IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1999 SESSION FILED July 21, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9808-CC-00250 Appellee, ) ) Hardeman County v. ) ) Honorable Jon Kerry Blackwood, Judge RODERICK POLK, ) ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
David H. Crichton Paul G. Summers P. O. Box 651 Attorney General & Reporter Bolivar, TN 38008 J. Ross Dyer Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
Elizabeth T. Rice District Attorney General
Jerry W. Norwood Assistant District Attorney General 302 East Market Street Somerville, TN 38068
OPINION FILED: ________________________________________
REVERSED AND REMANDED FOR A NEW SENTENCING HEARING
L. T. LAFFERTY, SENIOR JUDGE
OPINION The appellant, Roderick Polk, herein referred to as “the defendant,” appeals as of
right from his sentence for the delivery of a Schedule II controlled substance, cocaine, a
Class C felony, imposed by the Hardeman County Circuit Court. The trial court sentenced
the appellant as a Range I, standard offender to forty months in the Department of
Correction.
The defendant raises one issue for our review: whether the trial court erred in failing
to grant the defendant probation, or, in the alternative, to place the defendant in the
community corrections program. After a review of the record in this cause, the briefs of the
parties, and appropriate law, we reverse and remand the trial court’s judgment.
On January 5, 1998, the Hardeman County grand jury indicted the defendant and
Marlon D. Beauregard for the unlawful, felonious, and knowing delivery of cocaine, a
Schedule II controlled substance, on August 5, 1997. A jury found both defendants guilty
as charged. On June 19, 1998, at the conclusion of a sentencing hearing, the trial court
imposed a sentence of forty months in the Department of Correction, denying any
alternative relief. The defendant elected not to testify at the sentencing hearing, but to rely
on the presentence report. Since there is no trial transcript, the defendant’s statements
in the presentence report adequately substantiate the defendant’s participation in this
criminal activity:
I was walking down Third Street then this black man stopped and asked me do I know where he can get $50.00 worth of crack. I said yes, then I got in the car. We rode around and made a few stops. Then I told him to go to the projects and that’s when I got out and bought the crack. Then I got back in the car and gave him the crack and then he took me back to Third Street.
The presentence report reflects that, at the time of sentencing, the defendant was
25 years old, had never been employed, and had quit school in the eleventh grade.
Between the ages of 17 and 23, the defendant had one public intoxication conviction and
four traffic convictions, ranging from no driver’s license, two leaving the scene of an
accident, and driving on a suspended license. In addition, the defendant had two
2 misdemeanor convictions for theft of property and one misdemeanor conviction for
possession of cocaine.
At the conclusion of the sentencing hearing, the trial court imposed a forty-month
sentence, finding that the defendant had a history of criminal convictions requiring some
enhancement from the minimum sentence of three years for this Class C felony. The trial
court found in mitigation that the defendant played a minor role in the commission of this
offense.
When an accused challenges the length, range, or manner of service of a sentence,
this Court has a duty to conduct a de novo review of the sentence 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).
When conducting a de novo review of the sentence, this Court must consider: (1)
the evidence, if any, received at the trial and sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments of counsel as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) any
statutory mitigating or enhancement factors; (6) any statement made by the defendant
regarding sentencing; and (7) the potential or lack of potential for rehabilitation or
treatment. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code
Ann. §§ 40-35-102, -103, -210.
A defendant who “is an especially mitigated or standard offender convicted of a
Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our
sentencing law also provides that “convicted felons committing the most severe offenses,
3 possessing criminal histories evincing a clear disregard for the laws and morals of society,
and evincing failure of past efforts at rehabilitation shall be given first priority regarding
sentencing involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant
sentenced to eight years or less who is not an offender for whom incarceration is a priority
is presumed eligible for alternative sentencing, unless sufficient evidence rebuts the
presumption. However, the act does not provide that all offenders who meet the criteria
are entitled to such relief; rather, it requires that sentencing issues be determined by the
facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987).
