State v. Michael Benson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
July 21, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9708-CC-00333
Appellee, )
) Hardin County
V. )
) Honorable C. Creed McGinley, Judge
MICHAEL BENSON, )
) (Probation Denial)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Guy T. Wilkinson John Knox Walkup
Public Defender Attorney General & Reporter
Richard DeBerry Douglas D. Himes
Assistant Public Defender Assistant Attorney General
605 Court Street, Suite 3 425 Fifth Avenue North
Savannah, TN 38372 Nashville, TN 37243-0493
Robert “Gus” Radford
District Attorney General
John Overton
Assistant District Attorney General
P.O. Box 484
Savannah, TN 38372
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Michael Benson, appeals his sentence of six years for the
killing of his brother-in-law, Donnie Ray Qualls.1 On June 4, 1997, the appellant
pled guilty to voluntary manslaughter pursuant to a negotiated plea agreement
and received a six-year sentence as a Range I, standard offender. A sentencing
hearing was held on August 4, 1997, and the trial court denied the appellant’s
request for an alternative sentence. He was ordered to serve his sentence in
confinement.
The appellant’s sole issue on appeal is whether the trial court erred by
denying him probation. We affirm the appellant’s sentence.
On November 6, 1996, Donnie Ray Qualls, the victim and brother-in-law
of the appellant, went to the appellant’s house. He had gone there to pick up his
child. An altercation apparently ensued, and the appellant shot his brother-in-law
with a shotgun. According to the appellant, Qualls had threatened him earlier
during a telephone conversation, and while at the appellant’s house, Qualls
approached the appellant. The appellant told Qualls to stop, and when he did
not, the appellant shot him.
The victim’s wife and the appellant’s sister, Kimberly Qualls, testified at
the sentencing hearing. She stated that the appellant had shown no remorse for
the killing and that he laughs about it. She also testified that the appellant will
not leave her alone, stating that he has been near her house and has called her
on the telephone.
At the sentencing hearing, the appellant testified that he had not laughed
about the killing. Furthermore, he stated that he had called his sister’s house to
1
T h e ind ictm en t s p ells th e victim’s na me D onny, but the tra ns cript s pells the na me D onnie. We
will use the sp elling in the tra nscript.
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contact their younger sister about employment, not to harass his sister as she
had testified.
In denying the appellant’s request for probation, the trial court found that
confinement was necessary to avoid depreciating the seriousness of the offense
and to provide an effective deterrence to others.
The appellant argues that the trial court erred in not granting his request
for an alternative sentence. He asserts that the trial court relied primarily “on the
fact of a death and deterrence in not granting probation.” He contends that
although a death occurred, that alone does not justify a denial of probation.
Furthermore, the appellant notes that the trial court found that he was a standard
offender of a Class C felony, and the appellant asserts that based on that
determination, he was entitled to the statutory presumption that he is a favorable
candidate for alternative sentencing.
With respect to deterrence, the appellant contends “that before the Trial
Court can deny alternative sentencing on the ground of deterrence, there must
be some evidence contained in the record that the sentence imposed will have a
deterrent effect within the jurisdiction.” He insists that there is nothing in the
record to indicate that denying him probation would have a deterrent effect.
The state insists that the trial court properly ordered the appellant to serve
his sentence in confinement. The state argues that it successfully rebutted the
presumption for alternative sentencing. Although the state acknowledges that a
death alone does not overcome the presumption in favor of alternative
sentencing, it maintains that a death is a factor that can be considered.
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When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1997). However, this presumption is conditioned on an affirmative
indication 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).
The appellant bears the burden of showing that the sentence was
improper. Id. In determining whether the appellant has met this burden, this
Court must consider (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and (f)
the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-103(5), -210(b) (1997).
As the trial court observed during the sentencing hearing, the first step is
to determine whether the appellant is entitled to the statutory presumption that
he is a favorable candidate for alternative sentencing. For a defendant to be
entitled to this presumption, three criteria must be met under Tennessee Code
Annotated §§ 40-35-102(5) and -102(6) (1997): the defendant must be an
especially mitigated or standard offender; he or she must be convicted of a Class
C, D, or E felony; and he or she must not fall within the parameters of
Tennessee Code Annotated § 40-35-102(5), which states that a defendant
cannot have a criminal history that shows a “clear disregard for the laws and
morals of society” or “failure of past efforts at rehabilitation.” The trial court found
the appellant to be a standard offender of a Class C felony and found that he
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does not have a significant criminal history. 2
By providing evidence to the contrary, the state may rebut the
presumption that the defendant is a favorable candidate for alternative
sentencing. Tenn. Code Ann. § 40-35-102(6) (1997). Insight regarding what
constitutes “evidence to the contrary” is provided at Tennessee Code Annotated
§ 40-35-103:
(1) Sentences involving confinement should be based on the following
considerations:
(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 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.
