State of Tennessee v. Clifton Lawrence Still ( 2022 )

10/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 23, 2022
STATE OF TENNESSEE v. CLIFTON LAWRENCE STILL
Appeal from the Criminal Court for Knox County
No. 116933 Steven Wayne Sword, Judge
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No. E2021-01009-CCA-R3-CD
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Pursuant to a plea agreement, the Defendant-Appellant, Clifton Lawrence Still, entered a
guilty plea to one count of kidnapping, a Class C Felony, and received an eight-year
sentence, with the manner of service of the sentence to be determined by the trial court.
Following a sentencing hearing, the trial court denied the Defendant’s application for
alternative sentencing and ordered the eight-year sentence to be served in confinement in
the Tennessee Department of Correction. On appeal, the Defendant argues the trial court
abused its discretion in denying alternative sentencing. Upon review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Richard C. Stooksbury III, Knoxville, Tennessee, for the Defendant-Appellant, Clifton
Lawrence Still.
Herbert H. Slatery III, Attorney General and Reporter; Hannah-Catherine Lackey, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On January 15, 2020, the Defendant was charged by indictment with six counts of
aggravated kidnapping, a Class B felony, and one count of child abuse, a Class A
misdemeanor. On March 25, 2021, he agreed to enter a guilty plea in count one to
kidnapping, a Class C felony, a lesser included offense of aggravated kidnapping. He also
agreed to plead outside his respective sentencing range as a Range II multiple offender,
with the sentence to be served at thirty-five percent. As a condition of his sentence, the
Defendant agreed to no contact with the victim and to be placed on the Sex Offender
Registry. In exchange for the above concessions, the State agreed to dismiss the remaining
counts of the indictment. The State anticipated the Defendant would seek probation at
sentencing. The following facts were provided by the State in support of the guilty plea
and stipulated to by the defense:
[On June 20, 2019], the 14-year old victim and her family were at
home in their apartment on Badgett Drive here in Knoxville. They were not
acquainted with [Still], who lived close by.
At approximately 12:10 a.m. the victim went out to her mother’s car
in the parking lot to get her purse. As the victim was locking the car back,
[the Defendant] came up behind her, grabbed her by the arms and began
pulling her up a hill behind the apartment. He trapped her arms behind her
so that she was unable to fight him. The victim began to scream her mother’s
name, but [the Defendant] told her to be quiet, as he continued to drag her up
the hill. The victim continued to attempt to struggle with [the Defendant]
until she was able to break away and she hid in the bushes.
The victim’s mother realized not long after that she’d been gone too
long from the apartment and she and the victim’s brother began to search for
her, asking other neighbors if anyone had seen her. The neighbors joined in
the search when they realized what was going on. When the victim’s mother
began to walk the neighborhood screaming her name, the victim heard her
mother and ran from the bushes. The victim was traumatized and had
urinated on herself as a result of the attack.
Shortly thereafter, investigators with the Knoxville Police Department
identified [the Defendant] as a suspect. And the victim picked him out of a
photo array as the man who had attacked her.
The trial court advised the Defendant of his rights attendant to the entry of a guilty
plea, and the Defendant affirmed that he understood them. The trial court then determined
that the Defendant entered the guilty plea knowingly and voluntarily and set the matter for
a sentencing hearing.
At the top of the August 12, 2021 sentencing hearing, the State reiterated the facts
supporting the guilty plea, the victim’s age of fourteen years at the time of the offense, and
the fact that the Defendant was a “stranger” to the victim. The State admitted into evidence
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as exhibit one the Defendant’s presentence report which reflected, in relevant part, a prior
history of criminal convictions including a 2016 conviction of domestic violence and two
convictions of casual exchange of drugs, one from 2007 and the other from 2010. The
Strong-R assessment, included in the presentence report, described the Defendant as
moderate risk with high or moderate needs in residential attitudes/behaviors, employment,
education, and aggression. As victim impact evidence, the State offered an email from the
victim’s mother into evidence as exhibit two, which stated, in pertinent part, as follows:
On the night [of the offense], my daughter [] asked if she could go out
to the car, which is right at our back door, to get her purse out of the car, in
which I allowed her, per usual. We had been living in our neighborhood for
at least six years and have never had any problems. As such, my daughter
grabs her purse. And as she turns around to walk back towards the house
was grabbed by [the Defendant], [who] tried to drag her up the hill, where
we later found out he resided. If my daughter hadn’t fought him off, she
probably wouldn’t be with us today.
