State v. Helen Davis ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION
FILED
March 18, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9701-CR-00036
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
HELEN K. DAVIS, ) JUDGE
)
Appellant. ) (Probation Denial)
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General and Reporter
TONY BRAYTON (on appeal) KENNETH W. RUCKER
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue, Suite 201 Cordell Hull Building, 2nd Floor
Memphis, TN 38103 425 Fifth Avenue North
Nashville, TN 37243-0493
TERESA JONES (at trial)
Assistant Public Defender WILLIAM L. GIBBONS
201 Poplar Avenue, Suite 201 District Attorney General
Memphis, TN 38103
LEE COFFEE
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The defendant, Helen K. Davis, appeals as of right from convictions of
three (3) counts of simple robbery, Class C felonies. She pled guilty and agreed
to concurrent terms of eight (8) years as a Range II offender. The sole issue
presented for review is whether the trial court erred in denying the defendant
probation. We affirm the judgment of the trial court.
I.
The defendant alleges the trial court improperly denied probation in her
case. She alleges the trial court’s denial of probation was based on a
predetermined policy of denying probation to all persons indicted for aggravated
robbery, but who later plead guilty to the lesser offense of simple robbery.
The defendant agreed to an effective sentence of eight (8) years. Since
the offense of robbery is not specifically excluded, the defendant is eligible for
probation consideration. Tenn. Code Ann. § 40-35-303 (a).
II.
When reviewing sentencing issues, including probation, this Court
conducts a de novo review with a presumption of correctness. Tenn. Code Ann.
§ 40-35-401 (d). Probation is a privilege which may be granted to a defendant
who is eligible and worthy. Stiller v. State, 516 S.W.2d 616, 620 (Tenn. 1974).
Factors to consider include the defendant’s criminal record, social history,
present physical and mental condition, the circumstances of the offense, the
deterrent effect upon the criminal activity of the defendant as well as others, and
the defendant’s potential for rehabilitation. Id.Under the 1989 Sentencing Act, sentences which involve confinement are
to be based on the following considerations contained in Tenn. Code Ann. § 40-
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35-103(1):
(A) [c]onfinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
III.
The facts reveal that the defendant used cocaine for approximately
seventeen (17) years before her arrest. She actually committed three (3)
robberies with a deadly weapon, but was allowed to plead guilty to simple
robbery. Subsequent to her arrest, the defendant underwent treatment for her
drug problem and had several witnesses testify that she has made great
progress toward rehabilitation.
The trial court, however, noted that while the defendant was being
sentenced for three (3) simple robberies, she in fact committed three (3)
aggravated robberies. The actual crimes were crimes of violence to the person.
It is proper for a trial court to “look behind” the plea and consider the offenses
actually committed. State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983);
State v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988). We also note
that, had she been convicted for the offenses actually committed, she would not
be eligible for probation. One committing aggravated robbery is not eligible for
probation. Tenn. Code Ann. § 40-35-303 (a).
The trial court placed great emphasis on not depreciating the seriousness
of the offenses committed by the defendant. We agree. In addition, the
defendant’s illicit use of cocaine for seventeen (17) years evidences an extensive
period of criminal activity even though not resulting in convictions. Further, the
record does not reveal that the trial court denied probation as a matter of “policy.”
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We find no reason to disturb the ruling of the trial court.
The judgment of the trial court is AFFIRMED.
_________________________
JERRY L. SMITH, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
CURWOOD WITT, JUDGE
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