State v. Anthony Holt ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMBE R SESSION, 1998 March 19, 1999
Cecil Crowson, Jr.
Appe llate Court C lerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00272
)
Appellee, )
) HENDERSON COU NTY
V. )
)
) HON . FRA NKL IN MU RCH ISON ,
ANT HON Y HO LT, ) JUDGE
)
Appe llant. ) (VOLU NTAR Y MA NSLA UGH TER)
FOR THE APPELLANT: FOR THE APPELLEE:
CARTHEL L. SMITH, JR. JOHN KNOX WALKUP
85 East Church Street Attorney General & Reporter
Lexington, TN 38351
DOUGLAS D. HIMES
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenu e North
Nashville, TN 37243
JAMES G. WOODALL
District Attorn ey Ge neral
BILL R . MAR TIN
Assistant District Attorney General
Village Square, Suite M
777 West Church Street
Lexington, TN 38351
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defend ant, An thony Holt, ap peals as of rig ht follow ing his sente ncing
hearing in the C ircuit C ourt of H ende rson C ounty . Defe ndan t was in dicted on a
charge of committing second degree murder on July 10, 1996, but he eventually pled
guilty to a reduced charge of voluntary manslaughter. Pursuant to the plea
agreem ent, the trial court was to determine both the length and manner of service
of the sentence at the sen tencing h earing. T he trial cou rt ordered Defen dant to
serve a sentence of 4.5 years in the Tennessee Department of Correction, denying
any form of alternative sentence. The Defendant’s sole issue on appeal is the denial
of alternativ e sente ncing. W e affirm the judgm ent of the tria l court.
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 determinations 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 principles and all relevant
facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (Te nn. 199 1).
In conducting a de novo review of a sentence, this court must consider: (a) the
evidence, if any, received at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of senten cing and argum ents as to sentencing alternatives;
(d) the nature and characteristics of the criminal condu ct involved; (e) any s tatutory
mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his
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own behalf; and (g) the potential or lack of potential for rehabilitation or treatme nt.
Tenn. Code Ann. § 4 0-35-10 2, -103 a nd -210 ; see State v. S mith, 735 S.W.2d 859,
863 (Tenn . Crim. App. 19 87).
If our rev iew re flects th at the tria l court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and the
proper weight to the factors and prin ciples se t out unde r the sen tencing la w, and
made findings of fact adeq uately su pported by the rec ord, then we m ay not m odify
the sentence even if we would have preferred a different result. State v. Fletcher,
805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
A defen dant w ho “is a n esp ecially 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). Our sentencing law also provides that “convicted felons committing
the most se vere offenses , possessing criminal histories evinc ing a clear disrega rd
for the laws and morals of society, and evincing failure of past efforts at
rehabilitation, shall be given first priority regarding sentences involving
incarcer ation.” Tenn. C ode An n. § 40-3 5-102(5 ). Thus, a d efenda nt senten ced to
eight (8) years or less who is not an offender for whom incarcera tion is a priority is
presumed eligible for altern ative s enten cing u nless sufficie nt evid ence rebuts the
presumption. Howe ver, the ac t does no t provide th at all offenders who meet the
criteria are entitled to such relief; rather, it requires that sentencing issues be
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determined by the fac ts and circ umsta nces p resente d in each case. See State v.
Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).
Additionally, the principles of sentencing reflect that the sentence should be
no greater than tha t deserved for the offense committed and should be the least
severe meas ure nec essary to achiev e the pu rposes for which the sente nce is
imposed. Tenn. Code Ann. § 40-3 5-103(3) an d (4). The cou rt also should consider
the potential for rehabilitation or treatment of the defendant in determining the
senten ce alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).
Defendant does not contest the length of the sentence, on ly that the trial court
denied alternative sentencing. The trial court held that alternative sentencing was
inappropriate in this case, reasoning as follows:
This man [victim], as I said to repeat, was very brutally killed, and the
Defen dants escaped a charge of second degree murder. When I say
escaped, I say they are not guilty. They are not going to trial on second
degree murde r. It’s unfortunate that [the victim] behaved the way he
did, and it’s equally unfortunate and sad that the Defendants responded
the way they did, with extreme violence. As I said, alternative
sentencing is not appropriate, and I rely upon and follow Section 40-35-
103.
Confinement is necessary to avoid depreciating the seriousness of the
offense, for confinement is particularly suited to provide an effective
deterrence to o thers likely to commit a similar offense. Here we have
a man again who was killed, who is dead, who was a pathetic man, but
he was a child of God as we all are and he was killed, and this has
caused much grief to his family. And we have heard from the
Defendants, or the Defendants’ family, we have not heard from the
Defen dants themselves, that they are rem orseful ab out this thing . It is
a sad thing, a tragic thing, for [the victim], his family and now the
Defen dants’ fam ily.
