State v. Sanders Caldwell ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1997 December 18, 1997
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9612-CC-00533
)
Appellee, )
)
) RUTHERFORD COU NTY
VS. )
) HON. J. S. DANIEL
SANDERS CALDWELL, ) JUDGE
)
Appe llant. ) (Denial of Probation)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF RUTHERFORD CO UNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY S. BURTON JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
201 West Main Street
Suite 101, Court Square Bldg. GEORGIA BLYTHE FELNER
Murfreesboro, TN 37130 Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
WILLIAM W HITESELL
District Attorney General
Third Floor, Judicial Building
Murfreesboro, TN 37130
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defe ndan t, Sand ers C aldwe ll, appeals as of right pursuant to Rule 3,
Tennessee Rules of App ellate P roced ure. In th is app eal, he argues that the trial
judge abuse d his discr etion in de nying the Defen dant’s req uest for probatio n. W e
affirm the ju dgme nt of the trial co urt.
On Novem ber 6, 1995, the Defendant was indicted on one count of
aggravated burglary, two counts of theft over $1,000, and one count of theft over
$500. On November 8, 1995, the Defendant was indicted on one count of
aggravated burglary and one count of theft over $1,000. The Defendant waived
presentment of a charge for passing worthless checks.
Pursuant to a negotiated plea agreement, the Defendant entered several
guilty pleas on Februa ry 8, 1996 . He was convicted of two counts of theft over
$1,000 in case numbers 34949 and 35017 and sentenced as a Range I offender
to consecutive terms of two yea rs and two yea rs and six mo nths, respectively, in
the Department of Correction.1 He was convicted of two counts of theft under
$500 in case numbers 34950 and 34951 and sentenced to eleven months and
twenty-nine days for each offense.2 He was also convicted of one count of
passing worthle ss che cks in case number 36005 and sentenced to eleven
months and twenty-nine days.3 The sentences for theft under $500 and passing
1
Ten n. Co de A nn. § 39-1 4-10 3, a C lass D felo ny.
2
Tenn. Code A nn. § 39-14-103, a Class A m isdemeano r.
3
Tenn. Code A nn. § 39-14-121, a Class A m isdemeano r.
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worthless checks were ordered to be served concurrently with the sentences for
theft over $1000, for an effective sentence of four and one half years.
The Defendant submitted an application for a suspended sentence. A
hearing was sch eduled for March 11, 199 6, for which the Defendant did not
appear. While being served with another warrant for theft, the Defendant
became aware of an outstanding capia s for his arrest for failure to appear at the
probation hearing. He surrendered himself and explained that he thought the
hearing was scheduled for April 11. Another hearing was scheduled for July 22,
1996, at which the Defendant appeared. The trial court denied probation at that
time.
The Defe ndan t argue s that th e trial jud ge ab used his disc retion in failing
to grant probation. When an accused challenges the length, range, or the manner
of service of a sentence, this court has a duty to conduct a de novo review of the
sentence with a presumption that the determination s made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned
upon the affirmative showing in the record that the trial court considered the
sentencing princip les an d all relevant fac ts and circ umsta nces." State v. Ashby,
823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a senten ce, this court mu st consider: (a)
the evidenc e, if any, rece ived at the tria l and the s entenc ing hea ring; (b) the
presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement
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that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principles set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Although probation "must be automatically considered as a sentencing
option for eligible defendants, the defen dant is no t autom atically entitled to
probation as a matter of law." Tenn. Code Ann. § 40-35-303(b) (1990)
(Sentencing Commission Comments). This Court must begin its sentencin g
determination by reviewing the purposes of sentencing set forth in Tennessee
Code Annota ted sectio n 40-35 -102. State v. Davis , 940 S.W.2d 558,559 (Tenn.
1997).
If an accused has been convicted of a Class C, D or E felony and
sentenced as an especially mitigated or standard offender, there is a
presumption, rebuttable in nature, that the accused is a favorable candidate for
alternative sentencing unless disqualified by some provision of the Tennessee
Criminal Senten cing Re form A ct of 1989 . Tennessee Code Annotated section
40-35-1 02 provid es in part:
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(5) In recognition that state prison capa cities an d the fu nds to build and
main tain them are limited, convicted felons committing the most se vere
offenses, poss essin g criminal histories evincing a clear disregard for
the laws and morals of society, a nd 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.
The sentencing proce ss m ust ne cess arily commence with a determination
of whether the accu sed is en titled to the be nefit of the p resum ption. Ashby, 823
S.W.2d at 169. As our supreme court said in Ashby: "If [the] de termin ation is
favora ble to the defe ndant, the trial court m ust presu me tha t he is sub ject to
alternative senten cing. If the court is pres ented w ith evidenc e sufficient to
overcome the presumption, then it may sentence the defendant to confinement
accord ing to the s tatutory pro vision[s]." Id. "Evidence to the contrary" may be
found in applying the considerations that govern sentences involving
confinem ent, which are set forth in Tennessee Code Annotated section
40-35-103 (1):
(A) Confinem ent is necess ary to protect society by re straining a
defend ant who has a lon g history of c riminal co nduct;
(B) Conf inem ent is necessary to avoid depreciating the seriousness of
the offense or confinem ent is particularly suited to provid e an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently b een ap plied uns uccess fully to the de fendan t.
See Davis , 940 S.W .2d at 561 ; Ashby, 823 S .W .2d at 1 69. Th e pres ump tion
can be succ essfully reb utted by fa cts conta ined in the presen tence re port,
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evidence presented by the state, the testimony of the accused or a defense
witness, or any other source provided it is made a part of the reco rd. State v.