State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995) (citing State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). The trial court found that the
appellant did not have a significant prior record. Thus, subsections (A) and (C)
were not applicable. However, the court did find that confinement was
necessary to avoid depreciating the seriousness of the offense and to provide an
effective deterrence to others likely to commit similar offenses. Tenn. Code Ann.
§ 40-35-103(1)(B) (1997).
For a trial court to deny an alternative sentence based on the seriousness
of the offense, 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.” Bingham, 910 S.W.2d at 454(quoting State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).
2
In 1988, the appellant was convicted of driving under the influence in California. He served 48
hours in jail and was fined $1,000. Also, the appellant received a general discharge from the United
States Nav y for un authorize d absen ces.
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The occurrence of a death cannot alone constitute sufficient evidence to the
contrary under Tennessee Code Annotated § 40-35-102(6). Id. at 455. The trial
court’s denial of an alternative sentence based on the seriousness of the offense
under Tennessee Code Annotated § 40-35-103(1)(B) (1997) can only be upheld
if the Hartley conditions are in the record.
The trial court also denied alternative sentencing based on deterrence.
However, the record must contain some evidence that the sentence imposed will
have a deterrent effect within the jurisdiction before a trial court can deny
alternative sentencing based on this ground. State v. Bonestel, 871 S.W.2d 163,
169 (Tenn. Crim. App. 1993). Furthermore, conclusory statements are
insufficient, and only when there is proof of the deterrent effect within the
jurisdiction will denial be upheld. Ashby, 823 S.W.2d at 170.
The appellant insists that he should have received full probation.
However, we note that although the appellant is entitled to the presumption of
alternative sentencing, he, not the state, has the burden of establishing suitability
for full probation. Tenn. Code Ann. § 40-35-303(b) (1997). To meet this
burden, the appellant must illustrate how probation will “subserve the ends of
justice and the best interest of both the public and the defendant.” Bingham, 910
S.W.2d at 456 (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)).
In determining the appropriate sentence, the trial court may not consider
any factor that is an element of the offense. Id. Thus, the occurrence of a
death, which the trial court emphasized in denying probation, is not relevant in
the determination of whether the appellant is entitled to full probation.
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Tennessee Code Annotated § 40-35-103(5) (1997) provides the “potential
or lack of potential for the rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or length of a term to be
imposed.” Furthermore, a defendant’s failure to accept responsibility for his
crimes is relevant to his rehabilitation potential. State v. Zeolia, 928 S.W.2d 457(Tenn. Crim. App. 1996).
The victim’s wife and the appellant’s sister, Kimberly Qualls, in her impact
statement and in her testimony at the sentencing hearing stated that the
appellant had not shown any remorse for what he had done. At his sentencing
hearing, the appellant’s response to this statement by his sister was “I hate it for
everyone concerned with this. I’m very sorry for everyone that’s dealing with this.
But I had no other choice.” Also, when asked about his difficulty in finding
steady employment, the appellant responded: “My nerves and stuff, you know, is
bothering me. Other than that, it’s just waiting on this situation to ease on away
so I can get re-established.” (emphasis added).
We recognize that the appellant was in his own home at the time of the
shooting and that he contends he had no other choice but to shoot Donnie Ray
Qualls. However, we must agree with the victim’s wife that the appellant has
offered little proof of genuine remorse for his actions. At his sentencing
hearing, the appellant appeared more concerned with getting “this situation to
ease on away” and with re-establishing himself than he was in accepting
responsibility and showing genuine remorse for his actions. When given an
opportunity to make a statement to be included in his presentencing report, he
declined. As we noted earlier, the appellant has the burden to establish his
suitability for probation. In this case, we find that he has failed to meet this
burden.
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On appellate review, we always appreciate detailed findings by the trial
court. When they exist, the presumption of correctness on sentencing issues
takes effect. On the issue of overcoming the presumption of some alternative
sentencing, we exercise our de novo sentencing authority in this case. We find,
based upon the totality of the circumstances, that the appellant’s crime is
reprehensible and offensive. We are also concerned that he expresses no
genuine remorse. If he is to benefit from probation and the state’s largesse, he
needs to act like he is a proper and suitable candidate.
We affirm the sentence in its entirety.
________________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
JOHN H. PEAY, Judge
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____________________________
THOMAS T. W OODALL, Judge
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