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At the sente ncing hearin g, the tria l court a ppare ntly relied upon the nature of
the circumstances of the offense to justify the denial of alternative sentencing and
to impose a sentence of total incarceration. For such a denial to occur, though, the
circumstances of the offense must be “especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and
the nature of the offense must outweigh all factors favoring a sentence other than
confinement.” State v. Bingham, 910 S.W .2d 448, 455 (Tenn. Crim . App. 1995 ).
This standard was essentially codified by section 40-35-103(1)(B) which provides for
confineme nt if “necessary to a void deprec iating the seriousn ess of the offens e.”
When impos ing a sen tence o f total confinement, our Criminal Sentencing
Reform Act mandates the trial court to base its decision on th e considerations set
forth in Tennessee Code Annotated section 40-35-103. These considerations which
militate against alternative sentencing include: the need to prote ct society by
restraining a defendant with a long history of criminal conduct; whether confinement
is particularly approp riate to effectively deter others likely to commit a similar
offense; the ne ed to a void depreciating the seriousness of the offense, and the need
to order c onfine men t in cases in which less restrictive measures have often or
recently been unsuc cessfully a pplied to th e defen dant. Tenn. Code Ann. § 40-35-
103(1).
In determining whether to grant probation, the judge mu st consider the n ature
and circumstances of the offense, the defendant’s criminal record, his background
and social history, his present condition, including his physical and mental condition,
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the deterrent effect on other criminal activity, a nd the likelihoo d that p robatio n is in
the best intere sts of both the pub lic and the defend ant. Stiller v. State , 516 S.W.2d
617, 620 (Tenn. 1974). T he burd en is on th e Defe ndant to show that the sentence
he received is improper and that he is entitled to probation. State v. Ashby, 823
S.W.2 d 166, 1 69 (Ten n. 1991 ).
We note that the transcript from the guilty plea hearing was not included in the
record on appeal. From our review of the sentencing hearing transcript, the trial
court apparently relied upon p roof it had h eard du ring the gu ilty plea hea ring. It is
the duty of the party seeking appellate review to prepare a rec ord which conveys a
fair, accurate and complete account of what transpired with respect to the issues
forming the basis of the app eal. State v. Ballard, 855 S.W.2d 557,560 (Tenn. 1993)
(citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). When there is less than
an adequate record on ap peal, th is cour t mus t presu me th at the tria l court’s rulings
were suppo rted by su fficient evide nce. State v. Oody, 823 S.W.2d 554, 559 (Tenn.
Crim. A pp. 199 1) (citations omitted) .
Based upon this presumption, this court concludes that the extremely violent
nature of the beating of the victim as noted by the trial court is a sufficient basis upon
which to deny alternative sentencing. The State met its burden in proving the
“espe cially violent, horrifying, shocking, reprehensible and offensive” circumstances
surrounding the victim’s death and the nature of Defendant’s offense outw eighs all
factors favoring a sentence other tha n confine ment. Bingham, 910 S.W.2d at 455.
While the existence of a death by itself cannot justify a sentence of total
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confinem ent, the circumstances surrounding Defendant’s actions were such that
justify his sente nce. Similar to a previous decision by a panel of this court regarding
the trial court’s denial of a completely suspended sentence, the Defendant in the
case sub judice violently beat a total stranger who was apparently intoxicated,
striking and kicking him repeate dly. See State v. Brandon Harrison, 02C01-9206-
CR-00138, Shelby Coun ty (Tenn . Crim. A pp., at Jackson, August 4, 1993) (No Rule
11 application filed). Particular ly in light of the fa ct that we do not ha ve the gu ilty
plea transcript by which to review the circumstances of the offense, we presume that
the trial cou rt aptly described the extremely violent and horrifying circumstances of
the bea ting whic h resulted in the victim ’s death.
Moreov er, from a review of the Defendant’s presentence report, it is clear that
he has a history of misdemeanor offenses, including theft, bad check violations and
numerous traffic offenses. Despite past leniency and opportunities for rehabilitation,
the Defendant “has shown neither respect for the prior reprieves from incarceration,
nor efforts toward conforming his conduct to the dictates of the law. Having no
regard for measures less restrictive than confinement, the Defendant has through
his own a ctions rebutte d the p resum ption o f his favorable candidacy for alternative
senten cing.” State v. Randal Thies, No. 02C01-9708-CC-00299, slip op. at 9, Tipton
Coun ty (Tenn. Crim. App., at Jackson, April 24, 1998) (No Rule 11 ap plication filed).
In addition to the circumstances of the offense justifying the denial of an
alternative sentence due to the seriousness of the Defendant’s offense, the trial
court noted a lack o f remorse by the Defend ant. Lack of remorse is sufficient
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evidence by whic h a trial cou rt may d eny an alternative sentence. Smith , 735
S.W.2d at 864. The presentence report does not include any statement on be half
of the Defendant. There is no justification provided by the Defendant to explain the
degree of force us ed.
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There is not sufficient evidence whereby the sentence of total confinement
was not justified. A fter a thoro ugh rev iew, we affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. WO ODALL, Judge
CONCUR:
___________________________________
GARY R. WADE , Presiding Judge
___________________________________
JOHN EVERET T WILLIAMS, Judge
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