State v. William R. Begley, III ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 20, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9810-CR-00359
)
) Sullivan County
v. )
) Honorable Phyllis H. Miller, Judge
)
WILLIAM R. BEGLEY, III, ) (One count of possession of marijuana;
) eight counts of theft of property less than
) $500; fifteen counts of vandalism of property
) valued over $500)
)
Appellant. )
For the Appellant: For the Appellee:
Leslie Hale Paul G. Summers
Assistant Public Defender Attorney General of Tennessee
Post Office Box 889 and
Blountville, TN 37617 Marvin S. Blair, Jr.
(AT TRIAL) Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243
Larry S. Weddington
200 Seventh Street
Bristol, TN 37620
(ON APPEAL)
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, William R. Begley, III, was convicted in the Sullivan
County Criminal Court upon his no contest pleas to one count of possession of
marijuana, a Class A misdemeanor; eight counts of theft of property less than five
hundred dollars, a Class A misdemeanor; and fifteen counts of vandalism of property
valued over five hundred dollars, a Class E felony. He received an effective sentence
of six years in the Department of Correction as a Range I, standard offender. In this
appeal as of right, the defendant contends that he should have received a community
corrections sentence. We affirm the sentence imposed by the trial court.
The trial court imposed an effective six-year sentence and subsequently
held a sentencing hearing to determine the manner of service. At the hearing, Burton
Smith, the defendant’s great-grandfather, testified that the defendant had been living
with him and helping him following Mr. Smith’s eye surgery.
The defendant testified that following his release on bond for the present
offenses, he was convicted for speeding and having an improper exhaust system. He
said he was also convicted of the assault and battery of his pregnant girlfriend, for
which he had attended four abuse alternative classes. He testified that he had been
expelled from high school and had not obtained his GED. He stated that during the
time in which his probation report was being prepared for the hearing, he used
marijuana. He testified that he did not think he could pass a drug screen at the time of
the hearing and that he has a problem turning down marijuana. He said that he had
received alcohol counseling and was willing to undergo drug counseling.
The defendant testified that he was involved in an earlier assault that
occurred because his father forced him into a fight. He testified that he has a child by
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his wife, from whom he is separated, and was expecting another child by his girlfriend.
He stated that he had not paid child support because he could not locate his wife or the
child. He testified that he performed concrete work for three weeks through a
temporary agency. He said he was fired because his probation appointments made
him late for work. He testified that he had not worked in one and one-half months
because he had been taking care of his grandfather. He stated that he had been
offered a job the weekend before the hearing. Upon the foregoing proof, the trial court
ordered the defendant to serve his sentence in the custody of the Department of
Correction.
The defendant contends that the trial court erred by not allowing him to
serve his sentence in community corrections. He argues that he is a good candidate for
rehabilitation and that the trial court essentially punished him for having a drug problem.
The state contends that the trial court properly ordered the defendant to serve his
sentence in confinement. We agree.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. Tenn. Code Ann. § 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).
However, “the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
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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. Tenn. Code Ann. §§ 40-35-102, -103, -210;
see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The defendant is presumed to be a favorable candidate for alternative
sentencing options. See Tenn. Code Ann. § 40-35-102(6). However, eligibility for
alternative sentencing options does not equate to entitlement. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987). In the present case, the trial court stated
that the defendant
has a criminal history demonstrating a clear disregard for the
laws, and morals of society. [He has] a social history
demonstrating a clear disregard for the laws and morals of
society. [He has] a criminal history demonstrating a failure of
past efforts at rehabilitation.
The trial court also stated that the defendant had received treatment, had been
previously sentenced to split confinement, and had been given full probation numerous
times, all without success. We believe that the trial court’s findings justify its denial of
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community corrections and its imposition of a sentence of confinement under Tenn.
Code Ann. § 40-35-103(1), (5).
In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.
________________________________
Joseph M. Tipton, Judge
CONCUR:
________________________
John Everett W illiams, Judge
________________________
Alan E. Glenn, Judge
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