State v. Long ( 1998 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 29, 1998
MAY 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9707-CR-00260
)
vs. ) Sullivan County
)
GERALD SCOTT LONG, ) Hon. R. Jerry Beck, Judge
)
Appellant. ) (Sentencing)
)
FOR THE APPELLANT: FOR THE APPELLEE:
CARY TAYLOR JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
547 E. Sullivan St.
Kingsport, TN 37660 TODD R. KELLEY
Asst. Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
GREG NEWMAN
Asst. District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED:________________
AFFIRMED AND REMANDED
CURWOOD WITT, JUDGE
OPINION
The defendant, Gerald Scott Long, appeals the manner of service of
his concurrent eleven month, 29 day sentences for his misdemeanor convictions of
casual exchange and reckless endangerment. The length of Long's sentences were
agreed upon as part of a guilty plea settlement, and the manner of service was left
for determination by the Sullivan County Criminal Court. Following a hearing, the
court denied alternative sentencing and ordered Long to serve his sentences in the
county jail.1 In this direct appeal, Long claims he should have received probation
or some other form of alternative sentencing. Following a review of the record, we
affirm the judgment of the trial court insofar as sentencing is concerned. However,
we remand this matter to the trial court for correction of an error on the judgment
form in case S37,948.
I
In determining whether the trial court has properly sentenced an
individual, this court engages in a de novo review of the record with a presumption
that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)
(1997). This presumption 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). In conducting
our de novo review, we must consider the evidence at sentencing, the presentence
report, the sentencing principles, the arguments of counsel, the statements of the
defendant, the nature and characteristics of the offense, any mitigating and
enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code
Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal,
the appellant has the burden of showing that the sentence imposed is improper.
1
The court imposed 0% minimum service prior to work release and 30%
minimum service prior to release.
2
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby,
823 S.W.2d at 169.
We find that the trial court sentenced the defendant in accord with the
statutory framework; therefore, its determination is entitled to the presumption of
correctness.
At the sentencing hearing, the entirety of the evidence consisted of the
presentence report and a stipulation of the defendant's work history. The record
reflects that the defendant is a 27 year old single father of two children. The record
does not reflect whether he is the custodial parent of either of his children. He had
been employed until he lost his job as a result of being indicted for the instant
offenses. Thereafter, he became self-employed. He has a lengthy history of what
the trial court characterized as "petty" offenses spanning the twelve years prior to
the instant offenses. Notably, he has been given past chances to rehabilitate
himself through probation, drug treatment, shock incarceration, and the like, yet he
has continued to disregard the law. The defendant's criminal history is notable for
numerous previous speeding convictions, a reckless endangerment conviction and
a reckless driving conviction. According to the officer's statement in the
presentence report, the instant reckless endangerment charge arose from
dangerous driving and excessive speed. The defendant left the roadway, almost
hitting telephone poles. He disregarded traffic controls. The officer pursued the
defendant at speeds reaching 113 miles per hour and ultimately discontinued the
pursuit due to the defendant's dangerous actions. The defendant's criminal history
also included a violent offense. Two officers from the police department opposed
probation for the defendant because they believed the defendant was a major drug
dealer in Kingsport and because the defendant was not truthful after his arrest. One
of the officers also reported that the defendant was not cooperative after his arrest.
3
In finding the defendant an unsuitable candidate for alternative
sentencing, the trial court relied upon his past criminal history and the failure of less
restrictive and rehabilitation-oriented sentencing imposed for prior offenses. See
Tenn. Code Ann. § 40-35-103(1)(A), (1)(C), (5) (1997). The court found these
considerations weighty in comparison to favorable evidence of the defendant's good
work history. Moreover, the court apparently considered the defendant's concern
that he needed to be able to run his businesses so that he could support his
children because the court imposed 0% service prior to eligibility for work release.
In attempting to meet his appellate burden, Long conclusorily argues
that the "denial of probation makes no sense and is inconsistent with the overall
policy" of the Sentencing Act. He further claims that the "proof summarized by
counsel and the objective criteria . . . favors, if not presumes, a granting of probation
or alternative sentencing in this case." He offers no specifics pertinent to his case
to support these arguments. Further, he claims that a denial of probation should be
reversed upon a showing that the defendant is not a first priority for incarceration
under Code section 40-35-102(5), has not been the subject of failed rehabilitative
measures, is not a violent criminal, and shows potential for rehabilitation; however,
the record demonstrates that this defendant is not such an individual. Simply put,
we are unpersuaded by the defendant's arguments. He has failed to carry his
burden of showing that the manner of service imposed by the trial court is improper.
See Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997);
Ashby, 823 S.W.2d at 169.
II
Our review of the record has revealed an irregularity on the judgment
form for the casual exchange conviction, case number S37,948. The conviction is
4
classified on the judgment form as a Class C misdemeanor; however, casual
exchange is a Class A misdemeanor unless aggravating circumstances are present
to elevate it to felony classification. See Tenn. Code Ann. § 39-17-418 (1997). This
irregularity must be corrected by the trial court.
Accordingly, we affirm the trial court's sentencing determination and
remand this matter to the trial court for correction of the judgment form in case
number S37,948.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
JOSEPH M. TIPTON, JUDGE
_____________________________
JOE G. RILEY, JUDGE
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