IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED FEBRUARY 1997 SESSION May 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, * Appellate Court Clerk C.C.A. # 01C01-9604-CC-00139
Appellee, * GILES COUNTY
VS. * Hon. Jim T. Hamilton, Judge
RICKEY COLEMAN, * (theft (3 counts); attempted forgery (3 counts); forgery (16 counts); passing Appellant. * worthless checks (16 counts); assault (1 count)) *
For Appellant: For Appellee:
Shara Flacy Charles W. Burson District Public Defender Attorney General & Reporter
John R. Wingo Karen M. Yacuzzo Assistant Public Defender Assistant Attorney General 128 North Second Street Criminal Justice Division P.O. Box 1208 450 James Robertson Parkway Pulaski, TN 38478 Nashville, TN 37243-0493
Mike Bottoms District Attorney General 252 N. Military Avenue Lawrenceburg, TN 38464
Richard Dunavant Asst. District Attorney General 10 Public Square P.O. Box 1619 Columbia, TN 38401
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Rickey Coleman,1 pled nolo contendere to 16 counts
of forgery, 16 counts of passing worthless checks, 3 counts of theft, 3 counts of
attempted forgery, and 1 count of assault. The plea agreement with the state
provided for an effective eight-year sentence with the trial court to determine the
manner of service.
In this appeal of right, the defendant claims that the trial court erred by
denying any form of alternative sentencing. We find no error and affirm the
judgment of the trial court.
The record contains little information about the offenses. All appear to
have been committed in July, August, and October of 1994. The indictments
suggest that two of the offenses were for theft of checks for less than $500. The
third offense is based on a theft of over $1000 in property from Mary Simington.
The assault conviction was the result of the defendant's enticing a victim to drink a
cup of bleach over ice. The remaining offenses involved the defendant's drawing
checks on the accounts of others.
The presentence report shows that the defendant had been granted
probation on earlier offenses. He was convicted of aggravated assault in 1992 and
received an eleven months, twenty-nine days sentence on probation. In March of
1994, only months before these offenses, the defendant was convicted of theft and
sentenced to eleven months, twenty-nine days on probation. The presentence
report also indicates that after the defendant was arrested on August 10, 1994, and
1 W hile so me plead ings refe r to the defe nda nt as "Rick y Orla ndo Cole ma n," it is th e polic y of this court to refer to the defend ant as his nam e appe ars on th e indictm ent.
2 released from custody, he wrote five additional fraudulent checks on August 12,
1994.2
The defendant, twenty years of age at the time of sentencing, has
completed eleventh grade. His work history is limited. Three of his employers
reported poor performance or absenteeism.
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). 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, if any, 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).
2 On November 8, 1994, the defendant pled guilty to misdemeanor theft. The report shows that on Se ptem ber 26, 1 995, only we eks be fore sen tencing in th is case, th e defen dant ente red guilty pleas to theft of property, attempted theft of property, and false reports. On April 11, 1995, he pled guilty to misdemeanor theft. On February 14, 1995, he pled guilty to criminal trespassing. Because we cannot determine when the crimes were committed, we have not considered them in our review.
3 Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
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 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. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
does not mean that he is entitled to be sentenced under the act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following
offenders are eligible for Community Corrections:
(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;
4 (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;
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED FEBRUARY 1997 SESSION May 30, 1997
Cecil W. Crowson STATE OF TENNESSEE, * Appellate Court Clerk C.C.A. # 01C01-9604-CC-00139
Appellee, * GILES COUNTY
VS. * Hon. Jim T. Hamilton, Judge
RICKEY COLEMAN, * (theft (3 counts); attempted forgery (3 counts); forgery (16 counts); passing Appellant. * worthless checks (16 counts); assault (1 count)) *
For Appellant: For Appellee:
Shara Flacy Charles W. Burson District Public Defender Attorney General & Reporter
John R. Wingo Karen M. Yacuzzo Assistant Public Defender Assistant Attorney General 128 North Second Street Criminal Justice Division P.O. Box 1208 450 James Robertson Parkway Pulaski, TN 38478 Nashville, TN 37243-0493
Mike Bottoms District Attorney General 252 N. Military Avenue Lawrenceburg, TN 38464
Richard Dunavant Asst. District Attorney General 10 Public Square P.O. Box 1619 Columbia, TN 38401
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, JUDGE OPINION
The defendant, Rickey Coleman,1 pled nolo contendere to 16 counts
of forgery, 16 counts of passing worthless checks, 3 counts of theft, 3 counts of
attempted forgery, and 1 count of assault. The plea agreement with the state
provided for an effective eight-year sentence with the trial court to determine the
manner of service.
