State v. Kenyetta Fields ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 18, 1999
JUNE SESSION, 1999 Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 03C01-9805-CR-00178
Appellee, *
* GREENE COUNTY
vs. *
* Hon. James E. Beckner, Judge
KENYETTA FIELDS, *
* (Facilitation of a Felony)
Appellant. *
CONCURRING IN PART, DISSENTING IN PART
I am unable to join with the majority in concluding that a penitentiary sentence
is warranted in this case. The appellant was convicted of a class C felony; he does
not have a criminal history evincing clear disregard for the law; nor have past efforts
at rehabilitation failed. Accordingly, he is clearly entitled to the presumption of an
alternative sentence. Tenn. Code Ann. 40-35-102(5),(6). Moreover, I find no proof
in the record to support any Section 103 consideration requisite for the imposition of
a sentence of confinement. At the sentencing hearing, the State presented no
proof, relying exclusively on the presentence report.1 Although the presumption of
an alternative sentence may be rebutted by "evidence to the contrary," I find the
proof fails to do so in this case.
The trial court ordered total confinement of the appellant based upon (1) his
prior record, (2) appellant's admitted use of cocaine, (3) employment record that
"doesn't appear to be good," (4) deterrence, and (5) to avoid depreciating the
seriousness of the offense. I agree with the majority that these findings were
insufficient to warrant total incarceration. The appellant's criminal history consists of
1
It is questionable whether the presentence report in this case even minimally meets the
requirements of T enn. Code Ann. § 40 -35-207 (1990). The inform ation, where provided, is cursory
at best an d is altogeth er void in oth er areas , e.g. inform ation relatin g to th e app ellant 's fam ily
history, children, if any, physical/mental history, employment history, etc.
two misdemeanor and two traffic offenses. The record does not support a less than
good employment history. The record shows unemployment at the time of
sentencing with previous employment. No other proof on this issue was presented.
With reference to factors four (4) and five (5), the appellate courts of this state have
repeatedly held that, absent specific proof, deterrence and seriousness of the
offense are insufficient grounds to deny an otherwise eligible offender's entitlement
to an alternative sentence. See State v. Ashby, 823 S.W.2d 166, 170-171 (Tenn.
1991); State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App.), perm. to appeal
denied, (Tenn. 1995); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App.
1991). Finally, I find the trial court's application of the appellant's admitted use of
cocaine contained in the presentence report misplaced. The presentence report
was never intended to serve the purpose of gathering incriminating evidence from
an offender in order to justify denial of an alternative sentence. Indeed,
presentence information is essential in tailoring a sentencing alternative best suited
to fit the offender. The offender is encouraged to participate in the preparation of
the presentence report in order that information provided by the offender may be
utilized by the sentencing court in arriving at an individualized sentence under
sentencing guidelines. To utilize the offender's statements within the report to deny
an alternative sentence is counter-productive in that it discourages truthfulness and
is inconsistent with the purposes of the presentence report.
Although the trial court did not so find, the majority finds that the
circumstances of this crime (facilitating sale of cocaine) are so violent, horrifying or
shocking as to require total confinement in order to avoid depreciating the
seriousness of the offense. See generally, State v. Hartley, 818 S.W.2d 370, 374-
75 (Tenn. Crim. App. 1991). This conclusion is based upon the fact that the drug
transaction occurred within 200 yards of a school. The purpose of the Drug-Free
School Zone Act, see Tenn. Code Ann. § 39-17-432(a) (1996 Supp.), is to provide
Tennessee students an environment in which they can learn absent the dangers
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accompanying drug activity. The Act seeks to secure this goal by creating
enhanced and mandatory minimum sentences for offenses occurring in a drug-free
school zone to serve as a deterrent to such unacceptable conduct. Id. The Act
does not indicate that drug offenses committed in close proximity to a school are
inherently more serious than all other drug offenses. In the present case, the sale
was not made to a minor, nor was a minor involved in any way in the transaction.
Moreover, the undisputed proof in the record reveals that the transaction occurred
after 5:00 p.m., well after the school's dismissal time for that day. Without more,
there is no evidence that the mere proximity to the school made the offense
"reprehensible and offensive" as compared to other drug transactions. Although I
would not conclude that consideration of the situs of the crime would never be
relevant in determining the "seriousness of the offense," I do not believe that the
proximity of the drug transaction to the school in the case before this court is
sufficient, by itself, to necessitate a sentence of total confinement.
Thus, for the reasons expressed above, I conclude that the State has failed
to present sufficient proof to overcome the presumption that a sentence other than
confinement would result in successful rehabilitation of the appellant. Under the
facts of this record, the appellant and society would best be served by granting a
sentence other than total confinement. Accordingly, I would remand this case to the
trial court for a determination of which sentencing alternative would best serve the
needs of the appellant and society.
____________________________________
DAVID G. HAYES, Judge
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