IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED May 14, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 02C01-9705-CR-00198
Appellee, * SHELBY COUNTY
VS. * Honorable Carolyn Wade Blackett, Judge
RICKEY HAILEY, * (Vandalism; Attempted Burglary; Theft)
Appellant. *
For Appellant: For Appellee:
William D. Massey and John Knox Walkup R. Price Harris Attorney General & Reporter 3074 East Street Memphis, TN 38128 Janis L. Turner Assistant Attorney General Criminal Justice Division Cordell Hull Bldg., Second Floor 425 Fifth Avenue, North Nashville, TN 37243-0493
James Challen Assistant Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103
OPINION FILED: _____________________
AFFIRMED AS MODIFIED
GARY R. WADE, JUDGE OPINION
The defendant, Rickey Hailey, pled guilty to vandalism under $500,
attempted burglary of a vehicle, and theft under $500. The trial court imposed
concurrent sentences of eleven months, twenty-nine days for each offense, to be
served in the workhouse. The judgment forms do not indicate the percentage of
service required before the defendant is eligible for work release or other
rehabilitative programs. See Tenn. Code Ann. § 40-35-302(d).
In this appeal of right, the defendant contends that the trial court erred
by denying probation. The judgment of the trial court is affirmed, but modified to
reflect eligibility for release after ninety days.
On July 25, 1995, the former girlfriend of the defendant was "beaten
like a dog" by Phillip Johnson. The defendant retaliated by attempting to enter and
then by vandalizing a truck at Johnson's residence with a baseball bat. He stole
rifles, shotguns, crossbows, and car stereo equipment from the truck, which the
defendant later learned belonged to Phillip Johnson's father, Larry Johnson.
The next day, he turned himself in to authorities and cooperated in
locating the property of the victim. The defendant, who was nineteen when he
committed the crimes, acknowledged his actions were "stupid." He testified that he
would be willing to make restitution to the victim, although he admitted he had not
yet done so. After the incident, the defendant completed high school. At the time of
the sentencing hearing, he was employed and training to be a journeyman plumber.
The defendant testified that his parents were in the process of divorce
at the time of the crimes. He attempted to qualify for anger management classes
2 but learned his insurance coverage had expired.
The defendant acknowledged that while he was on bail for these
crimes, he stole "a few fishing lures" from Wal-Mart and was later convicted of theft
under five-hundred dollars.
The trial court denied probation because the defendant had taken the
law into his own hands, had not made restitution, and had a prior criminal history.
The trial judge ruled that in ninety days, the defendant could petition for release with
the remainder of the sentence to be served on probation. Defense counsel's
request for a ruling "one way or another" on the jail term to be served before the
grant of probation was denied.
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
3 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,
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).
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).
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." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902 S.W.2d
391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an
authorized determinant sentence with a percentage of that sentence designated for
eligibility for rehabilitative programs. Generally, a percentage of not greater than
75% of the sentence should be fixed for a misdemeanor offender; however, a DUI
offender may be required to serve the full 100% of his sentence. Palmer, 902
4 S.W.2d at 393-94. In determining the percentage of the sentence, the court must
consider enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED May 14, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 02C01-9705-CR-00198
Appellee, * SHELBY COUNTY
VS. * Honorable Carolyn Wade Blackett, Judge
RICKEY HAILEY, * (Vandalism; Attempted Burglary; Theft)
Appellant. *
For Appellant: For Appellee:
William D. Massey and John Knox Walkup R. Price Harris Attorney General & Reporter 3074 East Street Memphis, TN 38128 Janis L. Turner Assistant Attorney General Criminal Justice Division Cordell Hull Bldg., Second Floor 425 Fifth Avenue, North Nashville, TN 37243-0493
James Challen Assistant Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103
OPINION FILED: _____________________
AFFIRMED AS MODIFIED
GARY R. WADE, JUDGE OPINION
The defendant, Rickey Hailey, pled guilty to vandalism under $500,
attempted burglary of a vehicle, and theft under $500. The trial court imposed
concurrent sentences of eleven months, twenty-nine days for each offense, to be
served in the workhouse. The judgment forms do not indicate the percentage of
service required before the defendant is eligible for work release or other
rehabilitative programs. See Tenn. Code Ann. § 40-35-302(d).
