State v. David McCormick ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
APRIL 1998 SESSION
FILED
June 25, 1998
Cecil W. Crowson
§ Appellate Court Clerk
STATE OF TENNESSEE,
APPELLANT
§
VS. C.C.A. No. 01C01-9707-CR-00295
§ DAVIDSON COUNTY
HONORABLE SETH NORMAN
DAVID RAY McCORMICK §
APPELLEE (SENTENCING)
FOR THE APPELLANT FOR THE APPELLEE
John Knox Walkup Jeffrey A. Devasher
Attorney General and Reporter Assistant Public Defender
425 Fifth A venue, N orth (On Ap peal)
Nashville, TN 37243
Karen M. Yacuzzo Stephen G. Young
Assistant Attorney General Assistant Public Defender
425 Fifth A venue, N orth (At Hearing)
Nashville, TN 378243 1202 Stahlman Bldg.
Nashville, TN 37201
Jim Milam
Assistant District Attorney General
Washington Square, Suite 500
222 Sec ond Av enue N orth
Nashville, TN 37201-1649
OPINION FILED: _______________________
REVERSED AND REMANDED
L. T. LAFFERTY, SPECIAL JUDGE
OPINION
The defendant, David McCormick, pled guilty to aggravated assault.
The trial court, after a sentencing hearing, sentenced the defendant to
confinement in the community corrections for six years. As conditions of
this placement in community corrections, the trial court required the
defendant to pay for electronic monitoring; ordered house arrest except for
employment; and ordered the defendant to pay fifty percent of his net
income for restitution and costs.
In this appeal of right, the State contends that the trial court erred by
sentencing the defendant to the community corrections program for a crime
of violence. The State, also, contends the defendant is not entitled to
probation and, thus, the defendant should serve his sentence in confinement.
After a review of the record in this cause, briefs of the parties, and
applicable law, the trial court’s judgment is reversed and remanded to the
trial court for re-sentencing.
Background
In May, 1995, the Davidson County grand jury accused the defendant
of criminal attempt, to-wit: murder first degree involving the shooting of
one Ricky Stanfill in December, 1994. On March 6, 1997, the defendant
entered a plea of guilty to aggravated assault, agreeing to a Range I six year
sentence, and requested a hearing for alternative sentencing. A transcript
of the guilty plea entry was not included in the record. The trial court held a
bifurcated hearing on April 9 & 16, 1997, to determine the merits of the
defendant’s application for alternative sentencing.
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Sentencing Hearing
Although present at the sentencing hearing, neither the victim nor
defendant testified.
As part of its evidence, the State offered the testimony of Mr. Jim
Dallas Crouch. Mr. Crouch, a drummer in a band in a nightclub in
Davidson County, had stepped outside for a cigarette during a break. The
victim, Stanfill, and the defendant were standing outside in the parking lot.
Prior to Crouch’s going outside, he had heard some words being exchanged
between the victim and defendant and knew there was a “problem.” Crouch
observed the defendant shoot the victim. Crouch, a former Navy corpsman,
applied pressure to a wound in the victim’s abdomen, and took him inside
the bar to wait for an ambulance. Crouch never saw a gun or weapon in the
victim’s possession. The State also submitted a letter from the victim’s
doctors concerning his wound, two certified records of convictions of the
defendant, and a pre-sentence report.
A summary of the defendant’s evidence for alternative sentencing
established that the defendant is employed as an operator in a steel
processing plant. His employer found the defendant reliable and
dependable and stated that the defendant would likely be promoted. The
employer has prior experience with persons on probation and agreed to
work with the court and the defendant if he were placed on community
corrections or probation. The defendant’s mother testified her son assists
her in paying her rent and utilities, sees to her medical problems and
believes he has straightened out his drinking. The mother admitted her son
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had a history of drinking and assaults and being on probation on several
occasions, but was unaware that any periods of probation were revoked.
Also, she was unaware of her son using marijuana. The defendant’s sister
testified in support of her brother. She has talked to the defendant about the
offense; he is very sorry about the shooting and has turned his drinking
around. She confirmed that the defendant assisted his mother in her debts.
Apparently while on bail for this offense, the defendant had been arrested
and convicted for the possession of marijuana, but the sister and defendant
did not tell their mother due to her bad health. The sister believes the
defendant should be placed on community corrections or probation.
Based on this evidence the trial court placed the defendant on
community corrections supervision. Thus leading to this appeal.
Community Corrections/Probation
Alternative Sentences
First, we will address the placement of the defendant on community
corrections in lieu of probation. Since the defendant entered a plea of guilty
to aggravated assault, a Class C felony, the defendant is presumed to be a
favorable candidate for probation or an alternative sentence, in the absence
of evidence to the contrary. Tenn. Code Ann.
§ 40-35-102 (6). The defendant has the burden of establishing that he is a
favorable candidate for alternative relief. Tenn. Code Ann. § 40-35-303(b).
Even when the State complains of the sentence of a defendant, we must
conduct a de novo review with a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d). Therefore, the burden of showing the sentence is
improper is upon the State. The presumption that determinations made by
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the trial court are correct 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 (Tenn.
1991); State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994).
