State of Tennessee v. James Earl Pinchon, Jr. ( 2009 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs April 22, 2009
    STATE OF TENNESSEE v. JAMES EARL PINCHON, JR.
    Direct Appeal from the Circuit Court for Coffee County
    No. 36,298F    Charles Lee, Judge
    No. M2008-01513-CCA-R3-CD - Filed May 19, 2009
    In 2008, the Defendant pled guilty to introduction of contraband into a penal institution, and the trial
    court sentenced him to serve four years and nine months in the Tennessee Department of Correction.
    The Defendant now appeals his sentence claiming that the trial court erroneously denied his request
    for alternative sentencing. After a thorough review of the record and the applicable law, we
    conclude that the trial court properly sentenced the Defendant.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
    JERRY L. SMITH , JJ., joined.
    Kevin R. Askren, Tullahoma, Tennessee, for the Appellant, James Earl Pinchon, Jr.
    Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Sophia
    S. Lee, Assistant Attorney General; C. Michael Layne, District Attorney General, Jason M. Ponder,
    Assistant District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    I. Facts
    A. Background
    According to the presentence report entered into evidence at the Defendant’s sentencing
    hearing, on December 17, 2007, Officer Dustin Mansfield conducted a contraband search in the
    Coffee County Jail, and he smelled marijuana when he entered a bathroom. He asked the three
    inmates in the bathroom about the smell, and the Defendant handed Officer Mansfield a marijuana
    cigarette. The Defendant was charged with introduction of contraband into a penal facility, and he
    pled guilty to that offense on June 6, 2008.
    B. Sentencing Hearing
    At the Defendant’s sentencing hearing, the following evidence was presented: Tabitha
    London, the Defendant’s fiancee, testified that she had been involved with the Defendant for six
    years and that they had three children together. The children were ages four, three, and sixteen
    months. London planned to marry the Defendant upon his release. The last time the Defendant was
    released, he moved in with her, and he began working within five days of his release. London stated
    that the Defendant worked regularly for Smith’s Janitorial service, which was owned by the pastor
    of her church, and the Defendant also took care of their children. She also informed the court that
    she had seen a “dramatic change” in the Defendant since he was last released, and she explained that
    the Defendant gave his “life over to God” in that period. London testified that if the Defendant was
    given an alternative sentence he could work and help support their children, which she needed him
    to do because she did not receive any government assistance.
    The Defendant testified that he would like to be on probation so he could work to support
    his three children with London and his six additional children with other women. He said he knew
    he could return to his janitorial job at the church upon release, and he stated that he even would not
    “mind” a second or third job as well. The Defendant then testified at some length about the various
    errors in the presentence report about his prior criminal records. He did not dispute most of the
    offenses listed, and he acknowledged that his probation had been revoked twice. Additionally, the
    Defendant clarified that he had never been involved in gang activity. Speaking about the offense of
    introducing contraband into a penal institution, the Defendant apologized for the offense, and he
    explained that he was under a lot of stress because he found out that one of his daughters had a
    tumor, so he was trying to relax himself.
    On cross-examination, the Defendant acknowledged that, because of his frequent
    incarcerations, his family paid the child support he owed.
    After hearing the evidence presented, the trial court sentenced the Defendant to serve four
    years and nine months in the Tennessee Department of Correction. It is from this judgment that the
    Defendant now appeals.
    II. Analysis
    On appeal, the Petitioner claims that the trial court erroneously denied his request for
    alternative sentencing.
    When a defendant challenges the length, range or manner of service of a sentence, this Court
    must conduct a de novo review of the record with a presumption that “the determinations made by
    the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). As the
    Sentencing Commission Comments to this section note, the burden is now on the appealing party
    to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This
    means that if the trial court followed the statutory sentencing procedure, made findings of facts
    which are adequately supported in the record, and gave due consideration and proper weight to the
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    factors and principles relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103
    (2006), we may not disturb the sentence even if we would have preferred a different result. State v.
    Ross, 
    49 S.W.3d 833
    , 847 (Tenn. 2001). The presumption does not apply to the legal conclusions
    reached by the trial court in sentencing a defendant or to the determinations made by the trial court
    which are predicated upon uncontroverted facts. State v. Dean, 
    76 S.W.3d 352
    , 377 (Tenn. Crim.
    App. 2001); State v. Butler, 
    900 S.W.2d 305
    , 311 (Tenn. Crim. App. 1994); State v. Smith, 
    891 S.W.2d 922
    , 929 (Tenn. Crim. App. 1994). Specific to the review of the trial court’s finding
    enhancement and mitigating factors, “the 2005 amendments deleted as grounds for appeal a claim
    that the trial court did not weigh properly the enhancement and mitigating factors.” State v. Carter,
    