At almost two years later, my daughter will not go outside alone . . .
especially not at night for months, maybe even a year. She would just have
breakdowns out of the blue. This situation still haunts her all the time and,
also, the rest of the family. I sometimes, myself, cry myself to sleep thinking
what could have happened that night. [The Defendant] has definitely put
fear that we would never [have] had in our hearts and almost made my worst
nightmare as a parent come true.
The psychosexual risk assessment, exhibit three, showed that the Defendant denied
involvement with the offense. Although he reported being in the same area as the victim
at the time of the offense, he said he was looking for his glasses he had lost earlier in the
day. He claimed he only entered a guilty to plea to avoid trial. The Defendant also omitted
two arrests from his criminal history, a misdemeanor theft and aggravated assault. He
disclosed occasional use of Valium and Xanax, but he failed to include this information in
the presentence report. The Defendant also disclosed additional criminal behavior
including arrests for driving under the influence, failure to appear, failure to pay child
support, and domestic assault.
Although the Defendant had been hospitalized in 2018 for attempted suicide, he
claimed this was an isolated incident. He had a limited support system with a high range of
risk for interpersonal skill deficits and poor adult attachment. He posed a medium range of
risk for violence toward others and a low to moderate range of risk for hostility toward
others. He denied any sexual interest in prepubescent children. However, objective tests
showed the Defendant had a strong sexualized fixation response to male and female
adolescents age thirteen to seventeen, which was significantly above normal, and
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sexualized interest in males age six to twelve and females age two to five. The report
concluded the Defendant had a moderate risk level to reoffend, and a poor prognosis for
treatment based on his inability to accept responsibility for the offense. Based on all three
exhibits, the State argued that the Defendant would not be successful on probation and
therefore recommended he be required to serve his eight-year sentence in confinement.
Defense counsel explained to the trial court that the Defendant did not fully
understand what he was doing during the psychosexual evaluation and that the Defendant
was “embarrassed” about “owning up to” the offense. Defense counsel advised the trial
court that “if [the Defendant] had to go through treatment, he was willing to admit what
happened.” Based on the Defendant’s compliant behavior since the offense, the
recommendation of outpatient treatment in the psychosexual report, and the moderate risk
to reoffend assessment in the presentence report, defense counsel argued the sentence
should be served on supervised probation.
The trial court asked if the Defendant wished to make a statement, and he initially
declined. Even though the length of the sentence had been determined previously by the
plea agreement, the State then asked the trial court to “enhance” the Defendant’s sentence
because the offense was committed “for pleasure or excitement,” the vulnerability of the
victim given her age, and “national news” of other individuals who were “similarly
situated.” Defense counsel disagreed and clarified that the instant case did not involve
sexual contact and the psychosexual assessment showed “no sexual boundary issues.”
Following a brief recess, defense counsel advised the trial court that the Defendant
had changed his mind and now wished to address the trial court and the victim’s family.
The Defendant then apologized “for not being honest with the [psychosexual assessment]
doctor” and explained he would accept any treatment. He also apologized to the victim’s
family for the “grief and trauma” he had caused them by his actions.
In ordering the Defendant to serve his sentence in confinement, the trial court
acknowledged that while the State’s arguments regarding enhancement and mitigating
factors were informative, they pertained to the length of the sentence which had been
determined by the plea agreement. The trial court then engaged in an extensive analysis
and determined that confinement was necessary to avoid depreciating the seriousness of
the offense, and due to the Defendant’s lack of potential for rehabilitation. The trial court
found the Defendant was not amenable to rehabilitation based upon his dishonesty in the
psychosexual report and his failure to give a report of the offense to the presentence
investigator. The trial court determined, consistent with the conclusions in the
psychosexual report, that the Defendant would be unable to complete long-term supervised
probation due to his inability to accept responsibility for his actions in the offense. The
Defendant filed a timely notice of appeal, and this case is now properly before this court
for review.
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ANALYSIS
The Defendant contends the trial court erred in denying alternative sentencing and
ordering a sentence of confinement. Specifically, he claims he satisfied the criteria to be
considered a favorable candidate for alternative sentencing, and the State failed to rebut the
statutory presumption. See State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) (citing T. C. A.