If appellate review reflects that the trial court properly considered all
relevant facts and its finding of facts are adequately supported by the
record, this Court must affirm the sentence, “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991). In arriving at the proper determination of an appropriate
sentence, the trial court must consider (1) the evidence, if any, received at
the plea of guilty; (2) the pre-sentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors;
(6) any statements the defendant wishes to make in the defendant’s behalf
about the sentencing; and (7) the potential for rehabilitation or treatment.
Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-
103(5) (1990); State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993).
In it’s ruling the Court stated:
I’m going to put Mr. McCormick on work release--I
mean, on six years probation. I’m going to require him to pay for
electronic monitoring. He will not be allowed out of his house for
any purpose, whatsoever, other than to go to work.
He will pay fifty percent of the net income that he
derives from his employment towards any restitution and any cost
and fines that have evolved out of this case. He will pay for it.
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He’ll be placed on Community Corrections for a period
of six years. If he steps out of line one inch, I will double that
sentence. That’s the ruling of the Court.
He is to have electronic monitoring before the sun sets
today, and he not to go out of that house--except to go to work.
The State contends, since the trial court did not make any findings
regarding relevant sentencing considerations, this Court should conduct a de
novo review without the presumption of correctness. Naturally, the
defendant contends the trial court was correct in its judgment. We believe
the State is correct and will conduct a de novo review without the
presumption.
The State contends, and the defendant concedes, that the defendant,
having been convicted of aggravated assault in this case, is ordinarily
ineligible for sentencing under the Community Corrections Act. Tenn.
Code Ann. § 40-36-106(a). Under section (a), those convicted of violent
felony offenses and those convicted of felony offenses involving crimes
against the person are normally statutorily excluded from community
corrections sentences. State v. Braden, 867 S.W.2d 750 (Tenn. Crim. App.
1993); State v. Birge, 792 S.W.2d 723 (Tenn. Crim. App. 1990). Since
violent offenders are not statutorily eligible for community corrections,
section (c) of Tenn. Code Ann. § 40-36-106, however, provides as follows:
Felony offenders not otherwise eligible under
subsection (a), and who would be usually considered unfit for
probation due to histories of chronic alcohol, drug abuse, or
mental health problems, but whose special needs are treatable
and could be served best in the community rather that in a
correctional institution, may be considered eligible for
punishment in the community under the provisions of this
chapter.
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The State contends the trial court failed to find any special needs
applicable to the defendant in its ruling and thus is ineligible for community
corrections. Of course, the defendant maintains the trial court did find
special needs based on the defendant’s past abuse of alcohol. A trial court,
in its determination for placing a defendant in the community corrections
program under section (c), must consider (1) the offender has a history of
chronic alcohol, drug abuse, or mental health problems; (2) these factors
were reasonably related to and contributed to the offender’s criminal
conduct; (3) the identifiable special need (or needs) are treatable; and, (4)
the treatment of the special need could be served best in the community
rather than in a correctional institution. State v. Boston, 938 S.W.2d 435(Tenn. Crim. App. 1996).
Since this Court is conducting a de novo review of the defendant’s
sentence, we will be guided by the same criteria as the trial court. As to
factor (1) the defendant through his mother and sister offer evidence of a
history of alcohol abuse. Between November, 1983, and January, 1991, the
defendant has three convictions for driving under the influence of alcohol.
Since this present offense occurred at a bar, it can be reasonably inferred
that alcohol was involved. Also, the defendant has attended AA meetings,
which have evidently been unsuccessful. Although the pre-sentence report
indicates that the defendant quit using marijuana in 1982, he has two
convictions for drug possession since 1983. It is obvious that at the
sentencing hearing, the trial court was concerned about the defendant’s
history of alcohol abuse and possibly, inferentially, that is the reason why
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the trial court placed the defendant on community corrections. However,
the defendant failed to establish by a preponderance of the evidence just as
to how this special need, abuse of alcohol, could be effectively treated in the
community. Based on the defendant’s history of criminal behavior as
outlined in the pre-sentence report, the defendant’s history of criminal
convictions and behavior, to-wit: four assaults and one weapon offense, the
defendant has failed to establish his placement in the community corrections
program was proper. The trial court was in error for this placement.
Second, now we will consider the question of probation. The State
argues that the defendant, based on his past criminal convictions and
behavior, is not entitled to straight probation, but at least one year
confinement and then, if applicable, probation. The defendant contends the
State did not present evidence that rebuts the statutory presumption that the
defendant is entitled to probation.
In State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994),
this Court examined the standards governing a trial court’s determination of
whether continuous confinement is necessary:
Our Sentencing Act reflects the individualized
nature of alternative sentencing. When imposing a sentence of
total confinement, the trial court should base its decision on the
considerations listed in Tenn. Code Ann. § 40-35-103(1):
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of criminal
conduct;
(B) Confinement is necessary to avoid
depreciating the seriousness of the offense or confinement is
particularly
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suited to provide an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement
have frequently or recently been applied unsuccessfully to the
defendant.
From our analysis of the record the defendant would not be entitled to
straight probation. However, the trial court, after observing the witnesses
and the defendant and after reviewing the reports, in its determination to
grant community corrections saw or felt something at this hearing.
Therefore, this Court reverses and remands this case to the trial court to
determine an appropriate sentence, including split confinement and any
other reasonable condition of probation, if any.
_________________________
L. T. Lafferty, Special Judge
CONCUR:
_________________________
Gary R. Wade, Presiding Judge
_________________________
Thomas T. Woodall, Judge
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