    254 S.W.3d 335
    , 344 (Tenn. 2008). The Tennessee Supreme Court continued, “An appellate court
    is therefore bound by a trial court's decision as to the length of the sentence imposed so long as it is
    imposed in a manner consistent with the purposes and principles set out in sections -102 and -103
    of the Sentencing Act.” Id. at 346.
    In conducting a de novo review of a sentence, we must consider: (1) any evidence received
    at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
    the nature and characteristics of the offense, (5) any mitigating or enhancement factors, (6) the
    information provided by the administrative office of the courts as to sentencing practices for similar
    offenses in Tennessee; and (7) any statements made by the defendant on his or her own behalf. See
    T.C.A. § 40-35-210 (2006); State v. Taylor, 
    63 S.W.3d 400
    , 411 (Tenn. Crim. App. 2001).
    A defendant not within “the parameters of subdivision (5) [of T.C.A. § 40-35-102], 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.” State v. Carter, 
    254 S.W.3d 335
    , 347 (Tenn. 2008) (citing T.C.A.§ 40-35-102(6)
    (2006)) (footnote omitted). To be sure, a “favorable status consideration” does not correlate to a
    presumption of such a status. Id. As with other sentencing issues, whether a defendant receives
    alternative sentencing will depend on the facts of the case. State v. Taylor, 
    744 S.W.2d 919
    , 922
    (Tenn. Crim. App. 1987). Additionally, we note that a trial court is “not bound” by the advisory
    sentencing guidelines; rather, it “shall consider” them. T.C.A.§ 40-35-102(6) (emphasis added).
    If a defendant seeks probation, then that defendant bears the burden of “establishing [his]
    suitability.” T.C.A. § 40-35-303(b) (2006). As the Sentencing Commission points out, “even
    though probation must be automatically considered as a sentencing option for eligible defendants,
    the defendant is not automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303
    (2006), Sentencing Comm’n Cmts.
    When sentencing the defendant to confinement, a 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
    3
    to commit similar offenses; or
    (C) Measures less restrictive than confinement have frequently or recently been
    applied unsuccessfully to the defendant.
    T.C.A. § 40-35-103 (2006).
    The Defendant was convicted of a Class C felony, and he is a Range I, standard offender.
    A standard offender may be sentenced to between three and six years for a Class C felony. T.C.A.
    § 40-35-112 (2006).
    When sentencing the Defendant, the trial court, while stating which enhancement factors it
    found applicable to the Defendant’s case, mentioned that the Defendant had two prior probation
    revocations. The Court then explained why it denied the Defendant alternative sentencing:
    The Court does not consider alternative sentencing in this matter to be appropriate
    as the defendant has both frequently and on numerous occasions in the past had
    applied to him measures less restrictive than incarceration unsuccessfully, and for
    those reasons, the Court does not consider the defendant to be amenable to
    rehabilitation.
    We conclude that the trial court properly denied the Defendant alternative sentencing. The
    Defendant was convicted of a Class C felony, which makes him a favorable candidate for alternative
    sentence. See T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. However, as the trial
    court found, measures less restrictive than confinement have frequently or recently been applied
    unsuccessfully to the Defendant. See T.C.A. § 40-35-103(1). The Defendant has violated his
    probation twice. That is sufficient to deny the Defendant alternative sentencing. We conclude the
    trial court properly denied the Defendant alternative sentencing, and the Defendant is not entitled
    to relief on this issue.
    III. Conclusion
    After a thorough review of the record and relevant authorities, we conclude that the trial court
    properly sentenced the Defendant to a period of incarceration. Accordingly, we affirm the judgment
    of the trial court.
    ________________________________
    ROBERT W. WEDEMEYER, JUDGE
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Document Info

Docket Number: M2008-01513-CCA-R3-CD

Judges: Judge Robert W. Wedemeyer

Filed Date: 4/22/2009

Precedential Status: Precedential

Modified Date: 10/30/2014