State v. William R. Begley, III

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 20, 1999
• Docket: 03C01-9810-CR-00359
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 20, 1999

AUGUST 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9810-CR-00359 ) ) Sullivan County v. ) ) Honorable Phyllis H. Miller, Judge ) WILLIAM R. BEGLEY, III, ) (One count of possession of marijuana; ) eight counts of theft of property less than ) $500; fifteen counts of vandalism of property ) valued over $500) ) Appellant. )

For the Appellant: For the Appellee:

Leslie Hale Paul G. Summers Assistant Public Defender Attorney General of Tennessee Post Office Box 889 and Blountville, TN 37617 Marvin S. Blair, Jr. (AT TRIAL) Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Larry S. Weddington 200 Seventh Street Bristol, TN 37620 (ON APPEAL)

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, William R. Begley, III, was convicted in the Sullivan

County Criminal Court upon his no contest pleas to one count of possession of

marijuana, a Class A misdemeanor; eight counts of theft of property less than five

hundred dollars, a Class A misdemeanor; and fifteen counts of vandalism of property

valued over five hundred dollars, a Class E felony. He received an effective sentence

of six years in the Department of Correction as a Range I, standard offender. In this

appeal as of right, the defendant contends that he should have received a community

corrections sentence. We affirm the sentence imposed by the trial court.

The trial court imposed an effective six-year sentence and subsequently

held a sentencing hearing to determine the manner of service. At the hearing, Burton

Smith, the defendant’s great-grandfather, testified that the defendant had been living

with him and helping him following Mr. Smith’s eye surgery.

The defendant testified that following his release on bond for the present

offenses, he was convicted for speeding and having an improper exhaust system. He

said he was also convicted of the assault and battery of his pregnant girlfriend, for

which he had attended four abuse alternative classes. He testified that he had been

expelled from high school and had not obtained his GED. He stated that during the

time in which his probation report was being prepared for the hearing, he used

marijuana. He testified that he did not think he could pass a drug screen at the time of

the hearing and that he has a problem turning down marijuana. He said that he had

received alcohol counseling and was willing to undergo drug counseling.

The defendant testified that he was involved in an earlier assault that

occurred because his father forced him into a fight. He testified that he has a child by

2 his wife, from whom he is separated, and was expecting another child by his girlfriend.

He stated that he had not paid child support because he could not locate his wife or the

child. He testified that he performed concrete work for three weeks through a

temporary agency. He said he was fired because his probation appointments made

him late for work. He testified that he had not worked in one and one-half months

because he had been taking care of his grandfather. He stated that he had been

offered a job the weekend before the hearing. Upon the foregoing proof, the trial court

ordered the defendant to serve his sentence in the custody of the Department of

Correction.

The defendant contends that the trial court erred by not allowing him to

serve his sentence in community corrections. He argues that he is a good candidate for

rehabilitation and that the trial court essentially punished him for having a drug problem.

The state contends that the trial court properly ordered the defendant to serve his

sentence in confinement. We agree.

Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is

now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

3 court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).

Also, in conducting a de novo review, we 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 as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

The defendant is presumed to be a favorable candidate for alternative

sentencing options. See Tenn. Code Ann. § 40-35-102(6). However, eligibility for

alternative sentencing options does not equate to entitlement. See State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987). In the present case, the trial court stated

that the defendant

has a criminal history demonstrating a clear disregard for the laws, and morals of society. [He has] a social history demonstrating a clear disregard for the laws and morals of society. [He has] a criminal history demonstrating a failure of past efforts at rehabilitation.

The trial court also stated that the defendant had received treatment, had been

previously sentenced to split confinement, and had been given full probation numerous

times, all without success. We believe that the trial court’s findings justify its denial of

4 community corrections and its imposition of a sentence of confinement under Tenn.

Code Ann. § 40-35-103(1), (5).

In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.

________________________________ Joseph M. Tipton, Judge

CONCUR:

________________________ John Everett W illiams, Judge

________________________ Alan E. Glenn, Judge