IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED DECEMBER 1997 SESSION March 20, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9611-CR-00417 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, ROBIN BAKER, ) JUDGE ) Appellant. ) (Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
MARVIN G. BALLIN JOHN KNOX WALKUP MARK A. MESLER Attorney General and Reporter 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 DEBORAH A. TULLIS Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JOHNNY R. McFARLAND Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The defendant, Robin Baker, appeals from misdemeanor convictions of
one (1) count of reckless endangerment and one (1) count of possession of
explosive components. He pled guilty and agreed to concurrent terms of six (6)
months and a $500 fine for each conviction. The sole issue presented for review
is whether the trial court erred in denying the defendant's petition to suspend his
sentence. The judgment of the trial court is affirmed.
I.
The defendant alleges the trial court erred by refusing to suspend his
sentence. He contends that he is presumptively a favorable candidate for
alternative sentencing. Tenn. Code Ann. § 40-35-102 (6). Further, he contends
the trial court failed to make an affirmative showing in the record that it
considered all sentencing principles and all relevant facts and circumstances in
its denial of alternative sentencing. See State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
II.
When reviewing sentencing issues, including alternative sentencing, this
Court conducts a de novo review with a presumption of correctness. Tenn. Code
Ann. § 40-35-401 (d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles
and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d at 169. If
the trial court fails to comply with the statutory directives, there is no presumption
of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).
A defendant convicted of a misdemeanor is presumed to be a favorable
2 candidate for alternative sentencing in the absence of evidence to the contrary.
Tenn. Code Ann. § 40-35-102(6). However, although a defendant may be
presumed to be a favorable candidate for alternative sentencing, the defendant
has the burden of establishing suitability for total probation. State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b).
Though probation must be automatically considered, “the defendant is not
automatically entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-
303(b) Sentencing Commission Comments; State v. Hartley, 818 S.W.2d 370,
373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
defendant’s social history and present condition, the need for deterrence, and
the best interest of the defendant and the public. State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The
defendant's lack of credibility is also an appropriate consideration and reflects on
a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306
(Tenn. Crim. App. 1994).
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-
35-103(1):
(A) [c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
III.
3 Our review reveals that the trial court did not make a showing on the
record of his findings regarding sentencing principles and all relevant facts and
circumstances. Therefore, no presumption of correctness is afforded to the
sentence of the trial court. The trial court did, however, make two (2) findings on
the record.
First, the trial court placed great weight on not depreciating the
seriousness of the offense. In order for this criteria to serve as the basis for
denying probation, 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 probation.” State v. Hartley 818 S.W.2d 370, 374-75 (Tenn. Crim. App.
1991). We have no difficulty finding that the circumstances of the offense in the
case sub judice are sufficiently shocking and exaggerated to warrant a denial of
probation when weighed against factors favoring probation.
The only evidence favoring probation consisted of evidence that the
defendant is being treated for paranoia and his condition has improved since his
arrest. Balanced against this is evidence that at his home in a densely populated
urban area the defendant stored large quantities of materials used to make
explosives. Among the dangerous materials possessed included: nitromethane,
a key ingredient for making “C-4" explosive compound; magnesium turnings, a
heat inducer for homemade bombs; eight (8) empty hand grenades; “ram set
shells,” potentially used as detonators for re-arming grenades; an empty antitank
weapon and canon fuse. Also found in the defendant’s home were instructional
books on how to re-arm an antitank weapon, how to make “C-4" and “semtex”
explosives, a book on detonators, and various pieces of hate mail.
It is clear from the evidence that these materials are designed to make
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED DECEMBER 1997 SESSION March 20, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9611-CR-00417 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, ROBIN BAKER, ) JUDGE ) Appellant. ) (Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
MARVIN G. BALLIN JOHN KNOX WALKUP MARK A. MESLER Attorney General and Reporter 200 Jefferson Avenue, Suite 1250 Memphis, TN 38103-2328 DEBORAH A. TULLIS Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
WILLIAM L. GIBBONS District Attorney General
JOHNNY R. McFARLAND Assistant District Attorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The defendant, Robin Baker, appeals from misdemeanor convictions of
one (1) count of reckless endangerment and one (1) count of possession of
explosive components. He pled guilty and agreed to concurrent terms of six (6)
months and a $500 fine for each conviction. The sole issue presented for review
is whether the trial court erred in denying the defendant's petition to suspend his
sentence. The judgment of the trial court is affirmed.
I.
