State vs.Kenneth Williams ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
March 18, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9801-CR-00046
)
) Davidson County
v. )
) Honorable Seth Norman, Judge
)
KENNETH B. WILLIAMS, ) (Sale of less than one-half gram of
) cocaine)
)
Appellant. )
For the Appellant: For the Appellee:
Thomas H. Miller John Knox Walkup
P.O. Box 681662 Attorney General of Tennessee
Franklin, TN 37068-1662 and
Georgia Blythe Felner
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Jon Seaborg
Assistant District Attorney General
Washington Square, Ste. 500
222 2nd Ave. N.
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Kenneth B. Williams, appeals as of right following his
conviction upon a guilty plea to the sale of less than one-half gram of cocaine, a Class
C felony. The defendant agreed to a three-year sentence, with the manner of service to
be determined by the trial court following a sentencing hearing. Following the hearing,
the trial court ordered the defendant to serve the three years in the custody of the
Davidson County Jail. The defendant now contends that the trial court erred by not
ordering an alternative to incarceration. We affirm the decision of the trial court.
The defendant entered his guilty plea on March 28, 1996, and a
sentencing hearing was scheduled for May 1, 1996. The defendant failed to appear at
the hearing, and a capias was issued. The defendant was not apprehended until
November 15, 1997, after an officer stopped him for driving with a broken headlight and
discovered the capias. The sentencing hearing was held on January 21, 1998.
At the hearing, the defendant explained that he did not show up for the
first sentencing hearing because he made an honest mistake. He said he thought the
hearing was scheduled for May 10, not May 1, because there was an “@” symbol that
looked like a “0" following the “1" on the slip of paper with the court date on it. He said
he learned of his mistake on May 8 when he called his attorney to reassure him that he
would be in court on May 10. He testified that he had completed two years of college
and had an eight-year-old son whom he saw at least once or twice each week and for
whom he paid child support of fifty or sixty dollars per week. He testified that he
attended treatment for his cocaine addiction and that he had not used cocaine since his
arrest.
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On cross-examination, the defendant admitted that when he spoke with
his attorney on May 8, the attorney told him to surrender to the police. He said he did
not turn himself in because he knew his bond was high, and he could not afford to
make bond. He said he attended Narcotics Anonymous meetings a couple of times
each week for about three months following his arrest. He said he also ended his
previous “associations.” He admitted that in February 1995, he pled guilty to passing a
worthless check and received six months on probation. He also admitted that five
months later, he was arrested for theft and pled guilty. Although the presentence report
indicated that his probation for the worthless check conviction was revoked, the
defendant initially testified that he knew nothing about the revoked probation. However,
he later agreed that it probably was revoked because of the arrest for theft.
Linda Head, the office manager for Top of the Line, testified that the
defendant worked as a banquet server for about four years and that he earned ten
dollars per hour. She said the defendant was a very good, professional employee, and
he would have a job with Top of the Line if not sentenced to incarceration.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As
the Sentencing Commission Comments to this section note, the burden is now on the
defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act, we may
not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
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However, “the presumption of correctness which accompanies the trial
court's action 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 this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
As a standard, Range I offender convicted of a Class C felony, the
defendant is presumed to be a favorable candidate for alternative sentencing options.
T.C.A. § 40-35-102(6). However, this presumption may rebutted upon a showing that,
among other things, “[m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.” T.C.A. § 40-35-103(1)(C). We
conclude that the trial court’s sentence of incarceration is justified based upon the
defendant’s lack of success with less restrictive measures as evidenced by his
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probation violation. The judgment of conviction is affirmed.
________________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
John H. Peay, Judge
_________________________
Norma McGee Ogle, Judge
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