§ 40-35-102(6)). He further insists that the trial court abused its discretion in determining
(1) that confinement was necessary to avoid depreciating the seriousness of the offense;
and (2) given the Defendant’s allocution and in-court apology, that he was not amenable to
rehabilitation based on his failure to accept responsibility for the offense to the
psychosexual evaluator. In response, the State submits the Defendant is not eligible for the
statutory presumption for alternative sentencing because he agreed to be classified as a
Range II offender as part of the plea agreement. The State also asserts the trial court
properly imposed a sentence of confinement. We agree with the State.
We review the length and manner of service of a sentence imposed by the trial court
under an abuse of discretion standard with a presumption of reasonableness. State v. Bise,
380 S.W.3d 682, 708 (Tenn. 2012). “So long as there are other reasons consistent with the
purposes and principles of sentencing, as provided by statute, a sentence imposed by the
trial court within the appropriate range should be upheld.” Id. This standard of review also
applies to “questions related to probation or any other alternative sentence.” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A trial court only abuses its discretion
when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic
or reasoning that cause[s] an injustice to the party complaining.” State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997). The defendant has the burden of showing the impropriety
of the sentence on appeal. T.C.A. §40-35401(d), Sentencing Comm’n Cmts. “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.” Id. § 40-35-
103(5). The trial court must also impose a sentence “no greater than that deserved for the
offense committed” and “the least severe measure necessary to achieve the purposes for
which the sentence is imposed.” Id. §§ 40-35-103(2), (4). Finally, the “trial court’s decision
to grant or deny probation will not be invalidated unless the trial court wholly departed
from the relevant statutory considerations in reaching its determination.” State v.
Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014).
Any sentence that does not involve complete confinement is an alternative sentence.
See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). A trial court’s determination of
whether the defendant is entitled to an alternative sentence and whether the defendant is a
suitable candidate for full probation are different inquiries with different burdens of proof.
State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Tennessee Code Annotated
section 40-35-102(6)(A) states that a defendant who does not require confinement under
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subsection (5) and “who is an especially mitigated or standard offender convicted of a Class
C, D or E felony, should be considered as a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary[.]” However, a trial court “shall consider,
but is not bound by, the advisory sentencing guideline” in section 40-35-102(6)(A). Id.Tennessee Code Annotated section 40-35-303 states, in pertinent part, that “[a] defendant
shall be eligible for probation under this chapter if the sentence actually imposed upon the
defendant is ten (10) years or less[.]” T.C.A. §40-35-303(a) (2015). A defendant has the
burden of establishing that he is suitable for probation by “demonstrating that probation
will ‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982
S.W.2d 354, 357 (Tenn. Crim. App. 1997)). When considering whether to order full
probation, the trial court may consider “the circumstances of the offense, the defendant’s
potential or lack of potential for rehabilitation, whether full probation will unduly
depreciate the seriousness of the offense, and whether a sentence other than full probation
would provide an effective deterrent to others likely to commit similar crimes.” State v.
Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996) (citing T. C. A. §§ 40-35-210(b)(4),
-103(5), -103(1)(B) (1990)).
In determining whether to deny alternative sentencing and impose a sentence of total
confinement, the trial court should consider whether:
(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[.]
Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
As an initial matter, under the 2005 amendments to the sentencing guidelines,
defendants are no longer entitled to the statutory presumption for alternative sentencing as
the guidelines are advisory only. Carter, 254 S.W.3d at 347. Moreover, despite his status
as a standard offender, the Defendant agreed to enter a guilty plea as a Range II offender
to an eight-year sentence to be served at thirty-five percent release eligibility. Ordinarily,
the Defendant would be considered a favorable candidate for alternative sentencing
because his sentence was ten years or less. However, the State correctly points out that in
agreeing to be sentenced as a Range II offender, the Defendant agreed to classification as
a multiple offender for all purposes, including alternative sentencing. See State v. Homer
L. Evans, No. E2000-00069-CCA-R3-CD, 2001 WL 274069, at *4 (Tenn. Crim. App. Mar.
20, 2001) (“Although ‘Range I’ is a sentencing range, see T.C.A. § 30-45-112, not an
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offender classification, the multiple offender classification is the only classification that
receives a sentence within Range II.”). Multiple offenders are not presumed favorable
candidates for alternative sentencing. Id.; see also T.C.A. § 40-35-102(6); -106.
