorney General Shawn Graham Criminal Justice Division Assistant Public Defender 2d Floor, Cordell Hull Building 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243-0493
Tammy Harrington Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Marty Thatcher, was convicted in a bench trial of
aggravated assault. The trial court imposed a Range I, four-year sentence,
suspended after service of seven months in the county jail, and declared the
defendant eligible for work release. The issues on appeal are whether the trial court
erred by ordering the defendant to serve a portion of his term in custody or erred by
denying community corrections. We find no error and affirm the judgment of the trial
court.
On January 1, 1997, the victim, Fred Carson, was outside his
residence visiting with a friend when the defendant appeared carrying a shotgun.
An argument ensued and the defendant aimed his shotgun at the top of the victim's
foot, placed his hand on the trigger, and threatened to shoot off the foot of the
victim.
At the sentencing hearing, the defendant, thirty-nine years old and
employed as a concrete finisher, testified that he had experienced a lengthy term of
unemployment and acknowledged having a serious drinking problem. He stated
that he began drinking when he was nine years old and typically consumed a
twelve-pack per day. While confirming that he had never received any type of
treatment, the defendant conceded that he had forty-six prior convictions for public
intoxication and one prior conviction for disorderly conduct. The defendant had
served thirty days in the Blount County jail for one of the public intoxication
convictions.
In imposing the sentence, the trial judge stated as follows:
A four-year sentence is imposed. ... You will be sentenced to split confinement of seven months in the
2 jail, and the balance on intensive probation. And that will begin with inpatient drug and alcohol treatment, and then outpatient treatment will be a condition of your probation after you complete the inpatient program. ... You will be eligible for work release while you're in jail. ... I think without a felony history that he is an appropriate person for an alternative sentence. ... But I do think that the seriousness of this offense would be greatly depreciated if he did not serve a pretty significant time in the jail. Guns and alcohol [are] not a good mixture. ... His chances of rehabilitation ... are very poor, if he doesn't get alcohol treatment.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 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); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence received at the trial
and sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and the arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancing factors; (6) any
statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
3 social history and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. §
40-35-102(6). With certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b). The ultimate
burden of establishing suitability for probation, however, is still upon the defendant.
Tenn. Code Ann. § 40-35-303(b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). In the words of the late Judge Joe B. Jones, "[e]ach case must be bottomed
upon its own facts." State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App 1987).
In our view, the defendant's prior record suggests that a term of
incarceration is entirely appropriate. While his prior criminal behavior appears to be
the product of alcoholism, the defendant has never sought treatment for his
condition. That indicates a lack of amenability to rehabilitation. Moreover, the
mixing of alcohol and weapons is a particularly dangerous combination. Grear, 568
S.W.2d at 286. The trial court carefully crafted a sentence that will provide the
defendant the opportunity to receive treatment for his alcoholism while allowing him
to continue his employment.
The defendant also complains that the trial court did not appropriately
4 consider a community corrections sentence. The purpose of the Community
Corrections Act of 1985 was to provide an alternative means of punishment for
"selected, nonviolent felony offenders in front-end community based alternatives to
incarceration." Tenn. Code Ann. § 40-36-103(a). A community corrections
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED OCTOBER 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9710-CC-00446 February 17, 1999 Appellee, * BLOUNT COUNTY
VS. * Hon. D. Kelly Thomas, Jr., Judge Cecil Crowson, Jr. MARTY THATCHER, * (Aggravated Assault) Appellate C ourt Clerk
Appellant. *
For Appellant: For Appellee:
Gregory D. Smith John Knox Walkup Contract Appellate Defender Attorney General & Reporter One Public Square, Ste. 321 Clarksville, TN 37040 Clinton J. Morgan Assistant Attorney General Shawn Graham Criminal Justice Division Assistant Public Defender 2d Floor, Cordell Hull Building 419 High Street 425 Fifth Avenue North Maryville, TN 37804 Nashville, TN 37243-0493
Tammy Harrington Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE OPINION
The defendant, Marty Thatcher, was convicted in a bench trial of
aggravated assault. The trial court imposed a Range I, four-year sentence,
suspended after service of seven months in the county jail, and declared the
defendant eligible for work release. The issues on appeal are whether the trial court
erred by ordering the defendant to serve a portion of his term in custody or erred by
denying community corrections. We find no error and affirm the judgment of the trial
court.
On January 1, 1997, the victim, Fred Carson, was outside his
residence visiting with a friend when the defendant appeared carrying a shotgun.
