State v. Charles E. Miller ( 1997 )


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  •             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    JULY 1997 SESSION
    FILED
    August 22, 1997
    Cecil Crowson, Jr.
    Appellate C ourt Clerk
    STATE OF TENNESSEE,                  )    NO. 01C01-9607-CR-00290
    )
    Appellee                       )    DAVIDSON COUNTY
    )
    V.                                   )    HON. THOMAS H. SHRIVER, JUDGE
    )
    CHARLES E. MILLER                    )    (Sentencing)
    )
    Appellant                      )
    )
    FOR THE APPELLANT                         FOR THE APPELLEE
    Thomas H. Miller                          John Knox Walkup
    P.O. Box 681662                           Attorney General and Reporter
    Franklin, Tennessee 37068-1662
    Clinton J. Morgan
    Assistant Attorney General
    450 James Robertson Parkway
    Nashville, Tennessee 37243-0493
    Victor S. Johnson, III
    District Attorney General
    John C. Zimmerman
    Assistant District Attorney General
    Pamela Anderson
    Assistant District Attorney General
    Washington Square
    222 Second Avenue N., Suite 500
    Nashville, Tennessee 37201-1649
    OPINION FILED:______
    AFFIRMED AS MODIFIED
    William M. Barker, Judge
    Opinion
    The appellant, Charles E. Miller, appeals as of right the sentences he received
    following his nolo contendere pleas to one count of forgery and one count of theft. He
    argues on appeal that the trial court erred in ordering his incarceration in the
    Department of Correction, rather than ordering alternative sentencing. We have
    reviewed the record on appeal, and finding no reversible error, we affirm the trial
    court’s judgment as modified herein.
    The appellant was indicted for one count of forgery and one count of theft, both
    Class D felonies. See Tenn. Code Ann. §§ 39-14-105(3) and 39-14-114(c) (1991).
    Pursuant to a plea bargain agreement with the State, the appellant entered pleas of
    nolo contendere to both counts in exchange for concurrent eight-year sentences, the
    maximum sentence for a Range II multiple offender. The plea bargain agreement
    provided that the trial court would determine the manner of service of those
    sentences. Accordingly, on March 7, 1996, the trial court conducted a sentencing
    hearing, following which it ordered that the appellant serve those sentences in the
    Tennessee Department of Correction.
    In ordering the appellant’s incarceration, the trial court stated:
    We have two offenses that seem to be part of a pattern, a larger pattern
    involving a number of other persons. It’s not clear to me how the cases
    are interrelated or -- or who is the most culpable. In the whole thing,
    what it does appear is that [the appellant] is now thirty-seven or thirty-
    eight years old and can’t demonstrate he’s ever held a job. While his
    main criminal activity occurred mainly fifteen or so years ago,
    nevertheless, he has a record that throws him necessarily in range two.
    I guess where I fall with this is, the General is right about it, that
    the two eight year sentences, range two, concurrently, is a proper
    sentence. And so given this record, I don’t -- I really can’t much justify
    doing anything else. So that will be the sentence.
    When an appellant complains of his or her sentence, we must conduct a de
    novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
    2
    (1991). The burden of showing that the sentence is improper is upon the appealing
    party. Id. at Sentencing Commission Comments. This presumption, however, is
    conditioned upon an affirmative showing 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).
    During the sentencing hearing, the assistant district attorney, without any
    evidentiary support, argued that the appellant was a participant in a forgery scheme
    involving several others. It is apparent that the trial court considered the State’s
    argument and gave it great weight in its sentencing decision. Therefore, on appeal,
    the presumption that the sentence is correct must fail, and we will conduct a de novo
    review of the record. See Tenn. Code Ann. § 40-35-210(g) (Supp. 1996).1
    Our de novo review of the record on appeal convinces us that the trial court
    correctly denied the appellant alternative sentencing in lieu of incarceration. The
    appellant, sentenced as a Range II multiple offender, is not statutorily presumed to be
    a favorable candidate for alternative sentencing. See Tenn. Code Ann. § 40-35-
    102(6) (Supp. 1996).
    We find that confinement is necessary to protect society from the appellant
    because he has a long history of criminal conduct. See Tenn. Code Ann. § 40-35-
    103(1)(A) (1990). The appellant’s extensive criminal record includes three armed
    robbery convictions, one fraudulent use of a credit card conviction, one burglary
    conviction, one escape from the Department of Correction conviction, one conviction
    for possession of drug paraphernalia, two DUI convictions, and several driving
    violations. We also find that measures less restrictive than confinement have been
    unsuccessfully applied in the past to the appellant. See Tenn. Code Ann. § 40-35-
    103(1)(C). It appears that the appellant, on two earlier occasions, was placed upon
    1
    Tennessee Code Annotated, section 40-35-210(g) provides that “[a] sentence must be based
    on evidence in the record of the trial, the sentencing hearing, the presentence report, and the record of
    prior fe lony conviction s filed b y the District Attorney G ene ral as requ ired by §40-35-2 02(a ).”
    3
    probation and in each instance his probation was subsequently revoked. It further
    appears that the appellant was serving a third sentence on probation for a DUI
    conviction when the present offenses occurred.
    Finally, we note that the judgment form of the trial court in the appellant’s theft
    case, being case number 95-C-2130 in the Davidson County Criminal Court,
    incorrectly finds the appellant guilty of forgery rather than theft, and further, the
    judgment form indicates the appellant’s conviction for a Class C felony rather than a
    Class D felony for which appellant was indicted. Accordingly, we direct that the trial
    court enter a corrected judgment indicating that the appellant was found guilty of theft
    in an amount greater than one thousand dollars ($1,000) but less than ten thousand
    dollars ($10,000) and that the offense is a Class D felony.
    Based upon the foregoing, the judgment of the trial court is affirmed as
    modified.
    __________________________
    WILLIAM M. BARKER, JUDGE
    CONCUR:
    __________________________
    JOHN H. PEAY, JUDGE
    __________________________
    JERRY L. SMITH, JUDGE
    4
    

Document Info

Docket Number: 01C01-9607-CR-00290

Filed Date: 8/22/1997

Precedential Status: Precedential

Modified Date: 10/30/2014