Cyril v. Fraser ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
APRIL SESSION, 1995 FILED
October 17, 1995
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk
) No. 03C01-9410-CR-00369
Appellee )
) BLOUNT COUNTY
vs. )
) Hon. D. Kelly Thomas, Jr., Judge
MARJORIE JEANETTE SNEED,)
) (Forgery, six counts; Criminal
Appellant ) Simulation, five counts)
For the Appellant: For the Appellee:
Mack Garner Charles W. Burson
District Public Defender Attorney General and Reporter
318 Court Street
Maryville, TN 37804 Cyril V. Fraser
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Michael L. Flynn
District Attorney General
Edward P. Bailey, Jr.
Asst. District Attorney General
363 Court Street
Maryville, TN 37804-5906
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Marjorie Jeanette Sneed, entered pleas to two counts of
forgery over $1000, four counts of forgery over $500, and five counts of criminal
simulation. Pursuant to the plea agreement, the appellant received two two-year
sentences for the convictions of forgery over $1000, four one-year sentences for
the convictions of forgery over $500, and five one-year sentences for the criminal
simulation convictions. The trial court ordered all of the sentences to run
concurrently. After imposition of the above sentences, the trial court suspended
all but thirty days of each offense, followed by supervised probation for three
years and eleven months. The appellant now appeals from the sentences
imposed, contending that she should have been granted full probation on all
sentences.
After a review of the record, we affirm the judgment of the trial court.
A sentencing hearing was held on May 31, 1994 to determine the manner
of service of the sentences imposed. The evidence at the hearing established
that the appellant was a twenty-five year old mother of four. The proof further
established that she was separated from her husband at the time of the hearing,
and had surrendered custody of her children to her husband's relatives. The
appellant was employed by Water Service, Inc., making $4.75 per hour. The
presentence report revealed that the appellant has one prior felony conviction for
attempt to commit false pretenses, for which she received a one-year suspended
sentence. The appellant also admitted during testimony that she had knowingly
passed several bad checks in the past, all of which she had paid or was currently
paying off. The appellant also testified that she had had a drug and alcohol
problem in the past, but that she had been drug-free for approximately one year
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and was willing to undergo treatment for her drug problem.
Appellate review of a sentence is de novo, with a presumption that
the determinations made by the court from which the appeal is taken are correct.
Tenn. Code Ann. § 40-35-401(d) (1990). The appellant has the burden of
establishing that the sentence imposed by the trial court was erroneous. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Fletcher, 805 S.W.2d 785,
786 (Tenn. Crim. App. 1991). In determining whether the appellant has met this
burden, we must consider the evidence received at the trial and the sentencing
hearing, the presentence report, the principles of sentencing, argument of
counsel, the nature and characteristics of the offenses, existing mitigating and
enhancing factors, statements made by the offender, and the potential for
rehabilitation. Ashby, 823 S.W.2d at 168; Tenn. Code Ann. § 40-35-210 (1990).
The presumption of correctness is "conditioned upon the affirmative showing in
the record that the trial court considered the sentencing principles and all
relevant facts and circumstances." Ashby, 823 S.W.2d at 169. At the
conclusion of the sentencing hearing, the trial court imposed the sentences upon
the appellant without explanation or entry of any findings of fact. The
presumption of correctness therefore does not apply.
The appellant argues that she is entitled to the presumption of being a
favorable candidate for alternative sentencing found in Tenn. Code Ann. § 40-
35-102(6). This argument is correct. However, the appellant fails to recognize
that she did in fact receive an alternative sentence. The appellant was
sentenced to split confinement, which is listed as an alternative sentencing
option in Tenn. Code Ann. § 40-35-104(c)(3) (1994 Supp.). The presumption of
alternative sentencing therefore has no application to the determination of the
issue before us.
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Even though the appellant is entitled to the presumption of alternative
sentencing, she has the burden of establishing her suitability for full probation.
See State v. Bingham, No. 03C01-9404-CR-00127 (Tenn. Crim. App. Knoxville,
Feb. 14, 1995); Tenn. Code Ann. § 40-35-303(b) (1994 Supp.). To meet the
burden of establishing suitability for full probation, the appellant must
demonstrate that probation will "subserve the ends of justice and the best
interest of both the public and the defendant." State v. Dykes, 803 S.W.2d. 250,
259 (Tenn. Crim. App. 1990).
In the instant case, the appellant has not met the burden of establishing
suitability for full probation. The appellant contends that she is a superior
candidate for rehabilitation, but her work and social history indicate otherwise.
On the date of the sentencing hearing, the appellant had been working for two
months. However, at the time the presentence report was prepared, she had
been gainfully employed only one day during her adult life. The circumstances of
the offenses and the appellant's prior criminal history are indicative that some
period of confinement is appropriate. The appellant was charged and convicted
on eleven separate felony counts. She has a previous felony conviction for a
crime involving dishonesty for which she received probation. The appellant has
admitted to passing bad checks in Loudon and Knox Counties for the purchase
of drugs. As noted, measures less restrictive than confinement have been
applied unsuccessfully to the appellant. See Tenn. Code Ann. § 40-35-103(c)
(1990). Under these facts, we cannot conclude that the appellant has
demonstrated her suitability for full probation.
The judgment of the trial court is affirmed.
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DAVID G. HAYES, Judge
CONCUR:
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DAVID H. WELLES, Judge
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JOHN A. TURNBULL, Special Judge
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