Cyril v. Fraser ( 1995 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1995 SESSION
October 12, 1995
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 01C01-9502-CR-00031
APPELLEE, * DAVIDSON COUNTY
VS. * Hon. J. Randall Wyatt, Jr., Judge
ROSCOE C. SMITH, * (Theft)
APPELLANT. *
For the Appellant: For the Appellee:
Joan A. Lawson Charles W. Burson
Senior Asst. Public Defender Attorney General and Reporter
(at trial) 450 James Robertson Parkway
Nashville, TN 37243-0493
and
Cyril V. Fraser
Jeffrey A. Devasher Counsel for the State
1202 Stahlman Building 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243-0493
(on appeal)
Nicholas Bailey
Asst. District Attorney General
Washington Square, Suite 500
222 Second Avenue South
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
Gary R. Wade, Judge
OPINION
The defendant, Roscoe C. Smith, was convicted for
theft of property of more than $500.00 but less than $1,000.00
and theft of property of less than $500.00. The trial court
sentenced the defendant as a career offender to six years on
Count I. The sentence on Count II of ll months and 29 days at
50% was ordered to be served consecutively to the sentence
imposed for Count I.
In this appeal of right, the defendant contends that
the trial court erred by imposing the maximum possible
sentence for the theft of $500.00 or less and by ordering that
the two sentences be served consecutively.
We disagree and affirm the judgment of the trial
court.
The defendant was convicted after a trial by jury.
The state established that during the early morning hours of
December 29, 1993, the defendant stole two purses from women
who were asleep on the waiting room floor of the Baptist
Hospital in Nashville. Roy Petty, who was present during the
theft, was awakened by a noise and saw the defendant take the
two purses and run for the door. The purse of one of the
victims, Deidre Sage, of Dickson, contained cash, jewelry, and
other items valued at over $600.00. The purse of the second
victim, Angelique Wilson, of Nashville, contained only a
"small amount of money" and some personal items. Petty chased
the defendant, struck him, and held him in custody until
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security personnel arrived at the scene. Each of the victims
recovered their purses and all of the contents. The defendant
offered no proof in defense.
I
The defendant first complains that the ll month, 29
day sentence for the theft of less than $500.00 is excessive.
In response, the state asserts that the sentence was not
excessive because the judgment form failed to include any
reference to a minimum percentage of service of sentence and
the statute requires that the "percentage [for release
eligibility] be considered zero percent." Tenn. Code Ann. §
40-35-302(d).
Initially, when there is a conflict between the
transcript and the judgment or the minutes, the content of the
transcript prevails. State v. Zyla, 628 S.W.2d 39 (Tenn.
Crim. App. 1981). Here, the transcript clearly reflects a
sentence of ll months and 29 days on Count II with a 50%
percentage of service required before the defendant becomes
eligible for relief. We must, therefore, disagree with the
position of the state.
We now turn to the question of whether the six-month
sentence is excessive. In our view, it is not.
When a challenge is made to the length, range, or
manner of service of a sentence, it is the duty of this court
to conduct a "de novo review ... with a presumption that the
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determinations made by the court from which the appeal is
taken are correct." Tenn. Code Ann. § 40-35-40l(d). The
Sentencing Commission Comments provide that the burden is on
the defendant to show the impropriety of the sentence.
Our review requires an analysis of (l) the evidence,
if any, received at the trial and sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and the
arguments of counsel relative to sentencing alternatives; (4)
the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by
the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§
40-35-l02, -l03, and -2l0.
Among the factors applicable to the defendant's
application for probation are the circumstances of the
offense, the defendant's criminal record, social history, and
present condition, and the deterrent effect upon and best
interest of the defendant and the public. State v. Grear, 568
S.W.2d 285 (Tenn. 1978), cert. denied, 439 U.S. 1077 (1979).
In misdemeanor sentencing, a separate sentencing
hearing is not mandatory but the court is required to provide
the defendant with a reasonable opportunity to be heard as to
the length and manner of the sentence. Tenn. Code Ann. § 40-
35-302(a). Misdemeanor sentences must be specific and in
accordance with the principles, purposes, and goals of the
Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§
5
40-35-104, -117, and -302. The misdemeanor offender must be
sentenced to an authorized determinant sentence with a
percentage of that sentence designated for eligibility for
rehabilitative programs. Generally, a percentage of not
greater than 75% of the sentence should be fixed for a
misdemeanor offender; however, a DUI offender may be required
to serve the full 100% of his sentence. State v. Palmer, 902
S.W.2d at 391, 393-94 (Tenn. 1995). In determining the
percentage of the sentence, the court must consider
enhancement and mitigating factors as well as the legislative
purposes and principles related to sentencing. Id.
Upon service of that percentage, the administrative
agency governing the rehabilitative programs determines which
among the lawful programs available is appropriate. The trial
court retains the authority to place the defendant on
probation either immediately or after a period of periodic or
continuous confinement. Tenn. Code Ann. § 40-35-302(e). The
legislature has encouraged courts to consider public or
private agencies for probation supervision prior to directing
supervision by the Department of Correction. Tenn. Code Ann.
§ 40-35-302(f). The governing statute is designed to provide
the trial court with continuing jurisdiction in misdemeanor
cases and a wide latitude of flexibility. The misdemeanant,
unlike the felon, is not entitled to the presumption of a
minimum sentence. State v. Creasy, 885 S.W.2d 829 (Tenn.
Crim. App. 1994).