In this appeal of right, the defendant contends that the trial court erred
by denying probation. The judgment of the trial court is affirmed, but modified to
reflect eligibility for release after ninety days.
On July 25, 1995, the former girlfriend of the defendant was "beaten
like a dog" by Phillip Johnson. The defendant retaliated by attempting to enter and
then by vandalizing a truck at Johnson's residence with a baseball bat. He stole
rifles, shotguns, crossbows, and car stereo equipment from the truck, which the
defendant later learned belonged to Phillip Johnson's father, Larry Johnson.
The next day, he turned himself in to authorities and cooperated in
locating the property of the victim. The defendant, who was nineteen when he
committed the crimes, acknowledged his actions were "stupid." He testified that he
would be willing to make restitution to the victim, although he admitted he had not
yet done so. After the incident, the defendant completed high school. At the time of
the sentencing hearing, he was employed and training to be a journeyman plumber.
The defendant testified that his parents were in the process of divorce
at the time of the crimes. He attempted to qualify for anger management classes
2 but learned his insurance coverage had expired.
The defendant acknowledged that while he was on bail for these
crimes, he stole "a few fishing lures" from Wal-Mart and was later convicted of theft
under five-hundred dollars.
The trial court denied probation because the defendant had taken the
law into his own hands, had not made restitution, and had a prior criminal history.
The trial judge ruled that in ninety days, the defendant could petition for release with
the remainder of the sentence to be served on probation. Defense counsel's
request for a ruling "one way or another" on the jail term to be served before the
grant of probation was denied.
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
3 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,
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).
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).
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." State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902 S.W.2d
391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an
authorized determinant sentence with a percentage of that sentence designated for
eligibility for rehabilitative programs. Generally, a percentage of not greater than
75% of the sentence should be fixed for a misdemeanor offender; however, a DUI
offender may be required to serve the full 100% of his sentence. Palmer, 902
4 S.W.2d at 393-94. In determining the percentage of the sentence, the court must
consider enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing
statute is designed to provide the trial court with continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the
felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829 (Tenn. Crim. App. 1994).
In our view, the trial court properly required a period of incarceration.
That the defendant committed a theft while on bail for these offenses suggests
measures less restrictive than confinement have unsuccessfully been applied to the
defendant. See Tenn. Code Ann. § 40-35-103(1)(C). Under these circumstances,
we cannot conclude the trial court erred by ordering a period of confinement.
The Act requires courts to "fix a percentage of the sentence which the
defendant shall serve" before being eligible for probation. Tenn. Code Ann. § 40-
35-302(d). Only DUI sentences may be classified at one-hundred percent. Other
offenders may be required to serve up to seventy-five percent before becoming
eligible for release programs. See Palmer, 902 S.W.2d at 393-94; Tenn. Code Ann.
5 § 40-35-302(d). Here, the trial court failed to indicate on the judgment form the
percentage of service. Generally, "[i]f no percentage is expressed in the judgment,
the percentage shall be considered zero percent (0%)." Tenn. Code Ann. § 40-35-
302(d). In this case, however, the trial court clearly did not intend service of zero
percent.
The defendant's social history and present condition weigh in favor of
a shorter term of incarceration. After commission of these offenses, the defendant
completed high school and was taking positive steps toward qualifying as a master
plumber. There was, however, significant damage to the victim's vehicle. The
defendant committed a theft while awaiting his trial on these charges. A sentence of
eleven months and twenty-nine days is appropriate. The defendant will be eligible
for release upon service of ninety days.
The judgment of the trial court is affirmed as so modified.
__________________________________ Gary R. Wade, Judge
CONCUR:
(NOT PARTICIPATING) Joe B. Jones, Judge
_______________________________ Jerry L. Smith, Judge