State v. Dirk Carter ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JUNE 1998 SESSION
July 28, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9710-CC-00421
Appellee, )
) CARROLL COUNTY
VS. )
) HON. JULIAN P. GUINN,
DIRK BRADEN CARTER, ) JUDGE
)
Appellant. ) (Aggravated Assault - Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
C. DAVID JONES JOHN KNOX WALKUP
P.O. Box 707 Attorney General and Reporter
150 W. Main Street
Huntingdon, TN 38344-0707 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
G. ROBERT RADFORD
District Attorney General
ELEANOR CAHILL
Assistant District Attorney General
111 Church Street
P.O. Box 686
Huntingdon, TN 38344-0686
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Dirk Braden Carter, was convicted by a Carroll County jury
of aggravated assault, a Class C felony. He received a sentence of three (3) years
as a Range I, standard offender. The trial court ordered that defendant serve six
(6) months in confinement, with the remainder of defendant’s sentence to be served
on supervised probation. The trial court further ordered that defendant be
prohibited from entering the State of Tennessee during his probationary period. On
appeal, defendant claims that the trial court erred in (1) failing to sentence him as
an especially mitigated offender, and (2) ordering that defendant serve six (6)
months in confinement. We find that the trial court erroneously prohibited
defendant from returning to Tennessee during his probationary period; therefore,
the judgment is modified to delete this provision. In all other respects, the judgment
of the trial court is affirmed.
FACTS
On May 3, 1996, defendant, a college student living in Texas, was visiting his
father in Carroll County. That evening defendant joined his father at the Carroll
Lake Country Club. Defendant’s father, Harold “Chick” Carter, frequented the bar
and was a known alcoholic. As the evening progressed, “Chick” Carter became
increasingly intoxicated and made rude and derogatory comments towards others
in the bar.
“Chick” began cursing Todd Walker and Kelly Hastings, patrons of the bar.
The victim, Richard Glen Burns, was sitting with Walker and Hastings at that time
and walked over to defendant and his father to try and calm “Chick” Carter. Burns
placed his hand on the back of “Chick” Carter’s chair and asked that he refrain from
using such language. Defendant then stated, “keep your hands off my father.”
Burns told defendant that he did not want any trouble. Defendant then grabbed
Burns and bit down on Burns’ nose, biting off part of his nose. Defendant and his
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father were then thrown out of the Carroll Lake Country Club, and defendant was
subsequently arrested. Burns’ injury required extensive medical treatment.
At the time of trial, defendant was twenty-eight (28) years old and had no
prior criminal convictions. He was receiving counseling because of his father’s
alcoholism and as a result of the present offense.
In determining defendant’s sentence, the trial court found one enhancement
factor applicable, that the personal injuries inflicted upon the victim were particularly
great. Tenn. Code Ann. § 40-35-114(6). The trial court found no specific statutory
mitigating factors to apply, but found in mitigation that defendant had no prior
record, was undergoing counseling, was attending college, was working and had
strong family support. See Tenn. Code Ann. § 40-35-113(13). The trial court,
therefore, imposed the minimum sentence of three (3) years as a Range I,
standard offender. The trial court next considered alternative sentencing as
required by statute. However, the trial court found that a period of incarceration was
warranted considering the inexplicable and extreme nature of the offense
committed. As a result, defendant was ordered to serve six (6) months in
confinement, with the remainder of his sentence to be served on supervised
probation. Defendant now brings this appeal as of right.
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).
The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.
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In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-
210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
and arguments as to sentencing alternatives; (4) [t]he nature and
characteristics of the criminal conduct involved; (5) [e]vidence and
information offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
defendant wishes to make in his own behalf about sentencing.
ESPECIALLY MITIGATED OFFENDER
In his first issue, defendant contends that the trial court erred in sentencing
him as a standard offender. He argues that the trial court erroneously applied Tenn.
Code Ann. § 40-35-114(6), that the victim’s injuries were particularly great, because
this enhancement factor is inherent in the offense of aggravated assault. Therefore,
because the trial court found applicable mitigating factors, he insists that the trial
court abused its discretion in failing to sentence him as an especially mitigated
offender.
Tenn. Code Ann. § 40-35-109(a) provides that a trial court ”may find the
defendant is an especially mitigated offender, if: (1) [t]he defendant has no prior
felony convictions; and (2) [t]he court finds mitigating, but no enhancement factors.”