Here, the defendant's chief complaint is that the
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trial court failed to weigh the mitigating and enhancing
factors before the misdemeanor sentence. The defendant
correctly points out that the presumptive correctness of the
sentence depends upon the trial court's consideration of the
principles of sentencing and all other relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). Here, however, it really makes no difference whether
the trial judge considered all factors. The defendant had a
lengthy prior criminal history and had failed, on prior
occasions, to comply with the conditions of a sentence
involving release in the community. Tenn. Code Ann. § 40-35-
114(1) and (8). While the prosecution at the sentencing
hearing argued for the application of another enhancement
factor, that the offense involved more than one victim, the
record does not indicate that the trial court considered that
in the imposition of the misdemeanor sentence. See Tenn. Code
Ann. § 40-35-114(3). If he had, that, of course, would have
been erroneous since there was only one victim in each of the
two thefts. See State v. Lambert, 741 S.W.2d 127, 134 (Tenn.
Crim. App. 1987). Because the misdemeanant is not entitled to
any presumption of a minimum sentence and there were readily
identifiable enhancement factors, we fully approve of the ll
month, 29 day sentence with a 50% release eligibility. That
would be true whether our scope is de novo or de novo with the
presumption of correctness.
II
Next, the defendant complains that the trial court
should not have ordered the sentences to be served
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consecutively. The state argues otherwise. We agree with the
assessment of the trial court.
Prior to the enactment of the Criminal Sentencing
Reform Act of l989, the limited classifications for the
imposition of consecutive sentences were set out in Gray v.
State, 538 S.W.2d 39l, 393 (Tenn. l976). In that case, our
supreme court ruled that aggravating circumstances must be
present before placement in any one of the classifications.
Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. l987), the
court established an additional category for those defendants
convicted of two or more statutory offenses involving sexual
abuse of minors. There were, however, additional words of
caution:
[C]onsecutive sentences should not be
routinely imposed ... and ... the
aggregate maximum of consecutive terms
must be reasonably related to the severity
of the offenses involved.
739 S.W.2d at 230. The Sentencing Commission Comments adopted
the cautioning language. Tenn. Code Ann. § 40-35-115. The
l989 act is, in essence, the codification of the holdings in
Gray and Taylor; consecutive sentences may be imposed in the
discretion of the trial court only upon a determination that
one or more of the following criteria1 exist:
(l) The defendant is a professional
criminal who has knowingly devoted himself
to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose
1
The first four criteria are found in Gray. A fifth category in
Gray, based on a specific number of prior felony convictions, may enhance
the sentence range but is no longer a listed criterion. See Sentencing
Commission Comments.
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record of criminal activity is extensive;
(3) The defendant is a dangerous mentally
abnormal person so declared by a competent
psychiatrist who concludes as a result of
an investigation prior to sentencing that
the defendant's criminal conduct has been
characterized by a pattern of repetitive
or compulsive behavior with heedless
indifference to consequences;
(4) The defendant is a dangerous offender
whose behavior indicates little or no
regard for human life, and no hesitation
about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2)
or more statutory offenses involving
sexual abuse of a minor with consideration
of the aggravating circumstances arising
from the relationship between the
defendant and victim or victims, the time
span of defendant's undetected sexual
activity, the nature and scope of the
sexual acts and the extent of the
residual, physical and mental damage to
the victim or victims;
(6) The defendant is sentenced for an
offense committed while on probation; or
(7) The defendant is sentenced for
criminal contempt.
Tenn. Code Ann. § 40-35-ll5(b).
The trial court based its decision to impose
consecutive sentences for two reasons: first, that the
defendant was "a professional criminal who has knowingly
devoted himself to criminal acts as a major source of
livelihood"; and, second, the defendant qualified as "an
offender whose record of criminal activity is extensive."
Tenn. Code Ann. § 40-35-115(b)(1) & (2).
The defendant argues that he does not qualify as a
professional criminal because the record does not establish
that he has "acquired significant wealth" through his unlawful
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activities. We reject that argument outright. While the
amount of income derived from illegal acts may be significant,
it is not determinative. Only a "major source of livelihood
or ... a substantial income or resources not shown to be
derived from ... other than criminal activity" is required.
Gray, 538 S.W.2d at 393. Here, the defendant has involved
himself in a range of criminal activities over a period of
twenty-seven years. Most involved theft, burglary, larceny,
shoplifting, or robbery. He has also sold illegal drugs. The
presentence report provides that he has been employed for only
about five years since he became an adult. He has apparently
had no employment since 1987. From these circumstances, we
believe that the trial court had good reason to infer that the
defendant qualified as a professional criminal.
In any event, the defendant also qualifies as having
an extensive prior criminal record. Tenn. Code Ann. § 40-35-
115(b)(2). While each of the two sentences of the defendant
may have been enhanced by his prior criminal history, his
record is so lengthy as to warrant consecutive sentences. He
would have qualified as either a "persistent" or a "multiple"
offender under the Gray rationale.
Consecutive sentences should not be routinely
imposed, even for the offender whose record of criminal
activity is extensive. The ultimate purpose, however, is to
protect the public. Gray, 538 S.W.2d at 393; State v.
Wilkerson, ______ S.W.2d ______ (Tenn. 1995). Here, the
record has established that the public needs to be protected
for (at least) the length of the misdemeanor sentence from the
continuing criminal activities of the defendant.
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Accordingly, the judgment is affirmed.
_____________________________________
Gary R. Wade, Judge
CONCUR:
________________________________
John H. Peay, Judge
________________________________
David H. Welles, Judge
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