Additionally, the principles of sentencing reflect that the sentence should be no
greater than that deserved for the offense committed and should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed. Tenn.
Code Ann. § 40-35-103(4). The court should also consider the potential for rehabilitation
or treatment of the defendant in determining the sentence alternative. Tenn. Code Ann.
§ 40-35-103(5).
In this appeal, the defendant asks this Court to reverse the judgment of the trial
court and remand this case for an alternative sentence of community corrections. The
state, citing the defendant’s criminal history, insists the defendant is not entitled to
community corrections and to do so would only serve to further depreciate the seriousness
of the defendant’s crime.
Since the defendant is a Class C offender, he is presumed to be a favorable
candidate for an alternative sentence, subject to rebuttal by case facts and circumstances.
See State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App.), per. app. denied (Tenn.
1991).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1999 SESSION FILED July 21, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9808-CC-00250 Appellee, ) ) Hardeman County v. ) ) Honorable Jon Kerry Blackwood, Judge RODERICK POLK, ) ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
David H. Crichton Paul G. Summers P. O. Box 651 Attorney General & Reporter Bolivar, TN 38008 J. Ross Dyer Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243
Elizabeth T. Rice District Attorney General
Jerry W. Norwood Assistant District Attorney General 302 East Market Street Somerville, TN 38068
OPINION FILED: ________________________________________
REVERSED AND REMANDED FOR A NEW SENTENCING HEARING
L. T. LAFFERTY, SENIOR JUDGE
OPINION The appellant, Roderick Polk, herein referred to as “the defendant,” appeals as of
right from his sentence for the delivery of a Schedule II controlled substance, cocaine, a
Class C felony, imposed by the Hardeman County Circuit Court. The trial court sentenced
the appellant as a Range I, standard offender to forty months in the Department of
Correction.
The defendant raises one issue for our review: whether the trial court erred in failing
to grant the defendant probation, or, in the alternative, to place the defendant in the
community corrections program. After a review of the record in this cause, the briefs of the
parties, and appropriate law, we reverse and remand the trial court’s judgment.
On January 5, 1998, the Hardeman County grand jury indicted the defendant and
Marlon D. Beauregard for the unlawful, felonious, and knowing delivery of cocaine, a
Schedule II controlled substance, on August 5, 1997. A jury found both defendants guilty
as charged. On June 19, 1998, at the conclusion of a sentencing hearing, the trial court
imposed a sentence of forty months in the Department of Correction, denying any
alternative relief. The defendant elected not to testify at the sentencing hearing, but to rely
on the presentence report. Since there is no trial transcript, the defendant’s statements
in the presentence report adequately substantiate the defendant’s participation in this
criminal activity:
I was walking down Third Street then this black man stopped and asked me do I know where he can get $50.00 worth of crack. I said yes, then I got in the car. We rode around and made a few stops. Then I told him to go to the projects and that’s when I got out and bought the crack. Then I got back in the car and gave him the crack and then he took me back to Third Street.
The presentence report reflects that, at the time of sentencing, the defendant was
25 years old, had never been employed, and had quit school in the eleventh grade.
Between the ages of 17 and 23, the defendant had one public intoxication conviction and
four traffic convictions, ranging from no driver’s license, two leaving the scene of an
accident, and driving on a suspended license. In addition, the defendant had two
2 misdemeanor convictions for theft of property and one misdemeanor conviction for
possession of cocaine.
At the conclusion of the sentencing hearing, the trial court imposed a forty-month
sentence, finding that the defendant had a history of criminal convictions requiring some
enhancement from the minimum sentence of three years for this Class C felony. The trial
court found in mitigation that the defendant played a minor role in the commission of this
offense.
When an accused challenges the length, range, or manner of service of a sentence,
this Court has a duty to conduct a de novo review of the sentence 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).
When conducting a de novo review of the sentence, this Court must consider: (1)
the evidence, if any, received at the trial and sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments of counsel as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) any
statutory mitigating or enhancement factors; (6) any statement made by the defendant
regarding sentencing; and (7) the potential or lack of potential for rehabilitation or
treatment. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code
Ann. §§ 40-35-102, -103, -210.