The defendant alleges the trial court erred by refusing to suspend his
sentence. He contends that he is presumptively a favorable candidate for
alternative sentencing. Tenn. Code Ann. § 40-35-102 (6). Further, he contends
the trial court failed to make an affirmative showing in the record that it
considered all sentencing principles and all relevant facts and circumstances in
its denial of alternative sentencing. See State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
II.
When reviewing sentencing issues, including alternative sentencing, this
Court conducts a de novo review with a presumption of correctness. Tenn. Code
Ann. § 40-35-401 (d). This presumption is conditioned upon an affirmative
showing in the record that the trial judge considered the sentencing principles
and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d at 169. If
the trial court fails to comply with the statutory directives, there is no presumption
of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).
A defendant convicted of a misdemeanor is presumed to be a favorable
2 candidate for alternative sentencing in the absence of evidence to the contrary.
Tenn. Code Ann. § 40-35-102(6). However, although a defendant may be
presumed to be a favorable candidate for alternative sentencing, the defendant
has the burden of establishing suitability for total probation. State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b).
Though probation must be automatically considered, “the defendant is not
automatically entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-
303(b) Sentencing Commission Comments; State v. Hartley, 818 S.W.2d 370,
373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
defendant’s social history and present condition, the need for deterrence, and
the best interest of the defendant and the public. State v. Grear, 568 S.W.2d
285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The
defendant's lack of credibility is also an appropriate consideration and reflects on
a defendant's potential for rehabilitation. State v. Dowdy, 894 S.W.2d 301, 306
(Tenn. Crim. App. 1994).
Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-
35-103(1):
(A) [c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.
See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
III.
3 Our review reveals that the trial court did not make a showing on the
record of his findings regarding sentencing principles and all relevant facts and
circumstances. Therefore, no presumption of correctness is afforded to the
sentence of the trial court. The trial court did, however, make two (2) findings on
the record.
First, the trial court placed great weight on not depreciating the
seriousness of the offense. In order for this criteria to serve as the basis for
denying probation, 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 probation.” State v. Hartley 818 S.W.2d 370, 374-75 (Tenn. Crim. App.
1991). We have no difficulty finding that the circumstances of the offense in the
case sub judice are sufficiently shocking and exaggerated to warrant a denial of
probation when weighed against factors favoring probation.
The only evidence favoring probation consisted of evidence that the
defendant is being treated for paranoia and his condition has improved since his
arrest. Balanced against this is evidence that at his home in a densely populated
urban area the defendant stored large quantities of materials used to make
explosives. Among the dangerous materials possessed included: nitromethane,
a key ingredient for making “C-4" explosive compound; magnesium turnings, a
heat inducer for homemade bombs; eight (8) empty hand grenades; “ram set
shells,” potentially used as detonators for re-arming grenades; an empty antitank
weapon and canon fuse. Also found in the defendant’s home were instructional
books on how to re-arm an antitank weapon, how to make “C-4" and “semtex”
explosives, a book on detonators, and various pieces of hate mail.
It is clear from the evidence that these materials are designed to make
weapons of terror or at a minimum military style explosives with no purpose other
than the killing of human beings or the unlawful destruction of property. Under
the circumstances the trial court was warranted in concluding that incarceration
was necessary to avoid depreciating the seriousness of the offense.
4 Secondly, the trial court found the defendant’s failure to testify truthfully at
the first sentencing hearing a factor in denying alternative sentencing. At that
hearing the defendant explained he possessed the materials for innocuous uses
such as entertainment for his son or fuel additives for his car. Subsequently, he
related his possession of these materials to preparing for the possible collapse of
the federal government. A defendant’s untruthfulness bears on his amenability
to rehabilitation, the purpose of probation. United States v. Grayson, 438 U.S.
41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582, 590 (1978); State v. Neely, 678
S.W.2d 48, 49 (Tenn. 1984). The defendant’s lack of candor with the Court
warrants a denial of probation.
IV.
Regrettably, the trial court did not make the required findings on the
record at the defendant’s sentencing hearing. However, the trial court did make
two (2) findings and we find them persuasive. We acknowledge that the trial
court had a better opportunity to judge the credibility of the defendant and gauge
his suitability for probation than we do. For these reasons, we will not disturb the
trial court’s denial of probation.
The judgment of the trial court is affirmed.
__________________________ JERRY L. SMITH, JUDGE
CONCUR:
______________________________ JOE B. JONES, PRESIDING JUDGE
______________________________ CURWOOD WITT, JUDGE