State v. Brian Harding ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1998 SESSION
February 18, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9703-CC-00103
Appellee, )
) HICKMAN COUNTY
VS. )
) HON. CORNELIA A. CLARK,
BRIAN KEITH HARDING, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HENDERSON JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
ELAINE B. BEELER KAREN M. YACUZZO
Asst. Public Defender Asst. Attorney General
P.O. Box 68 450 James Robertson Pkwy.
Franklin, TN 37065 Nashville, TN 37243-0493
JOSEPH D. BAUGH
District Attorney General
RONALD DAVIS
Asst. District Attorney General
P.O. Box 937
Franklin, TN 37065
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on several charges stemming from three
separate incidents. He was charged with two counts of aggravated burglary, one count
of theft of property valued at less than one thousand dollars ($1000), and two counts of
theft of property valued at less than five hundred dollars ($500). He ultimately pled guilty
to two counts of aggravated burglary and one count of theft of property valued at less
than five hundred dollars ($500). As part of the plea bargain, he agreed to three year
sentences for each of the aggravated burglaries and a thirty day sentence for the theft;
all of which were to run concurrently. A sentencing hearing was held to determine the
manner in which the defendant should serve his sentence. The trial court denied his
request for probation and ordered him to serve his sentences in the Tennessee
Department of Correction.
In this appeal as of right, the defendant argues that the trial court erred
when it denied his request for probation. After a review of the record and applicable law,
we find no error and affirm the judgment of the court below.
As the defendant entered a guilty plea, there are few facts in the record
regarding the offenses for which he was convicted. Only one witness testified at the
sentencing hearing and her testimony was not relevant to the instant convictions. The
defendant did not testify nor did he call anyone to testify on his behalf.
The presentence report reflects that on September 25, 1995, the defendant
entered the home of Dwayne Jordan and took electronic equipment which he later sold
to a nearby pawn shop. On October 23, 1995, the defendant entered the home of Torrey
2
Shelby and took a Nintendo game and game cartridge, a necklace, and some cash. On
June 28, 1995, the defendant took two newspaper vending machines. He evidently
confessed to at least two of the crimes.
The presentence report further reflects that the defendant, who was twenty-
one years old at the time of sentencing, had been previously convicted of theft,
vandalism, and making a false report. For these convictions, he had been sentenced to
probation and thus was on probation when he committed the October 1995 offense. The
report also indicated that the defendant had been given a less than honorable discharge
from the United States Army after he had been AWOL for several months. The
defendant reported a sporadic employment history: he worked approximately one month
at Pizza Hut, approximately two months at Domino’s, approximately two months for a
temporary service, and approximately six months at Wal-Mart.
At the sentencing hearing, the defendant’s attorney told the court that since
the presentence report had been filed, the defendant had married and had been working
at Propper Sales, a distribution center primarily for military clothing. The defendant now
argues that he is a suitable candidate for probation.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, "is
conditioned upon the affirmative showing 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).
3
Tennessee Code Annotated § 40-35-103 sets out sentencing considerations
which are guidelines for determining whether or not a defendant should be incarcerated.
These include the need "to protect society by restraining a defendant who has a long
history of criminal conduct," the need "to avoid depreciating the seriousness of the
offense," the determination that "confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses," or the determination that
"measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant." T.C.A. § 40-35-103(1).
In determining the specific sentence and the possible combination of
sentencing alternatives, the court shall consider the following: (1) any evidence from the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and the arguments concerning sentencing alternatives, (4) the nature and characteristics
of the offense, (5) information offered by the State or the defendant concerning enhancing
and mitigating factors as found in T.C.A. §§ 40-35-113 and -114, and (6) the defendant's
statements in his or her own behalf concerning sentencing. T.C.A. § 40-35-210(b). In
addition, the legislature established certain sentencing principles which include the
following:
(5) In recognition that state prison capacities and the funds to
build and maintain them are limited, convicted felons
committing the most severe offenses, possessing criminal
histories evincing a clear disregard for the laws and morals of
society, and evincing failure of past efforts at rehabilitation
shall be given first priority regarding sentencing involving
incarceration; and
(6) A defendant who does not fall within the parameters of
subdivision (5) and is an especially mitigated or standard
offender convicted of a Class C, D or E felony is presumed to
be a favorable candidate for alternative sentencing options in
the absence of evidence to the contrary.
4
T.C.A. § 40-35-102.
After reviewing the statutes set out above, it is obvious that the intent of the
legislature is to encourage alternatives to incarceration in cases where defendants are
sentenced as standard or mitigated offenders convicted of C, D, or E felonies. However,
it is also clear that there is an intent to incarcerate those defendants whose criminal
histories indicate a clear disregard for the laws and morals of society and a failure of past
efforts to rehabilitate.
The defendant complains that the court should not have denied his request
for probation. In determining whether the defendant should be granted probation, the
court must consider the defendant’s criminal record, social history, present physical and
mental condition, the circumstances of the offenses, the deterrent effect upon the criminal
activity of the accused as well as others, and the defendant’s potential for rehabilitation
or treatment. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993). In this
case, the sentencing court found that the defendant had a history of criminal convictions
and that measures less restrictive than confinement had been unsuccessful, given that
he committed one of the instant offenses while on probation. The trial court further noted
that the defendant had evidenced a clear disregard for the laws of this state and had
further evidenced a lack of potential for rehabilitation, given that the offenses occurred
over several months, indicating a sustained intention to violate the law.
The evidence presented in the presentence report fully supports the trial
court’s findings. Furthermore, these findings clearly support the trial court’s conclusion
that probation is not proper for this defendant. The judgment of the trial court is therefore
affirmed.
5
__________________________________
JOHN H. PEAY, Judge
CONCUR:
_______________________________
JERRY L. SMITH, Judge
_______________________________
THOMAS T. W OODALL, Judge
6