State v. McConnell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1996 SESSION February 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 03C01-9604-CC-00148
Appellee, )
) HAMBLEN COUNTY
VS. )
) HON. JAMES E. BECKNER,
DARRELL KENNETH McCONNELL, ) JUDGE
)
Appellant. ) (Denial of Alternative Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
PAUL G. WHETSTONE JOHN KNOX WALKUP
502 N. Jackson Street Attorney General and Reporter
Morristown, TN 37814-3915
TIMOTHY F. BEHAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
C. BERKELEY BELL, JR.
District Attorney General
JOHN F. DUGGER, JR.
Assistant District Attorney General
Hamblen County Justice Ctr.
510 Allison Street
Morristown, TN 37814
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The defendant, Darrell Kenneth McConnell, pled guilty in the Hamblen
County Circuit Court to one (1) count of Class D criminal simulation and six (6)
counts of Class E criminal simulation. The trial court denied alternative sentencing
and imposed concurrent sentences of two (2) years and one (1) day for the Class
D felony and one (1) year for each of the Class E felonies. On appeal, defendant
challenges the trial court’s denial of alternative sentencing. We affirm the judgment
of the trial court.
FACTS
The facts giving rise to the guilty pleas were stated by the assistant district
attorney general as follows:
Your Honor, the proof would show in case number 94-CR-305
that on September the 29th, 1994, at approximately 8:10 p.m. that
Officer Mark Campbell of the Morristown Police Department was
dispatched to the College Square Mall to the store Afterthoughts. The
proof would be that he talked to the store manager, Ms. Jamie Wyatt,
and she stated she had received a counterfeit one hundred dollar bill,
and she noticed the man was still in the mall and pointed him out to
the officer.
The proof would be that Officer Campbell approached Mr.
McConnell and asked him if he had made a purchase there, and he
confirmed that he had, and asked him if he had change and also
other money on him. He produced a wallet with various
denominations of bills. Proof would be that he had other money, U.S.
Currency, in his front pocket. Upon checking the wallet, he had six
hundred and thirty dollars of counterfeit bills in that wallet, and he had
good currency in his front pocket.
The proof would further show that a search of his car showed
he had six thousand four hundred and thirty dollars in counterfeit bills
in his vehicle.
And that checking with other stores, he had passed a hundred
dollar bill to Sears for a purchase price of thirty-four dollars and
ninety-nine cents, and that bill was counterfeit; a twenty dollar bill to
Radio Shack, and the purchase price that he bought there was two
dollars and ninety-nine cents. He received change.
He passed another one hundred dollar bill to G.N.C. for
purchasing items of twelve dollars and seventy-four cents, and
received change.
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He passed another one hundred dollar counterfeit bill to the
Footlocker for purchase of items of thirty-nine dollars and ninety
cents, and he received change for that.
He passed another one hundred dollar counterfeit bill to
Afterthoughts, purchasing nineteen dollars and fifty-three cents.
All those bills were counterfeit bills.
And the proof would further show that he had scrubbers in his
wallet that are used on counterfeit money to rub up the paper to make
it feel like real money instead of just being slick. He had scrubbers in
his wallet.
And he also had a pen that is used to check counterfeit bills,
to mark it, and it makes a certain color whether it’s counterfeit or not;
he had that on his person.
Your Honor, that would be the proof in these cases, and they
occurred in Hamblen County, Tennessee.
To these facts the defendant entered an Alford plea and agreed the plea was in his
best interest.1 The defendant refused to acknowledge guilt and stated the
scrubbers were only used to clean contacts. Although the parties agreed to
concurrent sentences of two (2) years and one (1) day for the Class D felony and
one (1) year for each of the Class E felonies, the issue of alternative sentencing was
submitted to the trial court for determination.
SENTENCING HEARING
At the sentencing hearing the defense presented a character witness, a
landlord who leased commercial property to the defendant and the defendant’s wife
of twenty-eight (28) years. All testified as to the defendant’s positive attributes. The
testimony also revealed that the defendant suffered from a heart condition. It was
further established that the defendant, while on bond for the subject charges, was
arrested in the State of Virginia for passing a counterfeit bill for which defendant
was expected to receive a suspended sentence. The defendant’s wife
acknowledged the presence of a color copy machine in their residence, although
she stated it was to be used for screen printing t-shirts. The defendant did not
1
In North Carolina v. Alford, 400 U.S. 25, 91S.Ct. 160, 27 L.Ed.2d 747 (1970); the United States
Supreme court held that a criminal defendant may enter a guilty plea without admitting guilt if the defendnt
intellig ently c onc ludes his be st inte rests wou ld be s erve d by a p lea of guilty.
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testify except in the submission of his guilty plea. The defendant’s version of the
counterfeiting scheme remained a mystery.
The trial court specifically found that the defendant had been untruthful and
had failed to acknowledge his personal responsibility for the extensive counterfeiting
scheme. The court further noted the passing of another counterfeit bill while the
defendant was on bond for the present offenses. Although the trial court noted the
poor health of the defendant, the trial court observed that he could be placed in a
special facility in the Department of Correction. The trial court denied alternative
sentencing.
STANDARD OF REVIEW
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
Under the Criminal Sentencing Reform Act of 1989, trial judges are
encouraged to use alternatives to incarceration. 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. Tenn. Code Ann. § 40-35-102(6).
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
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State v. Ashby, 823 S.W.2d at 169.
A court may also consider the mitigating and enhancing factors set forth in
Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103
considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the
defendant’s potential or lack of potential for rehabilitation when determining if an
alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston, 938 S.W.2d at 438.
CONCLUSION
The trial court’s finding that the defendant had been untruthful and failed to
acknowledge personal responsibility for his criminal conduct is significant as it
relates to the potential for rehabilitation. See State v. Zeolia, 928 S.W.2d 457, 463
(Tenn. Crim. App. 1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App.
1994). The passing of another counterfeit bill while the defendant was on bond is
also indicative of the lack of potential for rehabilitation. It is also apparent that
confinement is necessary to depreciate the seriousness of these counterfeiting
offenses. We find no error in the denial of alternative sentencing.
The judgment of the trial court is AFFIRMED.
_________________________________
JERRY L. SMITH, JUDGE
CONCUR:
________________________________
GARY R. WADE, JUDGE
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________________________________
DAVID H. WELLES, JUDGE
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