However, whether a defendant is sentenced as an especially mitigated offender is
a determination that rests within the sound discretion of the trial court. State v.
Hicks, 868 S.W.2d 729, 730-31 (Tenn. Crim. App. 1993); State v. Braden, 867
S.W.2d 750, 762-63 (Tenn. Crim. App. 1993). This provision is not mandatory.
Braden, 867 S.W.2d at 762-63. Indeed, especially mitigated status is reserved for
“instances where the trial judge may desire to depart from even the minimum
sentence for a Range I offender and impose lesser penalties.” Tenn. Code Ann. §
40-35-109, Sentencing Commission Comments.
The state concedes that the trial court misapplied Tenn. Code Ann. § 40-35-
114(6), as it is inherent in the offense of aggravated assault as a result of serious
bodily injury. We agree. See State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994).
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However, upon our de novo review of the record, we find that another enhancement
factor would apply in this case. Defendant admitted in the pre-sentence report that
he had used marijuana in the past, evidencing past criminal behavior. See Tenn.
Code Ann. § 40-35-114(1). While this factor would be given little weight to enhance
defendant’s sentence, it is an enhancement factor and is certainly relevant in
determining whether a defendant should be sentenced as an especially mitigated
offender.
Furthermore, considering the nature, facts and circumstances of the offense,
we find that the trial court did not abuse its discretion in refusing to sentence
defendant as an especially mitigated offender.
This issue is without merit.
PROBATION
Defendant next argues that the trial court erred in failing to grant total
probation. He claims that a six (6) month period of incarceration is unwarranted in
this case due to his lack of prior record, his good work and social history and his
favorable potential for rehabilitation. He, therefore, contends that the trial court
should have granted full probation or, in the alternative, a lesser period of
confinement.
A.
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 in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A trial court
must presume that a defendant sentenced to eight years or less and who is not an
offender for whom incarceration is a priority is subject to alternative sentencing.
State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further
presumed that a sentence other than incarceration would result in successful
rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380.
However, although a defendant may be presumed to be a favorable candidate for
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alternative sentencing, the defendant has the burden of establishing suitability for
total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see
Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically
considered, “the defendant is not automatically entitled to probation as a matter of
law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Comments; State
v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).
In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant's criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
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
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); State v. Grigsby, 957 S.W.2d
541, 545 (Tenn. Crim. App. 1997).
B.
In denying a sentence of total probation, the trial court noted that defendant
committed a brutal act with little provocation or explanation. The trial court
determined that the best interest of the public and the defendant would not be
served by a sentence of full probation. The trial court then concluded that an
incarceration period of six (6) months was necessary to avoid depreciating the
seriousness of the offense.
At the time of the sentencing hearing, the victim had undergone five
surgeries as a result of his injury. Because the initial reattachment of his nose was
unsuccessful, the victim’s nose is disfigured. He is also suffering from emotional
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trauma due to the notoriety of this incident in his hometown.
Alternative sentencing may be denied solely on the nature of the offense if
the offense is “especially violent, horrifying, shocking, reprehensible, offensive, or
otherwise of an excessive or exaggerated degree,” and the nature of the offense
outweighs all factors favoring a sentence other than confinement. State v. Leggs,
955 S.W.2d 845, 851 (Tenn. Crim. App. 1997) (citations omitted).
The record before this Court supports the trial court’s decision that a six (6)
month period of incarceration was warranted to avoid depreciating the seriousness
of the offense. The defendant bit off a portion of the victim’s nose in response to
seemingly little to no provocation. We find this offense to be reprehensible and of
an excessive degree to justify a limited period of incarceration. Defendant has not
met his burden of establishing that he is entitled to total probation.
This issue is without merit.
C.
This Court notes that the trial court ordered that defendant would be
prohibited from returning to the State of Tennessee during his probationary period.
We find this to be an inappropriate condition of probation, especially considering
defendant’s family ties in Tennessee. We, therefore, order that defendant’s
judgment be modified to delete this provision as a condition of probation.
CONCLUSION
We find that the trial court did not abuse its discretion in sentencing
defendant as a Range I, standard offender. Moreover, an incarceration period of
six (6) months is supported by the record. Accordingly, the judgment of the trial
court is affirmed as modified to delete the provision prohibiting defendant from
returning to Tennessee.
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JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID H. WELLES, JUDGE
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