An argument ensued and the defendant aimed his shotgun at the top of the victim's
foot, placed his hand on the trigger, and threatened to shoot off the foot of the
victim.
At the sentencing hearing, the defendant, thirty-nine years old and
employed as a concrete finisher, testified that he had experienced a lengthy term of
unemployment and acknowledged having a serious drinking problem. He stated
that he began drinking when he was nine years old and typically consumed a
twelve-pack per day. While confirming that he had never received any type of
treatment, the defendant conceded that he had forty-six prior convictions for public
intoxication and one prior conviction for disorderly conduct. The defendant had
served thirty days in the Blount County jail for one of the public intoxication
convictions.
In imposing the sentence, the trial judge stated as follows:
A four-year sentence is imposed. ... You will be sentenced to split confinement of seven months in the
2 jail, and the balance on intensive probation. And that will begin with inpatient drug and alcohol treatment, and then outpatient treatment will be a condition of your probation after you complete the inpatient program. ... You will be eligible for work release while you're in jail. ... I think without a felony history that he is an appropriate person for an alternative sentence. ... But I do think that the seriousness of this offense would be greatly depreciated if he did not serve a pretty significant time in the jail. Guns and alcohol [are] not a good mixture. ... His chances of rehabilitation ... are very poor, if he doesn't get alcohol treatment.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review 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 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); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
Our review requires an analysis of (1) the evidence received at the trial
and sentencing hearing; (2) the presentence report; (3) the principles of sentencing
and the arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancing factors; (6) any
statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
3 social history and present condition, and the deterrent effect upon and best interest
of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).
Especially mitigated or standard offenders convicted of Class C, D, or
E felonies are presumed to be favorable candidates "for alternative sentencing
options in the absence of evidence to the contrary." Tenn. Code Ann. §
40-35-102(6). With certain statutory exceptions, none of which apply here,
probation must be automatically considered by the trial court if the sentence
imposed is eight years or less. Tenn. Code Ann. § 40-35-303(a), (b). The ultimate
burden of establishing suitability for probation, however, is still upon the defendant.
Tenn. Code Ann. § 40-35-303(b).
Alternative sentencing issues must be determined by the facts and
circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986). In the words of the late Judge Joe B. Jones, "[e]ach case must be bottomed
upon its own facts." State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App 1987).
In our view, the defendant's prior record suggests that a term of
incarceration is entirely appropriate. While his prior criminal behavior appears to be
the product of alcoholism, the defendant has never sought treatment for his
condition. That indicates a lack of amenability to rehabilitation. Moreover, the
mixing of alcohol and weapons is a particularly dangerous combination. Grear, 568
S.W.2d at 286. The trial court carefully crafted a sentence that will provide the
defendant the opportunity to receive treatment for his alcoholism while allowing him
to continue his employment.
The defendant also complains that the trial court did not appropriately
4 consider a community corrections sentence. The purpose of the Community
Corrections Act of 1985 was to provide an alternative means of punishment for
"selected, nonviolent felony offenders in front-end community based alternatives to
incarceration." Tenn. Code Ann. § 40-36-103(a). A community corrections
sentence provides a desired degree of flexibility that may be beneficial to the
defendant yet serve legitimate societal purposes. State v. Griffith, 787 S.W.2d 340,
342 (Tenn. 1990). The following offenders are eligible:
(1) Persons who, without this option, would be incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provided in title 39, chapter 2 [repealed], parts 1-3 and 5-7 or title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of committing violent offenses; and
(7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
Because aggravated assault is a crime against a person, the
defendant is not eligible for community corrections; moreover, the offense also
involved the use of a weapon, another ground for disqualification. See Tenn. Code
Ann. § 40-36-106(a)(2), (4). Nor would the defendant qualify for relief under the
"special needs" provision which provides as follows:
[O]ffenders not otherwise eligible under subsection (a),
5 and who would be usually considered unfit for probation due to histories of [chronic alcohol problems], but whose special needs are treatable and could be served best in the community rather than in a correctional institution, may be considered eligible for punishment in the community under the provisions of this chapter.
Tenn. Code Ann. § 40-36-106(b). While the defendant's alcoholism could arguably
be considered a "special need," no proof was presented at the sentencing hearing
that the defendant's problem is treatable in the community. The statute requires
some threshold showing of that fact before the trial court can consider the propriety
of a community corrections sentence.
Accordingly, the judgment of the trial court is affirmed.
__________________________________ Gary R. Wade, Presiding Judge
CONCUR:
______________________________ David H. Welles, Judge
________________________________ Thomas T. W oodall, Judge