Accordingly, the Defendant was not eligible to be considered as a favorable candidate for
alternative sentencing under the statute because he pled guilty and agreed to be sentenced
as a Range II offender.
In any event, based on the record, we conclude that the trial court did not abuse its
discretion in denying probation and sentencing the Defendant to confinement. In reaching
its sentencing decision, the trial court expressly considered the factors in Tennessee Code
Annotated section 40-35-210(b) and the sentencing principles in Tennessee Code
Annotated sections 40-35-102 and 103. The record shows the trial court determined that
confinement was necessary to avoid depreciating the seriousness of the offense and due to
the Defendant’s lack of potential for rehabilitation. In considering whether confinement
was necessary to avoid depreciating the seriousness of the offense, the trial court noted:
[T]his [was] an extremely serious offense. Even though the child was
obviously psychologically harmed and emotionally harmed, fortunately, she
was not physically harmed. Now, what would have happened had she not
been able to get away and screamed? We may never know. But this is every
parent’s worst nightmare. I can’t imagine the circumstances of a case where
there wasn’t actually physical harm that can be any worse than this.
What you did, [Defendant], to this child, she will never get past that in her
life. This is something she will likely deal with as an adult with nightmares.
And we don’t have any psychological reports on her, but just common sense
tells us that this is something that will be with her the rest of her life.
So, the Court finds that the seriousness of this offense is as high as a
kidnapping can be without actually being physical injury to the victim.
In assessing the Defendant’s potential or lack of potential for rehabilitation for
treatment, the trial court observed as follows:
So that’s the one that the Court has to look closely to the Strong R
assessment in the PSI, the Defendant’s history and behavior and the
psychosexual risk assessment that was completed by [the evaluator].
And so as I’d mentioned, the strong R assessment came back as a
moderate risk. There wasn’t really anything that stood out to me too much
in that; a couple of risk factors that were somewhat concerning, but the
psychosexual is much more informative to the Court.
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And so although [the Defendant] has allocated after the last couple of
hours and said he’s sorry about it, he has given no explanation to the Court
about what drove this behavior. And he denied it to [the evaluator]. And
that is—besides the actual circumstance of this case—the one thing that is
most concerning to the Court, because I have no idea, Mr. Still why on earth
you engaged in this behavior. There are many nefarious reasons I can think
of and no innocent reasons I can think of.
....
But I share many of [the psychosexual evaluator’s] concerns. . . .
[D]ue to the client’s level of honesty on the assessment, possible Court
leverage, the client’s outpatient treatment has a poor prognosis. His
prognosis for long-term probation requiring him to complete treatment
appears poor to fair, due to being in complete denial of the offense. Without
leverage from the Court of probation, the client’s prognosis is considered
poor, as he would not attend treatment on his own.
We conclude that the trial court did not err in finding that the Defendant failed to
carry his burden in establishing his suitability for probation. See State v. Trotter, 201
S.W.3d 651, 653 (Tenn. 2006) (noting that the seriousness of the offense alone may justify
a trial court’s denial of alternative sentencing where offense is especially violent,
horrifying, or reprehensible); State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999)
(noting that a defendant’s rehabilitation potential and the risk of repeating criminal conduct
are fundamental in determining whether probation is appropriate); State v. Kimberly J. Hill,
No. W2018-01771-CCA-R3-CD, 2020 WL 473415, at *8 (Tenn. Crim. App. Jan. 29, 2020)
(citing Sihapanya, 516 S.W.3d at 476) (noting where the trial court does not base its
decision solely upon the need for deterrence or solely upon the circumstances of the
offense, the Trotter heightened standard of review does not apply). Moreover, because the
record reflects that the trial court carefully considered the evidence and the purposes and
principles of sentencing prior to imposing a sentence of confinement, the Defendant has
failed “to either establish an abuse of discretion or otherwise overcome the presumption of
reasonableness afforded” to the court’s sentence in this case. Caudle, 388 S.W.3d at 280.
Accordingly, we uphold the Defendant’s eight-year sentence of confinement in the
Tennessee Department of Correction.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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