State v. Ronnie Holmes

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 19, 1998
• Docket: 02C01-9703-CC-00113
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION FILED February 19, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9703-CC-00113 Appellee, ) ) Chester County V. ) ) Honorable W hit Lafon, Judge RONNIE HOLMES, ) ) (Sentencing) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Mike Mosier John Knox Walkup Attorney at Law Attorney General & Reporter 204 West Baltimore P.O. Box 1623 Janis L. Turner Jackson, TN 38302-1623 Counsel for the State Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

Jerry Woodall District Attorney General

James W. Thompson Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION Ronnie Holmes, the appellant, entered a plea of nolo contendere to

vandalism under five hundred dollars and criminal trespass in the Chester

County Circuit Court. The court sentenced the appellant to thirty days for each

offense to run concurrently. The court further ordered that, after serving fifteen

days, the appellant would be eligible for work release. On appeal, the appellant

argues he should have been sentenced to full probation.

The sentencing range for vandalism under five hundred dollars, a class A

misdemeanor, is no greater than eleven months and twenty-nine days

incarceration. Tenn Code Ann. § 40-35-111(e)(1) (1990). The range for criminal

trespass, a class C misdemeanor, is no greater than thirty days incarceration.

Tenn. Code Ann. § 40-35-111(e)(3).

When an appellant challenges the manner of service of a sentence, this

Court reviews the evidence de novo with a presumption that the determinations

of the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1990). The

presumption of correctness is conditioned upon an affirmative showing 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). Our review

consists of an analysis of the evidence at the sentencing hearing, the

presentence report, the principles of sentencing, the arguments of counsel, the

nature and characteristics of the offense, mitigating and enhancement factors,

the defendant’s statements and the defendant’s potential for rehabilitation or

treatment. Tenn Code Ann. §§ 40-35-102 (Supp. 1994), -103 (1990), -210

(Supp. 1992); Ashby, 823 S.W.2d at 169.

Misdemeanor sentences must be specific and in accordance with the

principles, purposes and goals of the Criminal Sentencing Reform Act of 1989.

State v. Palmer, 902 S.W .2d 391, 394 (Tenn. 1995). The trial judge shall fix a

-2- percentage of the sentence that the defendant shall serve; after service, the

defendant is eligible for rehabilitative programs. Tenn. Code Ann. § 40-35-

302(b) & (d) (Supp. 1994); Palmer, 902 S.W.2d at 394. Alternatively, the court

can grant probation immediately, or after a period of split or continuous

confinement. Tenn. Code Ann. § 40-35-302(e)(1) & (2).

The evidence at the sentencing hearing consisted of the testimony of the

victim, the appellant, two photographs and the presentencing report. The

appellant is twenty-nine years old, a high school graduate and a lifelong resident

of Chester County. He is married and employed as a security guard. The

appellant has no criminal record. The appellant has no history of drug or alcohol

use. He has no history of psychiatric or medical problems.

Debra Schwartz is the victim. Ms. Schwartz owns a realty business in

Chester County, and, at one time, she employed the appellant’s wife. After Ms.

Schwartz fired the appellant’s wife, her business was egged numerous times and

the locks were liquid soldered shut. The appellant described his wife’s

termination as unpleasant. Ms. Schwartz suspected that the appellant was the

perpetrator, but she had no proof. Ms. Schwartz installed a video camera at her

office. She videotaped the appellant placing the head of a dead deer at the front

door of her business and throwing eggs at the business. Ms. Schwartz identified

the appellant as the person in the videotape. After the appellant pled guilty, the

vandalism stopped. The photographs of the scene, including the head of the

dead deer, were introduced into evidence.

The appellant testified that he did not recognize himself in the video taken

by Ms. Schwartz. He denied placing the deer head at the office doors. The

appellant further denied committing any of the criminal acts complained of by

Ms. Schwartz. He said that he pled guilty to the charges because it was in his

best interest.

-3- “‘The misdemeanant, unlike the felon, is not entitled to the presumption of

the minimum sentence.’” State v. Connors, 924 S.W.2d 362, 363, (Tenn. Crim.

App. 1996)(citing State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.

1994). In determining the percentage of the sentence to be served, the court

must consider enhancement and mitigating factors as well as the legislative

purposes and principles related to sentencing. Connors, 924 S.W.2d at 364.

At the sentencing hearing, the state did not ask the court to consider any

enhancement factors in setting the sentence. The appellant argued that he

should receive probation primarily because he had never been arrested for, or

convicted of, any criminal offense. The trial court did not make specific findings

of fact or state the basis of his ruling. Accordingly, our review of the record is de

novo.

We affirm the sentence of the trial court based on the nature of the

offense and the appellant’s lack of candor. Placing the head of a deer at the

doors of Ms. Schwartz’ business is especially offensive, repulsive, and juvenile.

Ms. Shwartz identified the appellant as the perpetrator on the video; the

vandalism to her business stopped once the appellant was charged or pled

guilty. From this evidence, we infer that the appellant testified untruthfully when

he denied any involvement in the crimes committed against Ms. Schwartz.

The judgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

-4- _____________________________ DAVID G. HAYES, Judge

_____________________________ JOE G. RILEY, Judge

-5-