State of Tennessee v. Michael Robey ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1997 SESSION
June 6, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9607-CR-00291
Appellee, )
) Sumner County
V. )
) Honorable Jane Wheatcraft, Judge
)
MICHAEL WAYNE ROBEY, ) (Sentencing)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
David Allen Doyle Charles W. Burson
District Public Defender Attorney General & Reporter
Pamela E. Beck Karen M. Yacuzzo
Deputy Public Defender Assistant Attorney General
117 East Main Street Criminal Justice Division
Gallatin, TN 37066 450 James Robertson Parkway
Nashville, TN 37243-0493
Lawrence Ray Whitley
District Attorney General
C. Wayne Hyatt
Assistant District Attorney General
113 West Main Street
Gallatin, TN 37066
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Michael Wayne Robey, was indicted on two counts of
aggravated burglary and two counts of theft. As part of a plea agreement, the
two theft charges were dismissed; and he pled guilty to two counts of aggravated
burglary. The appellant was classified as a Range II, multiple offender and the
state recommended concurrent sentences of seven years at 35%.
After a sentencing hearing, the trial court accepted the state's
recommendation and sentenced the appellant to seven years in the Department
of Correction. He appeals challenging the manner of service of his sentence.
Upon review, we affirm.
The appellant contends that the trial court abused its discretion in failing
to grant him alternative sentencing. He contends that proof adduced at the
sentencing hearing shows that he has drug and alcohol problems which can best
be treated in a community-based alternative to incarceration.
Appellate review of a sentencing issue is de novo. Tenn. Code Ann. § 40-
35-401(d) (1990). The appellant has the burden of establishing the sentence
imposed by the trial court was erroneous. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In determining whether the appellant has carried this burden, this
Court must consider: (a) the evidence adduced at trial and the sentencing
hearing; (b) the presentence report; (c) the principles of sentencing; (d) the
arguments of counsel; (e) the nature and characteristics of the offense; and
(f) the appellant's potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103(5), - 210(b) (1990).
The appellant argues that he is entitled to presumptive suitability for
alternative sentencing because he committed a nonviolent offense carrying a
sentence of less than eight years. We disagree. Tenn. Code Ann. § 40-35-
102(6) provides this presumption only to those offenders classified as especially
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mitigated or standard offenders. The appellant can be considered for alternative
sentencing; but he is not entitled to a presumption for alternative sentencing
because he was classified as a Range II, multiple offender.
The trial judge considered several factors in sentencing the appellant to
seven years incarceration. She considered the appellant's extensive criminal
history1 and his admitted drug and alcohol problem. Furthermore, she found the
appellant to be insincere in his desire for treatment. One of the counts of his
probation revocation warrant was his failure to report to ordered counseling.
Finally, the trial judge stated that she felt the appellant was a threat to society.
We find that measures less restrictive than confinement have frequently
and recently been applied unsuccessfully to the appellant.2 He has received
repeated alternative sentences for past convictions. Nothing in the record
suggests that the trial judge made an erroneous decision. The appellant has
not carried his burden. He has well earned his status as a guest of the
Commissioner of the Department of Correction.
Appellant’s sentence is affirmed.
__________________________
PAUL G. SUMMERS, Judge
1
The record and the presentence report reveal that the appellant has been previo usly convicted 25 times for
various offenses. Four of these were felony convictions. Also, it appears the appellant was arrested on several other
occasions and the charges were dismissed .
2
The appellant was on probation when he committed the two instant offenses.
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CONCUR:
__________________________
DAVID G. HAYES, Judge
__________________________
JERRY L. SMITH, Judge
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