Bonestel, 871 S.W .2d 163, 167 (Tenn. Crim . App. 1993 ).
Beyond this, a defe ndant has the burden of establishing his or her
suitability for total probation. Tenn. Code Ann. § 40-35-303(b). To be granted
full probation, a defendant must demonstrate that probation will "subserve the
ends of justice and the best interest of both the public and the defend ant." State
v. Boggs, 932 S.W .2d 467 , 477 (T enn. C rim. App . 1996); State v. Bingham, 910
S.W.2d 448, 456 (Tenn . Crim. App. 19 95) (citing) Hoop er v. State , 201 Tenn.
156, 161, 297 S.W.2d 78, 81 (1956)). The trial court must consider a sentence
which is the “least severe measure necessary to achieve the purposes for which
the sentence is imposed” and must also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant.” Tenn. Code Ann.
§ 40-35 -103(4), (5 ).
On July 16, 1995, Kristy Beasley reported a burglary in which several items
of jewelry were taken . On July 19, 1995, Jason Bailey of Free Cable America
reported the theft of seve ral tools and two satellite dishes. On July 20, 1995, the
Indian Hills Country Club reported the theft of a lawnmower valued at $750. The
Defendant was identified as the person who fenced the stolen item s to
Roadrunner Salvage . The D efenda nt was arrested on August 8, 1995, posted
a $9,000 bo nd, and wa s released on August 11, 1995. On August 27, 1995,
Glenn Taylor returned home to find the Defendant leaving his house. Mr. Taylor
followed the Defendant, who drove away in a Chrysler New Yorker. The
Defendant wrecked the vehicle and fled on foot. Mr. Taylor recovered several
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items of his pr operty in the car. The Defendant was arrested on August 28, 1995
and released on the same bond.
Fran k’s IGA reported to the police that the Defendant had passed four
dishonored checks during July, 1995. The Defendant was arrested on December
14, 1995. Kristy Beasley submitted a victim impact statement and made the
following c omm ents reg arding se ntencing :
Do not go easy on him. I am a school teacher who sees the way her
studen ts react to crimes and their pu nishm ents, a nd the y think ja il is cool
and that there are no real consequences. He needs to see that there a re
consequences or he will not reform. Yes. Please tell him that I feel like he
not only stole my property, he stole my memories. He stole my trust. He
stole my faith in p eople. H e stole my security. Now, I’m just angry and
jaded.
Glenn Taylor made the following victim impact statement regarding the
Defendant’s sentence: “I understand about the overcrowding in the prisons but
the sentencing should be the most anyo ne can rece ive. I have to work hard for
everything I have and to have someone rob me it is not fair.” Ms. Beasley
requested $2,000 in restitution and Mr. Taylor requested $700 in restitution.
Detectives Ken Roberts and Preble Morton reported that the Defendant
never assisted them in recovering any s tolen items. De tective Morton stated that
the Defendant could not be trusted because he was a crack cocaine user and
that the Defe ndant tried to blame the crimes on someone else. The presentence
report reflects that the Defendant was on parole when the offenses in question
were committed. He had also been convicted of five felonies, theft and burg lary
offenses, prior to the offenses under consideration.
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The presen tence re port reflects that the Defendant was thirty-five and
married and the time of sentencing. The Defendant dropped out of high school
after the tenth gr ade. He obtained his G.E.D . on Nov embe r 7, 1980 . He
attended Shelby State for a short time. The Defendant reported some use of
alcohol and mariju ana and that he had used cocaine two or three times. He
reported that it had been over fifteen years since he used illegal drugs. He
reported working at Briskin Manufacturing Comp any for a year from May, 1994
to May, 1995, which was verified by the probation officer. No other employment
was verified.
A hearing was conducted on July 22, 1996. The Defendant reported that
two offens es listed as prior convictions had been dismissed. He also reported
that he went to trial on a charge of first degree murder, but was acquitted of that
offense based on self-defense . He obtained his G.E.D. while at the Shelby
Coun ty Penal Farm. The Defendant testified that he had never been on
supervised probation and requested intensive supervised probation because of
his drug pro blem. The Defendant corrected the statement in the presentence
report and testified that he had been using a variety of illegal drugs for the past
fifteen years. Th e Defe ndant s tated he would be willing to attend an in-house
treatment program. The Defendant stated that he would live with his girlfriend
and her mothe r if released on prob ation and that he would try to obtain
employment as a certified welder. He denied current drug use. He stated that
the thefts were caused by his drug use.
On cross-examination, the Defendant admitted that he was on parole when
he committed the first burg lary. He stated that he was charged with burglary but
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that he did not enter Mr. Taylor’s house. The Defendant named a number of
places where he worked from 1980 to 1994, but none had been verified by the
probation officer. The Defendant denied taking the items from Ms. Beasley, but
stated that he took them to the pawn shop for someone else.
The trial judge noted that he read the presentence report carefully. He
noted the Defendant’s five prior felonies and that he has spent the majority of the
past fifteen years incarcerated or on the street with no “visible sign of
emplo ymen t.” The trial court also noted that the Defendan t was o n paro le when
he engaged in the offenses that occurred on July 16, 1995, and that he
committed the other offenses while out on bond. In sum, the trial court stated
that: “H e sim ply is a person wh o becaus e of his extensive prior criminal record,
his inability to really comply with the ru les of soc iety is not on e worthy o f a
suspension of his sentence.” The trial court obviously determined that probation
would not “subserve the ends of justice and the best interest of both the public
and the defendant.” When considering the evidence contained in this record, we
cannot conclude that the trial judge erred or abused his discretion in denying
probation.
Accord ingly, we affirm the judgm ent of the tria l court.
____________________________________
DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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