In this appeal of right, the defendant claims that the trial court erred by
denying any form of alternative sentencing. We find no error and affirm the
judgment of the trial court.
The record contains little information about the offenses. All appear to
have been committed in July, August, and October of 1994. The indictments
suggest that two of the offenses were for theft of checks for less than $500. The
third offense is based on a theft of over $1000 in property from Mary Simington.
The assault conviction was the result of the defendant's enticing a victim to drink a
cup of bleach over ice. The remaining offenses involved the defendant's drawing
checks on the accounts of others.
The presentence report shows that the defendant had been granted
probation on earlier offenses. He was convicted of aggravated assault in 1992 and
received an eleven months, twenty-nine days sentence on probation. In March of
1994, only months before these offenses, the defendant was convicted of theft and
sentenced to eleven months, twenty-nine days on probation. The presentence
report also indicates that after the defendant was arrested on August 10, 1994, and
1 W hile so me plead ings refe r to the defe nda nt as "Rick y Orla ndo Cole ma n," it is th e polic y of this court to refer to the defend ant as his nam e appe ars on th e indictm ent.
2 released from custody, he wrote five additional fraudulent checks on August 12,
1994.2
The defendant, twenty years of age at the time of sentencing, has
completed eleventh grade. His work history is limited. Three of his employers
reported poor performance or absenteeism.
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). 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, if any, 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).
2 On November 8, 1994, the defendant pled guilty to misdemeanor theft. The report shows that on Se ptem ber 26, 1 995, only we eks be fore sen tencing in th is case, th e defen dant ente red guilty pleas to theft of property, attempted theft of property, and false reports. On April 11, 1995, he pled guilty to misdemeanor theft. On February 14, 1995, he pled guilty to criminal trespassing. Because we cannot determine when the crimes were committed, we have not considered them in our review.
3 Among the factors applicable to the defendant's application for
probation are the circumstances of the offense, the defendant's criminal record,
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 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. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn.1990). That a defendant meets
the minimum requirements of the Community Corrections Act of 1985, however,
does not mean that he is entitled to be sentenced under the act as a matter of law
or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following
offenders are eligible for Community Corrections:
(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;
4 (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).
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). "[E]ach case must be bottomed upon its own facts." Taylor, 744 S.W.2d at
922.
In denying alternative sentencing, the trial court observed the
defendant's "past record [was] horrendous," and that "the number of criminal
offenses that are represented by these indictments" was unusually large. Thus, due
regard was given to the defendant's prior record and the seriousness of his
offenses. In our view, the defendant has failed to overcome the presumptive
correctness of the ruling in the trial court. See Tenn. Code Ann. § 40-35-401(d).
His prior record fully warranted the denial of an alternate sentence. See Tenn.
Code Ann. § 40-35-103(1)(A).
Due in great measure to the criminal history of the defendant and his
failure to rehabilitate despite previous terms of probation, we yield to the
discretionary authority of the trial court. The defendant has previously received the
5 largesse of the law by being given post-plea diversion and probation. In spite of
this, the defendant has continued to violate the law. "Measures less restrictive than
confinement have ... recently been applied unsuccessfully to the defendant." Tenn.
Code Ann. § 40-35-103(1)(C). His behavior indicates a blatant disregard for the
laws of our society. A period of confinement is necessary to protect society from the
defendant's propensity to violate the law.
Accordingly, the judgment of the trial court is affirmed.
________________________________________ Gary R. Wade, Judge
CONCUR:
___________________________ David G. Hayes, Judge
___________________________ Curwood Witt, Judge