State v. Smith

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MARCH 1998 SESSION March 27, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9706-CR-00201 Appellee, ) ) Hamilton County V. ) ) Honorable Gary D. Gerbitz, Judge ADRIAN D. SMITH, ) ) (Sentencing) Appellant. ) )

FOR THE APPELLANT: FOR THE APPELLEE:

Ardena J. Garth John Knox Walkup District Public Defender Attorney General & Reporter

Donna Robinson Miller Marvin E. Clements, Jr. Assistant District Public Defender Assistant Attorney General 701 Cherry Street, Suite 300 425 5th Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493

William H. Cox District Attorney General

Barry Steelman Assistant District Attorney General 600 Market Street--Courts Building Chattanooga, TN 37402

OPINION FILED: _______________________

AFFIRMED

PAUL G. SUMMERS, Judge OPINION

Adrian D. Smith pled guilty to aggravated assault and resisting a stop. In

October 1996 the trial court sentenced the appellant as a Range I, standard

offender, to three years for the aggravated assault conviction and to six months

for the resisting a stop conviction. His sentences were to run concurrently. The

trial court denied the appellant’s request for an alternative sentence.

The appellant’s sole issue for our review is whether the trial court erred by

denying his request for alternative sentencing. We affirm.

Appellant contends that the trial court did not comply with Tennessee

Code Annotated § 40-35-102(5), -102(6) (Supp. 1996), which indicate that the

appellant is presumed to be a favorable candidate for alternative sentencing.

The appellant further asserts that the trial court did not consider or properly

weigh several mitigating factors under Tenn. Code Ann. § 40-35-113 (1990):

that the appellant acted under strong provocation; that substantial grounds exist

tending to excuse or justify the appellant’s criminal conduct, though failing to

establish a defense; and the appellant, because of his age, lacked substantial

judgment in committing the offense. He also argues that other factors such as

the death of his mother and stepfather; his employment history; his paying of

child support without a court order; and his change of attitude, evidenced by his

leading Bible study and giving speeches in the community, mitigate in favor of

alternative sentencing.

The state argues that the trial court properly sentenced the appellant. It

notes that the trial court found that the appellant, who was nineteen years old at

the time of sentencing, had a history of violent crimes. The appellant had

-2- adjudications of attempted kidnapping, attempted aggravated robbery,

aggravated assault, and disorderly conduct. Although most of these offenses

were committed before the age of eighteen, the state notes that they occurred

when the appellant was not in custody, thereby indicating a disregard for the law

and a poor potential for rehabilitation. Further, the state notes that the trial court

did consider the appellant’s change in attitude, his age, and his obligations to his

family, but such factors did not outweigh the appellant’s continued criminal

behavior. The appellant was on bond for the aggravated assault offense when

he was arrested for resisting a police stop. Consequently, the trial court agreed

with the recommendation of the presentencing investigator that society needed

to be protected from the appellant.

When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1990). However, this presumption is conditioned on an affirmative

indication 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 appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and

(f) the appellant’s potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103(5) (1990), 40-35-210(b) (Supp. 1996).

The trial court did not err in denying alternative sentencing for the

appellant. The trial court based its decision on the appellant’s continued

-3- involvement in violent criminal behavior, noting the seriousness of the crimes the

appellant had committed as a juvenile. The appellant had been in the custody of

the Department of Youth Development, had received judicial diversion for a theft

conviction, and was on bond for the aggravated assault offense when he was

arrested for resisting a stop. The trial court agreed with the presentencing

investigator that the appellant is a threat to society. Finding no error mandating

reversal, we affirm the trial court’s judgment.

-4- _______________________ PAUL G. SUMMERS, Judge

CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK, Special Judge

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