A defendant who “is an especially mitigated or standard offender convicted of a
Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our
sentencing law also provides that “convicted felons committing the most severe offenses,
3 possessing criminal histories evincing a clear disregard for the laws and morals of society,
and evincing failure of past efforts at rehabilitation shall be given first priority regarding
sentencing involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant
sentenced to eight years or less who is not an offender for whom incarceration is a priority
is presumed eligible for alternative sentencing, unless sufficient evidence rebuts the
presumption. However, the act does not provide that all offenders who meet the criteria
are entitled to such relief; rather, it requires that sentencing issues be determined by the
facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919,
922 (Tenn. Crim. App. 1987).
Additionally, the principles of sentencing reflect that the sentence should be no
greater than that deserved for the offense committed and should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed. Tenn.
Code Ann. § 40-35-103(4). The court should also consider the potential for rehabilitation
or treatment of the defendant in determining the sentence alternative. Tenn. Code Ann.
§ 40-35-103(5).
In this appeal, the defendant asks this Court to reverse the judgment of the trial
court and remand this case for an alternative sentence of community corrections. The
state, citing the defendant’s criminal history, insists the defendant is not entitled to
community corrections and to do so would only serve to further depreciate the seriousness
of the defendant’s crime.
Since the defendant is a Class C offender, he is presumed to be a favorable
candidate for an alternative sentence, subject to rebuttal by case facts and circumstances.
See State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App.), per. app. denied (Tenn.
1991). Criteria as to what will constitute “evidence to the contrary” under Tenn. Code Ann.
§ 40-35-102(6) is found in Tenn. Code Ann. § 40-35-103(1). When the state seeks total
confinement, the trial court, in considering confinement, must base its considerations on:
(1) confinement is necessary to protect society by restraining a defendant who has a long
history of criminal conduct; (2) confinement is necessary to avoid depreciating the
4 seriousness of the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; and (3) measures less restrictive
than confinement have frequently or recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1)(A)-(C).
From our review of the record, the trial court did not fully comply with the sentencing
principles as required. See Ashby, 823 S.W.2d at 169. Our review is without a
presumption of correctness, thus we must consider the requirements of Tenn. Code Ann.
§§ 40-35-102, -103, -210.
Offenders may be considered for placement in the community corrections program
as an alternative sentence who are:
(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 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.
Tenn. Code Ann. § 40-36-106(a).
On the surface, the defendant appears to be a proper candidate for consideration
of placement in a community corrections program. Since the defendant elected not to
testify, it is most difficult to determine the defendant’s potential for rehabilitation or
treatment. Therefore, we must rely on the facts of the case and the information contained
in the presentence report. The defendant, at age 25, is a high school dropout, who has
never been employed. He is a daily user of crack cocaine and marijuana, and has been
5 unsuccessful with drug counseling at Western Mental Health Institute. The defendant’s
criminal history consists of misdemeanor convictions, with probation in three cases
between 1992 and 1994. The defendant has one prior misdemeanor cocaine conviction.
Tennessee Code Annotated § 40-36-106(c) gives some guidance as to chronic drug
offenders:
Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chronic alcohol, drug abuse, or mental health 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.
On remand, we instruct the trial court to place the defendant in a community
corrections program. We suggest, for the defendant’s rehabilitative needs, that he should
be confined for a minimum of ten months in the Hardeman County Jail as an appropriate
condition of placement in the community corrections program, a strict rehabilitation
program with mandatory drug screens, a mandatory employment program or job training,
and such other conditions the trial court finds reasonable.
The trial court’s judgment is reversed and remanded for a new sentencing hearing.
________________________________________ L. T. LAFFERTY, SENIOR JUDGE
6 CONCUR:
___________________________________ JOSEPH M. TIPTON, JUDGE
___________________________________ DAVID G. HAYES, JUDGE